General Terms and Conditions

These General Terms and Conditions apply to and are incorporated into each Contract Schedule.

1. Definitions and Interpretation
   1. The following definitions and rules of interpretation shall apply in this Agreement:
      “Additional Items” means where incurred:
      (a)        any taxes, duties or other charges levied by any Governmental or other authority in respect of or by reason of the supply, delivery, export or import of the Deliverables excluding however, taxes assessed on profits or gains;
      (b)        travel expenses and subsistence costs incurred by Company employees or consultants in attending the Customer’s sites for the performance of a Contract Schedule which shall be calculated and invoiced in accordance with that Contract Schedule;“Affiliate” means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity;“Aggregated Anonymous Data” means data submitted to, collected by, or generated by the Company (or its licensors) in connection with the Customer’s use of the Deliverables, but only in aggregate, anonymized form which doesn’t specifically identify the Customer, its personnel or any other third parties;“Agreement” means this agreement in its entirety, including the Cover Sheet at the front, each Order Form, each incorporated Contract Schedule and these General Terms and Conditions;“Business Day” means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;“Change” means any addition to, extension of or reduction of the scope of the Deliverables to be provided pursuant to a Contract Schedule or the addition of any additional Contract Schedules or of any Order Forms under a Contract Schedule, in accordance with Clause 3 (Change Procedure);“Change Order” has the meaning given in Clause 3.1;“Company’s Equipment” means any equipment, including tools, systems, cabling or facilities, provided by the Company to the Customer and used directly or indirectly in the supply of the Deliverables, including any such items specified in a Contract Schedule but excluding any such items which are the subject of a separate agreement between the parties under which title passes to the Customer;“Confidential Information” means any and all information of a confidential nature in the possession of or proprietary to one party (the “Disclosing Party”) disclosed to the other (the “Receiving Party”) whether before or after the date of this Agreement including any financial, technical, commercial or business information relating to the Disclosing Party’s products, operations, processes, business plans or intentions, know-how, personal data, software, source code, marketing opportunities and/or business affairs or those of its customers, suppliers, employees and/or business partners or the content of these General Terms and Conditions or any Contract Schedule;“Contract Schedule” means each Contract Schedule identified on the Cover Sheet at the front, each Order Form, including the clauses and the appendices and any specifications, plans or other documents which are relevant to each Contract Schedule and expressly incorporated as part of the 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;

      “Cover Sheet” means the cover sheet to this Agreement;

      “Customer’s Equipment” means any equipment, including tools, systems, cabling or facilities, provided by the Customer, its agents, subcontractors or consultants which is used directly or indirectly in the supply of the Deliverables including any such items specified in a Contract Schedule;

      “Customer Materials” means all documents, information, items and materials in any form, whether owned by the Customer or a third party, which are provided by the Customer to the Company in connection with a Contract Schedule, including (but not limited to) any data, information or other materials provided via any software provided as part of the Deliverables;

      “Data Protection Legislation” means all applicable laws, regulations, directives and codes of practice relating to the processing of personal data and privacy including, but not limited to the Data Protection Act 2018, the UK retained law version the General Data Protection Regulation (“UK GDPR”), the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003) and the Electronic Communications Data Protection Directive (2002/58/EC) including any relevant primary, subordinate or implementing laws, regulations, directives, or codes of practice and any replacement/subsequent European and/or UK legislation, as amended from time to time;

      “Deliverables” means the services, software, equipment or goods to be supplied under each Contract Schedule;

      “Fee” means the charges specified in each Contract Schedule;

      “Intellectual Property Rights” means patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, 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;

      “TUPE” means the Transfer of Undertakings (Protection of Employment) Regulations 2006; and

      “VAT” means value added tax chargeable under the Value Added Tax Act 1994.

