EML, Event Management and Logistics Ltd
Terms and Conditions 01/09/2018 v4
EML, Event Management and Logistics Ltd Terms and Conditions 01/09/2018 v 4
1. INTERPRETATION
1.1 Definitions:
Acceptance Criteria: the applicable acceptance criteria as referred to in Clause 7.1.
Acceptance Testing: acceptance testing, as envisaged by Clause 7. Acceptance Testing Completion Date: has the meaning attributed to it in Clause 7.2 (as extended by any time period agreed between the Parties to complete any acceptance tests in respect of the Website).
Additional Customer Obligations: the additional obligations of the Customer referred to in the Order Form in the ‘Additional Customer
Obligations’ section.
Additional Supplier Obligations: the additional obligations of the
Supplier referred to in the Order Form in the ‘Additional Supplier
Obligations’ section.
Affected End Date: the date that the respective affected Services are terminated (rather than notified to be terminated) pursuant to Clause 4.9.
Affected Period: the period commencing from the Affected Start Date up until the Affected End Date (with such dates being inclusive for determining such period).
Affected Start Date: the date (if such date is not a Working Day, then the next Working Day) that the Customer notifies the Supplier of the unavailability of access to the Software due to the acts or omissions of the Supplier Personnel, pursuant to Clause 4.9. Agreed Liability: has the meaning attributed to it in Clause 15.8. Agreement: collectively the Conditions and all Order Forms, together with any applicable Licence Terms.
Charges: the charges referred to in the Order Form in the ‘Charges and Payment Profile’ section.
Checking: has the meaning attributed to it in Clause 6.6. Conditions: the terms and conditions of this version of the document entitled EML, Event Management and Logistics Ltd Terms and Conditions’ (but for the avoidance of doubt, references to ‘Conditions’ excludes the Order Forms) together with any applicable Licence Terms.
Consultancy Services: any services (other than the Web Services and Data Services) which have been performed, or agreed to be performed, by the Supplier Personnel as a result of an Order Form being entered into by the Parties in relation to the services referred to under the ‘Consultancy Services’ heading in the ‘Services’ section of the Order Form.
controller: the meaning attributed to ‘data controller’ under the Data Protection Act 1998; but from 25 May 2018 it has the meaning attributed to ‘controller’ under the GDPR.
Customer: the party shown as the ‘Customer’ in the respective Order Form.
Customer Materials: all materials (including any and all: documentation, designs, images, code, software, files and data) made available by, or agreed to be made available by, the Customer Personnel to the Supplier or uploaded by, or agreed to be uploaded by, the Customer Personnel to the Systems, but in each case excluding any works owned by the Supplier Personnel.
Customer Personnel: the Customer, together with: the Users; and the Customer’s and the User’s clients and third parties (including its contractors), other than the Supplier Personnel.
Data Services: any services (other than the Web Services and Consultancy Services) which have been performed, or agreed to be performed, by the Supplier Personnel as a result of an Order Form being entered into by the Parties in relation to the services referred to under the ‘Data Services’ heading in the ‘Services’ section of the Order Form.
Data Subject: the data subject to whom the Personal Data relates. Defaulting Party: has the meaning attributed to it in Clause 16.1. Deliverable Shortcomings: has the meaning attributed to it in Clause 7.19.
Deliverables: all of those documents or data sets provided, or agreed to be provided, by the Supplier which are referred to in the ‘Deliverables’ section of the Order Form.
Employee: any current or former employees of the Customer
Personnel or their third parties.
EULA: UKChanges’ end user licence agreement which is made available to the Customer in relation to the Order Form which relates to the Data Services.
Feed Changes: changes (including additions, replacements or removals) to the Feeds, or any changes in the structure, format, interfaces or nature of the Feeds.
Feeds: any data sources or data feeds which the Customer wishes the Supplier to use, as referred to in the ‘Data Sources or Data Feeds’ section of the Order Form.
Framework Terms: the Conditions excluding the Licence Terms.
GDPR: General Data Protection Regulation.
Group: in relation to a Party, that Party, any subsidiary or holding company from time to time of that Party, and any subsidiary from time to time of a holding company of that Party. High Level Specification: means the applicable high level specification referred to in the ‘High Level Specification’ section of the Order Form, which applies to the Website.
Indemnified: has the meaning attributed to it in Clause 13.8.
Indemnifier: has the meaning attributed to it in Clause 13.8.
Injured Party: has the meaning attributed to it in Clause 16.1.
Intellectual Property Rights: all intellectual property rights, including: patents, rights to inventions, copyright and related rights, trade marks, service marks, trade, business and domain names, rights to sue for passing off, rights in designs, rights in computer software, database rights, know-how and any other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Licence Terms: any third party licence terms or third party agreements (including the EULA) which are applicable to any of the Customer Personnel’s use of any aspects of the Supplier Materials.
Order Form: the Supplier’s document headed ‘EML, Event Management and Logistics Ltd Order Form for Services’ which is executed by both Parties.
Order Form Commencement: the earlier of: (1) the Order Form Date; or (2) the date which the respective Order Form is expressed in the Order Form to be effective from.
Order Form Date: the date set out in the ‘Order Form Date’ section of the Order Form.
Order Form Term: the term set out in the ‘Order Form Term’ section of the Order Form.
Other Customer Personnel: the Customer Personnel, excluding the Customer.
Parties: the Customer and the Supplier.
Party: the Customer or the Supplier (as applicable in the context). Personal Data: means personal data made available, or agreed to be made available, by the Customer Personnel to the Supplier, as referred to in the ‘Processing of Personal Data’ section of the Order Form; as well as: (1) any updates or changes to such personal data as undertaken by the Supplier Personnel in relation to performance of the Services; together with (2) any other personal data made available by the Customer Personnel to the Supplier Personnel in relation to the Project.
Personnel: a Party’s employees, officers, representatives, subcontractors, contractors, advisers, clients or other third parties.
Platform: UKChanges’ and its third parties’ (rather than the Supplier’s) infrastructure, software, systems and data services.
processor: the meaning attributed to ‘data processor’ under the Data Protection Act 1998; but from 25 May 2018 it has the meaning attributed to ‘processor’ under the GDPR.
Project: the arrangements consisting of the respective Order Form together with the Conditions as they apply to that Order Form. Recommendations: has the meaning attributed to it in Clause 8.1. Restricted Parties: has the meaning attributed to it in Clause 17.4(e).
Restricted Period: has the meaning attributed to it in Clause 17.4(e). Services: the services, including without limitation any Deliverables, provided, or agreed to be provided, by the Supplier, as referred to in the ‘Services’ or ‘Deliverables’ sections of the respective Order Form; this would therefore include any Consultancy Services, Data Services and Web Services which are applicable to that Order Form. Software: any software forming part of the Platform, to the extent that such software is made available, or to be made available, by the Supplier to the Customer or Users, at the Supplier’s discretion, in order to permit them to use the Data Services, or to allow the Customer or Users to upload Personal Data or access certain services in respect of such Personal Data. Solution: the meaning attributed to it in Clause 8.1. Special Conditions: the provisions contained within the ‘Special Conditions’ section of the respective Order Form.
Specification: the applicable specification agreed in the respective Workshop Signoff, which applies to the Website.
Subject Matter: has the meaning attributed to it in Clause 17.6(a).
Supplier: EML, Event Management and Logistics Ltd (Registered Number: 04447878). Supplier Materials: the Deliverables and any materials (including any and all: documentation, designs, images, code, software, files and data) made available by any of the Supplier Personnel, excluding any Customer Materials incorporated in them.
Supplier Personnel: the Supplier and its contractors, licensors, processors and subcontractors (for the avoidance of doubt, this excludes: the Customer; the Users; the Customer’s third parties and customers; and the Users’ third parties and customers).
Systems: means the Supplier Personnel’s systems and software which are made available, or to be made available, at the Supplier’s discretion, by the Supplier to the Customer or Users in order to: make use of the Services; or to allow the Customer or Users to upload Personal Data (or any other data) in connection with the Services.
Third Party IPR: any data which is not owned by the Supplier, but which is licensed to the Supplier by a third party other than the Customer Personnel.
TUPE: the Transfer of Undertakings (Protection of Employment) Regulations 2006 (as amended from time to time).
TUPE Liabilities: all losses, costs, damages, claims and expenses (including without limitation all legal and other professional expenses).
UKChanges: Direct Select (192) Limited (Registered number: 02595651).
Users: the Customer’s third party users identified in the ‘Users’ section of the Order Form.
Web Services: any services (other than the Data Services and Consultancy Services) which have been performed, or agreed to be performed, by the Supplier Personnel as a result of an Order Form being entered into by the Parties in relation to the services referred to under the ‘Web Services’ heading in the ‘Services’ section of the Order Form.
Website: means the respective website designed or developed, or agreed to be designed or developed, by the Supplier Personnel as a result of the respective Order Form being entered into by the Parties in relation to such Web Services.
Working Day: 9.30am-5.30pm UK time, on a day falling within Monday to Friday (inclusive) but excluding public holidays and Bank holidays.
Workshop: an activity designated by the Supplier as a ‘workshop activity’, which involves interaction between the Parties to agree any processes, requirements, specifications, testing arrangements or criteria, or other aspects in relation to the Services or other obligations of either Party.
Workshop Signoff: any arrangements which are agreed by both Parties in writing during or following a Workshop, where such agreed written document is designated by the Supplier as a ‘workshop signoff’.
Year: means a period of 12 months from either: (1) the Order Form Commencement; or (2) an anniversary of the Order Form Commencement.
1.2 Interpretation: The following interpretation will apply in respect of the Order Form, Conditions, Project and the Agreement:
(a) A reference to any law, will mean such law as it is amended or re-enacted from time to time. A reference to any law, also includes any subordinate laws made under that law, as amended or re-enacted from time to time.
(b) Other than in respect of the GDPR being effective from 25 May 2018 (and applying to any processing of Personal Data in relation to any Order Form which has not terminated at that time), the interpretations as referred to in Clause 1.2(a), will only apply to the Supplier where such new laws (including new subordinate laws) do not have an adverse effect on the Supplier from either a practical, cost, risk, liability or timing perspective (otherwise the Supplier will continue to perform its obligations in accordance with the previous laws until the Parties agree in writing the consequences of such new laws or changes in law in relation to the Order Form and Conditions, including any timing and cost impacts). However, this Clause
1.2(b) will not affect the Supplier’s obligation to comply with those new laws: which are directly applicable to the Supplier, to the extent that the Supplier cannot lawfully exclude their application to the Supplier.
(c) The headings contained in the Order Form and Conditions are for convenience of reference only and shall not affect their interpretation.
(d) References to ‘person’ includes an individual, company, public organisation, corporation, firm, partnership or any other legal entity.
(e) Words indicating the singular shall include the plural and vice versa.
(f) The words and phrases ‘includes’, ‘including’ or ‘in particular’ (as well as any similar words or expressions) shall be without limitation to the generality of any preceding words and any preceding words shall not be construed as being limited to a particular class where a wider interpretation of those words and phrases is possible. Furthermore (except where already stated) such words shall be deemed to be immediately followed by the words ‘without limitation’.
(g) All sums payable hereunder by the Customer are expressed exclusive of VAT and any other applicable tax and duty payable upon such sums, which shall be added if appropriate, at the rate prevailing at the relevant tax point. A valid VAT invoice will be provided where VAT is applicable.
(h) The Parties acknowledge and agree that the Supplier will use reasonable endeavours to comply with any timing obligations, but time shall not be of the essence with regard to the Supplier’s obligations. The Supplier’s timing obligations shall therefore be interpreted accordingly.
(i) Where any timings are not specified with regard to performance of a Party’s obligations, then the respective Party will comply with such obligations within a reasonable period of time.
(j) Both Parties will act reasonably and in good faith in undertaking their obligations in relation to the Projects.
(k) The Parties agree that when interpreting or construing any or all of the provisions of the Projects, the contra proferentem rule shall not be applied.
(l) References to an ‘Order Form’ are to be interpreted as a reference to the relevant or respective Order Form.
References to any ‘Services’ or ‘Consultancy Services’ or ‘Web Services’ or ‘Data Services’ or ‘Deliverables’ or ‘Website’, are respectively references to the relevant or respective services, deliverables or websites as applicable to the relevant or respective Order Form. References to any aspects of an Order Form (such as ‘Special Conditions’) are to be interpreted as a reference to the relevant or respective aspects within the relevant Order Form. References to a ‘Project’ are to be interpreted as a reference to the relevant or respective Order Form (together with the Conditions as they apply to that Order Form). To the extent of any interpretation or ambiguity issues in respect of this Clause 1.2(l), the Supplier shall clarify the intention (acting reasonably) and such clarification will then apply.
(m) To the extent of any conflict or ambiguity between any of the provisions referred to within the Conditions or Order Form, the following decreasing order of precedence will apply (with the earlier provisions therefore prevailing over the latter to this extent):
(i) Clause 15.1 will prevail; then
(ii) the Special Conditions; then
(iii) the Framework Terms; then
(iv) the other terms of the respective Order Form; and then
(v) the Licence Terms will have the lowest precedence.
2. COMMENCEMENT AND TERM
2.1 These Framework Terms shall apply to both Parties, and the Licence Terms shall commence on the date when the first Order Form is signed by both Parties (taking into account the interpretation provisions of Clause 2.2 as applicable).
2.2 These Conditions operate as a framework contract between the Parties. The Conditions may be terminated, so that no further Order
Forms can be entered into following such termination, in accordance with the termination provisions referred to within Clauses 16.10 and 16.11. If an Order Form is subsequently executed in such circumstances following such termination, then that will be subject to the Conditions (or such revised form as referred to in the respective Order Form), so that a new framework agreement commences at that time (with such new framework agreement not affecting nor applying to any previous Order Forms which were executed under the previous framework agreement, and therefore references to the ‘Agreement’ will include those Order Forms that were executed from the date of this new framework agreement and not any which were executed prior to that date, with the first Order Form for the purposes of Clause 2.1 in respect of the new framework agreement therefore being that first one which was executed on the same date as the new framework agreement coming into force).
2.3 The Parties may only agree for the Supplier to perform any services or provide any deliverables, by jointly executing an Order Form for such services and deliverables. Such Order Form operates subject to the provisions of the Conditions (except as stated in Clause 1.2(m)).
2.4 Subject to:
(a) earlier termination in accordance with the provisions of the Project; and
(b) any renewal arrangements referred to in the Order Form
Term; the Order Form will terminate on the expiry of the Order Form Term.
However, this will not affect the Customer’s payment obligations and the continuance in force of the Conditions as a framework agreement.
2.5 For the avoidance of doubt, the coming into force, termination or breach of an Order Form will not affect any other Order Form, unless otherwise expressly stated in the Special Conditions of the respective Order Form.
3. SUPPLY OF SERVICES
3.1 The Supplier shall undertake performance of the Services in accordance with the Project.
3.2 Services will not be performed, and Deliverables will not be provided, outside Working Days, unless otherwise expressly stated in the Order Form.
3.3 The Supplier shall:
(a) perform its obligations with reasonable skill and care;
(b) not use any of the Customer’s site or system access for any purpose other than for performance of the Supplier’s obligations under the Agreement;
(c) fulfil the Additional Supplier Obligations; and
(d) take reasonable care of all Customer Materials in its possession and make the tangible Customer Materials available for collection by the Customer on reasonable notice and request, provided that the Supplier may destroy the Customer Materials if the Customer fails to collect such Customer Materials within a reasonable period after termination of the Order Form.
3.4 The Supplier will use the Feeds as reasonably required in order to perform its obligations in respect of the Project. However, this is subject to the Customer undertaking its obligations in respect of such Feeds and its other obligations in respect of the Project.
3.5 Without prejudice to the Supplier’s additional rights and remedies, if the Supplier's performance of its obligations in relation to a Project is prevented or delayed by any act or omission of the Customer Personnel, the Supplier shall:
(a) not be liable for any costs, charges, expenses or losses sustained or incurred by the Customer that arise from such prevention or delay;
(b) be entitled to payment of the Charges (which would have been payable had such prevention or delay not occurred) despite any such prevention or delay;
(c) be entitled to recover any additional reasonable costs, charges, expenses or losses which the Supplier sustains or incurs that arise from such prevention or delay; and
(d) have an extension to the timings for performance of its obligations (should the Supplier so wish, at its sole discretion), which reflect the delays which have been caused.
