Terms and Conditions

THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 8 (LIMITATION OF LIABILITY).
1. Interpretation
The following definitions and rules of interpretation apply in these General Conditions.
1.1 Definitions:

• Additional Conditions: additional terms and conditions as specified the Contract Term Sheet
• Applicable Data Protection Laws: to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data; and to the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the Supplier is subject, which relates to the protection of personal data.
• Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
• Charges: the charges payable by the Client for the supply of the Services in accordance with clause 5.
• Client: the person or firm who purchases Services from the Supplier as named in the Contract Term Sheet.
• Client Default: has the meaning set out in clause 4.2.
• Client Facilities: has the meaning set out in clause 4.1(e)
• Client Materials: all documents, information, items and materials in any form, whether owned by the Client or a third party, which are provided by the Client to the Supplier in connection with the Services.
• Client Personal Data: any personal data which the Supplier processes in connection with the Contract, in the capacity of a processor on behalf of the Client.
• Commencement Date: the dated stated in the Contract Term Sheet for commencement of the Services.
• General Conditions: these terms and conditions as amended from time to time in accordance with clause 15.5.
• Contract: the contract between the Supplier and the Client for the supply of Services in accordance with the Conditions as further detailed in the Contract Term Sheet.
• Contract Term Sheet: the document signed by the parties and setting out the details of the Contract incorporating the Conditions and any Specification.
• Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control will be construed accordingly.
• Deliverables: the deliverables set out in the Specification.
• EU GDPR: means the General Data Protection Regulation ((EU) 2016/679), as it has effect in EU law.
• Intellectual Property Rights: patents, [utility models,] rights to inventions, copyright and [neighbouring and] related rights, [moral rights,] trademarks [and service marks], business names and domain names, rights in get-up [and trade dress], goodwill and the right to sue for passing off [or unfair competition], rights in designs, [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.
• Order: the Client’s order for Services.
• Restricted Person: any person employed or engaged by the Supplier during the term of the Contract who has been engaged in the provision of the Services.
• Services: the services, including the Deliverables, to be supplied by the Supplier to the Client under the Contract, as set out in the Specification.
• Specification: the written description or specification of the Services, as agreed between the parties, describing the Services, and any related matters.
• Special Conditions: the additional terms and conditions specific to the Services incorporated into the Contract as stated in the Contract Term Sheet.
• Supplier: the Supplier named in the Contract Term Sheet.
• Supplier Personal Data: any personal data that the Supplier processes in connection with the Contract, in the capacity of a controller.
• Supplier Materials: has the meaning set out in clause 4.1(g).
• UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.

1.2 Interpretation:

• (a) [Unless expressly provided otherwise in this Contract, a reference to legislation or a legislative provision:
  • (i)is a reference to it as amended, extended or re-enacted from time to time; and
  • (ii)will include all subordinate legislation made from time to time under that legislation or legislative provision.
• (b)Any words following the terms including, include, in particular, for example or any similar expression, will be construed as illustrative and will 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 An Order constitutes an offer by the Client to purchase Services in accordance with the Conditions.
• 2.2 An Order will only be deemed to be accepted when the parties have signed the Contract Term Sheet at which point and on which date the Contract will come into existence.
• 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 will not form part of the Contract or have any contractual force.
• 2.4 The Contract is made up of:
  • (a) 2.5 the Contract Term Sheet;
  • (b) the Specification;
  • (c) any Additional Conditions;
  • (d) the applicable Special Conditions; and.
  • (e) these General Conditions (the General Conditions, Special Conditions, and Additional Conditions together being “the Conditions”).
• 2.5 If there is any conflict or ambiguity between the terms of the documents listed in clause 2.4, a term contained in a document higher in the list shall have priority over one contained in a document lower in the list.
• 2.6 The 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 law, trade custom, practice or course of dealing.
• 2.7 Any quotation given by the Supplier will not constitute an offer and is only valid for the stated quotation period from its date of issue.