   2. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made from time to time under that statute or statutory provision.
   3. 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.
   4. A reference to writing or written includes email but not fax.
   5. This Agreement shall be binding on, and ensure to the benefit of, the parties to this Agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.
2. General
   1. In the event of any inconsistency between these General Terms and Conditions, any Schedule, or Contract Schedule, the following order of priority shall apply with the document taking precedence listed first:
      1. Contract Schedule;
      2. Schedule to these General Terms and Conditions; and
      3. then these General Terms and Conditions.
   2. Subject to Clause 3 (Change Procedure), no variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
3. Change Procedure
   1. Either party may propose a Change, but no proposed Change shall come into effect until a relevant Change Order has been signed by both parties. A Change Order shall be a document in the form set out in Schedule 2 setting out the following information:
      1. a unique identifier;
      2. the title of the Change;
      3. the name of the originator and date of the request or recommendation for the Change;
      4. the reason for the Change;
      5. full details of the Change including any specifications, timeline for delivery and required Order Forms (to be attached to the Change Order);
      6. the charges, if any, to be made for the Change including all one-off (non-recurring) charges which may include, but not be limited to asset acquisition and disposal costs, lease commitment or lease termination costs;
      7. a timetable for implementation together with any proposals for acceptance of the Change;
      8. a schedule of payments (if appropriate);
      9. details of the likely impact, if any, of the Change on other aspects of the Contract Schedule and/or the relevant specification;
      10. such other information as the parties reasonably regard as relevant; and
      11. provision for the parties to record any agreement in writing to the proposed Change.
   2. Subject to Clause 3 any Customer request or Company recommendation for a Change, shall be subject to the following procedure:
      1. If the Company proposes a Change, it shall send a draft Change Order duly completed setting out the information in Clause 1 above to the Customer.
      2. If the Customer proposes a Change, it will give the Company notice of the details of the proposed change and request that the Company complete a Change Order in respect of the proposed Change setting out the information in Clause 1 above. The Company shall then complete a Change Order in respect of the proposed change as soon as reasonably possible, and in any event within twenty-eight (28) days of receiving notice from the Customer of the proposed Change.
      3. The Customer will within fourteen (14) days of receiving the Company’s completed Change Order respond to the Company under Clause 2.1 or 3.2.2, either accepting or rejecting the Change (giving reasons for such rejection) or requesting further information from the Company in respect of the Change (in which case the Company shall, where it is practicable to do so, provide the requested information as soon as reasonably possible).
      4. The Customer shall indicate its acceptance of the Change as set out in the Change Order by arranging for its signature by an authorised signatory, including on any Order Form as required. On the Customer accepting the Change (which is within its discretion) and the countersignature of the Company’s authorised officer or such other of its employees or agents who has the necessary authority to do so, the Change Order and Order Form (as applicable) shall become binding on both parties and the Company shall implement the Change to the timescales set out on the Change Order. The Customer shall duly fulfil any obligation it has under the Change Order.
   3. The Company reserves the right to make a Change which is either required for any legal or regulatory requirements applicable to the Deliverables or which is required by the Company’s licensors for any ongoing use of the Deliverables without following the process in Clause 2 or obtaining the Customer’s prior written agreement, provided always that the Company gives the Customer reasonable notice in writing of any such change so far as is reasonably practicable.
4. Company’s Responsibilities
   1. The Company shall:
      1. maintain all permissions and consents required by it to fulfil its obligations under this Agreement;
      2. perform the Deliverables under each Contract Schedule (to the extent that such Deliverables are services) with reasonable skill and care and exercise the degree of skill which would reasonably and ordinarily be expected from a skilled and experienced person engaged in the same type of undertaking under the same or similar circumstances, and in accordance with recognised industry standards and the terms of this Agreement;
      3. during the term of a Contract Schedule, assign personnel to provide the Deliverables who possess the requisite degrees of skill, qualification and experience required to fulfil the Company’s obligations under the Contract Schedule;
      4. use reasonable endeavours to meet any performance dates specified in a Contract Schedule but any such dates shall be estimates only and time for performance by the Company shall not be of the essence of this Agreement;
      5. where applicable, appoint a manager in respect of the Deliverables to be performed under each Contract Schedule, such person as identified in the Contract Schedule. That person shall have authority to contractually bind the Company on all matters relating to the relevant Deliverables (including by signing Change Orders). The Company may replace that person from time to time where reasonably necessary in the interests of the Company’s business;
      6. comply with all laws and regulations, as are applicable to it and/or the provision of the Deliverables;
      7. shall maintain adequate and reasonable insurance cover to enable it to comply with its obligations and meet its potential liabilities under this Agreement, and produce reasonable evidence of such insurance cover and the payment of premiums to the Customer upon request; and
