Terms & Conditions
Definitions and interpretation
- In this Contract the following terms have the following meanings:
| “Affected Party” | has the meaning given in clause 15; |
| “Applicable Law” | in any jurisdiction in which the Services are to be performed under this Contract any and all applicable laws, regulations, approved codes of practice, and industry standards or guidance (including any applicable British Standard) and any applicable and binding judgment of a relevant court of law; |
| “Appointment” | any pre-arranged appointment by which the Supplier will attend the Client’s premises, as more particularly described in paragraph 1 ‘Audits’ in Schedule 1 of the Service Agreement; |
| “Business Day” | a day other than a Saturday, Sunday or public holiday in England; |
| “Business Hours” | 09:00 to 17:30 on a Business Day (telephone/email/on-site support available 24 hours a day); |
| “Charges” | the charges for the Services payable in accordance with clause 7; |
| “Commencement Date” | has the meaning given to it in clause 2.3; |
| “Conditions” | the terms and conditions set out in this document as amended from time to time in accordance with condition 21; |
| “Confidential Information” | has the meaning given in clause 1; |
| “Contract“ | the contract between the Supplier and the Client for the supply of Services which incorporates these Conditions, the Service Agreement and the Specification; |
| “Control” | the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company and the expression “Change of Control” shall be construed accordingly; |
| “Client IT Systems” | the IT systems used by the Client from time to time; |
| “Client Materials” | all materials, equipment and tools, drawings, specifications and data supplied or made available by the Client to the Supplier (including data uploaded by the Client into online tools or records provided to the Client by the Supplier); |
| “Client Premises” | the premises from which the Client operates from time to time; |
| “Client’s Representatives” | the individuals appointed by the Client from time to time in accordance with clause 5.1 who shall serve as the Supplier’s primary contacts under this Contract ; |
| “Deliverables” | all documents, products and materials developed by the Supplier or the Supplier Personnel as part of or in relation to the Services in any form or media, including reports, manuals, training materials, user guides etc. (including drafts); |
| “Emergency Contact Service” | the contact service operated by the Client allowing for support to be provided to the Client outside the Business Hours; |
| “Force Majeure Event” | has the meaning given in clause 15; |
| “Insolvency Event” | has the meaning given in clause 14.2.3; |
| “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 and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, 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 together with all rights of action, powers and benefits arising from ownership of any such rights, including the right to sue for damages and other remedies in relation to all causes of action arising before, on or after the date of this Contract; |
| “Minimum Period” | the minimum period identified in the Service Agreement; |
| “M25 area” | the area situated inside the M25 motorway which encircles Greater London; |
| “Quarterly Basis” | the payment method set out in clause 7.4; |
| “Retail Price Index or RPI” | the Retail Price Index as published by the Office for National Statistics from time to time, or failing such publication, such other index as the Supplier may determine most closely resembles such index; |
| “Services” | the services specified in the Service Agreement; |
| “Service Agreement“ | the Client’s order for the supply of the Services set out in the document headed ‘Service Agreement’ accompanying these Conditions; |
| “Service Standards” | the service standards specified in the Service Agreement; |
| “Supplier Materials” | all materials, templates, equipment and tools, drawings, specifications and data supplied or made available by the Supplier to the Client; |
| “Supplier Personnel” | the personnel including subcontractors engaged by the Supplier in the provision of the Services; |
| “Supplier’s Representatives” | the individuals appointed by the Supplier from time to time who shall serve as the Client’s primary contacts under this Contract; |
| “VAT” | value added tax chargeable under the Value Added Tax Act 1994 and any similar replacement or additional tax; and |
| “Year” | a period of 12 months from and including the Commencement Date or an anniversary of the Commencement Date provided that, where this Contract is terminated part way through such a 12 month period, a reference to a Year shall include the period from the end of the last Year completed until the date of termination. |
1.2 References to “clauses” are to the clauses of these Conditions. Clause, headings shall not affect the interpretation of these Conditions.
