- 1.1. The definitions and rules of interpretation in this clause apply in these Conditions.
- 1.1.1. Definitions
Acceptable Use Policy: the Supplier’s policy concerning the use of the Services.
Assumed Contracts: contracts that the Supplier identifies as part of the Set-up Service and that will be subject to the obligations of clause 3.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Change of Control: a change in Control of the Client.
Client Data: any information that is provided by or on behalf of the Client to the Supplier as part of the Client’s use of the Services, including any information derived from such information.
Client Hardware: the Client’s equipment.
Client Personal Data: means any personal data which is transmitted by or on behalf of Client to, or is otherwise processed by, Supplier under the Contract or which is generated under the Contract.
Client Site: any premises occupied by the Client at which it receives the Services as set out in the Contract Details.
Commencement Date: has the meaning given in clause 2.2.
Compensation Payment: the payment calculated in accordance with clause 13.3.
Conditions: these terms and conditions as amended from time to time in accordance with clause 14.5.
Contract: the contract between the Supplier and the Client for the supply of Services in accordance with the Contract Details these Conditions and any Schedules.
Confidential Information: all confidential information (however recorded or preserved) disclosed by a party or its employees, officers, representatives, advisers or subcontractors involved in the provision or receipt of the Services (together, its Representatives) to the other party and that party’s Representatives in connection with the Contract which information is either labelled as such or should reasonably be considered as confidential because of its nature and the manner of its disclosure.
Contract Details: the contract details made between the Client and the Supplier which form part of the Contract.
Control: in respect the Client, the acquisition of either: a. the voting rights attaching to 25% or more of the voting shares in the Client; or b. the power to direct or cause the direction and management of the policies of the Client in accordance with the acquirer’s wishes, whether as a result of the ownership of shares, control of the board of directors, contract or any powers conferred by the articles of association or other constitutional documents of the Client.
Controller, Processor, Data Subject, Personal Data, Personal Data Breach, Processing: have the meanings given in the Data Protection Legislation.
Data Protection Legislation: means applicable national privacy and data protection laws in force from time to time in the UK including the DPA and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426) (as amended) (Privacy Regulations) as amended by the Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2011 (SI 2011/1208), the Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2015 (SI 2015/355) and the Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2016 (SI 2016/524) and all subordinate and ancillary legislation or any replacement legislation applicable in the UK from time to time that relate to privacy and/or data protection (whether in whole or part) in the UK in each case as may be amended, supplemented or replaced from time to time.
Default: any breach of the obligations of the relevant party (including but not limited to fundamental breach or breach of a fundamental term) or any other default, act, omission, negligence or statement of the relevant party, its employees, servants, agents or subcontractors in connection with or in relation to the subject-matter of the Contract and in respect of which such party is liable to the other.
DPA: the Data Protection Act 2018.
Fees: the fees payable by the Client to the Supplier for the supply of the Services as set out in the Contract Details and Schedule 1.
Good Industry Practice: the standards of a skilled and experienced provider of services similar or identical to the Services, having regard to factors such as the nature and size of the parties, the Service Level Arrangements, the term, the pricing structure and any other relevant factors.
Hardware: the physical telecommunications, networking and computer equipment (including switches, routers, cables, servers, racks, cabinets and peripheral accessories) provided and used by the Supplier to deliver the Managed Services to the Client.
Initial Term: the period of 3 years from the Commencement Date.
Install: attendance by the Supplier at the Client’s Site in order to configure a new device or Client Equipment.
Intellectual Property Rights: any and all intellectual property rights of any nature, whether registered, registerable or otherwise, including patents, utility models, trade marks, registered designs and domain names, applications for any of the foregoing, trade or business names, goodwill, copyright and rights in the nature of copyright, design rights, rights in databases, moral rights, know-how and any other intellectual property rights that subsist in computer software, computer programs, websites, documents, information, techniques, business methods, drawings, logos, instruction manuals, lists and procedures and particulars of customers, marketing methods and procedures and advertising literature, including the “look and feel” of any websites, and in each case all rights and forms of protection of a similar nature or having equivalent or similar effect to any of these that may subsist anywhere in the world, in each case for their full term, together with any future rights and renewals or extensions.