3.6 Each Party agrees (and the Customer will ensure that the Customer Personnel will also comply with the equivalent obligations (mutatis mutandis) which are referred to in Clause 3.6) at least for the duration of the Agreement:
(a) that it has in place a reasonable backup procedure in respect of its systems and data, which includes at least its own daily data backups (including backups of its software and data), and has reasonable disaster recovery and business continuity and data restoration measures in place (including the Customer Personnel implementing measures to reasonably mitigate against the risks and consequences associated with: any nonavailability or malfunction of the Systems; and/or
issues with the Services);
(b) that it will undertake virus scanning using reasonable industry known software for such purposes (ensuring that this software is updated with the latest updates made available by the anti-virus software licensors) in respect of its equipment, and any software and data residing on such equipment; and
(c) that it will implement reasonable security and firewall arrangements to safeguard its systems and data.
3.7 The Customer acknowledges that other than the express obligations contained within the Project, the Supplier will have no other obligations to the Customer with regard to any system or software installation, configuration, development, hosting, training or support. 3.8 The Parties shall comply with the Special Conditions.
3.9 Each Party’s representative referred to in the ‘Customer’s Representative’ and ‘Supplier’s Representative’ sections of the Order Form, shall be the primary contact point for any issues in relation to the Project, and such representative shall:
(a) liaise professionally and promptly with the other Party’s representative; and
(b) have the necessary expertise and authority to commit and represent the respective Party.
4. DATA SERVICES
4.1 In order to provide the Data Services, the Supplier Personnel make use of the Platform.
4.2 The Customer acknowledges that the Customer and Users will require certain access to the Software in order to use the Data Services, and that such access to the Software is made available subject to acceptance of the EULA by the Customer and Users.
4.3 The licence granted pursuant to the EULA in respect of the Software is granted by UKChanges only for the duration of the Data Services, and is therefore a time limited, non-exclusive, non-transferrable, revocable licence to use the Software to allow the Customer and its Users to upload data in accordance with the respective Order Form for the purposes of the Data Services only (for the avoidance of doubt, this does not permit the Customer to allow any other third party (including any of its holding companies or subsidiaries which are not designated as Users in the Order Form), to use such Software (whether in whole or in part), except as stated in the respective Order Form). The Customer acknowledges that nothing in the Agreement allows the Customer to use the Software (whether in whole or in part) on behalf of third parties (other than to allow the Customer and Users to use the Data Services for the purposes of their marketing campaigns with their end customers; although for the avoidance of doubt, it is the Customer’s and the Users’ responsibility to ensure that they have obtained all required consents to: (1) undertake any such marketing activities; and (2) use the respective data contained in, or derived from, the Feeds).
4.4 The Customer will ensure that it has a written contract in place with the Users before providing them with any access to the Software, with such contract between the Customer and the Users being consistent with the following:
(a) the Customer will ensure that the contract specifies that the
Users have to accept the EULA in order to use the Software;
(b) the Customer will not impose any liability on the Supplier in respect of such contract (including in respect of the Software or any related services);
(c) the Customer will ensure that by entering into such contract with the Users, it will not result in any liability for the Supplier to the Users or any other third parties (whether arising under contract, tort (including negligence), misrepresentation or otherwise).
4.5 The Customer acknowledges and agrees that it is its own responsibility to ensure that it obtains its own legal advice in respect of its contractual arrangements with its Users.
4.6 The Customer agrees that it will ensure that neither it nor the Other Customer Personnel will undertake any act or omission which would result in the Supplier being liable to the Other Customer Personnel.
Furthermore, the Customer will defend and indemnify the Supplier in full, against any claims from the Other Customer Personnel which relate in any way to the Project (to the extent that such claims have arisen in connection with the Project).
4.7 The Customer acknowledges and agrees that: the EULA contains the licence terms in relation to the Software and that any issue with, or claim in relation to, the Software and Platform must be brought by the Customer and the affected Users against UKChanges pursuant to that EULA and not against the Supplier; (this Clause operates subject to Clause 4.9).
4.8 The Customer agrees that the EULA is a contractual arrangement between the respective Customer (or Users) and UKChanges. Consequently, the Customer agrees that any breach of the EULA by UKChanges will not give rise any rights and remedies to the Customer against the Supplier, other than as expressly stated in Clauses 4.9 and 16.7. Furthermore, the Customer agrees that a breach of the EULA by UKChanges or a termination of the EULA will not entitle the Customer to terminate the other aspects of the Project.
4.9 In the event that the Software or Platform is materially unavailable for use for more than 10 consecutive Working Days (where such unavailability is due to the acts or omissions of the Supplier Personnel and not due to the acts or omissions of the Customer Personnel), then the Customer can, whilst such unavailability continues, elect to terminate the affected Services, and the Supplier will provide the Customer with a pro-rata refund for the remaining unused term of the Services (such refund being in respect of the Affected Period). This termination and refund operates on the following basis:
(a) the termination by the Customer will be a termination for convenience and not for cause (as the Customer acknowledges that the Supplier does not provide the Platform or Software, and the Supplier does not provide any assurances in respect of the uninterrupted availability of the Platform or Software or services dependent upon the Platform or Software). Consequently, the termination together with any applicable refund will be the Customer’s sole and exclusive remedy (in respect of the non-availability of the Platform or Software or services dependent upon the Platform or Software) against the Supplier, as any other applicable rights and remedies (if any of the Customer will be as per the EULA against UKChanges;
(b) the Customer must promptly notify the Supplier by email (and confirm receipt of such email by the Supplier, by contacting the Supplier by telephone on the same day) on the date that the Platform or Software or services dependent
upon the Platform or Software are unavailable; and
(c) if the Supplier reasonably determines that the nonavailability of the Platform or Software or services dependent upon the Platform or Software is not caused by the acts or omissions of the Supplier Personnel, then the Customer may not exercise any termination or refund rights under Clause 4.9.
5. WEB SERVICES
5.1 Clause 5 applies in respect of Web Services only and therefore not in respect of Consultancy Services or Data Services.
Producing the Specification
5.2 The Supplier will work with the Customer in order to produce a Specification based on the High Level Specification. Such activity will be undertaken within a reasonable period of time, as part of the Workshops, with all of the time incurred by the Supplier in such activity being chargeable in accordance with the rates referred to in the respective Order Form (or at the Supplier’s standard rates in force at the time, if the rates are not specified).
Undertaking the Website Design or Development Work
5.3 The Supplier will undertake the website design and website development work (as applicable) referred to in the Order Form in material accordance with the Specification.
5.4 Once the Supplier has completed the website design and website development work as referred to in Clause 5.3, the Parties shall undertake the Acceptance Testing in accordance with Clause 7.
6. CONSULTANCY SERVICES
6.1 Clause 6 applies in respect of Consultancy Services only and therefore not in respect of Web Services or Data Services.
6.2 The Supplier agrees to perform the Consultancy Services, and the Customer agrees to provide all reasonable assistance to enable the Supplier to undertake such services.
6.3 The Customer acknowledges and agrees that none of the Consultancy Services constitute legal advice or legal services, and are therefore not a substitute for legal advice or legal services.
6.4 The Customer acknowledges and agrees that where any Consultancy Services are described as being for compliance purposes (including auditing for compliance), such services are only to assist the Customer with seeking to be compliant with the particular requirement but the Supplier will not be ensuring, nor responsible for ensuring, that the Customer achieves compliance with the particular requirements as a result of: performance of the respective Consulting Services by the Supplier; or provision of any information, guidance, training, documentation, materials or Deliverables. The Parties agree that the Supplier’s obligations in respect of the Project will therefore be interpreted accordingly.
Guidance or Training Services
6.5 Where the Supplier agrees pursuant to an Order Form to expressly provide any training (whether on-site, remotely or otherwise) or guidance (whether on-site, remotely, by helpline, by email or otherwise), then the Customer agrees the following:
(a) the Supplier will only have responsibility to ensure that it has provided such training or guidance with reasonable skill and care, and it will have no other liability in relation to such training and guidance (nor with regard to how the Customer or its third parties use such training or guidance); and
(b) the Supplier will not be liable for any implementations, developments, configurations, work or actions undertaken by the Customer or its third parties as a result of such training or guidance.
Checking, Testing or Auditing Services
6.6 Where the Supplier has expressly agreed to undertake any checking, testing or auditing services of any of the Customer’s arrangements (whether systems, software, processes, procedures, documentation, security measures, organisational measures or otherwise) pursuant to an Order Form (such checking, testing or auditing services being referred to in this Project as “Checking”), then such Checking will be limited to the specific Checking activities and scope which are expressly referred to in the respective Order Form.
6.7 Any Checking by the Supplier can be undertaken by the Supplier either on-site at the Customer’s location or remotely, as reasonably determined by the Supplier, taking into account the nature of the activities to be undertaken by the Supplier to perform the respective Checking services.
6.8 As a result of any Checking undertaken pursuant to Clause 6.6, the Supplier will provide its feedback to the Customer, but unless expressly agreed otherwise in the Order Form, the Supplier will not be required in respect of such Checking, or as a result of such Checking, to: produce a rectification plan; nor provide any details with regard to how to rectify any identified issues; nor undertake any remedial action in respect of any of the identified issues.
6.9 If the Supplier undertakes any Checking services pursuant to Clause 6.6, then the Supplier does not provide any assurance whatsoever that its Checking services will be exhaustive or comprehensive in nature (as the Parties acknowledge that in view of the timing and resource constraints, any Checking cannot be exhaustive or comprehensive), as the Supplier’s obligation will be to use reasonable endeavours to materially meet the requirements contained within the agreed written scope for the Checking in the respective Order Form.
Helpline Services
6.10 Where the Supplier agrees to provide any form of telephone or email helpline service, then this will be provided only during the hours and days stated in the Order Form.
7.
7.1 Acceptance Testing is only undertaken in respect of the Website, and only then to the extent agreed in the respective Workshop Signoff. The Supplier shall notify the Customer in writing when the Website is ready for formal acceptance testing, and unless agreed otherwise in an Order Form or Workshop Signoff, the Customer shall within a reasonable period of time (such period not to exceed 5 Working Days unless otherwise agreed in writing by the Supplier) of the Parties signing the respective Workshop Signoff, prepare the test scripts and acceptance criteria, in accordance with, and consistent with, the Specification applicable to the Website. The test scripts and acceptance criteria will be subject to the prior written approval of the Supplier (such approval not to be unreasonably withheld). If the acceptance criteria are not agreed within the time period referred to in this Clause, then the respective test scripts and Acceptance Criteria will be a reasonable number of test scripts and criteria as formulated
and determined by the Supplier, with the Supplier being able to charge at its normal hourly or daily rates for producing such scripts and criteria in such circumstances.
7.2 The Customer shall conduct and complete the acceptance tests within 5 Working Days (or such other period as agreed between the Parties in the Order Form or Workshop Signoff or otherwise in writing) of the Supplier confirming that the Website is ready for acceptance testing (the date by which the acceptance testing is scheduled (or agreed by the Parties in writing) to be completed by, being referred to as the “Acceptance Testing Completion Date”).
7.3 In the event that the Website meets the Acceptance Criteria by the Acceptance Testing Completion Date, the Customer shall notify the Supplier immediately in writing, and such Website shall be accepted. If the acceptance testing is not completed by the Customer, or the notification pursuant to this Clause is not provided (in circumstances where Clause 7.5 is not applicable), by the Acceptance Testing Completion Date, then the Website will be deemed to have been accepted by the Customer, with the associated consequences referred to in Clause 7.13.
7.4 To the extent that the Customer notifies the Supplier of any issues or defects with the Website pursuant to Clause 7, and to the extent that the Supplier investigates such issues or defects, only to discover that such issues are not present or are not attributable to the wrongful acts or omissions of the Supplier, then the Customer accepts that the Supplier may charge the Customer for all such investigative and diagnostic work at the Supplier’s standard rates for such work.
Acceptance Testing Failure
7.5 In the event that the Website fails to meet the Acceptance Criteria prior to the Acceptance Testing Completion Date, then the Customer shall within 5 Working Days of the Acceptance Testing Completion Date notify the Supplier in writing, with reasonable details in respect of the failure. The Supplier will then use reasonable endeavours to remedy such specific defects and resubmit the relevant aspect of the Website for re-testing within a period of 15 Working Days (or such longer reasonable period as is appropriate in view of the nature of the defect) from the date of the Customer’s notice. The Customer acknowledges that unless otherwise agree in the Order Form, the Supplier may charge at its usual rates for any investigation and remedial work and related time. For the purposes of such re-testing, the provisions in Clauses 7.2 and 7.3 will apply again, with the Acceptance Testing Completion Date for such purposes being the 10 Working Day period from when the updated Website (or element of it) is made available to the Customer for re-testing. For the avoidance of doubt, any re-testing will only be in respect of those elements of the Website which failed the previous Acceptance Testing and which were notified in accordance with the provisions of this Clause 7.5 (all other aspects of the relevant Website will remain accepted by the Customer, unless the Customer can reasonably demonstrate that the new non-compliances with the Acceptance Criteria have been caused by such remedial work). If the re-testing shows that the remedial work has not corrected the respective non-compliance with the Acceptance Criteria (or that the remedial work has given rise to new non-compliances with the Acceptance Criteria where such issues were not present prior to such remedial work), then the remedial action and re-testing pursuant to this Clause 7.5 will continue to apply, unless the provisions of Clause 7.6 apply.
7.6 In the event that acceptance testing is failed 3 or more times for the same defect in respect of the same element of a Website under a specific Order Form (with such defects being reported in writing each time by the Customer on their occurrence, in accordance with Clause 7.5), then the Customer may elect to invoke Clause 7.7 instead of Clause 7.5, but only by providing such written notification at the same time as the defect notification is provided pursuant to Clause 7.5.
7.7 In the event that the Customer makes a valid election pursuant to Clause 7.6, then the Customer shall be entitled to:
(a) accept the relevant Website subject to a reasonable reduction as determined by the Supplier in the Charges in respect of the Web Services for the Website (reflecting the shortcomings in terms of the non-compliance with the Acceptance Criteria); although the Customer then agrees: (1) that the Supplier will not then be liable for the consequences arising from such shortcomings in the Website, with such reduction in Charges being the sole and exclusive remedy for such non-compliance; and (2) it may not require such non-compliance to be rectified by the
Supplier; or
(b) reject the relevant element of the Website which has failed the Acceptance Criteria under the relevant Order Form, whereupon the Supplier shall refund all sums previously paid to it solely in respect of the development of the rejected element of the Website, under the respective Order Form; with the Customer then not being able to use the rejected element of the Website nor being able to require the Supplier to provide or rectify the rejected element of the Website; or
(c) invoke Clause 7.5 again, following which Clause 7.6 will apply again.
7.8 If the Customer elects to invoke Clause 7.7(a) or Clause 7.7(b), then the Customer agrees that the Supplier will no longer be required to: (1) provide any other elements of the Website; (2) perform any other obligations, services or Web Services; nor (3) provide any other Deliverables; which cannot be provided by the Supplier in compliance with the Project due to the shortcomings accepted by the Customer, or rejections made by the Customer, pursuant to Clause 7.7(a) or Clause 7.7(b).
7.9 The parties agree that Clauses 7.5 and 7.7 represent the Customer’s sole and exclusive remedies in the event that the Website does not fulfil the Acceptance Criteria.
Acceptance & Consequences
7.10 The Customer confirms that it will be deemed to have accepted the Website on the earlier of:
(a) using the Website in a live environment; or
(b) within 5 Working Days of the Acceptance Testing
Completion Date, if the Customer does not inform the Supplier prior to the expiry of this time period of any failure to meet the Acceptance Criteria (the Customer will be deemed to have accepted those aspects of the Website in respect of which it has not reasonably identified in writing any failures to meet the Acceptance Criteria, prior to the
expiry of this time period); or
(c) acceptance occurring pursuant to Clause 7.3;
7.11 Where any element of the Website is not subject to Acceptance Testing, then the Customer will be deemed to have accepted that element of the Website within 5 Working Days of the Website being made available (whether initially, or subsequently pursuant to Clause 7.12) to the Customer, if no material non-compliances with the Website in respect of the Specification are notified by the Customer to the Supplier within such time period in writing (with such notification being required to have details of the non-compliance, together with reasonable details to allow the Supplier to re-create the actions to view the non-compliance experienced by the Customer).
7.12 If any material non-compliances are notified by the Customer to the Supplier pursuant to Clause 7.11, then the sole and exclusive remedy of the Customer, is for the Supplier to use reasonable endeavours to resolve such non-compliances to the extent that it is reasonably able to do so. Any time incurred by the Supplier in undertaking any remedial work, will be chargeable by the Supplier to the Customer in accordance with the Supplier’s applicable rates. If the Supplier is able to remedy the respective issue in respect of Clause 7.11, then the acceptance provisions in Clause 7.11 will re-apply in respect of such element of the Website.