      8. use reasonable endeavours to comply with the Customer’s IT security, premises, health and safety and environmental management policies as notified to it in writing under Clause 1.3, provided that it shall not be liable under this Agreement if, as a result of such observation, it is in breach of any of its obligations under this Agreement.
5. Customer’s Responsibilities
   1. The Customer shall:
      1. co-operate with the Company in all matters relating to the Deliverables and each Contract Schedule;
      2. appoint a manager in respect of the Deliverables to be performed under each Contract Schedule, such person as identified in the Contract Schedule. That person shall have authority to contractually bind the Customer on all matters relating to the relevant Deliverables (including by signing Change Orders);
      3. provide, for the Company, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Customer’s premises, office accommodation, data and other facilities as required by the Company including any such access as is specified in a Contract Schedule;
      4. provide to the Company in a timely manner all documents, information, items and materials in any form (whether owned by the Customer or a third party) required under a Contract Schedule or otherwise reasonably required by the Company in connection with the Deliverables and ensure that they are accurate and complete;
      5. inform the Customer of all health and safety and security requirements that apply at the Customer’s If the Customer wishes to make a change to those requirements which will materially affect provision of the Deliverables, it can only do so via the change control procedure set out in Clause 3(Change Procedure);
      6. ensure that all the Customer’s Equipment is in good working order and suitable for the purposes for which it is used and conforms to all relevant United Kingdom standards or requirements;
      7. obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable the Company to provide the Deliverables, including in relation to the installation of the Company’s Equipment, the use of all Customer Materials and the use of the Customer’s Equipment insofar as such licences, consents and legislation relate to the Customer’s business, premises, staff and equipment, in all cases before the date on which the provision of the Deliverables are to start;
      8. keep, maintain and insure the Company’s Equipment in accordance with the Company’s instructions from time to time and not dispose of or use the Company’s Equipment other than in accordance with the Company’s written instructions or authorisation;
      9. comply with all applicable laws and regulations; and
      10. comply with any additional responsibilities of the Customer as set out in the relevant Contract Schedule.
   2. To the extent that the Customer does not fulfil its obligations under any Contract Schedule, without prejudice to the Company’s other rights and remedies:
      1. The Company reserves the right to charge the Customer for any additional resources/services of the Company which, in the reasonable opinion of the Company, are required to perform the Deliverables due to the Customer’s failure and only to the extent that the purchase and allocation of such resources/services is approved in writing by the Customer in advance (acting reasonably); and
      2. the Company may change the Deliverables under the relevant Contract Schedule or any timetable for their performance provided that this action is only taken following consultation with the Customer and with the Customer’s prior written consent.
      3. If the Company’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees then, without prejudice to any other right or remedy it may have, the Company shall be allowed an extension of time to perform its obligations equal to the delay caused by the Customer.
6. Fees
   1. In consideration of the provision of the Deliverables by the Company, the Customer shall pay the Fees set out in each Contract Schedule.
7. Payment
   1. Unless and to the extent a Contract Schedule states otherwise, payment of all Fees (including Additional Items) shall be made by the Customer within thirty (30) days of the date of a valid invoice (delivered to the Customer’s nominated address for invoices)  from the Company. The Customer shall promptly issue any relevant information required by the Company to issue its invoices such as purchase order numbers.
   2. The Customer shall, within thirty (30) days of the date of an invoice submitted by the Company, have the right to dispute, in good faith, any amounts specified in such invoice. The Customer shall pay such amount of the invoice in question that is not disputed but shall be entitled to withhold the disputed amount until resolution of the dispute in question. The parties shall use all reasonable endeavours to resolve the dispute within thirty (30) days of the dispute Following resolution of such dispute, the Customer shall pay all outstanding sums agreed as being payable within ten (10) days of such resolution.
   3. Payment by the Customer of any invoice submitted by the Company shall be without prejudice to the Customer’s entitlement subsequently to dispute, in good faith, any part of such invoice which appears to have been incorrectly calculated or otherwise not payable to the Company.
   4. Subject to Clauses 2 and 7.3, without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Company any undisputed sum due under this Agreement on the due date:
      1. the Customer shall pay interest on the overdue sum until payment of the same, whether before or after judgment, at the rate of 4% (four per cent) over the Bank of England’s base rate from time to time or 4% (four per cent) per year for any period when the base rate is below 0%; and
      2. the Company may suspend part or all of the Deliverables until payment has been made in full.
   5. All sums payable to the Company under this Agreement:
      1. are exclusive of VAT, and the Customer shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and
      2. shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
   6. The Company may increase the charges under any Contract Schedule on an annual basis with effect from each anniversary of the date of this Agreement in line with the percentage increase in the Retail Price Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the date of this Agreement and shall be the latest available figure for the percentage increase in the Retail Price Index. The Company shall give the Customer not less than thirty (30) days’ notice of any proposed increase under this Clause 6.