Malicious Software: any software program or code intended to destroy, interfere with, corrupt, or cause undesired effects on program files, data or other information, executable code or application software macros, whether or not its operation is immediate or delayed, and whether the malicious software is introduced wilfully, negligently or without knowledge of its existence.
Services: the service described in the Contract Details to be performed by the Supplier in accordance with the Contract.
Service Specification: the specification for the Services as described in the Contract Details.
Normal Business Hours: 8.00 am to 6.00 pm local UK time on Business Days.
Service Levels: the level of service to be provided in respect of the Services as described in the Contract Details and Schedule 2.
Software: any software used by the Supplier to provide the Services to the Client whether owned by a third party (Third-Party Software), by the Client (Client Software) or by the Supplier (Supplier Software).
Sub-Contract: means any contract between the Supplier and a third party pursuant to which the Supplier engages or authorises a Sub-Contractor to process any Personal Data.
Sub-Contractors: those persons with whom the Supplier enters into a Sub-Contract or its servants or agents, and any third party with whom that third party enters into a sub-contract or its servants or agents.
Supervisory Authority: means the UK’s Information Commissioner’s Office or replacement authority responsible for the monitoring and enforcement of the Data Protection Legislation.
Supplier’s System: the information and communications technology system to be used by the Supplier (or any of its subcontractors) in performing the Services,.
Termination Notice: a notice to terminate the Contract or the whole or any part of the Services either immediately or at a date specified in the notice.
VOIP and Lease Line Services: the VOIP services supplied by the Supplier incorporating the terms set out in a schedule to the Contract Details or in a separate document supplied to the Client.
VOIP and Lease Line Terms of Service: the Supplier’s terms and conditions relating to the VOIP and Lease Line Services set out in a schedule to the Contract Details or in a separate document supplied to the Client.
- 1.1.2. Rules of Interpretation. (a) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision. (b) Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms. (c) A reference to writing or written includes fax and email.
2. Basis of contract
- 2.1 The Contract Details constitute an offer by the Client to purchase Services in accordance with these Conditions.
- 2.2 The Contract shall come into existence when the Supplier signs the Contract Details or issues written acceptance of the Client’s order (Commencement Date).
- 2.3 Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
- 2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
- 2.5 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
3. Supply of Services
- 3.1. The Supplier shall supply the Services to the Client in accordance with the Service Specification in all material respects.
- 3.2 The Supplier shall use all reasonable endeavours to meet any performance dates, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
- 3.3 The Supplier reserves the right to amend the Service Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Client in any such event.
- 3.4 The Supplier warrants to the Client that the Services will be provided using reasonable care and skill.
- 3.5 The Supplier will provide the Services as from the Commencement Date until expiry or termination of the Contract for any reason.
- 3.6 The Supplier undertakes that the Services will be performed: 3.6.1 with reasonable care, skill and in accordance with Good Industry Practice; and 3.6.2 in accordance with the Supplier’s own procedures and practices.
- 3.7 The undertakings in clause 3.6 shall not apply to the extent of any non-conformance that is caused by use of the Services contrary to the Supplier’s instructions.
- 3.8 If the Services do not conform with the undertakings in clause 3.6 the Supplier shall, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Client with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Client’s sole and exclusive remedy for any breach of the undertakings in clause 3.6.
- 3.9 Notwithstanding the foregoing, the Supplier does not warrant that the Client’s use of the Services shall be uninterrupted or error-free.
- 3.10 The Supplier shall, from the Commencement Date, aim to meet the Service Levels, however the Service Level Arrangements and related provisions, shall only apply with effect from the start of the first complete month occurring at least 90 days after the Commencement Date.
- 3.11 The Supplier reserves the right to: a) modify the Supplier’s System, its network, system configurations or routing configuration; or b) modify or replace any Hardware or Software in its network or in equipment used to deliver any Service over its network, provided that this has no material adverse effect on the Supplier’s performance of its obligations under the Contract.
- 3.12 The Supplier will supply the VOIP and Lease Line Services and the VOIP and Lease Line Terms of Service will apply to the supply of those VOIP and Lease Line Services. In the event of any conflict between the Contract and the VOIP and Lease Line Terms of Service, the terms of the VOIP and Lease Line Terms of Service shall take precedence.
