TERMS OF BUSINESS
Parties
(1). APS Smart Solutions trading as APS Smart Solutions whose registered office
is at Wilson House, Lorne Park Road, Bournemouth, Dorset, United Kingdom BH1 1JN and business address is Clifton
House, 10 Poole Hill, Bournemouth, Dorset BH2 5PS with company number 11988249
(2). Any company or person who has requested services or materials from the Supplier
and has paid some or all of the charges for that work (Customer)
Background
(A) The Supplier is in the business of providing IT software and services developed,
maintained and supported by the Supplier
(B) The Customer wishes to obtain and the Supplier wishes to provide the software
and services on the terms set out in this Agreement.
AGREED TERMS
1. INTERPRETATION
The following definitions and rules of interpretation apply in this Agreement.
1.1 Definitions
Affiliate: any entity that directly or indirectly controls, is controlled by, or
is under common control with another entity.
Applicable Laws: all applicable laws, statutes, regulations and codes from time
to time in force.
Business Day: a day, other than a Saturday, Sunday or public holiday in England,
when banks in London are open for business.
Business Hours: the period from 9.00 am to 5.00 pm in England on any Business Day.
Change Order: has the meaning given in Clause 6.1.
Business Day: a day, other than a Saturday, Sunday or public holiday in England,
when banks in London are open for business.
Business Hours: the period from 9.00 am to 5.00 pm in England on any Business Day.
Change Order: has the meaning given in Clause 6.1.
Charges: the sums payable for the Services, as set out in Schedule 2.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010,
and the expression change of control shall be construed accordingly.
Customer’s Equipment: 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 Services including any such items specified
in Schedule 1.
Customer Materials: 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 Supplier in connection with the Services, including the items provided pursuant
to Clause 4.1(d).
Data Protection Legislation: all legislation and regulatory requirements in force
from time to time relating to the use of personal data and the privacy of electronic
communications, including, without limitation (i) any data protection legislation
from time to time in force in the UK including the Data Protection Act 2018 or any
successor legislation, as well as (ii) the General Data Protection Regulation ((EU)
2016/679) and any other directly applicable European Union regulation relating to
data protection and privacy (for so long as and to the extent that the law of the
European Union has legal effect in the UK).
Deliverables: any output of the Services to be provided by the Supplier to the Customer
as specified in Schedule 1 and any other documents, products and materials provided
by the Supplier to the Customer in relation to the Services (excluding the Supplier’s
Equipment).
Intellectual Property Rights: patents, rights to inventions, copyright and related
rights, moral rights, trademarks and service marks, business names and domain names,
rights in get-up , goodwill and the right to sue for passing off or unfair competition,
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.
Mandatory Policies: the Customer’s business policies in Schedule 3, as amended by
notification to the Supplier from time to time.
Supplier’s Equipment: any equipment, including tools, systems, cabling or facilities,
provided by the Supplier to the Customer and used directly or indirectly in the
supply of the Services including any such items specified in Schedule 1 but excluding
any such items which are the subject of a separate agreement between the parties
under which title passes to the Customer.
VAT: value added tax or any equivalent tax chargeable in the UK.
1.2 Clause, Schedule and paragraph headings shall not affect the interpretation
of this Agreement.
1.3 A person includes a natural person, corporate or unincorporated body (whether
or not having separate legal personality).
1.4 The Schedules form part of this Agreement and shall have effect as if set out
in full in the body of this Agreement. Any reference to this Agreement includes
the Schedules.
1.5 A reference to a company shall include any company, corporation or other body
corporate, wherever and however incorporated or established.
1.6 Unless the context otherwise requires, words in the singular shall include the
plural and in the plural shall include the singular.
1.7 Unless the context otherwise requires, a reference to one gender shall include
a reference to the other genders.
1.8 This Agreement shall be binding on, and enure 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.
1.9 A reference to a statute or statutory provision is a reference to it as amended,
extended or re-enacted from time to time.
1.10 A reference to a statute or statutory provision shall include all subordinate
legislation made from time to time under that statute or statutory provision.
1.11 Any obligation on a party not to do something includes an obligation not to
allow that thing to be done.
1.12 A reference to this Agreement or to any other agreement or document referred
to in this Agreement is a reference of this Agreement or such other agreement or
document as varied or novated (in each case, other than in breach of the provisions
of this Agreement) from time to time.