1.3 A “person” includes a person, corporate or unincorporated body (whether or not having separate legal personality). A reference to a “company” shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.4 Unless the context otherwise requires, words in the singular shall include the plural and vice versa. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.5 A reference to a statute or statutory provision or to Applicable Law:
1.5.1 shall include all subordinate legislation made from time to time under the same; and
1.5.2 is a reference to the same as amended, extended, superseded or consolidated from time to time and including any other similar legislation in any other jurisdiction.
1.6 Any obligation in this Contract on a person not to do something includes an obligation not to agree or allow that thing to be done.
1.7 Any words following the terms “including”, “include”, “in particular”, or any similar expression shall be construed as illustrative and shall not limit the generality of the related general words.
2. Basis of contract
2.1 These Conditions (and the Service Agreement) apply to this 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.
2.2 The Service Agreement constitutes an offer by the Client to purchase the Services in accordance with these Conditions.
2.3 The Service Agreement shall only be deemed to be accepted on signature of this Agreement by both parties, at which point the Agreement shall come into existence (“Commencement Date”).
2.4 The Client waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any document that is inconsistent with these Conditions.
2.5 The relationship of the Supplier to the Client shall be that of independent contractor and nothing contained in this Agreement shall create a relationship of employer and employee, principal and agent or partnership between the Client and the Supplier.
2.6 Neither party shall pledge the credit of the other or sign any document, enter into any agreement or make any promise on behalf of the other or in any way indicate that it is entitled to do so without the prior written consent of the other party.
3. Provision of the Services
3.1 The Supplier will provide the Services detailed in Schedule 1 of the Service Agreement.
3.2 The Supplier may provide a different service in place of that specified within the Service Agreement, if agreed in writing by the Client.
3.3 The Services will be provided to the Client during the Business Hours, unless otherwise agreed between the parties.
3.4 Outside the Business Hours, the Supplier will provide the Emergency Contact Service, and use its best endeavours to provide such of the Services as are required by the Client outside of the Business Hours.
3.5 The Supplier warrants that it shall, in providing the Services:
3.5.1 co-operate with the Client in all matters relating to the Services and use best endeavours to comply with all the Client‘s best instructions;
3.5.2 perform the Services with best care and skill;
3.5.3 use best endeavours to perform the Services by the date(s) specified in the Service Agreement (if any), but any such dates shall be estimates only and time shall not be of the essence for performance of the Services;
3.5.4 use best endeavours to ensure the personnel carrying out the Services have the appropriate qualifications and experience necessary;
3.5.5 ensure that the Services and Deliverables correspond with their description;
3.5.6 use best endeavours to observe, and procure that the Supplier Personnel observe, all health and safety rules and regulations and any other security requirements that apply at any of the Client Premises; and
3.5.7 use best endeavours to accommodate any best changes in the Services which may be requested by the Client, subject to the Client‘s acceptance of any related change to the Charges which may be due as a result of such changes.
3.6 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this Agreement.
4. Client‘s obligations
4.1 The Client shall:
4.1.1 co-operate with the Supplier in all matters relating to the Services;
4.1.2 provide such information to the Supplier as the Supplier may reasonably request for the purpose of providing the Services and ensure that such information is accurate in all material respects;
4.1.3 obtain and maintain all necessary licences, permissions and consents which may be required before the performance of the Services by the Supplier;
4.1.4 keep and maintain all Supplier Materials at the Client Premises 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
4.1.5 comply with all Applicable Law with respect to its activities under this Agreement.
5. Management and reporting
5.1 Each party shall nominate representatives to deal with the management of this Agreement. Each party shall use best endeavours to procure the continuity of its representatives.
5.2 Each party shall appoint a designated contact person, who shall:
5.2.1 provide prompt and professional liaison with the other party; and
5.2.2 have the necessary expertise and authority to commit the relevant party.
5.3 If required by the Client, the Supplier’s Representatives shall attend review meetings with the Client‘s Representatives at which the parties shall discuss the performance of this Agreement. The Supplier shall, in consultation with the Client, provide an agenda for and minutes of such meetings.
6. Access and security
6.1 Upon best notice and subject to the remainder of this clause 6, the Client shall provide the Supplier and the Supplier’s Personnel with access to such Client IT Systems and Client Premises as may be required for the purpose of providing the Services.