4. Client Data and Data Protection
- 4.1. The Supplier shall not store, copy, disclose, or use the Client Data except as necessary for the performance by the Supplier of its obligations under the Contract or as otherwise expressly authorised in writing by the Client.
- 4.2. The Supplier shall if specifically requested by the Client perform secure back-ups of all Client Data in accordance with Good Industry Practice. The Supplier shall at the Client’s cost make such back-ups available to the Client at all reasonable times upon reasonable request.
- 4.3. Both parties shall comply with all applicable requirements of the Data Protection Legislation. This clause is in addition to, and does not relive, remove or replace, a party’s obligations under the Data Protection Legislation.
- 4.4. The parties acknowledge that if the Supplier Processes any Personal Data on the Client’s behalf when performing its obligations under the Contract, the Client is the Controller and the Supplier is the Processor.
- 4.5 The Supplier shall in relation to any Personal Data Processed in connection with the performance by the Supplier of its obligations under the Contract: a) comply with the Data Protection Legislation when Processing the Personal Data; and b) Process that Personal Data in respect of the provision of the Services only in accordance with the written instructions of the Client from time to time unless the Supplier is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Supplier (Applicable Laws) to the extent, and in such a manner, as is reasonably necessary to supply the Services in accordance with the Contract or as is required by any applicable law;
- 4.6 In relation to the security and confidentiality of the Personal Data, the Supplier shall:
- 4.6.1 implement, taking account of the nature of the Processing, appropriate technical and organisational measures to protect against unauthorised or unlawful Processing of Personal Data and against accidental loss or destruction of, or damages to, Personal Data appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
- 4.6.2 not (and shall ensure that its personnel do not) publish, disclose or divulge any Personal Data to any third party, nor allow any third party to process Personal Data on the Supplier’s behalf without the prior written consent of the Client;
- 4.6.3 not transfer any Personal Data outside the European Economic Area (EEA) unless the following conditions are fulfilled: (i) the Supplier has obtained the Client’s prior written consent; and (ii) if the Client consents to any transfers pursuant to clause 4.6.3, the Supplier shall ensure that the following conditions are met in relation to such transfers: (a) the Data Subject has enforceable rights and effective legal remedies; (b) the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and (c) the Supplier complies with reasonable instructions notified to it in advance by the Client with respect to the Processing of the Personal Data; and
- 4.6.4 be generally authorised (and the Client hereby consents to) to engage or authorise Sub-Contractors sub-processors to Process the Personal Data, provided that: (i) the Sub-Contractor has either entered into a direct contract with the Client or a contract with the Supplier which incorporates the provisions equivalent to those in the Contract in relation to confidentiality, data protection and security; (ii) where a Sub-contractor is appointed pursuant to this clause, the Supplier shall remain liable for the acts and omissions of that Sub-Contractor as if they were the Supplier’s own; and (iii) and shall notify the Client of any intended changes to sub-processors or the sub-processing terms;
- 4.6.5 ensure Supplier staff who will have access to Personal Data are subject to appropriate confidentiality obligations;
- 4.6.6 notify the Client without undue delay after becoming aware of any Personal Data Breach involving Client Data, taking into account the nature of the Processing and the information available to Supplier. The Client confirms that it has reviewed Supplier’s breach notification policy, systems and guidance and concluded that they are suitable and adequate for the nature of the Processing under the Contract;
- 4.6.7 taking into account the nature of the Processing by the Supplier and the information available to the Supplier, reasonably assist the Client (at the Client’s expense) with meeting the Client’s compliance obligations under the Data Protection Legislation in relation to: (i) the Client’s obligations in relation to responding to Data Subject requests, including (but not limited to) the following : (a) complying with the relevant timescales as set out in the Data Protection Legislation but strictly in accordance with the Client’s instructions; (b) providing the Client with any Personal Data that it holds in relation to the Data Subject making the complaint or request within the timescales are required by the Client; and (c) providing the Client with any other information as so requested by the Client in this regard; (ii) the security of the Personal Data; (iii) notifying Personal Data breaches to the relevant supervisory authority; (iv) communicating personal data breaches to the Data Subject; (v) impact assessments and related consultations with supervisory authorities or regulators.