7.13 Notwithstanding any provision to the contrary, on acceptance of the Website by the Customer in accordance with the provisions of Clause 7 (whether actual acceptance or deemed acceptance), the Customer confirms and agrees that the Website (irrespective of whether the whole or part of the Website was subject to Acceptance Testing) meets the Specification and the requirements of the Project, and that it may not then reject the Website nor receive any payments in respect of any defects or shortcomings which are subsequently discovered by the Customer in respect of the Website, nor be entitled to any other right or remedy in respect of the Website (however, this is without prejudice to Clause 15.1, and the Customer’s right pursuant to Clause 13.8).
7.14 Notwithstanding the above provisions in Clause 7 or any provision to the contrary in the Project, if any failure by the Website to meet the Acceptance Criteria is due to one or more of the following:
(a) any issue with any third party software or third party development or configuration, which has not been provided or undertaken by the Supplier Personnel in relation to an Order Form; or;
(b) any act or omission by the Customer Personnel;
7.15 then the Website will be deemed to be accepted by the Customer (so the acceptance consequences in Clause 7.13 will apply), and the Acceptance Criteria for the purposes of the Project, will be deemed to have been fulfilled in respect of that Website.
7.16 Subject to Clause 13.8, if the Customer requests that any issues with a Website are remedied following the acceptance of a Website (including deemed acceptance) by the Customer, the Supplier may agree to do so, and such remedial work will be charged at the Supplier’s then standard applicable services’ rate for such work in force at the time.
Deliverables
7.17 The provisions contained within Clauses 7.1 to 7.16 inclusive, only apply to the Website and not to any Deliverables. The provisions contained within Clauses 7.18 to 7.22 inclusive, only apply to the Deliverables and not to the Website.
7.18 For the avoidance of doubt, in respect of any Deliverables provided by the Supplier to the Customer pursuant to the Project, this is not subject to Acceptance Testing but is deemed accepted on the earlier of: (1) when the respective Deliverable has either been signed off or accepted in accordance with the respective Workshop Signoff; or (2) 5 Working Days from the date that the Supplier notifies the Customer in writing that it is providing the respective Deliverable for sign off purposes (if the Deliverable does not accompany the notice, then this 5 Working Day period commences from the date that the Deliverable is actually provided for sign off purposes), provided that the Customer has not provided any reasonable justification in writing within this 5 Working Day period as to why the Deliverable should not be signed off.
7.19 If the Customer raises any reasonable issues with the Deliverable referred to in Clause 7.18 (within the 5 Working Day period referred to in Clause 7.18), then the remainder of the Deliverable will be deemed to have been accepted by the Customer, and the Supplier agrees to address within a reasonable period of time the reasonable issues which have been raised by the Customer. Where such Deliverable is being produced on a time and materials basis, any further work in respect of the Deliverable (including without limitation any remedial work) will be chargeable. Subject to Clause 7.20, where the Deliverable has been agreed to be produced on a time and materials basis, the only time any re-working of the Deliverable will not be chargeable in full, will be when the Supplier expressly states in writing that the Deliverable is being provided for sign off purposes, and the Customer demonstrates in writing to the Supplier’s reasonable satisfaction within 5 Working Days from receipt of the Deliverable on that occasion, that the Supplier has failed to use reasonable skill and care in producing specifically identified sections of the Deliverable (those aspects of the Deliverable where there has been demonstrated to be a failure to use reasonable skill and care are referred to as the “Deliverable Shortcomings”); in such circumstances, the time taken to address the Deliverable Shortcomings will not be chargeable.
7.20 For the avoidance of doubt, any review meeting task referred to in an Order Form or Workshop Signoff, is chargeable in any event, and the work undertaken as a result of such task does not fall within the scope of Clause 7.19.
7.21 Following the provision of any updated Deliverable pursuant to Clause 7.19, the provisions of Clauses 7.18 and 7.19 will re-apply to such Deliverable (although the Customer may only raise any reasonable issues in respect of the updated aspects of the Deliverable, with the remainder of the Deliverable having been deemed to be accepted by the Customer as stated in Clause 7.19).
7.22 Notwithstanding any provision to the contrary, on acceptance of the respective Deliverable by the Customer in accordance with the provisions of Clause 7 (whether actual acceptance or deemed acceptance), the Customer confirms and agrees that the Deliverable meets the requirements of the Project, and that it may not then reject the Deliverable nor receive any payments in respect of any defects or shortcomings which are subsequently discovered by the Customer in respect of the Deliverable, nor be entitled to any other right or remedy in respect of the relevant Deliverable (however, this is without prejudice to Clause 15.1
7.23 and the Customer’s right pursuant to Clause 13.8).
8. RECOMMENDATIONS
8.1 To the extent that the Supplier provides any advice or makes any recommendations or suggestions (whether as part of the Services or otherwise) (such advice, recommendations and suggestions collectively being referred to as the “Recommendations”; any third party products (including software, data or IT equipment) and/or third party services referred to in the Recommendations are referred to as the “Solution”), the Customer acknowledges and agrees that:
way of guidance for use by the Customer in its decision
such Recommendations;
and/or services which are unconnected with the Supplier, and therefore the Supplier has no control over the quality, availability or suitability of such Solution;
requirements;
(d) The Supplier is not providing any legal advice, and the
(as the Supplier is not providing any assurances that any of the Recommendations or documentation will comply with any particular legal requirements);
without limitation, the quality, availability or suitability of
reasonable in view of the other provisions contained within the Project, including in Clause 8.
Solution is not referring to products or services which the Supplier has agreed to provide pursuant to an Order Form.
10.
controller (unless otherwise expressly stated in the ‘Processing of Supplier is the processor in respect of any Personal Data.
the Customer's instructions documented in the Order Form and shall
not process the Personal Data for any purposes other than those expressly authorised by the Customer in writing.
10.3 The Supplier shall ensure that it and its processors only process the Personal Data within the UK or the European Economic Area or in countries in respect of which the European Commission has issued an adequacy decision for such processing.
10.4 The Supplier shall ensure that persons authorised to process the Personal Data on the Supplier’s behalf, have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
10.5 The Supplier warrants that, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, it shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk.
10.6 The Customer acknowledges that the Supplier is reliant on the Customer for direction as to the extent to which the Supplier is entitled to use and process the Personal Data. Consequently, the Customer shall defend and indemnify the Supplier against all claims brought by a Data Subject or any Customer Personnel or a supervisory authority arising from any action or omission by the Supplier, to the extent that such action or omission resulted directly from any of the Customer Personnel’s instructions.
10.7 The Customer will ensure that the Customer Personnel will not:
(a) make available any personal data to the Supplier Personnel, other than that which falls within the scope of the Personal Data;
(b) request the Supplier Personnel to process any Personal Data other than for the purposes of performing the Services.
10.8 The Customer agrees that it is its obligation to (and that the Supplier is not liable nor responsible for undertaking the following):
(a) obtain all consents from the Data Subjects or Customer Personnel (as applicable), to allow the Supplier and its processors to process the Personal Data for the purposes of the Services;
(b) ensure that the instructions and Personal Data which are provided to the Supplier, by the Customer Personnel, are lawfully provided;
(c) provide (or ensure that its Customer Personnel provide) all communications, information (including copies of Personal Data) which are required to be provided to the Data Subjects pursuant to any applicable data
protection and privacy laws; and
(d) liaise directly with Data Subjects (or with its Other Customer Personnel where the Customer is acting as a processor rather than a controller in respect of the relevant Personal Data) in respect of data protection and privacy matters.
10.9 The Supplier may authorise a third party subcontractor to process the Personal Data provided that the subcontractor’s contract provides reasonable safeguards for the processing of Personal Data. At the date of the Order Form, the subcontractors identified in the ‘Processing of Personal Data’ section of the Order Form are authorised by the Customer to be engaged by the Supplier for the processing which is envisaged by the Order Form.
10.10 The Supplier shall inform the Customer of any intended changes concerning the addition or replacement of other processors, thereby giving the Customer the opportunity to object to such changes by allowing the Customer to provide prompt written reasonable justification for such objections (provided that such objections relate to demonstrable evidence of the inability of the proposed processor to process Personal Data in accordance with data protection laws or other than in accordance with the safeguards reasonably required for data subjects). In such cases, the Supplier will not use such processor where the Customer has raised such reasonable justification for such objections, and the Supplier’s performance of the Services will be suspended until the Supplier has appointed a reasonable replacement processor which is approved by the Customer (with the Customer acting reasonably); the Parties agree that in such circumstances, the Supplier will not be held liable for any non-performance of its obligations to the extent that they have been prevented or hindered as a result of delays associated with seeking an alternative processor. If the Supplier is unable to contractually engage with a replacement processor within a period of 30 days from the date of the Customer’s objection, then the Supplier may terminate the respective Order Form
(with such termination being undertaken in accordance with Clause 16.3).
10.11 The Supplier shall (with the following applying only to the extent mandated by applicable data protection laws to be complied with by a processor):
(a) where it engages another processor for carrying out specific processing activities on behalf of the Customer, have in place data protection obligations requiring the processor to implement reasonable technical and organisational measures for safeguarding Personal Data and the rights of data subjects under data protection laws. Where that other processor fails to fulfil its data protection obligations as required by law, the Supplier shall remain liable to the Customer for the performance of that other processor's obligations;
(b) taking into account the nature of the processing, assist the Customer by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Customer’s obligation to respond to requests for exercising the Data Subject's rights by law;
(c) assist the Customer in ensuring compliance with the obligations required by applicable data protection laws in respect of the following to the extent that they are applicable (taking into account the nature of processing and the information available to the processor): security of processing by the Supplier and the Supplier’s processors; communication of personal data breaches which have arisen due to breaches by the Supplier or the Supplier’s processors; data protection impact assessments in respect of the Supplier’s or the Supplier’s processors’ processes; and liaising with the relevant data protection supervisory authority in respect of the processing undertaken by the Supplier or the Supplier’s processors;
(d) at the Customer’s discretion, in respect of the Personal Data which is in the possession of the Supplier or the
Supplier’s processors: delete or return all the Personal Data to the Customer after the end of the provision of services relating to processing, and delete existing copies unless applicable laws require storage of the Personal Data by the Supplier or the Supplier’s processors;
(e) make available to the Customer all information necessary to demonstrate compliance by the Supplier and the Supplier’s processors with the obligations applicable to them in this Clause 10.11, and allow for and contribute to audits, including inspections, conducted by the Customer or another auditor reasonably mandated by the Customer.
10.12 The Supplier will provide reasonable co-operation with regard to assisting the Customer with compliance with data protection laws, to the extent that this is mandated by law, or reasonably requested by the Customer. With regard to this, as well as with regard to the provisions of Clause 10.11 (as Clause 10.11 applies subject to this Clause 10.12), the following shall apply:
(a) all such assistance will be provided to the Customer at the Supplier’s standard rates in force (or where the Supplier determines that such rates are not applicable to the type of assistance, then at the reasonable cost of the Customer);
(b) where any technical or practical measures need to be implemented to assist the Customer or Other Customer Personnel as the controller (as applicable), including for aspects such as: (1) data portability; or (2) implementing human intervention with regard to automated decision making; then the Customer will state this expressly and specifically (rather than generically) at the outset in the ‘Services’ section of the Order Form. If the Customer fails to do this, then the Supplier will provide reasonable assistance with such activities (where reasonably requested by the Customer), but the Customer acknowledges that there may be higher costs payable by the Customer to the Supplier for such assistance, and the timings for complying with such measures might not accord with any timing constraints of the Customer or the data protection laws (in view of the time and scheduling required by the Supplier to undertake such activities);
(c) where the Customer (or Other Customer Personnel in circumstances in which any of them are the controller in respect of the Personal Data) undertakes any audits (either itself or through its third parties), this will be subject to the Customer ensuring that:
(i) such audits do not disrupt the activities of the Supplier, its processors and third parties;
(ii) the audit is undertaken in a reasonable and professional manner, with access being sought to only those aspects which are required by data protection law (but not to any legally privileged information, nor any information of any third parties who are not the Data Subjects);
(iii) any site visit at the Supplier’s or the
Supplier’s processors’ premises, is subject to accompaniment at all times by the Supplier’s or the Supplier’s processors’
representatives;
(iv) the auditor (and where applicable, the relevant Customer Personnel) enters into a reasonable confidentiality agreement with the Supplier and its relevant processors;
(v) the audit is undertaken at reasonable times, during the normal working hours of the Supplier and its processors; and
(vi) the cost of the audit and any assistance and attendance by the Supplier, its processors, and any of the afore-mentioned’s representatives is paid for by the Customer.
10.13 Each Party shall take steps to ensure that any natural person acting under the authority of the respective Party who has access to Personal Data does not process it except on written instructions from the Customer (reflecting the instructions of the controller of the Personal Data in circumstances where the Other Customer Personnel rather than the Customer is the controller), unless he or she is required to do so by applicable law.
10.14 The Customer will immediately reimburse the Supplier for all costs (which also includes expenses) which the Supplier (and its third parties) incur in relation to Data Subjects, Customer Personnel and supervisory authorities in relation to the performance of the Supplier’s obligations in respect of the Project, where such costs have arisen due to: the request of the Customer Personnel; breach by the Customer Personnel of their obligations in respect of the Project; or breach by the Customer Personnel of data protection or privacy laws. Where such reimbursement is not forthcoming within 30 days of a written request from the Supplier, then without prejudice to the Supplier’s rights and remedies, the Supplier may terminate the Order Form (with such termination being deemed to be for an irremediable material breach committed by the Customer of the Project).
10.15 The Parties acknowledge that the GDPR applies from 25 May 2018. Consequently, all of the provisions in Clause 10 apply from 25 May 2018. Until 25 May 2018, the Supplier’s obligations under Clause 10 will be restricted to only those which are required under the Data Protection Act 1998.
11. CUSTOMER'S OBLIGATIONS
11.1 The Customer shall:
(a) reasonably co-operate with the Supplier on all matters relating to the Services;
(b) undertake its obligations with reasonable skill and care; (c) fulfil the Additional Customer Obligations;
(d) provide such information and Customer Materials as the Supplier may reasonably require, and ensure that they are provided in a reasonable state and within a reasonable period of time; and
(e) accept full responsibility and liability for the acts undertaken by any party (other than the Supplier Personnel) using the log-in details of the Customer Personnel to access the Systems; and
(f) accept full responsibility and liability for the acts and omissions of the Customer Personnel;
(g) ensure that only the Customer rather than the Other Customer Personnel are able to bring claims against the Supplier, and the Customer will therefore defend and hold the Supplier harmless from any claims from the Other Customer Personnel.
11.2 The Customer agrees (and the Customer will ensure that the Customer Personnel comply with the following as well):
(a) not to undertake any act or omission which would reasonably be likely to adversely affect the Supplier Personnel’s systems, software or services;
(b) not to undertake any act or omission which would result in the Supplier Personnel becoming in breach of any law, regulation or code of conduct;
(c) to maintain the confidentiality and security of user names and passwords in relation to all of the Systems;
(d) to lawfully provide access to its and its third parties: systems, software, data, documentation, materials, resources, facilities, premises, personnel and contractors, as is reasonably necessary in order to allow the Supplier Personnel to comply with their obligations pursuant to the Project;
(e) that it will ensure that the Customer Personnel undertake all firewall and configuration settings in respect of their systems (including software) to allow their systems to communicate with the Supplier Personnel’s systems, to the extent reasonably necessary to allow the Supplier Personnel to perform their obligations pursuant to the Project;
(f) to ensure that the Customer Personnel are lawfully authorised to make available to the Supplier Personnel the respective Customer Materials for the purposes of the Project, and ensure that such Customer Materials:
(i) are of the correct format and content as directed by the Supplier from time to time;
(ii) do not contain any information or materials which are: unlawful; defamatory; infringing any third party’s Intellectual Property Rights; pornographic; racist; sexist; discriminatory; offensive; or of a nature which a reasonable person would not reasonably expect to be provided or uploaded in relation to the Project.
11.3 The Customer agrees to defend the Supplier Personnel from and against all claims or actions relating to the Customer Materials (including any part thereof):
(a) violating any laws; or
(b) infringing the Intellectual Property Rights of a third party;
and the Customer shall fully indemnify and hold harmless the Supplier Personnel from and against all losses, damages, costs (including all legal fees) and expenses incurred by or awarded against the Supplier Personnel as a result of, or in connection with, any such claims or actions.
12. DATA SOURCES OR DATA FEEDS 12.1 The Customer shall:
(a) in a timely manner, provide the Supplier Personnel (who reasonably need access to the Feeds) with lawful access to the Feeds for the purposes of the Project;
(b) ensure that with regard to its third parties who are responsible for providing any Feeds, that the Customer has in place processes or arrangements, to ensure that they inform the Customer promptly and at least 30 days in advance of any proposed Feed Changes;
(c) provide reasonable advance written notice of at least 30 days to the Supplier, of any proposed Feed Changes; and
(d) pay the Supplier such charges as reasonably specified by the Supplier from time to time (based on the Supplier’s standard rates in force at the time) for:
(i) administrating, managing and implementing any changes to the Systems, including any application programming interface changes to the Systems, to accommodate any Feed Changes; and
(ii) administrating, managing and implementing any requests from the Customer to supplement, remove or replace any Feeds.