1.13 References to Clauses and Schedules are to the Clauses and Schedules of this
Agreement and references to paragraphs are to paragraphs of the relevant Schedule.
1.14 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.
2. COMMENCEMENT AND DURATION
2.1 This Agreement shall commence on the date that the Customer transfers any money
to the Supplier (without the need for signed copies) and shall continue, unless
terminated earlier in accordance with Clause 13 (Termination), until 1 year from
the commencement of this Agreement when it shall terminate automatically without
notice.
2.2 The Supplier shall provide the Services to the Customer in accordance with this
Agreement.
3. SUPPLIER’S RESPONSIBILITIES
3.1 The Supplier shall use reasonable endeavours to manage and supply the Services,
and deliver the Deliverables to the Customer, in accordance with this Agreement
in all material respects.
3.2 The Supplier shall use reasonable endeavours to meet Deliverables specified
in Schedule 1 but any such dates shall be estimates only and time for performance
by the Supplier shall not be of the essence of this Agreement.
3.3 The Supplier shall appoint a manager for the Services, such person as identified
in Schedule 1. That person shall have authority to contractually bind the Supplier
on all matters relating to the Services (including by signing Change Orders). The
Supplier shall use all reasonable endeavours to ensure that the same person acts
as the Supplier’s manager throughout the term of this Agreement, but may replace
that person from time to time where reasonably necessary in the interests of the
Supplier’s business.
3.4 Not applicable.
3.5 The Supplier shall:
(a) supply access to an on-call technical support service available at any time
outside of the Business Hours and this access is included in the Agreement. Although
the Supplier is unable to provide guaranteed response or resolution times outside
Business Hours.
(b) consider written requests from the Customer’s Manager to complete a response
or resolution outside of Business Hours in exchange for an additional “out of hours”
fee, invoiced separately to this Agreement. Out of hours costs are specified in
Schedule 2. However, the Supplier cannot guarantee any request will be feasible
and each request will be considered on a case by case basis. Any out of hours arrangement
will always be requested in writing by the Customer’s Manager and acceptance of
the out of hours work will be confirmed in writing by the Manager of the Supplier.
3.6 For the avoidance of doubt the Supplier shall not be liable within this Agreement
for following situations:
(a) A problem has been caused by using equipment, software or Service(s) in a way
that is not recommended by the Supplier or manufacturer’s recommendations;
(b) The Customer has made unauthorised changes to the configuration or set up of
affected equipment, software or Services;
(c) The Customer has prevented the Supplier from performing required maintenance
and update tasks; or
(d) The issue has been caused by unsupported equipment, software or other services.
4. CUSTOMER’S OBLIGATIONS
4.1 The Customer shall:
(a) co-operate with the Supplier in all matters relating to the Services;
(b) appoint a manager for the Services, such person as identified in Schedule 1.
That person shall have the authority to contractually bind the Customer on matters
relating to the Services (including by signing Change Orders);
(c) provide, for the Supplier, 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 reasonably required by the Supplier including any such
access as is specified in Schedule 1;
(d) provide to the Supplier in a timely manner all documents, information, items
and materials in any form (whether owned by the Customer or third party) required
under Schedule 1 or otherwise reasonably required by the Supplier in connection
with the Services and ensure that they are accurate and complete in all material
respects;
(e) inform the Supplier of all health and safety and security requirements that
apply at the Customer’s premises, such requirements are as set out in Schedule 3;
(f) ensure that all the Customer’s Equipment is in good working order and suitable
for the purposes for which it is used in relation to the Services and conforms to
all relevant United Kingdom standards and requirements;
(g) obtain and maintain all necessary licences and consents and comply with all
relevant legislation as required to enable the Supplier to provide the Services,
including in relation to the installation of the Supplier’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 Services are to start;
(h) keep, maintain and insure the Supplier’s Equipment in good condition and shall
not dispose of or use the Supplier’s Equipment other than in accordance with the
Supplier’s written instructions or authorisation;
4.2 If the Supplier’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 Supplier shall be allowed an extension of time to perform its obligations equal
to the delay caused by the Customer.