   7. Any increase made pursuant to Clause 6 shall affect the charges under all Contract Schedules from the date that the increase takes effect and the calculation of charges for Contract Schedules entered into after the date that the increase takes effect.
8. Intellectual Property Rights
   1. In relation to the Deliverables (save as expressly stated otherwise in a Contract Schedule):
      1. the Company and its licensors shall retain ownership of all Intellectual Property Rights in the Deliverables, excluding the Customer Materials;
      2. the Company grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the relevant Contract Schedule to copy and modify the Deliverables (excluding the Customer Materials) for the purpose of receiving and using the Deliverables in its business; and
      3. the Customer shall not sub-license, assign or otherwise transfer the rights granted in Clause.
   2. In relation to the Customer Materials:
      1. the Customer and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials; and
      2. the Customer grants to the Company (and its licensors involved in the provision of the Deliverables) a fully paid-up, non-exclusive, royalty-free licence to copy and modify the Customer Materials for the term of this Agreement for the purpose of providing the Deliverables; and
      3. the Customer grants to the Company (and its licensors involved in the provision of the Deliverables) a perpetual, fully paid-up, non-exclusive, worldwide, transferrable and royalty-free licence to generate Aggregated Anonymous Data (and to freely use, copy, modify, create derivative works of, disclose and make available to third parties for their use and other exploitation, and otherwise exploit Aggregated Anonymous Data for any business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing products and services).
   3. The Company:
      1. warrants that the receipt, use of the Deliverables by the Customer shall not infringe any rights of third parties to the extent that the infringement results from copying;
      2. shall, subject to Clause 3, indemnify the Customer against all liabilities, costs, expenses, damages and losses and all other reasonable professional costs and expenses suffered or incurred or paid by the Customer arising out of any claim brought against the Customer for actual or alleged infringement of a third party’s Intellectual Property Rights, to the extent that the infringement or alleged infringement results from copying, arising out of the receipt and/or use by the Customer of the Deliverables;
      3. shall not be in breach of the warranty at Clause 3.1, and the Customer shall have no claim under the indemnity at Clause 8.3.2to the extent the infringement arises from:
         1. the use of Customer Materials in the development of, or the inclusion of the Customer Materials in, the Deliverables;
         2. any modification of the Deliverables, other than by or on behalf of the Company; and
         3. compliance with the Customer’s specifications or instructions.
   4. The Customer:
      1. warrants that the receipt and use in the performance of this Agreement by the Company, its agents, subcontractors or consultants of the Customer Materials shall not infringe the rights, including any Intellectual Property Rights, of any third party; and
      2. shall indemnify the Company (and its licensors) against all liabilities, costs, expenses, damages and losses and all other reasonable professional costs and expenses suffered or incurred or paid by the Company (or its licensors) arising out of or in connection with any claim brought against the Company, its agents, subcontractors, consultants or licensors for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the receipt or use in the performance of this Agreement of the Customer Materials and any misuse of any of the Deliverables by the Customer, any of its personnel or anyone else engaged by the Customer.
   5. If either party (“Indemnifying Party“) is required to indemnify the other party (“Indemnified Party“) under this Clause 8, the Indemnified Party shall:
      1. notify the Indemnifying Party in writing of any claim against it in respect of which it wishes to rely on the indemnity (“IP Claim“);
      2. allow the Indemnifying Party, at its own cost, to conduct all negotiations and proceedings and to settle the IP Claim, always provided that the Indemnifying Party shall obtain the Indemnified Party’s prior approval of any settlement terms, such approval not to be unreasonably withheld;
      3. provide the Indemnifying Party with such reasonable assistance regarding the IP Claim as is required by the Indemnifying Party, subject to reimbursement by the Indemnifying Party of the Indemnified Party’s costs so incurred; and
      4. not, without prior consultation with the Indemnifying Party, make any admission relating to the IP Claim or attempt to settle it, provided that the Indemnifying Party considers and defends any IP Claim diligently, using competent counsel and in such a way as not to bring the reputation of the Indemnified Party into disrepute.
9. Data Protection
   1. Each party shall comply at all times with the provisions of the Data Protection Legislation and the provisions of this Clause 9shall apply.
   2. To the extent that the Company processes personal data on behalf of the Customer under this Agreement or any Contract Schedule, the parties shall comply with the provisions of Schedule 1 (Data Protection).
10. Confidentiality
    1. Each party undertakes that:
       1. any person employed or engaged by it (in connection with this Agreement in the course of such employment or engagement) shall only use the other’s Confidential Information for the purposes of this Agreement;
       2. any person employed or engaged by it shall not disclose any of the other party’s Confidential Information to any third party without the prior written consent of the other party;
       3. it shall take all necessary precautions to ensure that the other’s Confidential Information is treated as confidential and not disclosed (save as aforesaid) or used other than for the purposes of this Agreement by their employees, servants, agents, sub-contractors, clients or representatives; and