3. Supply of Services 

• 3.1 The Supplier will supply the Services to the Client in accordance with the Specification in all material respects.
• 3.2 The Supplier will use all reasonable endeavours to meet any performance dates specified in the Specification, but any such dates will be estimates only and time will not be of the essence for performance of the Services.
• 3.3 The Supplier reserves the right to amend the 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 will 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 may appoint sub-contractors to perform any of the Services. The Supplier shall use reasonable care and skill in the selection and appointment of sub-contractors and the agreement of the terms and conditions of such appointment, which shall be entirely at the discretion of the Supplier. The Supplier acknowledges that such sub-contracting shall not release the Supplier from any of its obligations under the Contract and the Supplier shall remain fully responsible for the performance of such Services.

4. Client’s obligations

• 4.1 The Client will:
  • (a) ensure that the terms of the Order and any information it provides in the Specification are complete and accurate;
  • (b) co-operate with the Supplier in all matters relating to the Services;
  • (c) if required provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Client’s premises, data, computer systems, and other facilities as reasonably required by the Supplier (“Client Facilities”);
  • (d) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
  • (e) prepare the Client Facilities, as required, for the supply of the Services;
  • (f)obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
  • (g) keep all materials, equipment, documents and other property of the Supplier (Supplier Materials) in the possession or control of the Client in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation; and
  • (h) comply with any additional obligations as set out in the Specification
• 4.2 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):
  • (a) without limiting or affecting any other right or remedy available to it, the Supplier will have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays the Supplier’s performance of any of its obligations;
  • (b) the Supplier will not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as provided in this clause 4.2; and
  • (c) the Client will reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Client Default.

5. Charges and payment 

• 5.1 The Charges for the Services will be calculated on the basis set out in the relevant Special Conditions
• 5.2 The Supplier will invoice the Client as set out in the relevant Special Conditions.
• 5.3 Unless otherwise specified in the Contract, the Client will pay each invoice submitted by the Supplier:
  • (a) within 28 days of the date of the invoice; and
  • (b) in full and in cleared funds to a bank account nominated in writing by the Supplier, and
  • (c) time for payment will be of the essence of the Contract.
• 5.4 All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Client, the Client will, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
• 5.5 If the Client fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under clause 12, the Client will 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 5.5 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
• 5.6 All amounts due under the Contract will be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
• 5.7 If any Charges are paid in a currency other than GB Pounds Sterling, the Client is responsible for all transaction and conversion fees. The Client shall ensure that the Supplier will receive the full amount of the Charges without deduction and the Supplier reserves the right to charge the Client further to reflect any shortfall or increase due to foreign exchange fluctuations or fees charged to the Supplier to convert any foreign currency into GB Pounds Sterling together with any costs of recovering the same from the Client.
• 5.8 The Supplier reserves the right to increase the Charges on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index in the preceding 12-month period and the first such increase will take effect on the first anniversary of the Commencement Date and will be based on the latest available figure for the percentage increase in the Retail Prices Index.
• 5.9 The Supplier shall be entitled to charge the Client an amount in addition to the Charges stated in the Contract if:
  • (a) the content of the Specification increases or changes;
  • (b) the Client requires any material change to the nature or scope of the Services or any additional work not referred to in the Services, being a material change that involves the Supplier incurring additional time costs and/ or expense;
  • (c) any agreed timetable in which the Services are to be performed is materially amended by the Client; or
  • (d) the Services are taking considerably more time and/or resource than was originally estimated for a reason that could not reasonably have been anticipated by the Supplier when the Charges were calculated.

6. Intellectual property rights  

• 6.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any Client Materials) will be owned by the Supplier.
• 6.2 The Supplier grants to the Client, or will procure the direct grant to the Client of, a licence as stated in the Contract] for the purpose of receiving and using the Services and the Deliverables in its business.
• 6.3 The Client will not sub-license, assign or otherwise transfer the rights granted in clause 6.2.
• 6.4 The Client grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Client to the Supplier for the term of the Contract for the purpose of providing the Services to the Client.

7. Client’s Property 

• 7.1 Any property made available by the Client to the Supplier for any purpose arising from or in connection with the Contract will be and at all times remain at the sole risk of the Client.
• 7.2 The Supplier will have no liability to the Client in respect of the use of this property (other than any liability which arises as the result of the Supplier’s negligence) and the Client will hold harmless and keep the Supplier fully indemnified against third party claims for death or personal injury or infringement of a third party’s intellectual property rights arising out of such use.