5. NON-SOLICITATION
5.1 Except in respect of any transfer of employees of the Supplier to the Customer
pursuant to the Transfer of Undertakings (Protection of Employment) Regulations
2006 (SI 2006/246), the Customer shall not, without the prior written consent of
the Supplier, at any time from the date of this Agreement to the expiry of twelve
(12) months after the termination or expiry of this Agreement, solicit or entice
away from the Supplier or employ or attempt to employ any person who is, or has
been, engaged as an employee, consultant or subcontractor of the Supplier in the
provision of the Services.
5.2 Any consent given by the Supplier in accordance with Clause 5.1 shall be subject
to the Customer paying to the Supplier a sum equivalent to thirty percent (30%)
of the then current annual remuneration of the Supplier’s employee, consultant or
subcontractor or, if higher, thirty percent (30%) of the annual remuneration to
be paid by the Customer to that employee, consultant or subcontractor.
6. CHANGE ORDER
6.1 Either party may propose changes to the scope or execution of the Services but
no proposed changes shall come into effect until a Change Order has been signed
by both parties. A Change Order shall be a document setting out the proposed changes
and the effect that those changes will have on:
(a) the Services;
(b) the Supplier’s existing charges;
(c) the timetable of the Services; and
(d) any of the terms of this Agreement.
6.2 If the Supplier wishes to make a change to the Services it shall provide a draft
Change Order to the Customer.
6.3 If the Customer wishes to make a change to the Services:
(a) it shall notify the Supplier and provide as much detail as the Supplier reasonably
requires of the proposed changes, including the timing of the proposed changes;
and
(b) the Supplier shall, as soon as reasonably practicable after receiving the information
at Clause 6.3(a), provide a draft Change Order to the Customer.
6.4 If the parties:
(a) agree to a Change Order, they shall sign it and that Change Order shall amend
this Agreement; or
(b) are unable to agree a Change Order, either party may require the disagreement
to be dealt with in accordance with the dispute resolution procedure in Clause 27
(Multi-tiered dispute resolution procedure).
6.5 The Supplier may charge for the time it spends on preparing and negotiating
Change Orders which implement changes proposed by the Customer pursuant to Clause
6.3 on a time and materials basis at the Supplier’s daily rates specified in Schedule
2.
7. CHARGES AND PAYMENT
7.1 In consideration of the provision of the Services by the Supplier, the Customer
shall pay the Charges.
7.2 Where the Charges are calculated on a time and materials basis:
(a) the Supplier’s daily fee rates for each individual person as set out in Schedule
2 are calculated on the basis of an eight-hour day, worked during Business Hours;
(b) the Supplier shall be entitled to charge an overtime rate of £124.50 plus VAT
per hour (minimum charge of 1 hour) chargeable all time on Saturday and weekdays
after 5pm and before 9am and £190 plus VAT per hour (minimum charge of 1 hour) chargeable
all time on Sunday and Public Bank Holidays, as set out in Schedule 2, on a pro
rata basis, for any time worked by individuals whom it engages on the Services outside
Business Hours; and
(c) the Supplier shall ensure that every individual whom it engages on the Services
completes time sheets to record time spent on the Services, and the Supplier shall
indicate the time spent per individual in its invoices.
7.3 The Charges exclude the following which shall be payable by the Customer monthly
in arrears, following submission of an appropriate invoice:
(a) the cost of hotel, subsistence, travelling and any other ancillary expenses
reasonably incurred by the individuals whom the Supplier engages in connection with
the Services; and
(b) the cost to the Supplier of any materials or services procured by the Supplier
from third parties for the provision of the Services as such items and their cost
are approved by the Customer in advance via email from time to time.
7.4 The Supplier may increase the Charges 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 twelve (12) month period, and the first
such increase shall take effect on the first anniversary of the date of this Agreement
and shall be based on the latest available figure for the percentage increase in
the Retail Prices Index.
7.5 The Supplier shall invoice the Customer for the Charges at the intervals specified
in Schedule 2. If no intervals are so specified the Supplier shall invoice the Customer
at the end of each month for Services performed during that month.
7.6 The Customer shall pay each invoice submitted to it by the Supplier within twenty-one
(21) days of receipt to a bank account nominated in writing by the Supplier from
time to time.