12.2 The Customer acknowledges and agrees, that:
(a) the Supplier will not be obliged to comply with any requests for Feed Changes, unless agreed by the Parties in writing;
(b) the Supplier will not be responsible for any issues in the performance or non-performance of its obligations, to the extent that this is attributable to any Feed Changes (unless the Supplier has confirmed in writing that it has been able to, or will be able to, accommodate such Feed Changes without it having any adverse consequences for the Customer).
12.3 If the Customer fails to comply with its obligations pursuant to Clauses 12.1 or 12.2, then without prejudice to the Supplier’s additional rights and remedies:
(a) the Customer agrees, and the Customer will ensure, that the Supplier will not be held responsible or liable for any consequences which arise from the Customer’s breach of its obligations under Clause 12.1 or 12.2 (including the inability of the Supplier to perform its obligations to the Customer as a result); and
(b) the Customer agrees that it will still pay the Supplier the amounts which would have been due for those periods that the Supplier’s performance of its obligations has been prevented or hindered by the Customer Personnel, with such payments being calculated as if the Supplier had performed its obligations.
12.4 For the avoidance of doubt, the Customer agrees that it may not request any Feed Changes, where this would:
(a) result in it not being reasonably possible for the Supplier to accommodate such Feed Changes; or (b) result in there being no Feeds remaining.
12.5 The Customer acknowledges and accepts that removal of Feeds will not result in any reduction in the charges payable by the Customer, as the Customer will still be responsible for paying:
(a) the monthly charge and other applicable charges which would have been payable if the Feeds had not been removed; and
(b) any charges payable pursuant to Clauses 12.1 or 12.3.
13.
13.1 The Supplier Personnel and their licensors shall retain ownership of all Intellectual Property Rights in the Supplier Materials. The Customer Personnel and their licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials. Nothing in the Project operates to transfer any ownership of Intellectual Property Rights from one Party to the other Party.
13.2 The Supplier grants the Customer (with the Customer being able to sublicense to the Users), a licence to use (but not to modify or adapt) the Supplier Materials to the extent necessary for the purpose of receiving and using the Services in the Customer's business (or where specified in the ‘Services’ section of the Order Form in the respective Customer Personnel’s business) during the Order Form Term.
13.3 The Customer grants (on behalf of itself and the Customer Personnel) the Supplier Personnel a royalty-free licence to use the Customer Materials for the Order Form Term to the extent necessary for the purpose of performing their obligations in respect of the Project.
13.4 Subject to the other provisions of the Order Form:
(a) the Customer confirms that the Customer Materials, and
(b) the Supplier confirms that the Supplier Materials, are being provided lawfully for the purposes envisaged by the Project.
13.5 Subject to payment by the Customer of the Charges for the Web Services, and following acceptance of the Website by the Customer: the Supplier grants the Customer, a non-exclusive, non-transferable, perpetual (but revocable in the event of a breach of the Agreement), royalty free licence to allow the Customer to either host itself (and use) or host with a third party, the Website for its own business purposes (but not for the business purposes of any third party).
13.6 Where the Supplier is making available third party materials, software, documentation or data to the Customer Personnel pursuant to the Project, the Supplier Personnel will inform the Customer of the existence of any applicable Licence Terms. The Customer will ensure that any such third party aspects of the Supplier Materials will only be used by the Customer (and where permitted by the Project, the Customer Personnel) in accordance with the provisions of the Project.
13.7 The Customer agrees to defend the Supplier Personnel from and against all claims or actions against the Supplier Personnel, relating to breach by any of the Customer Personnel of: the Licence Terms; or obligations in the Project relating to the use of third party materials, software, documentation or data. Furthermore, the Customer shall fully indemnify and hold harmless the Supplier
Personnel from and against all losses, damages, costs (including all legal fees) and expenses incurred by or awarded against the Supplier Personnel as a result of, or in connection with, any such claims or actions.
13.8 Subject to Clause 3, 13.10 and 13.11, each Party (the “Indemnifier”) agrees to indemnify and keep indemnified the other Party (the “Indemnified”) against all losses, costs and expenses (including without limitation reasonable legal fees) incurred or suffered by the Indemnified resulting directly from any bona fide claim that the operation, possession or use of the whole or any part of the Indemnifier’s provided materials when used in accordance with the provisions of this Agreement infringes the Intellectual Property Rights of a third party. The Indemnified agrees to:
(a) give prompt written notice to the Indemnifier of any such claim of infringement as soon as it becomes aware of such claim of infringement;
(b) give the Indemnifier reasonable assistance (at the reasonable cost of the Indemnifier) in connection with the defence of any such claim of infringement and not admit liability or attempt to settle or compromise such claim without the prior written agreement of the Indemnifier (such agreement not to be unreasonably withheld);
(c) allow the Indemnifier to conduct the defence of any such claim; and
(d) use its reasonable endeavours to mitigate any damages, losses, costs and expenses resulting from such claim of infringement.
13.9 Without prejudice to the other provisions of the Project, in the event of a claim of infringement of the Intellectual Property Rights of a third party, the Indemnifier shall be entitled to (but not obliged to):
(a) procure the right for the Indemnified to continue using the infringing material; or
(b) make such modifications to the infringing material or relevant parts thereof so that the infringing material becomes non-infringing without incurring a material reduction in the quality or performance of the respective material; or
(c) replace the infringing material with non-infringing substitutes provided that such substitutes do not entail a material reduction in the quality or performance of the respective materials.
13.10 The Third Party IPR is made available by the Supplier on an ‘as is’ basis without any assurances, warranties or indemnities from the Supplier. The other provisions of the Project will therefore be construed accordingly. For the avoidance of doubt, Clause 13.8 does not apply as an indemnity from the Supplier to the Customer in respect of the Third Party IPR.
13.11 The Parties agree that the Supplier will not be liable for any third party Intellectual Property Right infringement to the extent that such infringement arises from: the acts or omissions of the Customer Personnel or their third parties; or the Supplier complying with the directions or requests of the Customer Personnel or their third parties; or the Supplier’s works being modified by the Customer Personnel or their third parties; or the Supplier’s works being modified under the direction of the Customer Personnel or their third parties. In any of the situations referred to in this Clause 13.11, the Parties agree that the Customer will indemnify the Supplier in respect of such infringement, with the Customer being the Indemnifier and the Supplier being the Indemnified for the purposes of Clause 13.8 (and in such circumstances, for the purposes of the indemnity in Clause 13.8, the infringing works will be deemed to have been provided by the Customer rather than the Supplier).
14. CHARGES AND PAYMENT
14.1 The Customer shall pay the Supplier the Charges plus VAT (if VAT is applicable).
14.2 The Supplier shall submit invoices for the Charges plus VAT (if VAT is applicable) to the Customer monthly in advance, or otherwise in accordance with the payment profile shown on the Order Form in the ‘Charges and Payment Profile’ section. Each invoice shall include all reasonable supporting information reasonably required by the Customer.
14.3 The Customer shall pay each invoice due and submitted to it by the Supplier, within 30 days of receipt (or such other period as specified in the ‘Charges and Payment Profile’ section of the Order Form), to a UK bank account nominated in writing by the Supplier.
14.4 The Customer agrees that it will still pay the Supplier the amounts which would have been due for those Services, Deliverables or
periods (as applicable) in respect of which the Supplier’s performance of its obligations has been prevented or hindered by the Customer Personnel or their third parties (including in respect of any breach of Clause 17.4 by the Customer Personnel), with such payments being calculated as if the Supplier had performed its obligations.
14.5 If the Customer fails to make any payment due to the Supplier under the Project by the due date for payment, then, without limiting the Supplier's remedies under Clause 16:
(a) the Customer shall pay interest on the overdue amount at such rate as prescribed by law. The Customer shall promptly pay the interest together with the overdue amount; and
(b) the Supplier may (at its discretion) suspend all or part of the Services until payment has been made in full.
Disputed Invoices
14.6 The Customer will be entitled to withhold payment of all or part (as applicable) of an invoice in the event that the Customer has a bona fide dispute concerning such invoice, provided that:
(a) details of the dispute and bona-fide disputed amount are notified by the Customer to the Supplier in writing prior to the respective due date for the invoice;
(b) the undisputed elements of the respective invoice are paid by the due date; and
(c) the Parties use reasonable endeavours to resolve the dispute as soon as reasonably possible.
Unless all of the requirements of this Clause 14.6 are fulfilled, the Customer agrees that it may not withhold or set-off any amounts in respect of any invoice. Furthermore, the Customer agrees that it may only withhold amounts (or set-off amounts) in respect of that invoice which relates to Charges for those elements of the Services which are subject to the dispute.
14.7 The Customer agrees that its only set-off and withholding rights in respect of payments are those contained in Clause 14.6. The Customer agrees that if it attempts to withhold or set-off any amounts other than as permitted by Clause 14.6, this will constitute a material breach of the Agreement which is incapable of remedy.
Expenses
14.8 In addition to any expenses referred to in the ‘Charges and Payments’ section of the Order Form, the Customer will also pay the following expenses to the Supplier (which will be re-charged to the Customer at cost, unless otherwise expressly stated below or in the Order Form):
(a) mileage expenses for travelling to and from any of the Customer Personnel’s or Customer Personnel’s third
parties’ sites, at £0.45+VAT per mile;
(b) reasonable subsistence expenses;
(c) courier or premium delivery costs; (d) non-UK telephone call charges; and (e) premium number call charges.
15.
15.1 Notwithstanding any provision to the contrary, nothing in the Agreement shall apply to limit or exclude the Supplier Personnel’s liability for:
(a) death or personal injury caused by: their negligence, or the negligence of their personnel, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; or
(c) any other liability which cannot be limited or excluded by applicable law.
15.2 Notwithstanding any provision to the contrary, all of the provisions of the Agreement apply subject to Clause 15.1.
15.3 Subject to Clause 15.1, all limitations and exclusions of liability in the Agreement for the benefit of the Supplier, apply whether the claims or liability arise under contract (including without limitation, in relation to any deliberate repudiatory and fundamental breaches), statute, tort (including without limitation negligence) or otherwise.
15.4 Subject to Clause 15.1, the Supplier shall not be liable in any circumstances to the Customer for consequential, special, incidental or indirect losses, or the following losses (howsoever arising, including whether direct, consequential, special, incidental or indirect losses):
(a) loss of profits;
(b) loss of revenue;
(c) loss of sales or business
(d) economic loss;
(e) loss of contracts;
(f) loss of anticipated savings;
(g) loss of goodwill;
(h) or any losses arising from a claim by a third party for any of the above losses.
However, this Clause 15.4 does not operate to prevent the ability of the Customer to recover those amounts paid to the Supplier by the Customer where performance of the associated obligations in respect of those Charges has not been undertaken by the Supplier, in which case its recovery will not exceed that amount which directly equates to the amount paid by the Customer for provision of the respective Service or Deliverable which has not been delivered or performed by the Supplier, with such amounts not to violate the limitations of liability referred to in Clause 15.5. Liability Caps
15.5 Subject to Clause 15.1, the aggregate liability of the Supplier for the totality of all claims, in relation to an Order Form (and the Conditions as they apply to that Order Form), where the causes of the claims arise in a particular Year, shall be limited to the greater of:
(a) the total amount of Charges (excluding VAT) paid by the Customer to the Supplier in respect of that Order Form (in relation to which the causes of the claims occurred) in the respective Year in which the causes of the claims arose; and
(b) £1,000.
Therefore, by way of illustration, if 2 different claims arose at different times, where the causes of both of those claims occurred in Year 1, and if the applicable Charges in Year 1 which have been paid by the Customer to the Supplier were £2,000+VAT, then the maximum amount recoverable by the Customer against the Supplier, for the totality of those 2 claims would be £2,000 (and not £2,000 per claim, and not £2,000+VAT).
15.6 Without prejudice to the other provisions of the Agreement, if for any reason, the Supplier is found liable where its liability is not limited or excluded by any other provision of the Agreement (except with regard to the types of liability referred to in Clause 15.1, as this Clause 15.6 does not affect Clause 15.1), the Supplier’s aggregate liability for the totality of all such unlimited or non-excluded claims, shall be limited to the amount of £1,000 in total (and not per claim).
15.7 If claims are brought by the Customer against the Supplier, and the liability cap applicable to the Order Form (and the Conditions as they apply to that Order Form) has become exhausted as a result or if the liability cap has become exhausted in respect of Clause 15.6 (namely, £1,000 has been paid, or agreed to be paid, by the Supplier to the Customer pursuant to Clause 15.6), then no additional amounts (other than in respect of Clause 15.1) may be pursued by the Customer against the Supplier, in respect of any causes of action arising under the Order Form (and the Conditions as they apply to that Order Form), or the Agreement in respect of any claim which would fall within the circumstances envisaged by Clause 15.6 (if the liability cap under Clause 15.6 has been exhausted) and the provisions of Clause 15.9 will also apply in such circumstances. Reduction of Availability of Liability Cap
15.8 The Parties agree that if in respect of any claim any amount is agreed (whether agreed voluntarily by the Supplier, or pursuant to a Court Order, or agreed otherwise (including as a refund, set-off or withholding)) to be provided (or permitted) by the Supplier to the Customer in relation to an Order Form (and the Conditions as they apply to that Order Form) (the agreed amount being referred to as the “Agreed Liability”), then such amount will be deducted from the available liability cap in respect of Clause 15.5 (or Clause 15.6, as applicable), so that the amount of the liability cap remaining for other claims in relation to that Order Form (and the Conditions as they apply to that Order Form) is reduced by the Agreed Liability. Consequences of Exhausting the Liability Cap
15.9 If the liability cap has become exhausted, then the respective Order Form in respect of which the liability cap has been exhausted, or the Agreement if the liability cap under Clause 15.6 has become exhausted, will automatically terminate with immediate effect (as if the termination was for convenience) unless otherwise agreed by the Parties in writing.
General Liability Provisions
15.10 Subject to Clause 15.1, the Supplier will not be liable for any issues, costs or expenses associated with the Customer undertaking any software and/or data restoration, and the Customer confirms that this is reasonable in view of the provisions contained within the Agreement, including Clause 3.6.
15.11 Nothing in Clause 15 shall exclude or restrict the Customer’s obligation to pay any charges in relation to the Agreement.
15.12 The Customer agrees that it will notify the Supplier of any breaches (whether by the Supplier or the Customer) of the Project within 30 days of the date of which it became aware of the breach (or if earlier, the date from when it should have reasonably become aware of the breach). Furthermore, the Customer will use reasonable endeavours to mitigate all of its losses, costs and expenses in relation to the Agreement and any breaches of it.
15.13 Subject to Clause 15.1, the Customer agrees that after 12 months following the earlier of: (1) the occurrence of the relevant breach; and (2) termination of the Order Form in relation to which the breach relates; the Customer may not bring any claims against the Supplier which relate to the respective breach.
15.14 The Customer acknowledges that the Charges have been calculated on the basis that the Supplier will exclude and limit its liability as set out in the Project.
15.15 The Customer agrees that the limitations and exclusions of liability contained in the Agreement are reasonable in view of the nature and extent of the obligations accepted by each Party pursuant to the Agreement.
15.16 All of the Customer’s claims, losses and potential claims which arise from the same original cause, a single source or a repeated or continuing problem will be treated as a single claim, loss or potential claim for the purposes of the Agreement.
15.17 If a claim relates to a breach of the Project, such claim will be deemed to apply in respect of that Order Form which, if not in force, would not have given rise to the respective claim. If for any reason, such claim cannot be attributed to an Order Form in this manner, then it will be deemed to be attributable to that Order Form which has had the lowest amount of Charges paid in respect of it by the Customer in the Year in which the cause of the respective claim arose (or if there is no such Order Form in that Year, then the aggregate limit in Clause 15.5(b) will apply in respect of that claim).
16. TERMINATION
16.1 Without affecting any other right or remedy available to it, a Party (the “Injured Party”) may terminate the respective Order Form (termination pursuant to Clause 16.1(a), would be in respect of that Order Form in relation to which the breach has occurred) with immediate effect by giving written notice to the other Party (the “Defaulting Party”) if:
(a) the Defaulting Party commits a material breach of the Project which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing by the Injured Party to do so;
(b) the Defaulting Party takes any step or action in connection with: its entering into administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring); being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring); having a receiver appointed to any of its assets; or ceasing to carry on business; (or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction);
(c) the Defaulting 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 Defaulting Party's financial position deteriorates to such an extent that in the Terminating Party's reasonable opinion the Defaulting Party's capability to adequately fulfil its obligations under the Project has been placed at material risk.