8. Data protection

• 8.1 For the purposes of this clause 8, the terms controller, processor, data subject, personal data, personal data breach and processing will have the meaning given to them in the UK GDPR.
• 8.2 Both parties will comply with all applicable requirements of Applicable Data Protection Laws. This clause 8 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under Applicable Data Protection Laws.
• 8.3 The parties have determined that, for the purposes of Applicable Data Protection Laws:
  • (a) the Supplier will process the personal data as set out in the Specification as processor on behalf of the Client; and
  • (b) the Supplier will act as controller of the personal data set out in the Specification.
• 8.4 Should the determination in clause 8.3 change, the parties will use all reasonable endeavours to make any changes that are necessary to this clause 8 and the Specification.
• 8.5 The Client consents to, (and will procure all required consents, from its personnel, representatives and agents, in respect of) all actions taken by the Supplier in connection with the processing of Supplier Personal Data, provided these are in compliance with the then-current version of the Supplier’s privacy policy (Privacy Policy). In the event of any inconsistency or conflict between the terms of the Privacy Policy and the Contract, the Privacy Policy will take precedence.
• 8.6 Without prejudice to the generality of clause 8.2, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Supplier Personal Data and Client Personal Data to the Supplier or lawful collection of the same by the Supplier for the duration and purposes of the Contract.
• 8.7 In relation to the Client Personal Data, the Specification 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.
• 8.8 Without prejudice to the generality of clause 8.2, the Supplier will, in relation to Client Personal Data:
  • (a) process that Client Personal Data only on the documented instructions of the Client, which will be to process the Client Personal Data for the purposes set out in the Specification unless the Supplier is required by Applicable Data Protection Laws to otherwise process that Client Personal Data (Purpose). Where the Supplier is relying on Applicable Data Protection Laws as the basis for processing Client Processor Data, the Supplier will notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Data Protection Laws prohibit the Provider from so notifying the Client on important grounds of public interest. The Supplier will inform the Client if, in the opinion of the Supplier, the instructions of the Client infringe Applicable Data Protection Laws;
  • (b) implement technical and organisational measures to protect against unauthorised or unlawful processing of Client Personal Data and against accidental loss or destruction of, or damage to, Client Personal Data, which are 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;
  • (c) ensure that any personnel engaged and authorised by the Supplier to process Client Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
  • (d) assist the Client insofar as this is possible (taking into account the nature of the processing and the information available to the Supplier), and at the Client’s cost and written request, in responding to any request from a data subject and in ensuring the Client’s compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
  • (e) notify the Client without undue delay on becoming aware of a personal data breach involving the Client Personal Data;
  • (f) at the written direction of the Client, delete or return Client Personal Data and copies thereof to the Client on termination of the Contract unless the Supplier is required by Applicable Law to continue to process that Client Personal Data. For the purposes of the Contract Client Personal Data will be considered deleted where it is put beyond further use by the Supplier; and
  • (g) maintain appropriate records to demonstrate its compliance with Applicable Data Protection Laws.
• 8.9 The Client provides its prior, general authorisation for the Supplier to:
  • (a) appoint processors to process the Client Personal Data, provided that the Supplier:
    • (i) will ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on the Supplier in the Contract;
    • (ii) will remain responsible for the acts and omission of any such processor as if they were the acts and omissions of the Supplier; and
    • (iii) will inform the Client of any intended changes concerning the addition or replacement of the processors, thereby giving the Client the opportunity to object to such changes provided that if the Client objects to the changes and cannot demonstrate, to the Supplier’s reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, the Client will indemnify the Supplier for any losses, damages, costs (including legal fees) and expenses suffered by the Supplier in accommodating the objection.
  • (b) transfer Client Personal Data outside of the UK as required for the Purpose, provided that the Supplier will ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Client will promptly comply with any reasonable request of the Supplier, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the Commissioner from time to time (where the UK GDPR applies to the transfer).
• 8.10 Either party may, at any time on not less than 30 days’ notice, revise this clause 8 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which will apply when replaced by attachment to this agreement).
• 8.11 The Supplier’s liability for losses arising from breaches of this clause 8 is as set out in clause 11.

9. TUPE on entry 

• If TUPE is applicable in relation to the Contract, the provisions set out in that Contract shall apply,.