- 4.7 on the expiry or termination of the Contract the Supplier shall (without prejudice to and in addition to its obligations upon expiry or termination of the Contract) notify the Client of the Personal Data it holds. If requested in writing by the Client (or any replacement supplier as nominated by the Client) ceasing to provide the Services and at the Client’s option, either return or delete all copies of the Personal Data Processed by or on behalf of the Client unless the Supplier is required by Applicable Laws to retain any copies of such data;
- 4.8 make available to the Client such information as the Client reasonably requests and Supplier is reasonably able to provide to enable the Client to verify that Supplier is in compliance with its obligations in this clause;
- 4.9 permit and contribute to such audits, including inspections, conducted by the Client (or the Client’s appointed auditors), as is necessary to demonstrate Supplier’s data processing activities under the Contract are in compliance with the Data Protection Legislation. The Client will give reasonable notice of any audit and will be fully liable for any associated costs (including those of Supplier);
- 4.10 maintain complete and accurate records and information to demonstrate its compliance with this clause 4.
- 4.11 Without prejudice to the generality of clause 4.3, the Client warrants, represents and undertakes to Supplier that it has either: 4.11.1 all necessary consents and notices in place to enable lawful transfer of the Personal Data to the Supplier for the duration and purposes of the Contract so that the Supplier may lawfully use, Process and transfer the Personal Data in accordance with the Contract on the Client’s behalf; or 4.11.2 lawful grounds under the Data Protection Legislation for Processing the Personal Data.
- 4.12 The Supplier will provide a separate document which sets out the scope, nature and purpose of processing by the Supplier, the duration of the processing and the types of personal data and categories of Data Subject.
- 4.13 The Supplier shall inform the Client in writing if, in Supplier’s opinion, an instruction from the Client infringes the Data Protection Legislation but only in relation to a breach of General Data Protection Regulation ((EU 2016/679)) and/or other Union or Member State data protection provisions and not jurisdictions outside of these areas. The Client acknowledges that: (a) any information Supplier provides is not legal advice or guidance in anyway whatsoever, and that Supplier makes no warranty or representation regarding the information (express or implied); and (b) this clause shall not relieve the Client of its obligation to ensure that all instructions to Supplier comply with all applicable legislation, including all Data Protection Legislation; and (c) Supplier may charge the Client its reasonable costs (or the rates otherwise agreed between the parties) for its time spent and expenses incurred in providing the Client with co-operation and assistance as required by this clause.
- 4.14 Notwithstanding anything to the contrary in the Contract, if any of the following occur: (a) any changes/modifications to the Data Protection Legislation (including in connection with the withdrawal of the United Kingdom from the European Union and/or the EEA) including the requirement to amend, update, modify or replace any systems Supplier use to process the Client Data; (b) any new, clarified or amended guidance or polices issued by a supervisory authority; (c) any direction or instruction issued by a supervisory authority (whether relating to Client or Supplier in respect of the Services (including any processing of the Client Data), then any increased effort or costs incurred by Supplier in association with the aforementioned shall be additionally chargeable to the Client.
- 4.15 The Client acknowledges that the Supplier is reliant on the Client alone for direction as to the extent the Supplier is entitled to use and Process the Personal Data. The Supplier shall be entitled to relief from liability in circumstances where a Data Subject makes a claim or complaint with regards to the Supplier’s actions to the extent that such actions directly result from instructions received from the Client.
- 4.16 The Client shall, at all times during and after the term of the Contract, indemnify keep the Supplier indemnified and defend at its own expense the Supplier against all liability, fines, claims, demands, expenses, damages or costs (including legal fees) incurred by , awarded against or the Supplier or for which the Supplier may become liable due to: (a) any failure by the Client or its employees or agents to comply with and of its obligations under the Contract or the Data Protection Legislation; or (b) any breach of Data Protection Legislation by the Supplier where it has acted in accordance with or in reliance upon any instruction, policy or procedure of the Client (Instruction). Any limitation of liability set forth in the Contract will not apply to the indemnity or reimbursement obligations set out in this clause.
- 4.17 The Client warrants and represents that: (i) any Instruction, policy or procedure shall be lawful (ii) the Supplier’s expected use of the Personal Data for the performance of the Services and as specifically instructed by the Client will comply with the Data Protection Legislation.