       4. without prejudice to the generality of the foregoing, it shall not and nor shall any person engaged by it use the other’s Confidential Information for the solicitation of business from the other or by their servants or consultants or by any third party.
    2. The provisions of Clause 1 shall not apply to any information which:
       1. is or becomes public knowledge other than by breach of this Clause 10; or
       2. is in the possession of the Receiving Party without restriction in relation to disclosure before the date of receipt from the Disclosing Party; or
       3. is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure; or
       4. is independently developed without access to the relevant Confidential Information; or
       5. is required to be disclosed by reason of law, governmental or other regulatory authority or where necessary to defend or protect any of the parties’ respective rights hereunder.
    3. Nothing in this Clause shall be deemed or construed to prevent either party from disclosing any information obtained from the other party:
       1. to any Affiliate or employees, servants, agents, subcontractors, clients or representative or other person engaged by either party in connection herewith, provided that such party shall have obtained from such individual a signed confidentiality undertaking on substantially the same terms as are contained in this Clause 10; and
       2. to its professional advisers who are not direct competitors of the Company in accordance with the terms of this Agreement.
    4. Nothing in this Clause 10 shall prevent either party from using data processing techniques, ideas and know-how gained during the performance of this Agreement, in the furtherance of its normal business, to the extent that this does not constitute a disclosure of the other’s Confidential Information or an infringement of any Intellectual Property Rights.
11. Termination
    1. Without affecting any other right or remedy available to it, either party shall be entitled to terminate this Agreement wholly or partially with immediate effect by giving notice to the other party if:
       1. the other party is in material breach of a material term of this Agreement and fails to remedy the same within fourteen (14) days of notice so to do or immediately if the breach shall be irremediable;
       2. the other party repeatedly breaches any of the terms of this Agreement 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 this Agreement;
       3. 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 (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;
       4. the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
       5. 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 that other party (being a company) other than 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;
       6. 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 (being a company);
       7. 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;
       8. a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
       9. a creditor or encumbrancer of the other party 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 other party’s assets and such attachment or process is not discharged within fourteen (14) days;
       10. 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 1.3 to Clause 11.1.9(inclusive); or
       11. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
    2. Without affecting any other right or remedy available to it, the Company may terminate this Agreement wholly or partially with immediate effect by giving notice to the Customer if:
       1. the Customer fails to pay any amount due under a Contract Schedule on the due date for payment and remains in default not less than fourteen (14) days after being notified in writing to make such payment; or
       2. there is a change of Control of the Customer.
12. Consequences of Termination
    1. On termination or expiry of this Agreement or an individual Contract Schedule:
       1. all existing rights granted under the relevant Contract Schedule(s) shall cease automatically;
       2. the Customer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest (including any Usage Fees which have not already been accounted for)and, in respect of the Deliverables supplied but for which no invoice has been submitted, the Company may submit an invoice, which shall be payable immediately on receipt;
       3. where the Customer terminated this Agreement pursuant to Clause 1, the Company shall refund to the Customer any payment made in advance in respect of the unexpired term of the relevant Contract Schedule(s);
       4. the Customer shall, within a reasonable time, return all of the Company’s If the Customer fails to do so, then the Company may enter the Customer’s premises and take possession of the Company’s Equipment. Until the Company’s Equipment has been returned or repossessed, the Customer shall be solely responsible for its safe keeping;
       5. the Company shall on request return the Customer Materials together with (to the extent required under a Contract Schedule) details of all passwords and access codes used by the Company in providing the Deliverables; and
       6. the following Clauses shall continue in force: Clause 1 (Definitions and Interpretation), Clause 1 (Conflict), Clause8(Intellectual property rights), Clause 9 (Data Protection), Clause 10 (Confidentiality), Clause 12 (Consequences of termination), Clause 15 (Limitation of liability), Clause 17 (Non-solicitation), Clause 19.1 (Governing law), Clause 19.2 (Jurisdiction), Clause 19.3  (Dispute resolution procedure), Clauses 20.1 and 20.2 (Waiver), Clause20.4 (Severance).
    2. Termination or expiry of this Agreement shall not affect any 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 Agreement which existed at or before the date of termination or expiry.
13. TUPE Regulations
    1. The Company and the Customer recognise that the provision of services by the Company may amount to a “relevant transfer” within the meaning of the TUPE Regulations which would operate to transfer from the Customer to the Company the contracts of employment of the Customer’s employees who, prior the commencement of the relevant Contract Schedule, were performing duties which will form part of the services (“Transferring Employees”). In such circumstances, the Customer agrees that the Company may, in its sole discretion, terminate the employment of any Transferring Employees on or after the commencement of the relevant Contract Schedule.