7.7 Without prejudice to any other right or remedy that it may have, if the Customer
fails to pay the Supplier any sum due under this Agreement on the due date:
(a) the Customer shall pay interest on the overdue sum from the due date until payment
of the overdue sum, whether before or after judgment. Interest under this Clause
7.7(a) will accrue at 8% a year above the Bank of England’s base rate from time
to time, but at 8% a year for any period when that base rate is below 0%;
(b) the Supplier may suspend all or part of the Services until payment has been
made in full.
7.8 All sums payable to the Supplier under this Agreement:
(a) 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
(b) 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).
8. INTELLECTUAL PROPERTY RIGHTS
8.1 In relation to the Deliverables:
(a) the Supplier and its licensors shall retain ownership of all Intellectual Property
Rights in the Deliverables, excluding the Customer Materials;
(b) the Supplier grants the Customer, or shall procure the direct grant to the Customer
of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable
licence during the term of this Agreement to copy and modify the Deliverables (excluding
the Customer Materials) for the purpose of receiving and using the Services and
the Deliverables in its business; and
(c) the Customer shall not sub-license, assign or otherwise transfer the rights
granted in Clause 8.1(b).
8.2 In relation to the Customer Materials, the Customer:
(a) and its licensors shall retain ownership of all Intellectual Property Rights
in the Customer Materials; and
(b) grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable
licence to copy and modify the Customer Materials for the term of this Agreement
for the purpose of providing the Services to the Customer.
8.3 The Supplier:
(a) warrants that the receipt, use of the Services and the Deliverables by the Customer
shall not infringe any rights of third parties to the extent that infringement results
from copying;
(b) shall, subject to Clause 12 (Limitation of liability), indemnify the Customer
in full against all liabilities, costs, expenses, damages and losses (including
but not limited to any direct, indirect or consequential losses, loss of profit
and all interest, penalties and legal costs (calculated on a full indemnity basis)
and all other reasonable professional costs and expenses) suffered or incurred by
the Customer arising out of or in connection with 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, or in connection with, the receipt, use or supply of the
Services and the Deliverables; and
(c) shall not be in breach of the warranty at Clause 8.3(a), and the Customer shall
have no claim under the indemnity at Clause 8.3(b), to the extent the infringement
arises from:
(i) the use of the Customer Materials in the development of, or the inclusion of
the Customer Materials in any Deliverable;
(ii) any modification of the Deliverables or Services, other than by or on behalf
of the Supplier; and
(iii) compliance with the Customer’s specifications or instructions.
8.4 The Customer:
(a) warrants that the receipt and use of the Customer Materials in the performance
of this Agreement by the Supplier, its agents, subcontractors or consultants shall
not infringe the rights, including any Intellectual Property Rights; and
(b) shall indemnify the Supplier in full against all liabilities, costs, expenses,
damages and losses (including but not limited to any direct, indirect or consequential
losses, loss of profit, loss of reputation and all interest, penalties and legal
costs (calculated on a full indemnity basis) and all other reasonable professional
costs and expenses) suffered or incurred by the Supplier arising out of or in connection
with any claim brought against the Supplier, its agents, subcontractors or consultants
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.
8.5 If either party (the Indemnifying Party) is required to indemnify the other
party (the Indemnified Party) under this Clause 8, the Indemnified Party shall:
(a) notify the Indemnifying Party in writing of any claim against it in respect
of which it wishes to rely on the indemnity at Clause 8.3(b) or Clause 8.4(b) (as
applicable) (IPRs Claim);
(b) allow the Indemnifying Party, at its own cost, to conduct all negotiations and
proceedings and to settle the IPRs 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;
(c) provide the Indemnifying Party with such reasonable assistance regarding the
IPRs Claim as is required by the Indemnifying Party, subject to reimbursement by
the Supplier of the Indemnified Party’s costs so incurred; and
(d) not, without prior consultation with the Indemnifying Party, make any admission
relating to the IPRs Claim or attempt to settle it, provided that the Indemnifying
Party considers and defends any IPRs Claim diligently, using competent counsel and
in such a way as not to bring the reputation of the Indemnified Party into disrepute.