5. Change in Law
- 5.1. Notwithstanding anything to the contrary in the Contract, if Supplier’s efforts or costs in performing the Services (including any Processing undertaken by the Supplier in accordance with the Contract) increase as a result of: 5.1.1. any change to the Data Protection Legislation (including without limitation as a result of, or following, Brexit); 5.1.2. any new, clarified or amended guidance or other policy issued by a relevant Supervisory Authority; 5.1.3.any legal requirement for Supplier to enhance, supplement or modify any processing security measures: 188.8.131.52. at Client’s request; and/or 184.108.40.206. in order to maintain compliance with the Supplier’s data processing obligation; and/or 220.127.116.11. in order to maintain compliance with the Data Protection Legislation (including without limitation resulting from a change in Law or a change in the Security Considerations); and/or 18.104.22.168. (save to the extent arising from a breach by Supplier of its obligations under clause 5 or under the Data Protection Legislation) any order, direction or instruction by a Supervisory Authority (whether relating to Client or Supplier in respect of the Services (including the Processing Activities), then such increased effort or costs shall be additionally chargeable and (where the same constitute a Change) shall be documented and agreed in accordance with the Change Control Procedure.
6. Client’s Obligations
- 6.1. The Client shall provide the Supplier with a) all necessary co-operation in relation to the Contract and the Services; and b) all necessary access to such information as may be required by the Supplier, in order to supply the Services, including Client Data, security access information and software interfaces, to the Client’s other business applications; c) such personnel assistance, including Client personnel, as may be reasonably requested by the Supplier from time to time.
- 6.2. The Client shall: a) comply with all applicable laws and regulations with respect to its activities under the Contract; b) carry out all other Client responsibilities set out in the Contract or in any of the Schedules in a timely and efficient manner. In the event of any delays in the Client’s provision of such assistance as agreed by the parties, the Supplier may adjust any timetable or delivery schedule set out in the Contract as reasonably necessary; and (c) notify the Supplier of any leavers and the Supplier shall have one Business Day to remove the leaver’s access.
- 6.3 Client’s Hardware must have a valid manufacturer’s warranty. If no warranty is in place then all work is charged as follows: (a) Installs are charged at £99 if the equipment is purchased from the Supplier, if the equipment is not purchased from the Supplier there will be an additional £50 onboarding fee per device. If the device requires any upgrade (hardware or software), then this will incur additional charges. (b) Replacement of hardware is deemed to be an Install and is subject to the charges laid out above. (c) if the Client’s Internet Service Provider (ISP) is not the Supplier then under the scope of the Contract, the Supplier will perform support and contact your supplier to assist in fault resolution, but any kit replacements will be charged as an Install. Onsite diagnostics are expected to be carried out by the Client under the guidance of the Supplier. If the Client is unable to carry out onsite diagnostics, then there will be an Install charge as detailed above.
- 6.4 Printers are supported but not maintained; any maintenance will be carried out as an Install.
- 6.5 The Client shall comply with the Acceptable Use Policy.
- 6.6. The Client shall not provide the Services directly or indirectly to third parties.
- 6.7 If Malicious Software is found during the supply of the Services, the parties shall co-operate to reduce the effect of the Malicious Software and assist each other to mitigate any losses and to restore the Services to their original operating efficiency.
- 6.8 Any cost arising out of the actions of the parties taken in compliance with the provisions of clause 6.7 shall exclusively be borne by the Client.
- 7.1 Microsoft products are supported by the Supplier while under the Microsoft Support Lifecycle, products at the end of the support lifecycle will be replaced or will fall outside the scope of the Contract.
- 7.2 None Microsoft Software will be supported by the Supplier on a reasonable endeavours basis. The Supplier will perform support and contact manufacturer/provider, but all re-installs and upgrades are classed as an Install and therefore charged separately as per clause 6.3. The software must be under the applicable vendor support agreement (e.g. Sage) and if no support agreement is in place, then all work performed by the Supplier will be charged.