16.2 Without affecting any other right or remedy available to it, the Supplier may terminate the Order Form with immediate effect by giving written notice to the Customer if: the Customer fails to pay any amount due in relation to that Project on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment (with such written notice containing a warning of pending termination if the payment is not made).
16.3 Notwithstanding any provision to the contrary, the Supplier may terminate:
(a) any or all Order Forms; or
(b) the Agreement (which would result in the termination at the same time of all Order Forms and the Conditions); immediately upon written notice, if the Supplier is unable to perform the Services or its obligations pursuant to the Project or the Agreement, due to it no longer having the benefit of any technology contracts or licences or resources which it had or requires with (or from) its third parties for performance of the Project or Agreement (in circumstances where such licences, resources or technology contracts have been terminated, or the respective third party has ceased to provide services, technology, resources, data or software for the benefit of the Supplier). Such termination will be deemed to be a termination for convenience, and the Supplier will refund within 30 days of such termination, any pre-paid charges for any future Services which have not been performed at the date of termination. For the avoidance of doubt, this Clause 16.3 can only be invoked by the Supplier where it would not be reasonably possible for the Supplier to perform, or continue to perform any of the Services or its obligations. The Supplier would in such circumstances, use reasonable endeavours to provide advance written notice of such forthcoming termination, provided that it would be reasonably practicable for the Supplier to do so (but the Customer acknowledges that depending upon the circumstances, this may not be possible in all cases).
16.4 The Supplier may terminate any Data Services on 120 days prior written notice for convenience at any time, and the Supplier will refund within 30 days of such termination, any pre-paid charges for any future Data Services which have not been performed at the date of termination.
16.5 If any of the Customer Personnel breach the Licence Terms, then the Supplier may terminate in whole or in part (with immediate effect) any or all Projects which are reliant to any extent, upon such Licence Terms being complied with by any of the Customer Personnel. Such termination by the Supplier of the Projects will be for breach by the Customer, and consequently the Customer will not be entitled to any refunds of any pre-paid charges, and will be obliged to pay the remaining charges which would have been payable in respect of such terminated Projects.
16.6 If the Licence Terms are terminated between any of the Customer Personnel and the respective licensors, the Customer will immediately notify the Supplier of this, and the Supplier may terminate in whole or in part (with immediate effect) any or all Projects which are reliant to any extent, upon such Licence Terms being complied with by any of the Customer Personnel.
16.7 If the Licence Terms are terminated by the Customer exercising its termination rights (if any) under the Licence Terms, then where the Supplier terminates any Projects pursuant to Clause 16.6 as a result, then the Supplier will provide a pro-rata refund in respect of any remaining services which are not going to be performed or made available by the Supplier as a result.
16.8 On termination of an Order Form for whatever reason:
(a) the Customer shall pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest (where applicable) and, in respect of Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice. All such amounts shall be payable within 30 days of receipt of the respective invoice or request (where an invoice has already been issued);
(b) subject to Clause 15, termination of the Order Form shall not affect any of the Parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Project which existed at or before the date of termination;
(c) all licences provided by the Supplier Personnel will immediately terminate (except the termination will not: (1) affect the licence granted pursuant to Clause 13.5, provided that the Website is used in accordance with the Agreement; nor (2) affect the ability for the Customer to retain and use the Deliverables in accordance with the Agreement);
(d) the Customer will immediately cease using the Supplier Materials (except where otherwise stated in the Order Form or in Clause 16.8(c)) which have been made available to the Customer (and return or destroy them, as requested by the Supplier), and the Supplier will immediately cease using the Customer Materials (and return or destroy them, as reasonably requested by the
Customer); and
(e) any provision of the Project that expressly or by (i) to its Personnel who need to know such implication is intended to come into or continue in force information for the purposes of the Project on or after termination of the Order Form (including or Agreement. Each Party shall ensure that Clause 15) shall remain in full force and effect (even its Personnel to whom it discloses the other though the Order Form will be deemed to be terminated, Party's confidential information maintain and no further Services will be required to be performed the confidentiality of such information; or in respect of that Order Form (unless any such Services (ii) as may be required by law, a court of are expressly stated to apply upon termination of the competent jurisdiction or any governmental Order Form by way of any exit arrangements)). or regulatory authority.
16.9 Termination of an Order Form will terminate the Conditions as they (c) No Party shall use any of the other Party's confidential apply to that Order Form, but it will not terminate or affect the information for any purpose other than in connection continuance in force of the Conditions to operate as a framework with the Project or the Agreement. agreement, unless the Conditions are terminated pursuant to Clauses 17.4 Non-solicit.
16.10 and 16.11. (a) Neither Party shall (except with the prior written
16.10 Notwithstanding any provision to the contrary in the Agreement: consent of the other Party) directly or indirectly solicit
(a) the Conditions can only be terminated so that they no or entice away (or attempt to solicit or entice away) longer operate as framework agreement, pursuant to from the employment or engagement of the other Party
Clause 16.11; and any person employed or engaged by such other Party
(b) the Agreement as a whole can only be terminated by who has been involved in the performance of any fulfilling both of these requirements: obligation under the Agreement or (in the case of the
(i) first terminating all Order Forms in Customer) in the receipt of the Services at any time accordance with the provisions of the during the Agreement, and for a further period of 6 respective Projects; and then months after the termination of the Agreement, other
(ii) terminating the Conditions in accordance than by means of a national advertising campaign open with Clause 16.11. to all comers and not specifically targeted at any of the
16.11 Subject to Clause 16.12, the Conditions can only be terminated for staff of the other Party.
convenience and then only after: (b) If either Party commits any breach of Clause 17.4(a),
(a) all Order Forms have been terminated (with Order the breaching Party shall, on demand, pay to the Forms being terminated either in accordance with the claiming Party a sum equal to one year's basic salary or other provisions of the Conditions, or the termination the annual fee that was payable by the claiming Party to provisions included in the respective Order Form); and that employee, worker or independent contractor plus only then the recruitment costs incurred by the claiming Party in
(b) by either Party providing 7 days prior written notice to replacing such person. This is without prejudice to the the other Party of such termination of the Conditions. claiming Party’s additional rights and remedies (and
16.12 The Licence Terms can also be terminated in accordance with the such breach would be deemed to be a material breach provisions of the Licence Terms or the other terms of the Project or of the Agreement which is incapable of remedy).
the Agreement. (c) Furthermore, the Customer agrees not to directly or
17. GENERAL indirectly solicit or entice away (or attempt to solicit or
17.1 Force majeure. Neither Party shall be in breach of the Project, nor entice away) from the employment or engagement of liable for any delay in performing, or failing to perform, any of its the Supplier’s subcontractors, any person employed or obligations under the Project, if such delay or failure results from engaged by the Supplier’s subcontractors who has been events, circumstances or causes beyond its reasonable control. involved in the performance of any of the Supplier’s However, the Parties will not be excused from performance of their obligations under the Agreement at any time during the obligations under this Clause due to any delays or failures arising Agreement, and for a further period of 6 months after from their Personnel (namely: the Customer Personnel in respect of the termination of the Agreement, other than by means the Customer; and the Supplier Personnel in respect of the Supplier) of a national advertising campaign open to all comers unless the delay or failure by their Personnel is due to events, and not specifically targeted at any of the staff of the
circumstances or causes beyond such Personnel’s reasonable control. Supplier’s subcontractors.
This Clause does not affect the Customer’s payment obligations (d) If the Customer commits any breach of Clause 17.4(c), under the Agreement, including in respect of Clauses 3.5 and 14.4. the Customer shall, on demand, pay to the Supplier a
17.2 Assignment and other dealings. sum equal to the costs of procuring (and where
(a) The Customer shall not assign or transfer any or all of reasonably necessary, training) a replacement for the its rights and obligations under the Agreement without solicited employee, worker or independent contractor the Supplier’s prior written consent. plus the recruitment costs, procurement costs and legal
(b) The Supplier may assign the Project or the Agreement costs incurred by: the Supplier in replacing the affected with the Customer’s prior written consent, such consent subcontractor; or the subcontractor in replacing such not to be unreasonably withheld. person. This is without prejudice to the Supplier’s
(c) The Supplier may subcontract its obligations, although additional rights and remedies (and such breach by the this does not detract from the Supplier’s obligation to Customer would be deemed to be a material breach of fulfil such obligations through such subcontractor. the Agreement which is incapable of remedy).
(d) The Supplier may use any subcontractors in relation to (e) The Customer shall not, for the duration of this Agreement, the Project or Agreement, from time to time, at the and for a period of 6 months after its termination (the Supplier’s sole discretion. However, where such restricted period being referred to as the “Restricted replacement or additional subcontractors will be Period”), enter into a contract with any of the Supplier’s processing Personal Data, the Supplier will only contractors or subcontractors (who have been involved in appoint such subcontractors as processors in the performance of any obligations of the Supplier under accordance with Clause 10. this Agreement (such parties being referred to as the 17.3 Confidentiality. “Restricted Parties”)) for services similar to any of those (a) Each Party undertakes that it shall not at any time which the Customer has received from such Restricted disclose to any person any confidential information Parties via the Supplier pursuant to this Agreement.
concerning the business, affairs, customers, clients or (f) If the Customer breaches Clause 17.4(e), then it will suppliers of the other Party or its Personnel or of any immediately pay to the Supplier an amount equal to the member of the Group to which such other Party charges the Supplier would have reasonably charged the belongs, except as permitted by clause 17.3(b). Customer for the services and materials which the Customer
(b) Each Party may disclose the other Party's confidential has procured during the Restricted Period from the information: Restricted Parties, and the Parties agree that such liquidated damages are a genuine pre-estimate of the loss that the
Supplier will suffer as a result of such breach. This is without prejudice to the Supplier’s additional rights and remedies (and such breach by the Customer would be deemed to be a material breach of the Agreement which is incapable of remedy).
(g) The Customer will also ensure that the Customer Personnel will comply with the equivalent restrictions (mutatis mutandis) as referred to in Clauses 17.4(a) to 17.4(f) inclusive, and the Customer agrees that failure by any of the Customer Personnel to comply with such restrictions will be deemed to be a breach by the Customer and have the same consequences as if the Customer had breached the respective provisions above of Clause 17.4.
17.5 TUPE.
(a) The Customer confirms that no Employees will transfer from the Customer Personnel to the Supplier Personnel by operation of law as a result of the entering into of this Project (whether as a result of TUPE or otherwise), so that they are held to be employees of any of the Supplier Personnel.
(b) The Customer confirms that it shall indemnify and keep the Supplier Personnel indemnified in full from and against any and all TUPE Liabilities suffered or incurred by the Supplier Personnel, as a result of any and all claims or demands made or brought against the Supplier Personnel, by or on behalf of any Employee on the grounds that his or her employment and/or TUPE Liabilities in connection with that employment, its termination or cessation howsoever arising have or should have transferred to the Supplier Personnel, whether pursuant to TUPE or otherwise.
17.6 Entire agreement.
(a) Subject to Clauses 2.2 and 2.3, the Agreement, contains the entire agreement between the Parties with respect to the subject matter of the Agreement (the “Subject Matter”) and supersedes and replaces all other written and oral communications between the Parties relating to the Subject Matter (furthermore, any previously executed: confidentiality agreements; and data processing agreements; are hereby terminated). Except for the express provisions in the Agreement (and any express provisions contained in any documentation which is expressly incorporated), all other warranties, conditions, terms, representations (whether made innocently or negligently), statements, undertakings and obligations whether express or implied by statute, common law, custom, usage or otherwise are hereby excluded to the maximum extent permitted by law.
(b) Each Party excludes its liability for any representations (whether made innocently or negligently) not contained expressly within the Agreement. The Parties hereby confirm that they have not relied upon any representations (whether made innocently or negligently), communications or other matters which have not been expressly stated in the Agreement, whether as an inducement to enter into the Agreement or otherwise. Each Party agrees that its only liability in respect of those representations (whether made innocently or negligently), warranties and provisions that are set out in the Agreement shall be for breach of contract (in accordance with the provisions of the respective Project). This Clause 17.6(b) operates subject to Clauses 17.6(c) and 17.6(d).
(c) Notwithstanding any provision to the contrary in the Agreement (except for Clauses 15.1 and 17.6(d)), all implied: terms, conditions and warranties, (including without limitation those relating to satisfactory quality and fitness for purpose); whether (1) implied by statute, common law, custom, usage or otherwise, or (2) otherwise would be incorporated by any express reference to compliance with laws; are hereby excluded to the maximum extent permitted by law. This Clause 17.6(c) operates subject to Clause 17.6(d).
(d) Notwithstanding any provision to the contrary, nothing in the Agreement limits or excludes either Party’s liability for fraudulent misrepresentations.
17.7 Variation. No variation of the Order Form, Project, Conditions or Agreement shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).
17.8 Waiver. No provision of the Project shall be waived unless agreed to be waived by both Parties in writing (except where there is a prescribed time limit in which to exercise a right or remedy, in which case the elapsing of the time limit will constitute a waiver of the respective right or remedy). If any provision is waived, then that waiver shall operate for that instance only and not future instances, unless agreed otherwise by both Parties in writing.
17.9 Severance. If any provision or part-provision of the Project is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Project.
17.10 Third party rights. No one other than the Parties shall have any right to enforce any of the terms of the Project (except that the Supplier Personnel shall have the right to enforce those provisions of the Project which expressly confer rights and benefits in respect of them, pursuant to the Contracts (Rights of Third Parties) Act 1999). However, the Parties may vary, terminate or undertake other acts by joint agreement between the Parties in writing, without requiring the consent of any third party.
17.11 Governing law. The Project, 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.
17.12 Jurisdiction. Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Project or its subject matter or formation.
1. INTERPRETATION
1.1 Definitions:
Acceptance Criteria: the applicable acceptance criteria as referred to in Clause 7.1.
Acceptance Testing: acceptance testing, as envisaged by Clause 7. Acceptance Testing Completion Date: has the meaning attributed to it in Clause 7.2 (as extended by any time period agreed between the Parties to complete any acceptance tests in respect of the Website).
Additional Customer Obligations: the additional obligations of the Customer referred to in the Order Form in the ‘Additional Customer
Obligations’ section.
Additional Supplier Obligations: the additional obligations of the
Supplier referred to in the Order Form in the ‘Additional Supplier
Obligations’ section.
Affected End Date: the date that the respective affected Services are terminated (rather than notified to be terminated) pursuant to Clause 4.9.
Affected Period: the period commencing from the Affected Start Date up until the Affected End Date (with such dates being inclusive for determining such period).
Affected Start Date: the date (if such date is not a Working Day, then the next Working Day) that the Customer notifies the Supplier of the unavailability of access to the Software due to the acts or omissions of the Supplier Personnel, pursuant to Clause 4.9. Agreed Liability: has the meaning attributed to it in Clause 15.8. Agreement: collectively the Conditions and all Order Forms, together with any applicable Licence Terms.
Charges: the charges referred to in the Order Form in the ‘Charges and Payment Profile’ section.
Checking: has the meaning attributed to it in Clause 6.6. Conditions: the terms and conditions of this version of the document entitled EML, Event Management and Logistics Ltd Terms and Conditions’ (but for the avoidance of doubt, references to ‘Conditions’ excludes the Order Forms) together with any applicable Licence Terms.
Consultancy Services: any services (other than the Web Services and Data Services) which have been performed, or agreed to be performed, by the Supplier Personnel as a result of an Order Form being entered into by the Parties in relation to the services referred to under the ‘Consultancy Services’ heading in the ‘Services’ section of the Order Form.
controller: the meaning attributed to ‘data controller’ under the Data Protection Act 1998; but from 25 May 2018 it has the meaning attributed to ‘controller’ under the GDPR.
Customer: the party shown as the ‘Customer’ in the respective Order Form.
Customer Materials: all materials (including any and all: documentation, designs, images, code, software, files and data) made available by, or agreed to be made available by, the Customer Personnel to the Supplier or uploaded by, or agreed to be uploaded by, the Customer Personnel to the Systems, but in each case excluding any works owned by the Supplier Personnel.
Customer Personnel: the Customer, together with: the Users; and the Customer’s and the User’s clients and third parties (including its contractors), other than the Supplier Personnel.
Data Services: any services (other than the Web Services and Consultancy Services) which have been performed, or agreed to be performed, by the Supplier Personnel as a result of an Order Form being entered into by the Parties in relation to the services referred to under the ‘Data Services’ heading in the ‘Services’ section of the Order Form.
Data Subject: the data subject to whom the Personal Data relates. Defaulting Party: has the meaning attributed to it in Clause 16.1. Deliverable Shortcomings: has the meaning attributed to it in Clause 7.19.