9. COMPLIANCE WITH LAWS AND POLICIES
9.1 In performing its obligations under this Agreement, the Supplier shall comply
with:
(a) the Applicable Laws; and
(b) the Mandatory Policies, provided that the Customer shall give the Supplier not
less than thirty (30) days written notice (email to suffice) of any change to such
policies.
9.2 Changes to the Services required as a result of changes to the Applicable Laws
or the Mandatory Policies shall be agreed via the change order procedure set out
in Clause 6.
10. DATA PROTECTION
10.1 Both parties will comply with all applicable requirements of the Data Protection
Legislation. This Clause 10 is in addition to, and does not relieve, remove or replace,
a party’s obligations under the Data Protection Legislation.
10.2 The parties acknowledge that for the purposes of the Data Protection Legislation,
the Customer is the data controller and the Supplier is the data processor (where
Data Controller and Data Processor have the meanings as defined in the Data Protection
Legislation.
10.3 Without prejudice to the generality of Clause 10.1, the Customer will ensure
that it has all necessary appropriate consents and notices in place to enable lawful
transfer of the Personal Data to the Supplier for the duration and purposes of this
Agreement.
10.4 Without prejudice to the generality of Clause 10.1, the Supplier shall, in
relation to any Personal Data processed in connection with the performance by the
Supplier of its obligations under this Agreement:
(a) process that Personal Data only on the written instructions of the Customer
unless the Supplier is required by Applicable Laws to otherwise process that Personal
Data. Where the Supplier is relying on the laws of a member of the European Union
or European Union Law as the basis for processing Personal Data, the Supplier shall
promptly notify the Customer of this before performing the processing required by
the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying
the Customer;
(b) ensure that it has in place appropriate technical and organisational measures,
reviewed and approved by the Customer, to protect against unauthorised or unlawful
processing of Personal Data and against accidental loss or destruction of, or damage
to, Personal Data, appropriate to the harm that might result from the unauthorised
or unlawful processing or accidental loss, destruction or damage and the nature
of the data to be protected, having regard to the state of technological development
and the cost of implementing any measures (those measures may include, where appropriate,
pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity,
availability and resilience of its systems and services, ensuring that availability
of and access to Personal Data can be restored in a timely manner after an incident,
and regularly assessing and evaluating the effectiveness of the technical and organisational
measures adopted by it);
(c) ensure that all personnel who have access to and/or process Personal Data are
obliged to keep the Personal Data confidential; and
(d) not transfer any Personal Data outside of the European Economic Area unless
the prior written consent of the Customer has been obtained and the following conditions
are fulfilled:
(i) the Customer or the Supplier has provided appropriate safeguards in relation
to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) 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
(iv) the Supplier complies with reasonable instructions notified to it in advance
by the Customer with respect to the processing of the Personal Data;
(e) assist the Customer, at the Customer’s cost, in responding to any request from
a Data Subject and in ensuring compliance with its obligations under the Data Protection
Legislation with respect to security, breach notifications, impact assessments and
consultations with supervisory authorities or regulators;
(f) notify the Customer without undue delay on becoming aware of a Personal Data
breach;
(g) at the written direction of the Customer, delete or return Personal Data and
copies thereof to the Customer on termination of the Agreement unless required by
Applicable Law to store the Personal Data; and
(h) maintain complete and accurate records and information to demonstrate its compliance
with this Clause 10.
10.5 The Customer consents to the Supplier appointing a third-party processor of
Personal Data under this Agreement. The Supplier confirms that it has entered or
(as the case may be) will enter with the third-party processor into a written agreement
incorporating terms which are substantially similar to those set out in this Clause
10. As between the Customer and the Supplier, the Supplier shall remain fully liable
for all acts or omissions of any third-party processor appointed by it pursuant
to this Clause 10.
10.6 Either party may, at any time on not less than thirty (30) days’ written notice
(email to suffice), revise this Clause 10 by replacing it with any applicable controller
to processor standard clauses or similar terms forming part of an applicable certification
scheme (which shall apply when replaced by attachment to this Agreement).
11. CONFIDENTIALITY
11.1 Each party undertakes that it shall not at any time during this Agreement,
and for a period of five (5) years after termination of this Agreement, disclose
to any person any confidential information concerning the business, affairs, customers,
clients or suppliers of the other party except as permitted by Clause 11.2. Confidential
information shall be marked “Confidential”.