- 8.1. The Client warrants and undertakes that:
- 8.1.1. it has the full capacity and authority to enter into and perform the Contract and that the Contract is executed by a duly authorised representative of the Client;
- 8.1.2. it has the authority to grant any rights to be granted to the Supplier under the Contract, including the right to provide the Software and Hardware to the Supplier as indicated in the Contract and for the same to be used in the provision of the Services and otherwise in connection with the Contract;
- 8.1.3. it will comply with and use the Services in accordance with the terms of the Contract and all applicable laws, and shall not do any act that shall infringe the rights of any third party including the publishing or transmission of any materials contrary to relevant laws or in breach of the Acceptable Use Policy;
- 8.1.4. it owns or has obtained valid licences, consents, permissions and rights to use, and where necessary to licence to the Supplier, any materials reasonably necessary for the fulfilment of all its obligations under the Contract, including any third-party licences and consents in respect of any Client Software; and
- 8.1.5. the Supplier’s possession and use in the provision of the Services or otherwise in connection with the Contract of any third-party materials, including any Hardware or Software supplied by the Client to the Supplier for use in the provision of the Services or otherwise in connection with the Contract, shall not cause the Supplier to infringe the rights, including any Intellectual Property Rights, of any third party.
9. Charges and Payment
- 9.1. The Client shall pay Fees set out in the Contract Details.
- 9.2. The Client shall reimburse the Supplier for all expenses agreed with the Client from time to time in the performance of the Services.
- 9.3. All amounts and Fees stated or referred to in the Contract are exclusive of value added tax, which shall be added to the Supplier’s invoice(s) at the appropriate rate.
- 9.4. The Supplier shall invoice the Client monthly in advance, on the first day of each month for all Services to be performed by the Supplier during that month and the Client shall pay the Supplier within 30 days.
- 9.5. 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 remedies, the Client shall pay interest on the overdue amount at the rate of 4% per annum above Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount.
- 9.6. In the event of a disputed invoice, the Client shall make payment in respect of any undisputed amount in accordance with the provisions of this clause 10 and return the invoice to the Supplier within ten (10) Business Days of receipt, with a written statement proposing amendments to the invoice and/or the reason for any non-payment. The Supplier shall respond within ten (10) Business Days of receipt of the returned invoice stating whether or not the Supplier accepts the Client’s proposed amendments. If the Supplier accepts the Client’s amendments the Supplier shall supply a replacement invoice.
- 9.7 The Client shall pay the Compensation Payment in the event of early termination of the Contract.
10. Proprietary Rights
- 10.1. The Client acknowledges and agrees that, as between the parties, the Supplier and/or its licensors own all Intellectual Property Rights in all materials connected with the Services and in any material developed or produced in connection with the Contract by the Supplier, its officers, employees, subcontractors or agents. Except as expressly stated herein, the Contract does not grant the Client any rights to such Intellectual Property Rights.
- 10.2. Nothing in the Contract affects either party’s rights in pre-existing Intellectual Property Rights (including pre-existing Intellectual Property Rights of either party contained in or relating to Confidential Information) (Pre-Existing IPR).
- 10.3. The Client shall own and retain all rights, title and interest in and to the Client Data. The Supplier shall have no rights to access, use or modify the Client Data unless otherwise provided in the Contract, or, it has the prior written consent of the Client.
- 10.4. The Supplier shall own and retain all rights, title and interest in and to all deliverables and all other reports, documents, materials, techniques, ideas, concepts, trademarks, know-how, algorithms, software, computer code, routines or subroutines, specifications, plans, notes, drawings, designs, pictures, images, text, audio-visual works, inventions, data, information and other items, expressions, works of authorship or work product of any kind that are: a) authored, produced, created, conceived, collected, developed, discovered or made by the Supplier in connection with the Services or which relate in any manner to the Services or which result from any work performed by the Supplier for the Client, including any and all Intellectual Property Rights therein (collectively, Work Product); and b) provided by any supplier (other than the Supplier), consultant, contractor, advisor or any other third party engaged by the Client in relation to the Services, the Client Site or its business requirements.
- 10.5. The Client shall execute all documents and take all actions necessary or reasonably requested by the Supplier to document, obtain, maintain, perfect or assign its rights to the Work Product, when required by the Supplier. The Client shall also cause its employees, agents and sub-contractors to execute such documents and take such actions as described in this clause 10.5. The Client shall not challenge (and shall procure that its employees, agents and sub-contractors shall not challenge) the validity of the Supplier’s rights in the Work Product. All such Work Product shall be deemed to be the confidential, proprietary and trade secret information of the Supplier.