Deliverables: all of those documents or data sets provided, or agreed to be provided, by the Supplier which are referred to in the ‘Deliverables’ section of the Order Form.
Employee: any current or former employees of the Customer
Personnel or their third parties.
EULA: UKChanges’ end user licence agreement which is made available to the Customer in relation to the Order Form which relates to the Data Services.
Feed Changes: changes (including additions, replacements or removals) to the Feeds, or any changes in the structure, format, interfaces or nature of the Feeds.
Feeds: any data sources or data feeds which the Customer wishes the Supplier to use, as referred to in the ‘Data Sources or Data Feeds’ section of the Order Form.
Framework Terms: the Conditions excluding the Licence Terms.
GDPR: General Data Protection Regulation.
Group: in relation to a Party, that Party, any subsidiary or holding company from time to time of that Party, and any subsidiary from time to time of a holding company of that Party. High Level Specification: means the applicable high level specification referred to in the ‘High Level Specification’ section of the Order Form, which applies to the Website.
Indemnified: has the meaning attributed to it in Clause 13.8.
Indemnifier: has the meaning attributed to it in Clause 13.8.
Injured Party: has the meaning attributed to it in Clause 16.1.
Intellectual Property Rights: all intellectual property rights, including: patents, rights to inventions, copyright and related rights, trade marks, service marks, trade, business and domain names, rights to sue for passing off, rights in designs, rights in computer software, database rights, know-how and any other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Licence Terms: any third party licence terms or third party agreements (including the EULA) which are applicable to any of the Customer Personnel’s use of any aspects of the Supplier Materials.
Order Form: the Supplier’s document headed ‘EML, Event Management and Logistics Ltd Order Form for Services’ which is executed by both Parties.
Order Form Commencement: the earlier of: (1) the Order Form Date; or (2) the date which the respective Order Form is expressed in the Order Form to be effective from.
Order Form Date: the date set out in the ‘Order Form Date’ section of the Order Form.
Order Form Term: the term set out in the ‘Order Form Term’ section of the Order Form.
Other Customer Personnel: the Customer Personnel, excluding the Customer.
Parties: the Customer and the Supplier.
Party: the Customer or the Supplier (as applicable in the context). Personal Data: means personal data made available, or agreed to be made available, by the Customer Personnel to the Supplier, as referred to in the ‘Processing of Personal Data’ section of the Order Form; as well as: (1) any updates or changes to such personal data as undertaken by the Supplier Personnel in relation to performance of the Services; together with (2) any other personal data made available by the Customer Personnel to the Supplier Personnel in relation to the Project.
Personnel: a Party’s employees, officers, representatives, subcontractors, contractors, advisers, clients or other third parties.
Platform: UKChanges’ and its third parties’ (rather than the Supplier’s) infrastructure, software, systems and data services.
processor: the meaning attributed to ‘data processor’ under the Data Protection Act 1998; but from 25 May 2018 it has the meaning attributed to ‘processor’ under the GDPR.
Project: the arrangements consisting of the respective Order Form together with the Conditions as they apply to that Order Form. Recommendations: has the meaning attributed to it in Clause 8.1. Restricted Parties: has the meaning attributed to it in Clause 17.4(e).
Restricted Period: has the meaning attributed to it in Clause 17.4(e). Services: the services, including without limitation any Deliverables, provided, or agreed to be provided, by the Supplier, as referred to in the ‘Services’ or ‘Deliverables’ sections of the respective Order Form; this would therefore include any Consultancy Services, Data Services and Web Services which are applicable to that Order Form. Software: any software forming part of the Platform, to the extent that such software is made available, or to be made available, by the Supplier to the Customer or Users, at the Supplier’s discretion, in order to permit them to use the Data Services, or to allow the Customer or Users to upload Personal Data or access certain services in respect of such Personal Data. Solution: the meaning attributed to it in Clause 8.1. Special Conditions: the provisions contained within the ‘Special Conditions’ section of the respective Order Form.
Specification: the applicable specification agreed in the respective Workshop Signoff, which applies to the Website.
Subject Matter: has the meaning attributed to it in Clause 17.6(a).
Supplier: EML, Event Management and Logistics Ltd (Registered Number: 04447878). Supplier Materials: the Deliverables and any materials (including any and all: documentation, designs, images, code, software, files and data) made available by any of the Supplier Personnel, excluding any Customer Materials incorporated in them.
Supplier Personnel: the Supplier and its contractors, licensors, processors and subcontractors (for the avoidance of doubt, this excludes: the Customer; the Users; the Customer’s third parties and customers; and the Users’ third parties and customers).
Systems: means the Supplier Personnel’s systems and software which are made available, or to be made available, at the Supplier’s discretion, by the Supplier to the Customer or Users in order to: make use of the Services; or to allow the Customer or Users to upload Personal Data (or any other data) in connection with the Services.
Third Party IPR: any data which is not owned by the Supplier, but which is licensed to the Supplier by a third party other than the Customer Personnel.
TUPE: the Transfer of Undertakings (Protection of Employment) Regulations 2006 (as amended from time to time).
TUPE Liabilities: all losses, costs, damages, claims and expenses (including without limitation all legal and other professional expenses).
UKChanges: Direct Select (192) Limited (Registered number: 02595651).
Users: the Customer’s third party users identified in the ‘Users’ section of the Order Form.
Web Services: any services (other than the Data Services and Consultancy Services) which have been performed, or agreed to be performed, by the Supplier Personnel as a result of an Order Form being entered into by the Parties in relation to the services referred to under the ‘Web Services’ heading in the ‘Services’ section of the Order Form.
Website: means the respective website designed or developed, or agreed to be designed or developed, by the Supplier Personnel as a result of the respective Order Form being entered into by the Parties in relation to such Web Services.
Working Day: 9.30am-5.30pm UK time, on a day falling within Monday to Friday (inclusive) but excluding public holidays and Bank holidays.
Workshop: an activity designated by the Supplier as a ‘workshop activity’, which involves interaction between the Parties to agree any processes, requirements, specifications, testing arrangements or criteria, or other aspects in relation to the Services or other obligations of either Party.
Workshop Signoff: any arrangements which are agreed by both Parties in writing during or following a Workshop, where such agreed written document is designated by the Supplier as a ‘workshop signoff’.
Year: means a period of 12 months from either: (1) the Order Form Commencement; or (2) an anniversary of the Order Form Commencement.
1.2 Interpretation: The following interpretation will apply in respect of the Order Form, Conditions, Project and the Agreement:
(a) A reference to any law, will mean such law as it is amended or re-enacted from time to time. A reference to any law, also includes any subordinate laws made under that law, as amended or re-enacted from time to time.
(b) Other than in respect of the GDPR being effective from 25 May 2018 (and applying to any processing of Personal Data in relation to any Order Form which has not terminated at that time), the interpretations as referred to in Clause 1.2(a), will only apply to the Supplier where such new laws (including new subordinate laws) do not have an adverse effect on the Supplier from either a practical, cost, risk, liability or timing perspective (otherwise the Supplier will continue to perform its obligations in accordance with the previous laws until the Parties agree in writing the consequences of such new laws or changes in law in relation to the Order Form and Conditions, including any timing and cost impacts). However, this Clause
1.2(b) will not affect the Supplier’s obligation to comply with those new laws: which are directly applicable to the Supplier, to the extent that the Supplier cannot lawfully exclude their application to the Supplier.
(c) The headings contained in the Order Form and Conditions are for convenience of reference only and shall not affect their interpretation.
(d) References to ‘person’ includes an individual, company, public organisation, corporation, firm, partnership or any other legal entity.
(e) Words indicating the singular shall include the plural and vice versa.
(f) The words and phrases ‘includes’, ‘including’ or ‘in particular’ (as well as any similar words or expressions) shall be without limitation to the generality of any preceding words and any preceding words shall not be construed as being limited to a particular class where a wider interpretation of those words and phrases is possible. Furthermore (except where already stated) such words shall be deemed to be immediately followed by the words ‘without limitation’.
(g) All sums payable hereunder by the Customer are expressed exclusive of VAT and any other applicable tax and duty payable upon such sums, which shall be added if appropriate, at the rate prevailing at the relevant tax point. A valid VAT invoice will be provided where VAT is applicable.
(h) The Parties acknowledge and agree that the Supplier will use reasonable endeavours to comply with any timing obligations, but time shall not be of the essence with regard to the Supplier’s obligations. The Supplier’s timing obligations shall therefore be interpreted accordingly.
(i) Where any timings are not specified with regard to performance of a Party’s obligations, then the respective Party will comply with such obligations within a reasonable period of time.
(j) Both Parties will act reasonably and in good faith in undertaking their obligations in relation to the Projects.
(k) The Parties agree that when interpreting or construing any or all of the provisions of the Projects, the contra proferentem rule shall not be applied.
(l) References to an ‘Order Form’ are to be interpreted as a reference to the relevant or respective Order Form.
References to any ‘Services’ or ‘Consultancy Services’ or ‘Web Services’ or ‘Data Services’ or ‘Deliverables’ or ‘Website’, are respectively references to the relevant or respective services, deliverables or websites as applicable to the relevant or respective Order Form. References to any aspects of an Order Form (such as ‘Special Conditions’) are to be interpreted as a reference to the relevant or respective aspects within the relevant Order Form. References to a ‘Project’ are to be interpreted as a reference to the relevant or respective Order Form (together with the Conditions as they apply to that Order Form). To the extent of any interpretation or ambiguity issues in respect of this Clause 1.2(l), the Supplier shall clarify the intention (acting reasonably) and such clarification will then apply.
(m) To the extent of any conflict or ambiguity between any of the provisions referred to within the Conditions or Order Form, the following decreasing order of precedence will apply (with the earlier provisions therefore prevailing over the latter to this extent):
(i) Clause 15.1 will prevail; then
(ii) the Special Conditions; then
(iii) the Framework Terms; then
(iv) the other terms of the respective Order Form; and then
(v) the Licence Terms will have the lowest precedence.
2. COMMENCEMENT AND TERM
2.1 These Framework Terms shall apply to both Parties, and the Licence Terms shall commence on the date when the first Order Form is signed by both Parties (taking into account the interpretation provisions of Clause 2.2 as applicable).
2.2 These Conditions operate as a framework contract between the Parties. The Conditions may be terminated, so that no further Order
Forms can be entered into following such termination, in accordance with the termination provisions referred to within Clauses 16.10 and 16.11. If an Order Form is subsequently executed in such circumstances following such termination, then that will be subject to the Conditions (or such revised form as referred to in the respective Order Form), so that a new framework agreement commences at that time (with such new framework agreement not affecting nor applying to any previous Order Forms which were executed under the previous framework agreement, and therefore references to the ‘Agreement’ will include those Order Forms that were executed from the date of this new framework agreement and not any which were executed prior to that date, with the first Order Form for the purposes of Clause 2.1 in respect of the new framework agreement therefore being that first one which was executed on the same date as the new framework agreement coming into force).
2.3 The Parties may only agree for the Supplier to perform any services or provide any deliverables, by jointly executing an Order Form for such services and deliverables. Such Order Form operates subject to the provisions of the Conditions (except as stated in Clause 1.2(m)).
2.4 Subject to:
(a) earlier termination in accordance with the provisions of the Project; and
(b) any renewal arrangements referred to in the Order Form
Term; the Order Form will terminate on the expiry of the Order Form Term.
However, this will not affect the Customer’s payment obligations and the continuance in force of the Conditions as a framework agreement.
2.5 For the avoidance of doubt, the coming into force, termination or breach of an Order Form will not affect any other Order Form, unless otherwise expressly stated in the Special Conditions of the respective Order Form.
3. SUPPLY OF SERVICES
3.1 The Supplier shall undertake performance of the Services in accordance with the Project.
3.2 Services will not be performed, and Deliverables will not be provided, outside Working Days, unless otherwise expressly stated in the Order Form.
3.3 The Supplier shall:
(a) perform its obligations with reasonable skill and care;
(b) not use any of the Customer’s site or system access for any purpose other than for performance of the Supplier’s obligations under the Agreement;
(c) fulfil the Additional Supplier Obligations; and
(d) take reasonable care of all Customer Materials in its possession and make the tangible Customer Materials available for collection by the Customer on reasonable notice and request, provided that the Supplier may destroy the Customer Materials if the Customer fails to collect such Customer Materials within a reasonable period after termination of the Order Form.
3.4 The Supplier will use the Feeds as reasonably required in order to perform its obligations in respect of the Project. However, this is subject to the Customer undertaking its obligations in respect of such Feeds and its other obligations in respect of the Project.
3.5 Without prejudice to the Supplier’s additional rights and remedies, if the Supplier's performance of its obligations in relation to a Project is prevented or delayed by any act or omission of the Customer Personnel, the Supplier shall:
(a) not be liable for any costs, charges, expenses or losses sustained or incurred by the Customer that arise from such prevention or delay;
(b) be entitled to payment of the Charges (which would have been payable had such prevention or delay not occurred) despite any such prevention or delay;
(c) be entitled to recover any additional reasonable costs, charges, expenses or losses which the Supplier sustains or incurs that arise from such prevention or delay; and
(d) have an extension to the timings for performance of its obligations (should the Supplier so wish, at its sole discretion), which reflect the delays which have been caused.
3.6 Each Party agrees (and the Customer will ensure that the Customer Personnel will also comply with the equivalent obligations (mutatis mutandis) which are referred to in Clause 3.6) at least for the duration of the Agreement:
(a) that it has in place a reasonable backup procedure in respect of its systems and data, which includes at least its own daily data backups (including backups of its software and data), and has reasonable disaster recovery and business continuity and data restoration measures in place (including the Customer Personnel implementing measures to reasonably mitigate against the risks and consequences associated with: any nonavailability or malfunction of the Systems; and/or
issues with the Services);
(b) that it will undertake virus scanning using reasonable industry known software for such purposes (ensuring that this software is updated with the latest updates made available by the anti-virus software licensors) in respect of its equipment, and any software and data residing on such equipment; and
(c) that it will implement reasonable security and firewall arrangements to safeguard its systems and data.
3.7 The Customer acknowledges that other than the express obligations contained within the Project, the Supplier will have no other obligations to the Customer with regard to any system or software installation, configuration, development, hosting, training or support. 3.8 The Parties shall comply with the Special Conditions.
3.9 Each Party’s representative referred to in the ‘Customer’s Representative’ and ‘Supplier’s Representative’ sections of the Order Form, shall be the primary contact point for any issues in relation to the Project, and such representative shall:
(a) liaise professionally and promptly with the other Party’s representative; and
(b) have the necessary expertise and authority to commit and represent the respective Party.
4. DATA SERVICES
4.1 In order to provide the Data Services, the Supplier Personnel make use of the Platform.
4.2 The Customer acknowledges that the Customer and Users will require certain access to the Software in order to use the Data Services, and that such access to the Software is made available subject to acceptance of the EULA by the Customer and Users.
4.3 The licence granted pursuant to the EULA in respect of the Software is granted by UKChanges only for the duration of the Data Services, and is therefore a time limited, non-exclusive, non-transferrable, revocable licence to use the Software to allow the Customer and its Users to upload data in accordance with the respective Order Form for the purposes of the Data Services only (for the avoidance of doubt, this does not permit the Customer to allow any other third party (including any of its holding companies or subsidiaries which are not designated as Users in the Order Form), to use such Software (whether in whole or in part), except as stated in the respective Order Form). The Customer acknowledges that nothing in the Agreement allows the Customer to use the Software (whether in whole or in part) on behalf of third parties (other than to allow the Customer and Users to use the Data Services for the purposes of their marketing campaigns with their end customers; although for the avoidance of doubt, it is the Customer’s and the Users’ responsibility to ensure that they have obtained all required consents to: (1) undertake any such marketing activities; and (2) use the respective data contained in, or derived from, the Feeds).
4.4 The Customer will ensure that it has a written contract in place with the Users before providing them with any access to the Software, with such contract between the Customer and the Users being consistent with the following:
(a) the Customer will ensure that the contract specifies that the
Users have to accept the EULA in order to use the Software;
(b) the Customer will not impose any liability on the Supplier in respect of such contract (including in respect of the Software or any related services);
(c) the Customer will ensure that by entering into such contract with the Users, it will not result in any liability for the Supplier to the Users or any other third parties (whether arising under contract, tort (including negligence), misrepresentation or otherwise).
4.5 The Customer acknowledges and agrees that it is its own responsibility to ensure that it obtains its own legal advice in respect of its contractual arrangements with its Users.
4.6 The Customer agrees that it will ensure that neither it nor the Other Customer Personnel will undertake any act or omission which would result in the Supplier being liable to the Other Customer Personnel.
Furthermore, the Customer will defend and indemnify the Supplier in full, against any claims from the Other Customer Personnel which relate in any way to the Project (to the extent that such claims have arisen in connection with the Project).