6.2 The Supplier shall:
6.2.1 observe and comply with; and
6.2.2 procure that the Supplier Personnel in attendance at Client Premises shall observe and comply with any and all further best instructions or warnings given by the Client orally or in writing from time to time.
6.3 The Supplier shall ensure that all Supplier Personnel requiring access to Client IT Systems shall, at all times, use best endeavours to comply with the Client‘s instructions from time to time.
7. Charges
7.1 The Charges for the Services shall be the charges set out in the Service Agreement.
7.2 The Charges exclude amounts in respect of VAT, which the Client shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice.
7.3 After the initial Year, on each anniversary of the Commencement Date, the Charges will be increased annually in line with the Retail Price Index (RPI) over the preceding Year. The first such increase shall take effect on the first anniversary of the Commencement Date and shall be based on the latest available figure for the percentage increase in the RPI at the beginning of the last month of the previous Year. If the RPI is negative there will not be an increase and the Charges will remain the same. Applicable price increases will appear on the anniversary invoice.
7.4 The Charges shall be paid on a Quarterly Basis the Supplier will raise an invoice for the first payment on receipt of a signed copy of the Agreement, and all subsequent payments will be invoiced on the first day of every quarter thereafter. Payment will be collected by direct debit.
7.5 Time for payment, by whichever method identified, will be of the essence. If the Client fails to make any payment due to the Supplier by the due date for payment, then the Client shall pay interest on the overdue amount at the rate of 3% per annum above the 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.
7.6 The Client shall pay all amounts due under this Agreement in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by Applicable Law).
8. Intellectual Property Rights
8.1 Unless otherwise agreed in writing, all Intellectual Property Rights arising in connection with this Agreement, including in the Deliverables, shall belong to the Supplier.
8.2 The Client shall not supply the Deliverables to any third party or use the Services or the Deliverables to provide a service to any third party.
8.3 Subject to the Client’s obligations of confidence in clause 11, the Supplier hereby grants to the Client an irrevocable, perpetual, personal, royalty-free, non-exclusive to use the Deliverables for the Client’s own internal business purposes.
8.4 The Client acknowledges that the Supplier provides similar services to other clients of the Supplier, however the Supplier shall ensure that all Confidential Information and Client Materials belonging to the Client shall be kept confidential in accordance with clause 11.
8.5 All Supplier Materials are the Supplier’s exclusive property and all Client Materials are the Client‘s exclusive property. For the avoidance of doubt, the Supplier shall not use the Client’s Intellectual Property Rights, including, without limitation, any of the Client’s logo’s or trade marks without the Client’s prior written consent.
8.6 The Client shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses suffered or incurred by the Supplier as a direct result of any claim made against the Supplier for infringement of a third party’s Intellectual Property Rights arising out of or in connection with the use of the Client Materials or compliance with any specifications supplied by the Client).
9. Liability
9.1 Neither party limits its liability for:
9.1.1 death or personal injury caused by its negligence or that of its employees, agents or sub-contractors;
9.1.2 fraud or fraudulent misrepresentation by it or its employees;
9.1.3 breach of any warranty as to title implied by Applicable Law; or
9.1.4 any other act or omission, liability for which may not be limited under Applicable Law.
9.2 Subject to clause 9.1 neither party shall under any circumstances whatever be liable to the other party, whether in contract, tort (including negligence), misrepresentation, breach of statutory duty, or otherwise, for:
9.2.1 any indirect, special, consequential or pure economic loss or damage;
9.2.2 any loss of profits, anticipated profits, revenue or business opportunities; or
9.2.3 damage to goodwill or reputation,
(in each case arising as a direct or indirect result of the relevant claim).
9.3 Subject to clause 9.1, each party’s liability in connection with this Agreement for any one claim or series of connected claims losses or damages, whether arising from tort (including negligence), breach of statutory duty, restitution, breach of contract or otherwise under or in connection with this Agreement, shall in no event exceed 100% of the Charges for the Year in which the first act or omission giving rise to the liability relates .