11.2 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives or advisers who need to know such
information for the purposes of exercising the party’s rights or carrying out its
obligations under or in connection with this Agreement. Each party shall ensure
that its employees, officers, representatives or advisers to whom it discloses the
other party’s confidential information comply with this Clause 11; and
(b) as may be required by law, a court of competent jurisdiction or any governmental
or regulatory authority.
11.3 No party shall use any other party’s confidential information for any purpose
other than to exercise its rights and perform its obligations under or in connection
with this Agreement.
11.4 Unless agreed otherwise in writing with the Director of the Supplier, the Customer
agrees that the Supplier will be permitted to publicly display any information in
relation to this Agreement, about any of the work planned, work in progress and
work done in accordance with this Agreement, where that information is not subject
to Clause 11.1 of this Agreement. This includes any information about the work as
well as the output prototypes and partially completed or completed materials or
products. Any public display of such information will be shared in accordance with
Clause 10 of this Agreement.
12. LIMITATION OF LIABILITY
12.1 The Supplier has obtained insurance cover in respect of its own legal liability
for individual claims not exceeding £750,000 per claim. The limits and exclusions
in this Clause reflect the insurance cover the Supplier has been able to arrange
and the Customer is responsible for making its own arrangements for the insurance
of any excess loss.
12.2 Nothing in this Agreement 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).
12.3 Subject to Clause 12.2, the Supplier’s total liability to the Customer in respect
of all breaches within any contract year shall not exceed the cap of £750,000 of
the total charges in the contract year in which the breaches occurred;
(b) contract year. A contract year means a twelve (12) month period commencing with
the date of this Agreement or any anniversary of it;
(c) total charges. The total charges means all sums paid by the Customer and all
sums payable under this Agreement in respect of goods and services actually supplied
by the Supplier, whether or not invoiced to the Customer; and
(d) total liability. The Supplier’s total liability includes liability in contract,
tort (including negligence), breach of statutory duty, or otherwise, arising under
or in connection with this Agreement.
12.4 This Clause 12.4 sets out specific heads of excluded loss and exceptions from
them:
(a) Subject to Clause 12.2, the types of loss listed in Clause 12.4(c) are wholly
excluded by the parties, but the types of loss and specific losses listed in Clause
12.4(d) are not excluded.
(b) If any loss falls into one or more of the categories in Clause 12.4(c) and also
falls into a category, or is specified, in Clause 12.4(d), then it is not excluded.
(c) The following types of loss are wholly excluded:
(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.
(vii) Indirect or consequential loss.
(d) The following types of loss and specific loss are not excluded:
(i) Sums paid by the Customer to the Supplier pursuant to this Agreement, in respect
of any Services not provided in accordance with this Agreement;
(ii) Wasted expenditure;
(iii) Additional costs of procuring and implementing replacements for, or alternatives
to, Services not provided in accordance with this Agreement. These include but are
not limited to consultancy costs, additional costs of management time and other
personnel costs, and costs of equipment and materials; and
(iv) Losses incurred by the Customer arising out of or in connection with any third
party claim against the Customer which has been caused by the act or omission of
the Supplier. For these purposes, third party claims shall include but not be limited
to demands, fines, penalties, actions, investigations or proceedings, including
but not limited to those made or commenced by subcontractors, the Supplier’s personnel,
regulators and customers of the Customer.
12.5 The Supplier has given commitments as to compliance under Clause 3. 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 this Agreement.
12.6 Unless the Customer notifies the Supplier that it intends to make a claim in
respect of an event within the thirty (30) day’s written notice period, the Supplier
shall have no liability for that event. The notice must be in writing and must identify
the event and the grounds for the claim in reasonable detail.