    2. The Customer shall indemnify and keep indemnified the Company in full against all actions, proceedings, demands, costs, claims, orders, penalties, damages, payments made by way of settlement, expenses (including legal costs on an indemnity basis) or liabilities whatsoever arising at any time which the Company may suffer or incur arising directly or indirectly in connection with any Transferring Employees or termination of their employment including, without prejudice to the generality of foregoing, any matter directly or indirectly regarding pay, benefits, holiday pay, disciplinary action, any employee costs, sex (including pregnancy and maternity), age, race, religion or belief, gender reassignment, sexual orientation, marital status, civil partnership status or disability discrimination, equal pay, redundancy pay (statutory or otherwise), unfair dismissal, wrongful dismissal, breach of contract or any other claim or right of action (whether statutory, contractual or otherwise) or any failure or alleged failure to inform and/or consult with employees, trade unions or employee representatives under the TUPE Regulations.
    3. The indemnity in Clause 2 above shall not apply in relation to any compensation for discrimination on the grounds of sex (including pregnancy and maternity), race, age, religion or belief, gender reassignment, sexual orientation, marital status, civil partnership status or disability discrimination awarded by an employment tribunal in favour of any of the Transferring Employees which arises solely as a result of any act or omission by the Company on or after the commencement of the relevant Contract Schedule.
14. Force Majeure
    1. In each Contract Schedule, “Force Majeure Event” shall mean any circumstance not within a party’s reasonable control including, without limitation acts of God, flood, drought, earthquake or other natural disaster, epidemic or pandemic, terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations, nuclear, chemical or biological contamination or sonic boom, any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, collapse of buildings, fire, explosion or accident, any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this Clause, or companies in the same group as that party), and interruption or failure of utility service.
    2. Provided it has complied with Clause 3, if a party is prevented, hindered or delayed in or from performing any of its obligations under this Agreement (save in relation to any obligation to make payments when due) by a Force Majeure Event(“Affected Party“), the Affected Party shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
    3. The Affected Party shall:
       1. as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Agreement; and
       2. use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
    4. If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than sixty (60) days, the party not affected by the Force Majeure Event may terminate this Agreement with immediate effect by giving written notice to the Affected Party.
15. Limitation of Liability
    1. Nothing in this Agreement shall limit or exclude the either party’s liability for:
       1. death or personal injury caused by its negligence;
       2. fraud or fraudulent misrepresentation;
       3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or
       4. any other liability which cannot be limited or excluded by applicable law
    2. Subject to Clause 1, the Company shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement for:
       1. loss of profits;
       2. loss of sales or business;
       3. loss of opportunity;
       4. loss of agreements or contracts;
       5. loss of anticipated savings;
       6. loss of or damage to goodwill;
       7. loss of use or corruption of equipment, software, data or information (including the cost of recovery);
       8. loss of or damage to consumables or media; or
       9. indirect or consequential loss or damage whether arising from the Company’s negligence or otherwise.
    3. Subject to Clause 1, the Company’s total liability to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement shall be limited to the lower of:
       1. £1,000,000; and
       2. the total sum paid by the Customer under the Contract Schedule from which the liability in question has arisen in the 12 months’ prior to the liability in question arising.
    4. Except as expressly provided for in the Agreement:
       1. the Customer assumes sole responsibility for results obtained from the use of the Deliverables, and for conclusions drawn from such use
       2. the Company shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Company by the Customer in connection with the Deliverables, or any actions taken by the Company at the Customer’s direction; and
       3. all terms and warranties implied by law are expressly excluded to the fullest extent permitted by law.
    5. The Company is not liable to the Customer for any manufacturer’s defects or the resultant use thereof, However the Company shall ensure that any manufacturer’s warranty or guarantee is passed in full to the Customer.
    6. Where the Contract Schedule includes Services Levels and the accrual of Service Credits, such Service Credits will be the Customer’s sole and exclusive right and remedy for any failure to achieve the Service Levels, and the Company’s only obligation and liability in respect of such failures.
16. Assignment and Subcontracting
    1. The Customer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement without the prior written consent of the Company.
    2. The Company may at any time subcontract, assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under this Agreement.
    3. In the event of any proposed assignment by the Customer, the Company can make it a condition of consent that the Customer pays the Company all sums of money then owing by the Customer to the Company on any account whatsoever. The Company, as a condition of granting consent to an assignment may change payment terms under any Contract Schedule where it has reason to believe that the financial position of the third party is materially worse than the Customer.