4.7 The Customer acknowledges and agrees that: the EULA contains the licence terms in relation to the Software and that any issue with, or claim in relation to, the Software and Platform must be brought by the Customer and the affected Users against UKChanges pursuant to that EULA and not against the Supplier; (this Clause operates subject to Clause 4.9).
4.8 The Customer agrees that the EULA is a contractual arrangement between the respective Customer (or Users) and UKChanges. Consequently, the Customer agrees that any breach of the EULA by UKChanges will not give rise any rights and remedies to the Customer against the Supplier, other than as expressly stated in Clauses 4.9 and 16.7. Furthermore, the Customer agrees that a breach of the EULA by UKChanges or a termination of the EULA will not entitle the Customer to terminate the other aspects of the Project.
4.9 In the event that the Software or Platform is materially unavailable for use for more than 10 consecutive Working Days (where such unavailability is due to the acts or omissions of the Supplier Personnel and not due to the acts or omissions of the Customer Personnel), then the Customer can, whilst such unavailability continues, elect to terminate the affected Services, and the Supplier will provide the Customer with a pro-rata refund for the remaining unused term of the Services (such refund being in respect of the Affected Period). This termination and refund operates on the following basis:
(a) the termination by the Customer will be a termination for convenience and not for cause (as the Customer acknowledges that the Supplier does not provide the Platform or Software, and the Supplier does not provide any assurances in respect of the uninterrupted availability of the Platform or Software or services dependent upon the Platform or Software). Consequently, the termination together with any applicable refund will be the Customer’s sole and exclusive remedy (in respect of the non-availability of the Platform or Software or services dependent upon the Platform or Software) against the Supplier, as any other applicable rights and remedies (if any of the Customer will be as per the EULA against UKChanges;
(b) the Customer must promptly notify the Supplier by email (and confirm receipt of such email by the Supplier, by contacting the Supplier by telephone on the same day) on the date that the Platform or Software or services dependent
upon the Platform or Software are unavailable; and
(c) if the Supplier reasonably determines that the nonavailability of the Platform or Software or services dependent upon the Platform or Software is not caused by the acts or omissions of the Supplier Personnel, then the Customer may not exercise any termination or refund rights under Clause 4.9.
5. WEB SERVICES
5.1 Clause 5 applies in respect of Web Services only and therefore not in respect of Consultancy Services or Data Services.
Producing the Specification
5.2 The Supplier will work with the Customer in order to produce a Specification based on the High Level Specification. Such activity will be undertaken within a reasonable period of time, as part of the Workshops, with all of the time incurred by the Supplier in such activity being chargeable in accordance with the rates referred to in the respective Order Form (or at the Supplier’s standard rates in force at the time, if the rates are not specified).
Undertaking the Website Design or Development Work
5.3 The Supplier will undertake the website design and website development work (as applicable) referred to in the Order Form in material accordance with the Specification.
5.4 Once the Supplier has completed the website design and website development work as referred to in Clause 5.3, the Parties shall undertake the Acceptance Testing in accordance with Clause 7.
6. CONSULTANCY SERVICES
6.1 Clause 6 applies in respect of Consultancy Services only and therefore not in respect of Web Services or Data Services.
6.2 The Supplier agrees to perform the Consultancy Services, and the Customer agrees to provide all reasonable assistance to enable the Supplier to undertake such services.
6.3 The Customer acknowledges and agrees that none of the Consultancy Services constitute legal advice or legal services, and are therefore not a substitute for legal advice or legal services.
6.4 The Customer acknowledges and agrees that where any Consultancy Services are described as being for compliance purposes (including auditing for compliance), such services are only to assist the Customer with seeking to be compliant with the particular requirement but the Supplier will not be ensuring, nor responsible for ensuring, that the Customer achieves compliance with the particular requirements as a result of: performance of the respective Consulting Services by the Supplier; or provision of any information, guidance, training, documentation, materials or Deliverables. The Parties agree that the Supplier’s obligations in respect of the Project will therefore be interpreted accordingly.
Guidance or Training Services
6.5 Where the Supplier agrees pursuant to an Order Form to expressly provide any training (whether on-site, remotely or otherwise) or guidance (whether on-site, remotely, by helpline, by email or otherwise), then the Customer agrees the following:
(a) the Supplier will only have responsibility to ensure that it has provided such training or guidance with reasonable skill and care, and it will have no other liability in relation to such training and guidance (nor with regard to how the Customer or its third parties use such training or guidance); and
(b) the Supplier will not be liable for any implementations, developments, configurations, work or actions undertaken by the Customer or its third parties as a result of such training or guidance.
Checking, Testing or Auditing Services
6.6 Where the Supplier has expressly agreed to undertake any checking, testing or auditing services of any of the Customer’s arrangements (whether systems, software, processes, procedures, documentation, security measures, organisational measures or otherwise) pursuant to an Order Form (such checking, testing or auditing services being referred to in this Project as “Checking”), then such Checking will be limited to the specific Checking activities and scope which are expressly referred to in the respective Order Form.
6.7 Any Checking by the Supplier can be undertaken by the Supplier either on-site at the Customer’s location or remotely, as reasonably determined by the Supplier, taking into account the nature of the activities to be undertaken by the Supplier to perform the respective Checking services.
6.8 As a result of any Checking undertaken pursuant to Clause 6.6, the Supplier will provide its feedback to the Customer, but unless expressly agreed otherwise in the Order Form, the Supplier will not be required in respect of such Checking, or as a result of such Checking, to: produce a rectification plan; nor provide any details with regard to how to rectify any identified issues; nor undertake any remedial action in respect of any of the identified issues.
6.9 If the Supplier undertakes any Checking services pursuant to Clause 6.6, then the Supplier does not provide any assurance whatsoever that its Checking services will be exhaustive or comprehensive in nature (as the Parties acknowledge that in view of the timing and resource constraints, any Checking cannot be exhaustive or comprehensive), as the Supplier’s obligation will be to use reasonable endeavours to materially meet the requirements contained within the agreed written scope for the Checking in the respective Order Form.
Helpline Services
6.10 Where the Supplier agrees to provide any form of telephone or email helpline service, then this will be provided only during the hours and days stated in the Order Form.
7.
7.1 Acceptance Testing is only undertaken in respect of the Website, and only then to the extent agreed in the respective Workshop Signoff. The Supplier shall notify the Customer in writing when the Website is ready for formal acceptance testing, and unless agreed otherwise in an Order Form or Workshop Signoff, the Customer shall within a reasonable period of time (such period not to exceed 5 Working Days unless otherwise agreed in writing by the Supplier) of the Parties signing the respective Workshop Signoff, prepare the test scripts and acceptance criteria, in accordance with, and consistent with, the Specification applicable to the Website. The test scripts and acceptance criteria will be subject to the prior written approval of the Supplier (such approval not to be unreasonably withheld). If the acceptance criteria are not agreed within the time period referred to in this Clause, then the respective test scripts and Acceptance Criteria will be a reasonable number of test scripts and criteria as formulated
and determined by the Supplier, with the Supplier being able to charge at its normal hourly or daily rates for producing such scripts and criteria in such circumstances.
7.2 The Customer shall conduct and complete the acceptance tests within 5 Working Days (or such other period as agreed between the Parties in the Order Form or Workshop Signoff or otherwise in writing) of the Supplier confirming that the Website is ready for acceptance testing (the date by which the acceptance testing is scheduled (or agreed by the Parties in writing) to be completed by, being referred to as the “Acceptance Testing Completion Date”).
7.3 In the event that the Website meets the Acceptance Criteria by the Acceptance Testing Completion Date, the Customer shall notify the Supplier immediately in writing, and such Website shall be accepted. If the acceptance testing is not completed by the Customer, or the notification pursuant to this Clause is not provided (in circumstances where Clause 7.5 is not applicable), by the Acceptance Testing Completion Date, then the Website will be deemed to have been accepted by the Customer, with the associated consequences referred to in Clause 7.13.
7.4 To the extent that the Customer notifies the Supplier of any issues or defects with the Website pursuant to Clause 7, and to the extent that the Supplier investigates such issues or defects, only to discover that such issues are not present or are not attributable to the wrongful acts or omissions of the Supplier, then the Customer accepts that the Supplier may charge the Customer for all such investigative and diagnostic work at the Supplier’s standard rates for such work.
Acceptance Testing Failure
7.5 In the event that the Website fails to meet the Acceptance Criteria prior to the Acceptance Testing Completion Date, then the Customer shall within 5 Working Days of the Acceptance Testing Completion Date notify the Supplier in writing, with reasonable details in respect of the failure. The Supplier will then use reasonable endeavours to remedy such specific defects and resubmit the relevant aspect of the Website for re-testing within a period of 15 Working Days (or such longer reasonable period as is appropriate in view of the nature of the defect) from the date of the Customer’s notice. The Customer acknowledges that unless otherwise agree in the Order Form, the Supplier may charge at its usual rates for any investigation and remedial work and related time. For the purposes of such re-testing, the provisions in Clauses 7.2 and 7.3 will apply again, with the Acceptance Testing Completion Date for such purposes being the 10 Working Day period from when the updated Website (or element of it) is made available to the Customer for re-testing. For the avoidance of doubt, any re-testing will only be in respect of those elements of the Website which failed the previous Acceptance Testing and which were notified in accordance with the provisions of this Clause 7.5 (all other aspects of the relevant Website will remain accepted by the Customer, unless the Customer can reasonably demonstrate that the new non-compliances with the Acceptance Criteria have been caused by such remedial work). If the re-testing shows that the remedial work has not corrected the respective non-compliance with the Acceptance Criteria (or that the remedial work has given rise to new non-compliances with the Acceptance Criteria where such issues were not present prior to such remedial work), then the remedial action and re-testing pursuant to this Clause 7.5 will continue to apply, unless the provisions of Clause 7.6 apply.
7.6 In the event that acceptance testing is failed 3 or more times for the same defect in respect of the same element of a Website under a specific Order Form (with such defects being reported in writing each time by the Customer on their occurrence, in accordance with Clause 7.5), then the Customer may elect to invoke Clause 7.7 instead of Clause 7.5, but only by providing such written notification at the same time as the defect notification is provided pursuant to Clause 7.5.
7.7 In the event that the Customer makes a valid election pursuant to Clause 7.6, then the Customer shall be entitled to:
(a) accept the relevant Website subject to a reasonable reduction as determined by the Supplier in the Charges in respect of the Web Services for the Website (reflecting the shortcomings in terms of the non-compliance with the Acceptance Criteria); although the Customer then agrees: (1) that the Supplier will not then be liable for the consequences arising from such shortcomings in the Website, with such reduction in Charges being the sole and exclusive remedy for such non-compliance; and (2) it may not require such non-compliance to be rectified by the
Supplier; or
(b) reject the relevant element of the Website which has failed the Acceptance Criteria under the relevant Order Form, whereupon the Supplier shall refund all sums previously paid to it solely in respect of the development of the rejected element of the Website, under the respective Order Form; with the Customer then not being able to use the rejected element of the Website nor being able to require the Supplier to provide or rectify the rejected element of the Website; or
(c) invoke Clause 7.5 again, following which Clause 7.6 will apply again.
7.8 If the Customer elects to invoke Clause 7.7(a) or Clause 7.7(b), then the Customer agrees that the Supplier will no longer be required to: (1) provide any other elements of the Website; (2) perform any other obligations, services or Web Services; nor (3) provide any other Deliverables; which cannot be provided by the Supplier in compliance with the Project due to the shortcomings accepted by the Customer, or rejections made by the Customer, pursuant to Clause 7.7(a) or Clause 7.7(b).
7.9 The parties agree that Clauses 7.5 and 7.7 represent the Customer’s sole and exclusive remedies in the event that the Website does not fulfil the Acceptance Criteria.
Acceptance & Consequences
7.10 The Customer confirms that it will be deemed to have accepted the Website on the earlier of:
(a) using the Website in a live environment; or
(b) within 5 Working Days of the Acceptance Testing
Completion Date, if the Customer does not inform the Supplier prior to the expiry of this time period of any failure to meet the Acceptance Criteria (the Customer will be deemed to have accepted those aspects of the Website in respect of which it has not reasonably identified in writing any failures to meet the Acceptance Criteria, prior to the
expiry of this time period); or
(c) acceptance occurring pursuant to Clause 7.3;
7.11 Where any element of the Website is not subject to Acceptance Testing, then the Customer will be deemed to have accepted that element of the Website within 5 Working Days of the Website being made available (whether initially, or subsequently pursuant to Clause 7.12) to the Customer, if no material non-compliances with the Website in respect of the Specification are notified by the Customer to the Supplier within such time period in writing (with such notification being required to have details of the non-compliance, together with reasonable details to allow the Supplier to re-create the actions to view the non-compliance experienced by the Customer).
7.12 If any material non-compliances are notified by the Customer to the Supplier pursuant to Clause 7.11, then the sole and exclusive remedy of the Customer, is for the Supplier to use reasonable endeavours to resolve such non-compliances to the extent that it is reasonably able to do so. Any time incurred by the Supplier in undertaking any remedial work, will be chargeable by the Supplier to the Customer in accordance with the Supplier’s applicable rates. If the Supplier is able to remedy the respective issue in respect of Clause 7.11, then the acceptance provisions in Clause 7.11 will re-apply in respect of such element of the Website.
7.13 Notwithstanding any provision to the contrary, on acceptance of the Website by the Customer in accordance with the provisions of Clause 7 (whether actual acceptance or deemed acceptance), the Customer confirms and agrees that the Website (irrespective of whether the whole or part of the Website was subject to Acceptance Testing) meets the Specification and the requirements of the Project, and that it may not then reject the Website nor receive any payments in respect of any defects or shortcomings which are subsequently discovered by the Customer in respect of the Website, nor be entitled to any other right or remedy in respect of the Website (however, this is without prejudice to Clause 15.1, and the Customer’s right pursuant to Clause 13.8).
7.14 Notwithstanding the above provisions in Clause 7 or any provision to the contrary in the Project, if any failure by the Website to meet the Acceptance Criteria is due to one or more of the following:
(a) any issue with any third party software or third party development or configuration, which has not been provided or undertaken by the Supplier Personnel in relation to an Order Form; or;
(b) any act or omission by the Customer Personnel;
7.15 then the Website will be deemed to be accepted by the Customer (so the acceptance consequences in Clause 7.13 will apply), and the Acceptance Criteria for the purposes of the Project, will be deemed to have been fulfilled in respect of that Website.
7.16 Subject to Clause 13.8, if the Customer requests that any issues with a Website are remedied following the acceptance of a Website (including deemed acceptance) by the Customer, the Supplier may agree to do so, and such remedial work will be charged at the Supplier’s then standard applicable services’ rate for such work in force at the time.
Deliverables
7.17 The provisions contained within Clauses 7.1 to 7.16 inclusive, only apply to the Website and not to any Deliverables. The provisions contained within Clauses 7.18 to 7.22 inclusive, only apply to the Deliverables and not to the Website.
7.18 For the avoidance of doubt, in respect of any Deliverables provided by the Supplier to the Customer pursuant to the Project, this is not subject to Acceptance Testing but is deemed accepted on the earlier of: (1) when the respective Deliverable has either been signed off or accepted in accordance with the respective Workshop Signoff; or (2) 5 Working Days from the date that the Supplier notifies the Customer in writing that it is providing the respective Deliverable for sign off purposes (if the Deliverable does not accompany the notice, then this 5 Working Day period commences from the date that the Deliverable is actually provided for sign off purposes), provided that the Customer has not provided any reasonable justification in writing within this 5 Working Day period as to why the Deliverable should not be signed off.
7.19 If the Customer raises any reasonable issues with the Deliverable referred to in Clause 7.18 (within the 5 Working Day period referred to in Clause 7.18), then the remainder of the Deliverable will be deemed to have been accepted by the Customer, and the Supplier agrees to address within a reasonable period of time the reasonable issues which have been raised by the Customer. Where such Deliverable is being produced on a time and materials basis, any further work in respect of the Deliverable (including without limitation any remedial work) will be chargeable. Subject to Clause 7.20, where the Deliverable has been agreed to be produced on a time and materials basis, the only time any re-working of the Deliverable will not be chargeable in full, will be when the Supplier expressly states in writing that the Deliverable is being provided for sign off purposes, and the Customer demonstrates in writing to the Supplier’s reasonable satisfaction within 5 Working Days from receipt of the Deliverable on that occasion, that the Supplier has failed to use reasonable skill and care in producing specifically identified sections of the Deliverable (those aspects of the Deliverable where there has been demonstrated to be a failure to use reasonable skill and care are referred to as the “Deliverable Shortcomings”); in such circumstances, the time taken to address the Deliverable Shortcomings will not be chargeable.