13. TERMINATION
13.1 Without affecting any other right or remedy available to it, either party may
terminate this Agreement with immediate effect by giving written notice to the other
party if:
(a) the other party commits a material breach of any term of this Agreement which
breach is irremediable or (if such breach is remediable) fails to remedy that breach
within a period of thirty (30) days after being notified in writing to do so;
(b) the other party suspends, or threatens to suspend, payment of its debts or is
unable to pay its debts as they fall due or admits inability to pay its debts or
is deemed unable to pay its debts within the meaning of section 123 of the Insolvency
Act 1986 as if the words “it is proved to the satisfaction of the court” did not
appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;
(c) the other party commences negotiations with all or any class of its creditors
with a view to rescheduling any of its debts, or makes a proposal for or enters
into any compromise or arrangement with any of its creditors other than (being a
company) for the sole purpose of a scheme for a solvent amalgamation of that other
party with one or more other companies or the solvent reconstruction of that other
party;
(d) 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;
(e) an application is made to court, or an order is made, for the appointment of
an administrator, or a notice of intention to appoint an administrator is given
or if an administrator is appointed, over the other party (being a company);
(f) 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;
(g) 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;
(h) 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;
(i) 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 13.1(b) to Clause 13.1(h) (inclusive);
(j) the other party suspends or ceases, or threatens to suspend or cease, carrying
on all or a substantial part of its business; or
(k) a Force Majeure (as defined below).
13.2 Without affecting any other right or remedy available to it, the Supplier may
terminate this Agreement with immediate effect by giving written notice to the Customer
if:
(a) the Customer fails to pay any amount due under this Agreement on the due date
for payment and remains in default not less than ten (10) days after being notified
in writing to make such payment; or
(b) there is a change of control of the Customer.
14. CONSEQUENCES OF TERMINATION
14.1 On termination or expiry of this Agreement:
(a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding
unpaid invoices and interest and, in respect of the Services supplied but for which
no invoice has been submitted, the Supplier may submit an invoice, which shall be
payable immediately on receipt;
(b) the Customer shall, immediately return all of the Supplier’s Equipment. If the
Customer fails to do so, then the Supplier may enter the Customer’s premises and
take possession of the Supplier’s Equipment. Until they have been returned or repossessed,
the Customer shall be solely responsible for their insurance and safe keeping;
(c) the Supplier shall on request return any of the Customer Materials not used
up in the provision of the Services; and
(d) the following clauses shall continue in force: Clause 1 (Interpretation), Clause
5 (Non-solicitation), Clause 8 (Intellectual property rights), Clause 11 (Confidentiality),
Clause 12 (Limitation of liability), Clause 14 (Consequences of termination), Clause
18 (Waiver), Clause 20 (Severance), Clause 22 (Conflict), Clause 27 (Multi-tiered
dispute resolution procedure), Clause 28 (Governing law) and Clause 29 (Jurisdiction).
14.2 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 this
Agreement which existed at or before the date of termination or expiry.
15. FORCE MAJEURE
15.1 Force Majeure Event means any circumstance not within a party’s reasonable
control including, without limitation:
(a) acts of God, flood, drought, earthquake or other natural disaster;
(b) epidemic or pandemic;
(c) 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;
(d) nuclear, chemical or biological contamination or sonic boom;
(e) any law or any action taken by a government or public authority, including without
limitation imposing an export or import restriction, quota or prohibition, or failing
to grant a necessary licence or consent;
(f) collapse of buildings, fire, explosion or accident; and
(g) non-performance by suppliers or subcontractors (other than by companies in the
same group as the party seeking to rely on this Clause); and
(h) interruption or failure of utility service.
15.2 Provided it has complied with Clause 15.4, if a party is prevented, hindered
or delayed in or from performing any of its obligations under this Agreement 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.
15.3 The corresponding obligations of the other party will be suspended, and its
time for performance of such obligations extended, to the same extent as those of
the Affected Party.
15.4 The Affected Party shall:
(a) as soon as reasonably practicable after the start of the Force Majeure Event
but no later than five (5) days from its start, notify the other party in writing
(email to suffice) 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 this Agreement; and
(b) use all reasonable endeavours to mitigate the effect of the Force Majeure Event
on the performance of its obligations.
15.5 If the Force Majeure Event prevents, hinders or delays the Affected Party’s
performance of its obligations for a continuous period of more than four (4) weeks,
the party not affected by the Force Majeure Event may terminate this Agreement by
giving two (2) weeks written notice to the Affected Party.
16. ASSIGNMENT AND OTHER DEALINGS
16.1 This Agreement is personal to the Customer and the Customer 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 this Agreement.
16.2 The Supplier may at any time assign, mortgage, charge, subcontract, declare
a trust over or deal in any other manner with any or all of its rights under this
Agreement.