    4. The Customer shall be entitled to disclose to any permitted assignee any Confidential Information of the Company which relates to any Contract Schedule including the provision of the Deliverables by the Company. In such circumstances, the Customer shall authorise the assignee to use such Confidential Information only for purposes relating to the performance of this Agreement and the provision of the Deliverables and for no other purposes and, for the avoidance of doubt, the Customer shall procure that the assignee shall be bound by the confidentiality requirements set out in any Contract Schedule.
17. Non-Solicitation
    1. During the term of any Contract Schedule and for a period of twelve (12) months from the expiry thereafter, neither party may directly or indirectly seek to employ or otherwise engage the other’s staff, without express permission from the other prior to any such engagement. This Clause shall not apply in the event that the either party terminates this Agreement in accordance with Clause 1.1 above or to staff who have applied for genuine vacancies advertised by such party without any enticement to do so by, or on behalf of, such party. If, in breach of this Clause, either party employs or engages a member of the other’s staff that party shall pay to the other, as compensation, an amount equal to the annual salary of that member of staff.
    2. In the event that the Customer wishes to employ, either directly or indirectly, any of the Company’s staff or any associates introduced by the Company to the Customer, the Customer agrees to pay to the Company a fee of twenty five percent (25%) of the annual salary (including benefits) of the individual so employed.
    3. Each party agrees that it shall not make, or cause to be made, any untrue statement or communicate any untrue information (whether oral or written) that disparages or reflects negatively on the Services, Software, the other party or a partner of the other party as the case may be or its management or employees. This Clause shall not, however, prohibit any party from testifying truthfully as a witness in any court proceeding or governmental investigation.
18. Notices
    1. Any notice given to a party under or in connection with this Agreement shall be in writing and shall be:
       1. delivered by hand or by pre-paid first-class post or other next Business Day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
       2. sent by email to the email address provided by the party for this purpose.
    2. Any notice shall be deemed to have been received:
       1. if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
       2. if sent by pre-paid first-class post or other next Business Day delivery services, at 9.00 am on the second Business Day after posting;
       3. if sent by email, at 9.00 am on the next Business Day after transmission.
    3. This Clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute
19. Law, Jurisdiction and Dispute Resolution
    1. This Agreement 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.
    2. Save as provided in Clause 3, each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.
    3. If a dispute arises out of or in connection with this Agreement or the performance, validity or enforceability of it (“Dispute“) then except as expressly provided in this Agreement, the parties shall follow the procedure set out in this Clause:
       1. either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (“Dispute Notice“), together with relevant supporting documents. On service of the Dispute Notice, the MIS Director of the Customer and the Chief Executive Officer of the Company shall attempt in good faith to resolve the Dispute;
       2. if the MIS Director of the Customer and the Chief Executive Officer of the Company are for any reason unable to resolve the Dispute within thirty (30) days of it being referred to them, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator shall be nominated by CEDR. To initiate the mediation, a party must serve notice in writing (“ADR notice“) to the other party to the Dispute, requesting a mediation. A copy of the ADR notice should be sent to CEDR. The mediation will start not later than thirty (30) days after the date of the ADR notice.
    4. No party may commence any court proceedings under Clause 2 in relation to the whole or part of the Dispute until thirty (30) days after service of the ADR notice, provided that the right to issue proceedings is not prejudiced by a delay.
20. General Provisions
    1. Failure or neglect by either party to enforce at any time any of the provisions of a Contract Schedule shall not be construed nor shall be deemed to be a waiver of such party’s rights hereunder nor in any way affect the validity of the whole or any part of a Contract Schedule nor prejudice that party’s rights to take subsequent action.
    2. Any waiver of a breach of any of the terms of a Contract Schedule or of any default under a Contract Schedule shall not be deemed a waiver of any subsequent breach or default and shall not affect the other terms of that Contract Schedule.
    3. No waiver of any of the provisions of a Contract Schedule shall be effective unless it is expressly stated to be a waiver and communicated to the other party in writing.
    4. 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.
    5. Each party shall from time to time upon the request of the other party, execute any additional reasonable documents and do any other reasonable acts or reasonable things which may reasonably be required to implement the provisions or the purposes of a Contract Schedule.
    6. This Agreement 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.
    7. 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.
    8. Nothing in this Agreement 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.
    9. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
    10. No term of this Agreement is intended to confer a benefit on, or be enforceable by, a person who is not a party to this Agreement (whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise), save that any licensors of the Company involved in the provision of Deliverables shall be entitled to enforce any terms which are expressly or implied for their benefit.
    11. The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this Agreement are not subject to the consent of any other person.