10. Insurance
10.1 The Supplier shall take out and maintain in force at its own cost during the term of this Agreement at least the following insurance policies to cover its relevant potential liabilities in connection with this Agreement:
10.1.1 public liability insurance with a limit of at least £5million;
10.1.2 professional indemnity insurance with a limit of at least £2million;
10.1.3 employers’ liability insurance with a limit of at least £5million; and
10.1.4 product liability insurance with a limit of at least £5million.
11. Confidentiality
11.1 Subject to clause 11.2, each party (the “Recipient”) shall, for the term of this Agreement and for 12 months following its termination, keep the other party (the “Discloser”)’s confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of its Group (including the Deliverables) (“Confidential Information”) confidential and:
11.1.1 use such Confidential Information solely for the performance and/or use of the Services in accordance with this Agreement; and
11.1.2 not, without the Discloser’s prior written consent, disclose it to any other person other than to their professional advisors on terms which preserve confidentiality.
11.2 The provisions of clause 11.1 shall not apply to any Confidential Information that:
11.2.1 is already in the public domain or comes into the public domain in the same or substantially the same form in which it has been disclosed in connection with this Agreement without breach of this Agreement; or
11.2.2 is required to be disclosed under Applicable Law, by court order or by any regulatory body of competent jurisdiction (but then only to the extent and for the purpose required)
provided that a particular disclosed or discovered use, combination, analysis, form or collection of information will not be in the public domain simply because it could be re-created using information in the public domain.
11.3 The Recipient shall give the Discloser as much notice of any disclosure required under clause 11.2.2 as is best and lawful in the circumstances (if any) and shall provide best assistance to the Discloser in avoiding or limiting the required disclosure.
12. Publicity
The Supplier may not use the Client‘s name as a reference or in any advertising or promotional materials, press release, tender, proposal, speech, article or other similar material.
13. Data protection
13.1 If, in the performance or management of the Services, the Supplier is required to process personal data as the Client‘s data processor the Supplier shall:
13.1.1 do so only for the purpose of performing the Services;
13.1.2 comply with all relevant instructions or requests that the Client may give to the Supplier from time to time concerning such processing including:
13.1.2.1 the provision of explanatory information on the Client‘s business, processes, systems and/or controls; and
13.1.2.2 the delivery up of any relevant personal data in such form as the Client may reasonably request;
13.1.3 take appropriate technical and organisational security measures to safeguard such data against unauthorised or unlawful processing and against accidental loss or destruction of, or damage to, that data, having regard to:
13.1.3.1 the nature of such data and the harm which could result from such processing, loss, destruction or damage; and
13.1.3.2 the state of technological development and the cost of implementing such measures;
13.1.4 not cause or allow such data to be transferred out of or otherwise processed outside the European Economic Area;
13.1.5 not pass such data to any third party save to the Supplier Personnel, except:
13.1.5.1 with the Client‘s prior written consent in each case; and
13.1.5.2 where the Supplier has entered into a written contract with that third party under which that third party agrees to obligations that are materially equivalent to those set out in this clause 13; and
13.1.6 procure that all Supplier Personnel to whom personal data is passed pursuant to clause 13.1.5 comply with the terms of this clause 13.
13.2 For the purpose of this clause 13:
13.2.1 the terms “personal data”, “sensitive personal data”, “data controller”, “data processor” and “process” have the meanings given to them in the Data Protection Act 1998; and
13.2.2 the Supplier’s obligations in respect of personal data exclude any personal data relating to the Supplier Personnel generated by the Supplier for the purposes of administering this Contract.
14. Termination
14.1 This Contract shall begin on the Commencement Date and shall continue for the Minimum Period, and thereafter for further periods of one Year, renewing on the anniversary of the Commencement Date each year, until terminated by either party upon not less than 3 months’ written notice (such notice to be received no later than 3 months prior to the next anniversary of the Commencement Date, and to expire no earlier than the next anniversary of the Commencement Date).