- 10.6. The Client waives any and all moral rights (including any rights of attribution) in and to the Work Product. To the extent that any Intellectual Property Rights in the Work Product do not automatically vest in the Supplier, the Client (by way of present assignment of future rights where appropriate) assigns absolutely and irrevocably (and shall procure that any relevant employee, agent or sub-contractor assigns absolutely and irrevocably) to the Supplier with full title guarantee all rights, title and interest that the Client (and any of its employees, agents or sub-contractors) may have or may in future acquire in all Work Product, including all Intellectual Property Rights in any Work Product, for the full term of such rights throughout the world.
- 10.7. The Supplier hereby grants to the Client during the term of the Contract a revocable, non-sub-licensable, non-exclusive, worldwide license to use all of the Supplier’s Intellectual Property Rights as incorporated by the Supplier into the Work Product solely in connection with the Client’s use of the Work Product in accordance with the Contract.
- 10.8. The Client hereby grants to the Supplier a perpetual irrevocable, transferrable, non-exclusive, royalty-free, worldwide limited licence for the term of the Contract to use, exploit, copy, modify, sub-license, improve, enhance and make derivative works of the Client’s Intellectual Property Rights solely to the extent necessary to comply with its obligations under the Contract.
- 10.9 The Supplier hereby grants to the Client a perpetual, irrevocable, sub-licensable, non-exclusive, royalty-free, worldwide license to use, exploit, sell, copy, reproduce, manufacture, distribute, export, publicly display, publicly perform, sub-license, modify, improve, enhance and make derivative works of such Third-Party Materials as are incorporated in the Work Product solely in connection with the Client’s use of the Work Products in accordance with the Contract.
- 10.10. The Client reserves all rights not expressly granted to the Supplier in the Contract.
- 10.11. The Client hereby grants to the Supplier a non-exclusive licence to use, reproduce, modify, adapt and enhance (and to authorise a third party to use, reproduce, modify, adapt and enhance) any Client Intellectual Property Rights, or Client Software or Client Third Party Software which is provided by the Client to the Supplier during the term of the Contract, but only to the extent that such use, reproduction, modification, adaptation and enhancement is necessary for the performance of the Services and not otherwise. Such licence shall terminate automatically without notice from the Client upon the termination of the Contract.
- 10.12. The Supplier undertakes at its own expense to defend the Client or, at its option, settle any claim or action brought against the Client alleging that the possession or use of the Supplier Intellectual Property or Work Product in accordance with the terms of the licence granted under this clause 10 infringes the UK Intellectual Property Rights of a third party (Claim) and shall be responsible for any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against the Client as a result of or in connection with any such Claim. For the avoidance of doubt, clause 10.12 shall not apply where the Claim in question arises out of or is related to: a) possession or use of the Supplier Intellectual Property Rights or Work Products (or any part thereof) by the Client other than in accordance with the terms of the Contract ; b) use of the Supplier Intellectual Property Rights or Work Products (or any part thereof) in combination with any hardware or software not supplied or specified by the Supplier if the infringement would have been avoided by the use of the Software not so combined, or use of a non-current release of the Software; c) modification of the Supplier Intellectual Property Rights or Work Products without the prior written consent of the Supplier; d) any combination of the Supplier Intellectual Property Rights or Work Products with third party products not authorised in writing in advance by the Supplier; e) any breach by the Client of the reasonable terms relating to the Supplier Intellectual Property Rights or Work Products notified to the Client by the Supplier.
- 10.13. The Client shall indemnify and hold harmless the Supplier against all claims, demands, actions, costs, expenses (including but not limited to legal costs and disbursements), losses and damages arising from or incurred by the Supplier as a consequence of any claim or allegation that the use or possession by the Supplier of the Client Intellectual Property Rights, Client Software or Client Third Party Software infringe any rights (including Intellectual Property Rights) of a third party.
11. Limitation of Liability
- 11.1. The limits and exclusions in this clause reflect the insurance cover the Supplier has been able to arrange and the Client is responsible for making its own arrangements for the insurance of any excess loss.
- 11.2 The restrictions on liability in this clause 11 apply to every liability arising under or in connection with the Contract including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
- 11.3 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for: (a) death or personal injury caused by negligence; (b) fraud or fraudulent misrepresentation; and (c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
- 11.4 Subject to clause 11.3, the Supplier’s total liability to the Client in respect of all breaches of duty occurring within any contract year shall not exceed the cap.