10. Non-Solicitation of Personnel 

• 10.1 In order to protect the legitimate business interests of the Supplier, the Client covenants with the Supplier that it shall not:
  • (a) solicit or entice away;
  • (b) attempt to solicit or entice away; or
  • (c) employ, engage or otherwise facilitate the employment or exclusive engagement of

  any Restricted Person from the employment or engagement of the Supplier without the prior written consent of the Supplier.

• 10.2 The Client shall be bound by the covenant set out in clause 10.1 during the Term, and for a period of six months after termination of the Contract.
• 10.3 If the Client commits any breach of clause 10.1 and/or 10.2, the Client shall on demand pay to the Supplier a sum equal to one year’s basic salary or fee that was payable by the Supplier to the Restricted Person plus the recruitment costs incurred by the Supplier in replacing such person.
• 10.4 The Supplier reserves the right to charge the Client a fee in consideration for providing its written consent under clause 10.1. Such fee shall be equivalent to 20% of the gross annual salary or fee that was paid by the Supplier to that Restricted Person by the Supplier. The Supplier shall be entitled to invoice the Client immediately upon the commencement of the employment or engagement of the Restricted Person by the Client and such invoice shall be payable by the Client immediately upon presentation. If the Supplier does not require the Restricted Person to complete the notice period or contract term required by his or her terms of employment or engagement, the Supplier reserves the right to charge the Client an additional fee equivalent to the salary or fee payable by the Supplier for the period of unfulfilled notice.

11. Limitation of liability: THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE. 

• 11.1 The Supplier has obtained insurance cover in respect of its own legal liability for individual claims. 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 References to liability in this clause 11 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
• 11.3 Nothing in this clause 11 will limit the Client’s payment obligations under the Contract.
• 11.4 Nothing in the Contract limits any liability which cannot legally be limited, including 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).
• 11.5 Subject to clause 11.4 (Liabilities which cannot legally be limited), the Supplier’s total liability to the Client for all loss or damage will not exceed £2,000,000.
• 11.6 The caps on the Supplier’s liabilities will be reduced by:
  • (a) payment of an uncapped liability;
  • (b) amounts awarded or agreed to be paid under other terms of the Contract;
  • (c) amounts awarded by a court or arbitrator, using their procedural or statutory powers in respect of costs of proceedings or interest for late payment.
• 11.7 Subject to clause 11.3 (No limitation of client’s payment obligations) and clause 11.4 (Liabilities which cannot legally be limited), this clause 11.7 sets out the types of loss that are wholly excluded:
  • (a) loss of profits or anticipated profits.
  • (b) loss of sales or business.
  • (c) loss of agreements or contracts.
  • (d) loss of anticipated savings.
  • (e) damage, loss of use or corruption of software, data or information.
  • (f) loss of or damage to goodwill or business opportunity; and
  • (g) indirect or consequential loss or damage.
• 11.8 The Supplier has given commitments as to compliance of the Services with relevant specifications in 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 the Contract.
• 11.9 This clause 11 will survive termination of the Contract.

12. Termination 

• 12.1 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party three months’ written notice or such shorter notice as stated in the Contract.
• 12.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
  • (a) the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;
  • (b) the other party 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), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, 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 or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
  • (c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
  • (d) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’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;
  • (b) there is a change of control of the Client.
• 12.4 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services under the Contract or any other contract between the Client and the Supplier if:
  • (a) the Client fails to pay any amount due under the Contract on the due date for payment;
  • (b) the Client becomes subject to any of the events listed in clause 12.2(c) or clause 12.2(d), or the Supplier reasonably believes that the Client is about to become subject to any of them; and
  • (c)the Supplier reasonably believes that the Client is about to become subject to any of the events listed in clause 12.2(b).

13. Consequences of termination 

• 13.1 On termination or expiry of the Contract:
  • (a) the Client will immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier will submit an invoice, which will be payable by the Client immediately on receipt;
  • (b) the Client will return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Client fails to do so, then the Supplier may enter the Client Facilities and take possession of them. Until they have been returned, the Client will be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
• 13.2 Termination or expiry of the Contract will not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
• 13.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract will remain in full force and effect.