14.2 Without limiting its other rights or remedies, either party may terminate this Contract with immediate effect by giving written notice to the other party if the other party:
14.2.1 commits any continuing or material breach of any of the provisions of this Contract and, if the breach is capable of remedy, fails to remedy the same within 30 days of receipt of written notice giving full particulars of the breach and the action required to remedy such breach a material breach including breach of clauses 4, 6, 8, 11, 13, and 16;
14.2.2 repeatedly breaches any of the terms of this Contract in a manner inconsistent with an intention or ability to give effect to the terms of this Contract;
14.2.3 makes an arrangement with or enters into a compromise with its creditors, becomes the subject of a voluntary arrangement, scheme of arrangement, receivership, administration, liquidation or winding up, is unable to pay its debts when due or otherwise becomes or suffers or is the subject of a distraint, writ of control or warrant of control, event of insolvency or any similar process or event, whether in the United Kingdom or otherwise (an “Insolvency Event”); or
14.2.4 ceases or threatens to cease to carry on all or substantially the whole of its business.
14.3 If either party undergoes a Change of Control:
14.3.1 the affected party shall notify the other party of such change within five Business Days of the Change of Control taking place; and
14.3.2 if the Client is the affected party, this Contract shall continue with the new owner, and the Supplier shall continue to provide the Services at each of the new owner’s sites, until such time as the Contract is terminated in accordance with this clause 14.
14.4 Without limiting its other rights or remedies, the Supplier may:
14.4.1 terminate this Contract and/or any or all Service Agreement with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under this Contract on the due date for payment and fails to pay all outstanding amounts within 14 days after being given written notice to do so; or
14.4.2 suspend provision of the Services under this Contract if the Supplier reasonably believes that the Client is about to become subject to an Insolvency Event, or if the Client fails to pay any amount due to the Supplier on the due date for payment.
14.5 If the Client terminates this Contract under clause 14.1 , the Client shall pay the Supplier, such amount of the Charges as the Supplier has yet to pay to the Supplier for the remainder of the next quarter. For example if a Client terminates in month 6 of any Year, the Client would pay to the Supplier the Charges due for the next three months in that Year.
14.6 The parties acknowledge and agree that:
14.6.1 the Client has a legitimate interest in ensuring that the Supplier performs the Services; and
14.6.2 the payments referred to in clause 14.5 are a best reflection of the losses which the Supplier would suffer should the Contract be terminated part way through any Year.
15. Force majeure
15.1 If a party (an “Affected Party”) is prevented, hindered or delayed in or from performing any of its obligations under this Contract by a Force Majeure Event, the Affected Party shall not be in breach of contract 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.
15.2 A “Force Majeure Event” means any event beyond a party’s best control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure or interruption of energy sources, other utility service or transport network, malicious damage, breakdown of plant or machinery, explosion, collapse of building structures, fire, flood, drought, storm or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
15.3 If the period of delay or non-performance continues for 3 months, the party not affected may terminate the affected Service Agreement by giving 5 Business Days’ written notice to the Affected Party.
16. Non-solicitation
16.1 Neither party shall on its own account or in partnership or association with any person, whether directly or indirectly, during the term of this Contract and for a period of six months following its termination or expiry, solicit or entice away any employee of the other party engaged in the provision or receipt of the Services or attempt or authorise such action. If a party breaches this clause 16 it shall pay to the other party the greater of:
16.1.1 the relevant individual’s gross annual salary inclusive of all benefits at the time of their resignation or departure; and
16.1.2 the equivalent of 50% of the relevant individual’s new annual salary or fee inclusive of all benefits, such sum being deemed by both parties to be fair compensation for the loss suffered as a result of such breach.
16.2 Employment as a result of a bona fide general recruitment campaign or advertisement shall not be a breach of the provisions of this clause 16.
17. Further assurance
Each party shall at the other party’s request and expense execute and deliver such documents and perform such acts as may be reasonably required for the purpose of giving full effect to this Contract and shall use all best endeavours to procure that any necessary third party shall promptly do the same.
18. Waiver
No failure or delay by a party to exercise any right or remedy provided under this Contract or by law shall constitute a waiver of or prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
19. Entire agreement
This Contract (incorporating these Conditions) 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. The Client acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract
20. Third party rights
A person who is not a party to this Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of this Contract.
21. Variation
No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
22. Counterparts
This Contract may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute a single agreement.
23. Governing law
This Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England.
24. Jurisdiction
The Client irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).