17. VARIATION
Subject to Clause 6, no variation of this Agreement shall be effective unless it
is in writing and signed by the parties (or their authorised representatives).
18. WAIVER
18.1 A waiver of any right or remedy under this Agreement or by law is only effective
if given in writing and shall not be deemed a waiver of any subsequent right or
remedy.
18.2 A failure or delay by a party to exercise any right or remedy provided under
this Agreement 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 this Agreement or by law shall prevent or restrict the further exercise of
that or any other right or remedy.
19. RIGHTS AND REMEDIES
The rights and remedies provided under this Agreement are in addition to, and not
exclusive of, any rights or remedies provided by law.
20. SEVERANCE
20.1 If any provision or part-provision of this Agreement is or becomes invalid,
illegal or unenforceable, it shall be deemed deleted, but that shall not affect
the validity and enforceability of the rest of this Agreement.
20.2 If any provision or part-provision of this Agreement is deemed deleted under
Clause 20.1 the parties shall negotiate in good faith to agree a replacement provision
that, to the greatest extent possible, achieves the intended commercial result of
the original provision.
21. ENTIRE AGREEMENT
21.1 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.
21.2 Each party agrees that it shall have no remedies in respect of any statement,
representation, assurance or warranty (whether made innocently or negligently) that
is not set out in this Agreement. Each party agrees that it shall have no claim
for innocent or negligent misrepresentation based on any statement in this Agreement.
22. CONFLICT
If there is an inconsistency between any of the provisions of this Agreement and
the provisions of the Schedules, the provisions of this Agreement shall prevail.
23. NO PARTNERSHIP OR AGENCY
23.1 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.
23.2 Each party confirms it is acting on its own behalf and not for the benefit
of any other person.
24. THIRD PARTY RIGHTS
Unless it expressly states otherwise, this Agreement does not give rise to any rights
under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this
Agreement.
25. NOTICES
25.1 Any notice given to a party under or in connection with this Agreement 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).
25.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the
notice is left at the proper address; and
(b) if sent by next working day delivery service, at 9.00 am on the second Business
Day after posting or at the time recorded by the delivery service.
25.3 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
resolution.
25.4 Unless otherwise stated, a notice given under this Agreement is not valid if
sent by email.
26. COUNTERPARTS
26.1 This Agreement may be executed in any number of counterparts, each of which
when executed and delivered shall constitute a duplicate original, but all the counterparts
shall together constitute the one agreement.
26.2 Transmission of an executed counterpart of this Agreement (but for the avoidance
of doubt not just a signature page) by email (in PDF, JPEG or other agreed format)
shall take effect as delivery of an executed counterpart of this Agreement. If either
method of delivery is adopted, without prejudice to the validity of this Agreement
thus made, each party shall provide the other with the original of such counterpart
as soon as reasonably possible thereafter.
26.3 No counterpart shall be effective until each party has executed and delivered
at least one counterpart.
27. MULTI-TIERED DISPUTE RESOLUTION PROCEDURE
27.1 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:
(a) 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 manager of the Customer and manager
of the Supplier shall attempt in good faith to resolve the Dispute;
(b) if the manager of the Customer and manager of the Supplier are for any reason
unable to resolve the Dispute within thirty (30) days of service of the Dispute
Notice, the Dispute shall be referred to the Director of the Customer and Rowena
Revill of the Supplier who shall attempt in good faith to resolve it; and
(c) if the Director of the Customer and Rowena Revill of the Supplier 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.
27.2 The commencement of mediation shall not prevent the parties commencing or continuing
court proceedings in relation to the Dispute under Clause 29 (Jurisdiction) which
Clause shall apply at all times.
27.3 If the Dispute is not resolved within thirty (30) days after service of the
ADR notice, or either party fails to participate or to continue to participate in
the mediation before the expiration of the said period of thirty (30) days, or the
mediation terminates before the expiration of the said period of thirty (30) days,
the Dispute shall be finally resolved by the courts of England and Wales in accordance
with Clause 29 (Jurisdiction).
28. GOVERNING LAW
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.
29. 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 this Agreement or its subject matter
or formation
This Agreement has been entered into on the date on which the Customer paid any
or all charges to the Supplier. The Schedules of this Agreement are sent directly
to the Customer with their first invoice.