- 11.5 In clause 11.4: (a) cap. The cap is one hundred per cent (100%) of the total charges in the contract year in which the breaches occurred; (b) contract year. A contract year means a 12-month period commencing with the date of the Contract or any anniversary of it; and (c) total charges. The total charges means all sums paid by the Client and all sums payable under the Contract in respect of goods and services actually supplied by the Supplier, whether or not invoiced to the Client.
- 11.6 Subject to clause 11.3, the following types of loss are wholly excluded by the parties: (i) loss of profits; (ii) loss of sales or business; (iii) loss of agreements or contracts; (iv) loss of anticipated savings; (v) loss of use or corruption of software, data or information; (vi) loss of or damage to goodwill; and (vii) indirect or consequential loss.
- 11.7 The Supplier has given commitments as to compliance of the Services with relevant specifications. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
- 11.8 Unless the Client notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Client became, or ought reasonably to have become, aware of the event having occurred and shall expire 2 weeks from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
- 11.9 The Client agrees to take all reasonable and prompt steps to mitigate the effects and to minimise any damage arising as a result of the Supplier’s breach under or in connection with the Contract.
12. Term and Termination
- 12.1. The Contract shall commence on the Commencement Date. Unless terminated earlier in accordance with this clause 12, the Contract shall continue for the Initial Term and shall automatically extend for an additional term of 3 years (Extended Term) at the end of the Initial Term and at the end of each Extended Term. Either party may give written notice to the other party, not later than 6 months before the end of the Initial Term or the relevant Extended Term, to terminate the Contract at the end of the Initial Term or the relevant Extended Term, as the case may be.
- 12.2. Without prejudice to any rights that the Supplier has accrued under the Contract or any of its respective remedies, obligations or liabilities, the Supplier may terminate the Contract with immediate effect by giving written notice to the Client if: (a) the Client commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 10 days after being notified to do so; (b) the Client takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business (c) the Client suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or (d) the Client’s financial position deteriorates to such an extent that in the Supplier’s opinion the Client’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
- 12.3 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Client if: (a) the Client fails to pay any amount due under the Contract on the due date for payment; or (b) there is a change of control of the Client.
13. Consequences of termination
- 13.1. Expiry or termination of the Contract for any reason shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at expiry or termination.
- 13.2. On termination of the Contract : 13.2.1 the Supplier shall immediately cease provision of the Services and 13.2.2 each party shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other party.
- 13.3 In the event that the Contract is terminated before the end of the Initial Service Period or the relevant Extended Service Period the Client will pay the Supplier immediately on demand an early termination payment calculated to be an amount equivalent to 65% of the aggregate Fees which would have become payable by the Client for the Services to be provided by the Supplier from the effective date of termination to the end of the Initial Service Period or the relevant Extended Service Period, as the case may be.
- 13.4. If a party is required by any law, regulation, or government or regulatory body (Regulatory Requirement) to retain any documents or materials which it would otherwise be obliged to return or destroy under clause 13, it shall notify the other party in writing of such retention, giving details of the documents or materials that it must retain.
- 13.5. Any provision of the Contract which expressly or by implication is intended to come into or continue in force on or after expiry or termination of the Contract shall remain in full force and effect.
- 14.1. Force Majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
- 14.2 Assignment and other dealings.
- (a) The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
- (b) The Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.
- 14.3 Confidentiality. (a) Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 14.3(b). (b) Each party may disclose the other party’s confidential information: (i) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 14.3; and (ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.(c) Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
- 14.4 Entire agreement. (a) 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. (b) Each party acknowledges that in entering into the Contract it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract. Nothing in this clause shall limit or exclude any liability for fraud.
- 14.5 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
- 14.6 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
- 14.7 Severance. If any provision or part-provision of the Contract 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 the Contract.
- 14.8 Notices. (a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by fax to its main fax number or sent by email to the address specified in the Contract Details . (b) Any notice or communication shall be deemed to have been received: (i) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and (ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting ;and (iii) if sent by fax or email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause14, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
- This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
- 14.9 Third party rights. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
- 14.10 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with, the law of England and Wales.
- 14.11 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.