14. Confidentiality 

• 14.1 Confidential Information means all confidential information (however recorded or preserved) disclosed by a party or its Representatives (as defined below) to the other party and that party’s Representatives whether before or after the date of the Contract in connection with the Contract, including but not limited to:
  • (a) the existence and terms of the Contract;
  • (b) any information that would be regarded as confidential by a reasonable businessperson relating to:
    • (i) the business, affairs, customers, clients, suppliers, or plans, intentions, or market opportunities of the disclosing party (or of any member of the group of companies to which the disclosing party belongs); and
    • (ii) the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party (or of any member of the group of companies to which the disclosing party belongs); and
  • (c) any information developed by the parties in the course of carrying out the Contract.
  • (d) any information detailed in the Specification.

  Representatives means, in relation to a party, its employees, officers, sub-contractors, representatives and advisers.

• 14.2 The provisions of this clause shall not apply to any Confidential Information that:
  • (a) is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause);
  • (b) was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;
  • (c) was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party’s knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party; or
  • (d) the parties agree in writing is not confidential or may be disclosed; or
  • (e) is developed by or for the receiving party independently of the information disclosed by the disclosing party.
• 14.3 Each party shall keep the other party’s Confidential Information confidential and shall not:
  • (a) use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with the Contract (Permitted Purpose); or
  • (b) disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause.
• 14.4 A party may disclose the other party’s Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that:
  • (a) it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and
  • (b) at all times, it is responsible for such Representatives’ compliance with the confidentiality obligations set out in this clause.
• 14.5 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority, or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
• 14.6 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party’s Confidential Information other than those expressly stated in the Contract are granted to the other party, or to be implied from the Contract.
• 14.7 On termination of the Contract, each party shall:
• (a) destroy or return to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party’s Confidential Information;
• (b) erase all the other party’s Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties (to the extent technically and legally practicable); and
• (c) certify in writing to the other party that it has complied with the requirements of this clause, provided that a recipient party may retain documents and materials containing, reflecting, incorporating or based on the other party’s Confidential Information to the extent required by law or any applicable governmental or regulatory authority. The provisions of this clause shall continue to apply to any such documents and materials retained by a recipient party, subject to clause 12.
• 14.8 Except as expressly stated in the Contract, no party makes any express or implied warranty or representation concerning its Confidential Information.
• 14.9 The provisions of this clause 14 shall continue to apply after termination of the Contract OR survive for a period of five years from termination of the Contract.

15. General 

• 15.1 Force majeure. Neither party will be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract (except for payment of sums due) if such delay or failure result from events, circumstances or causes beyond its reasonable control. If the period of delay or non-performance continues for 31 months (unless specified otherwise in the Contract), the party not affected may terminate the Contract immediately by giving written notice to the affected party.
• 15.2 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 will 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.
• 15.3 No partnership or agency
  • (a) 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.
  • (b) Each party confirms it is acting on its own behalf and not for the benefit of any other person.
• 15.4 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 will 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 will have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
  • (c) Nothing in this clause will limit or exclude any liability for fraud.
• 15.5 Variation. Except as set out in the Conditions, no variation of the Contract will be effective unless it is in writing and signed by the parties (or their authorised representatives).
• 15.6 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and will 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 will not constitute a waiver of that or any other right or remedy, nor will 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 will prevent or restrict the further exercise of that or any other right or remedy.
• 15.7 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it will be deemed deleted, but that will not affect the validity and enforceability of the rest of this agreement. If any provision or part-provision of the Contract deleted under this clause 15.7 the parties will negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
• 15.8 Notices.
  • (a)Any notice or other communication given to a party under or in connection with the Contract will be in writing and will 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 or as advised from time to time.
  • (b) Any notice or communication will be deemed to have been received:
    • (i) if delivered by hand, at the time the notice is left at the proper address;
    • (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; or
    • (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 clause 15.8(b)(iii), business hours mean 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
  • (c) This clause 15.8 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.
• 15.9 Third party rights.
  • (a) 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.
  • (b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

16. Survival 

• 16.1 The following Clauses shall survive the end of the Term:
  • (a) Limitation of Liability
  • (b) Intellectual Property Rights
  • (c) Confidentiality
  • (d) Non-solicitation of Personnel
  • (e) General
  • (f) Notices
• 16.2 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 will be governed by and construed in accordance with the law of England and Wales.
• 16.3 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales will 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.