Schedule 1 – Data Protection

The terms used in this Schedule have the meanings set out below. Capitalised terms not otherwise defined in this Schedule shall have the meanings given to them in the General Terms and Conditions.

1. DEFINITIONS
   1. The following additional definitions and rules of interpretation shall apply:
      

      Agreed Purpose	has the meaning given to it in Clause 3.3 of this Schedule.
      Applicable Law	has the meaning given to it in Clause 4.2 of this Schedule.

   2. The terms Controller, Processor, Data Subject, Personal Data, Process and Supervising Authorities shall be as defined by the Data Protection Legislation.
2. COMPLIANCE WITH DATA PROTECTION LEGISLATION
   1. This Schedule sets out the framework for the sharing of Personal Data between the parties as Controller (the Customer) and Processor (the Company).
   2. In the event that the Data Protection Legislation changes in a way that this Schedule is no longer adequate for the purpose of governing lawful data processing exercises, the parties will negotiate in good faith to amend this Schedule and/or the Agreement in light of such new legislation.
   3. This Schedule is in addition to and does not relieve, remove or replace a party’s obligations under the Data Protection Legislation. Both parties shall comply with all applicable requirements of the Data Protection Legislation.
3. PURPOSE
   1. The parties consider the sharing of Personal Data is necessary for the fulfilment of the Company’s obligations under aContract Schedule.
   2. The Appendix to this Schedule sets out the nature and purpose of Processingof Personal Data by Company under the relevant Contract Schedule, the duration of the Processing, the types of Personal Data and the categories of Data Subject. The content of the Appendix has been agreed by both Company and the Customer and shall be subject to annual review in accordance with Clause 8 of this Schedule.
   3. Company shall not process Personal Data in a way that is incompatible with the purpose of processing described in the Appendix (the “Agreed Purpose“).
4. CUSTOMER OBLIGATIONS
   The Customer shall:
   1. ensure that it is entitled to transfer the necessary Personal Data to Company so that Company may lawfully use, Process and transfer such Personal Data in order to provide the agreed services for the duration and purpose of the Contract Schedule; and
   2. be responsible for maintaining the accuracy of Personal Data shared under this Schedule. Company shall promptly comply with any request from the Customer requiring Company to amend or transfer the Personal Data.
5. COMPANY OBLIGATIONS
   The Company shall:
   1. maintain and make available to the Customer sufficient records and information to demonstrate its compliance with the obligations laid down in the Data Protection Legislation and this Schedule and allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer;
   2. process the Personal Data only in accordance with written instructions given by the Customer unless Company is required by the national laws of the United Kingdom to process the Personal Data(Applicable Law). Where the Company is relying on Applicable Law as the basis for Processing Personal Data, it shall promptly notify the Customer of the same before performing such Processing unless the Applicable Law prohibits Company from notifying the Customer;
   3. promptly inform the Customer in the event that the Company reasonably believes that the Customer’s instructions breach the Data Protection Legislation;
   4. ensure that it has in place appropriate technical and organisational measures 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 such unauthorised or unlawful Processing or accidental loss, destruction or damage and the nature of the Personal 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);
   5. taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing, provide the Customer with co-operation and assistance in ensuring its compliance with the obligations laid down in the Data Protection Legislation concerning the security of Processing including the implementation of appropriate technical and organisational measures to ensure a level of security appropriate to that risk;
   6. treat the Personal Data as strictly confidential;
   7. ensure that access to the Personal Data is limited to those employees who need access to the Personal Data to enable the Company to fulfil its rights and obligations under this Schedule and under the Contract Schedule and that such employees are obliged to keep the Personal Data confidential;
   8. not transfer any Personal Data outside of the United Kingdom without first entering into an addendum to the Agreement to deal with such transfer and to ensure that appropriate safeguards are put in place;
   9. promptly inform the Customer of any complaints, requests or enquiries received from Data Subjects under the Data Protection Legislation, including but not limited to requests Articles 15, 16, 17, 18, 20, 21 and/or 22 of the UK GDPR, and shall provide the Customer with co-operation and assistance in relation to such complaints, requests or enquiries;
   10. assist the Customer in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with Supervising Authorities or regulators;
   11. notify the Customer without undue delay, upon becoming aware of a personal data breach (the accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, or any other unlawful form of processing) and co-operate fully with the Customer to the extent required with regard to the notification of the data breach to the relevant Supervising Authorities and the communication of the data breach to the affected Data Subject(s);
   12. assist the Customer with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which the Customer reasonably considers to be required by Articles 35 or 36 of the UK GDPR.
   13. not retain or process Personal Data for longer than is necessary to carry out the Agreed Purpose and at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the Contract Schedule unless required by Applicable Law to store the Personal Data; and
   14. at the Customer’s request, provide to the Customer with a copy of all Personal Data held by it in connection with the ContractSchedule, in the format and on the media reasonably specified by the Customer.
6. SUBCONTRACTORS
   1. The Customer hereby authorises the Company to appoint subcontractors to carry out processing of Personal Data pursuant to this Schedule in accordance with this Clause 6 and any restrictions contained within the Contract Schedule (“Sub-processors“).
   2. The Company may continue to use those Sub-processors already engaged by the Company as at the date of this Schedule to process Personal Data in connection with the provision by the Company of services to the Customer under a Contract Schedule.
   3. The Company shall give the Customer prior written notice of the appointment of any new Sub-processor including full details of the processing to be undertaken by the Sub-processor. If within thirty (30) days of receipt of that notice, the Customer notifies the Company in writing of any objections to that proposed appointment the Company shall not appoint such new Sub-processor until reasonable steps have been taken to address the objections raised by the Customer.
   4. With respect to each Sub-processor, the Company shall meet the requirements of Article 28(4) of the GDPR including putting in place written contract including terms which offer at least the same level of protection for Personal data as those set out in this Schedule and which meet the requirements of the UK GDPR.

Downloads

• Appendix to Schedule 1 – Data Processing Schedule.docx
• Schedule 2 – Change Order.docx