7.20 For the avoidance of doubt, any review meeting task referred to in an Order Form or Workshop Signoff, is chargeable in any event, and the work undertaken as a result of such task does not fall within the scope of Clause 7.19.
7.21 Following the provision of any updated Deliverable pursuant to Clause 7.19, the provisions of Clauses 7.18 and 7.19 will re-apply to such Deliverable (although the Customer may only raise any reasonable issues in respect of the updated aspects of the Deliverable, with the remainder of the Deliverable having been deemed to be accepted by the Customer as stated in Clause 7.19).
7.22 Notwithstanding any provision to the contrary, on acceptance of the respective Deliverable by the Customer in accordance with the provisions of Clause 7 (whether actual acceptance or deemed acceptance), the Customer confirms and agrees that the Deliverable meets the requirements of the Project, and that it may not then reject the Deliverable nor receive any payments in respect of any defects or shortcomings which are subsequently discovered by the Customer in respect of the Deliverable, nor be entitled to any other right or remedy in respect of the relevant Deliverable (however, this is without prejudice to Clause 15.1
7.23 and the Customer’s right pursuant to Clause 13.8).
8. RECOMMENDATIONS
8.1 To the extent that the Supplier provides any advice or makes any recommendations or suggestions (whether as part of the Services or otherwise) (such advice, recommendations and suggestions collectively being referred to as the “Recommendations”; any third party products (including software, data or IT equipment) and/or third party services referred to in the Recommendations are referred to as the “Solution”), the Customer acknowledges and agrees that:
way of guidance for use by the Customer in its decision
such Recommendations;
and/or services which are unconnected with the Supplier, and therefore the Supplier has no control over the quality, availability or suitability of such Solution;
requirements;
(d) The Supplier is not providing any legal advice, and the
(as the Supplier is not providing any assurances that any of the Recommendations or documentation will comply with any particular legal requirements);
without limitation, the quality, availability or suitability of
reasonable in view of the other provisions contained within the Project, including in Clause 8.
Solution is not referring to products or services which the Supplier has agreed to provide pursuant to an Order Form.
10.
controller (unless otherwise expressly stated in the ‘Processing of Supplier is the processor in respect of any Personal Data.
the Customer's instructions documented in the Order Form and shall
not process the Personal Data for any purposes other than those expressly authorised by the Customer in writing.
10.3 The Supplier shall ensure that it and its processors only process the Personal Data within the UK or the European Economic Area or in countries in respect of which the European Commission has issued an adequacy decision for such processing.
10.4 The Supplier shall ensure that persons authorised to process the Personal Data on the Supplier’s behalf, have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
10.5 The Supplier warrants that, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, it shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk.
10.6 The Customer acknowledges that the Supplier is reliant on the Customer for direction as to the extent to which the Supplier is entitled to use and process the Personal Data. Consequently, the Customer shall defend and indemnify the Supplier against all claims brought by a Data Subject or any Customer Personnel or a supervisory authority arising from any action or omission by the Supplier, to the extent that such action or omission resulted directly from any of the Customer Personnel’s instructions.
10.7 The Customer will ensure that the Customer Personnel will not:
(a) make available any personal data to the Supplier Personnel, other than that which falls within the scope of the Personal Data;
(b) request the Supplier Personnel to process any Personal Data other than for the purposes of performing the Services.
10.8 The Customer agrees that it is its obligation to (and that the Supplier is not liable nor responsible for undertaking the following):
(a) obtain all consents from the Data Subjects or Customer Personnel (as applicable), to allow the Supplier and its processors to process the Personal Data for the purposes of the Services;
(b) ensure that the instructions and Personal Data which are provided to the Supplier, by the Customer Personnel, are lawfully provided;
(c) provide (or ensure that its Customer Personnel provide) all communications, information (including copies of Personal Data) which are required to be provided to the Data Subjects pursuant to any applicable data
protection and privacy laws; and
(d) liaise directly with Data Subjects (or with its Other Customer Personnel where the Customer is acting as a processor rather than a controller in respect of the relevant Personal Data) in respect of data protection and privacy matters.
10.9 The Supplier may authorise a third party subcontractor to process the Personal Data provided that the subcontractor’s contract provides reasonable safeguards for the processing of Personal Data. At the date of the Order Form, the subcontractors identified in the ‘Processing of Personal Data’ section of the Order Form are authorised by the Customer to be engaged by the Supplier for the processing which is envisaged by the Order Form.
10.10 The Supplier shall inform the Customer of any intended changes concerning the addition or replacement of other processors, thereby giving the Customer the opportunity to object to such changes by allowing the Customer to provide prompt written reasonable justification for such objections (provided that such objections relate to demonstrable evidence of the inability of the proposed processor to process Personal Data in accordance with data protection laws or other than in accordance with the safeguards reasonably required for data subjects). In such cases, the Supplier will not use such processor where the Customer has raised such reasonable justification for such objections, and the Supplier’s performance of the Services will be suspended until the Supplier has appointed a reasonable replacement processor which is approved by the Customer (with the Customer acting reasonably); the Parties agree that in such circumstances, the Supplier will not be held liable for any non-performance of its obligations to the extent that they have been prevented or hindered as a result of delays associated with seeking an alternative processor. If the Supplier is unable to contractually engage with a replacement processor within a period of 30 days from the date of the Customer’s objection, then the Supplier may terminate the respective Order Form
(with such termination being undertaken in accordance with Clause 16.3).
10.11 The Supplier shall (with the following applying only to the extent mandated by applicable data protection laws to be complied with by a processor):
(a) where it engages another processor for carrying out specific processing activities on behalf of the Customer, have in place data protection obligations requiring the processor to implement reasonable technical and organisational measures for safeguarding Personal Data and the rights of data subjects under data protection laws. Where that other processor fails to fulfil its data protection obligations as required by law, the Supplier shall remain liable to the Customer for the performance of that other processor's obligations;
(b) taking into account the nature of the processing, assist the Customer by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Customer’s obligation to respond to requests for exercising the Data Subject's rights by law;
(c) assist the Customer in ensuring compliance with the obligations required by applicable data protection laws in respect of the following to the extent that they are applicable (taking into account the nature of processing and the information available to the processor): security of processing by the Supplier and the Supplier’s processors; communication of personal data breaches which have arisen due to breaches by the Supplier or the Supplier’s processors; data protection impact assessments in respect of the Supplier’s or the Supplier’s processors’ processes; and liaising with the relevant data protection supervisory authority in respect of the processing undertaken by the Supplier or the Supplier’s processors;
(d) at the Customer’s discretion, in respect of the Personal Data which is in the possession of the Supplier or the
Supplier’s processors: delete or return all the Personal Data to the Customer after the end of the provision of services relating to processing, and delete existing copies unless applicable laws require storage of the Personal Data by the Supplier or the Supplier’s processors;
(e) make available to the Customer all information necessary to demonstrate compliance by the Supplier and the Supplier’s processors with the obligations applicable to them in this Clause 10.11, and allow for and contribute to audits, including inspections, conducted by the Customer or another auditor reasonably mandated by the Customer.
10.12 The Supplier will provide reasonable co-operation with regard to assisting the Customer with compliance with data protection laws, to the extent that this is mandated by law, or reasonably requested by the Customer. With regard to this, as well as with regard to the provisions of Clause 10.11 (as Clause 10.11 applies subject to this Clause 10.12), the following shall apply:
(a) all such assistance will be provided to the Customer at the Supplier’s standard rates in force (or where the Supplier determines that such rates are not applicable to the type of assistance, then at the reasonable cost of the Customer);
(b) where any technical or practical measures need to be implemented to assist the Customer or Other Customer Personnel as the controller (as applicable), including for aspects such as: (1) data portability; or (2) implementing human intervention with regard to automated decision making; then the Customer will state this expressly and specifically (rather than generically) at the outset in the ‘Services’ section of the Order Form. If the Customer fails to do this, then the Supplier will provide reasonable assistance with such activities (where reasonably requested by the Customer), but the Customer acknowledges that there may be higher costs payable by the Customer to the Supplier for such assistance, and the timings for complying with such measures might not accord with any timing constraints of the Customer or the data protection laws (in view of the time and scheduling required by the Supplier to undertake such activities);
(c) where the Customer (or Other Customer Personnel in circumstances in which any of them are the controller in respect of the Personal Data) undertakes any audits (either itself or through its third parties), this will be subject to the Customer ensuring that:
(i) such audits do not disrupt the activities of the Supplier, its processors and third parties;
(ii) the audit is undertaken in a reasonable and professional manner, with access being sought to only those aspects which are required by data protection law (but not to any legally privileged information, nor any information of any third parties who are not the Data Subjects);
(iii) any site visit at the Supplier’s or the
Supplier’s processors’ premises, is subject to accompaniment at all times by the Supplier’s or the Supplier’s processors’
representatives;
(iv) the auditor (and where applicable, the relevant Customer Personnel) enters into a reasonable confidentiality agreement with the Supplier and its relevant processors;
(v) the audit is undertaken at reasonable times, during the normal working hours of the Supplier and its processors; and
(vi) the cost of the audit and any assistance and attendance by the Supplier, its processors, and any of the afore-mentioned’s representatives is paid for by the Customer.
10.13 Each Party shall take steps to ensure that any natural person acting under the authority of the respective Party who has access to Personal Data does not process it except on written instructions from the Customer (reflecting the instructions of the controller of the Personal Data in circumstances where the Other Customer Personnel rather than the Customer is the controller), unless he or she is required to do so by applicable law.
10.14 The Customer will immediately reimburse the Supplier for all costs (which also includes expenses) which the Supplier (and its third parties) incur in relation to Data Subjects, Customer Personnel and supervisory authorities in relation to the performance of the Supplier’s obligations in respect of the Project, where such costs have arisen due to: the request of the Customer Personnel; breach by the Customer Personnel of their obligations in respect of the Project; or breach by the Customer Personnel of data protection or privacy laws. Where such reimbursement is not forthcoming within 30 days of a written request from the Supplier, then without prejudice to the Supplier’s rights and remedies, the Supplier may terminate the Order Form (with such termination being deemed to be for an irremediable material breach committed by the Customer of the Project).
10.15 The Parties acknowledge that the GDPR applies from 25 May 2018. Consequently, all of the provisions in Clause 10 apply from 25 May 2018. Until 25 May 2018, the Supplier’s obligations under Clause 10 will be restricted to only those which are required under the Data Protection Act 1998.
11. CUSTOMER'S OBLIGATIONS
11.1 The Customer shall:
(a) reasonably co-operate with the Supplier on all matters relating to the Services;
(b) undertake its obligations with reasonable skill and care; (c) fulfil the Additional Customer Obligations;
(d) provide such information and Customer Materials as the Supplier may reasonably require, and ensure that they are provided in a reasonable state and within a reasonable period of time; and
(e) accept full responsibility and liability for the acts undertaken by any party (other than the Supplier Personnel) using the log-in details of the Customer Personnel to access the Systems; and
(f) accept full responsibility and liability for the acts and omissions of the Customer Personnel;
(g) ensure that only the Customer rather than the Other Customer Personnel are able to bring claims against the Supplier, and the Customer will therefore defend and hold the Supplier harmless from any claims from the Other Customer Personnel.
11.2 The Customer agrees (and the Customer will ensure that the Customer Personnel comply with the following as well):
(a) not to undertake any act or omission which would reasonably be likely to adversely affect the Supplier Personnel’s systems, software or services;
(b) not to undertake any act or omission which would result in the Supplier Personnel becoming in breach of any law, regulation or code of conduct;
(c) to maintain the confidentiality and security of user names and passwords in relation to all of the Systems;
(d) to lawfully provide access to its and its third parties: systems, software, data, documentation, materials, resources, facilities, premises, personnel and contractors, as is reasonably necessary in order to allow the Supplier Personnel to comply with their obligations pursuant to the Project;
(e) that it will ensure that the Customer Personnel undertake all firewall and configuration settings in respect of their systems (including software) to allow their systems to communicate with the Supplier Personnel’s systems, to the extent reasonably necessary to allow the Supplier Personnel to perform their obligations pursuant to the Project;
(f) to ensure that the Customer Personnel are lawfully authorised to make available to the Supplier Personnel the respective Customer Materials for the purposes of the Project, and ensure that such Customer Materials:
(i) are of the correct format and content as directed by the Supplier from time to time;
(ii) do not contain any information or materials which are: unlawful; defamatory; infringing any third party’s Intellectual Property Rights; pornographic; racist; sexist; discriminatory; offensive; or of a nature which a reasonable person would not reasonably expect to be provided or uploaded in relation to the Project.
11.3 The Customer agrees to defend the Supplier Personnel from and against all claims or actions relating to the Customer Materials (including any part thereof):
(a) violating any laws; or
(b) infringing the Intellectual Property Rights of a third party;
and the Customer shall fully indemnify and hold harmless the Supplier Personnel from and against all losses, damages, costs (including all legal fees) and expenses incurred by or awarded against the Supplier Personnel as a result of, or in connection with, any such claims or actions.
12. DATA SOURCES OR DATA FEEDS 12.1 The Customer shall:
(a) in a timely manner, provide the Supplier Personnel (who reasonably need access to the Feeds) with lawful access to the Feeds for the purposes of the Project;
(b) ensure that with regard to its third parties who are responsible for providing any Feeds, that the Customer has in place processes or arrangements, to ensure that they inform the Customer promptly and at least 30 days in advance of any proposed Feed Changes;
(c) provide reasonable advance written notice of at least 30 days to the Supplier, of any proposed Feed Changes; and
(d) pay the Supplier such charges as reasonably specified by the Supplier from time to time (based on the Supplier’s standard rates in force at the time) for:
(i) administrating, managing and implementing any changes to the Systems, including any application programming interface changes to the Systems, to accommodate any Feed Changes; and
(ii) administrating, managing and implementing any requests from the Customer to supplement, remove or replace any Feeds.
12.2 The Customer acknowledges and agrees, that:
(a) the Supplier will not be obliged to comply with any requests for Feed Changes, unless agreed by the Parties in writing;
(b) the Supplier will not be responsible for any issues in the performance or non-performance of its obligations, to the extent that this is attributable to any Feed Changes (unless the Supplier has confirmed in writing that it has been able to, or will be able to, accommodate such Feed Changes without it having any adverse consequences for the Customer).
12.3 If the Customer fails to comply with its obligations pursuant to Clauses 12.1 or 12.2, then without prejudice to the Supplier’s additional rights and remedies:
(a) the Customer agrees, and the Customer will ensure, that the Supplier will not be held responsible or liable for any consequences which arise from the Customer’s breach of its obligations under Clause 12.1 or 12.2 (including the inability of the Supplier to perform its obligations to the Customer as a result); and
(b) the Customer agrees that it will still pay the Supplier the amounts which would have been due for those periods that the Supplier’s performance of its obligations has been prevented or hindered by the Customer Personnel, with such payments being calculated as if the Supplier had performed its obligations.
12.4 For the avoidance of doubt, the Customer agrees that it may not request any Feed Changes, where this would:
(a) result in it not being reasonably possible for the Supplier to accommodate such Feed Changes; or (b) result in there being no Feeds remaining.
12.5 The Customer acknowledges and accepts that removal of Feeds will not result in any reduction in the charges payable by the Customer, as the Customer will still be responsible for paying:
(a) the monthly charge and other applicable charges which would have been payable if the Feeds had not been removed; and
(b) any charges payable pursuant to Clauses 12.1 or 12.3.
13.
13.1 The Supplier Personnel and their licensors shall retain ownership of all Intellectual Property Rights in the Supplier Materials. The Customer Personnel and their licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials. Nothing in the Project operates to transfer any ownership of Intellectual Property Rights from one Party to the other Party.
13.2 The Supplier grants the Customer (with the Customer being able to sublicense to the Users), a licence to use (but not to modify or adapt) the Supplier Materials to the extent necessary for the purpose of receiving and using the Services in the Customer's business (or where specified in the ‘Services’ section of the Order Form in the respective Customer Personnel’s business) during the Order Form Term.
13.3 The Customer grants (on behalf of itself and the Customer Personnel) the Supplier Personnel a royalty-free licence to use the Customer Materials for the Order Form Term to the extent necessary for the purpose of performing their obligations in respect of the Project.
13.4 Subject to the other provisions of the Order Form:
(a) the Customer confirms that the Customer Materials, and
(b) the Supplier confirms that the Supplier Materials, are being provided lawfully for the purposes envisaged by the Project.
13.5 Subject to payment by the Customer of the Charges for the Web Services, and following acceptance of the Website by the Customer: the Supplier grants the Customer, a non-exclusive, non-transferable, perpetual (but revocable in the event of a breach of the Agreement), royalty free licence to allow the Customer to either host itself (and use) or host with a third party, the Website for its own business purposes (but not for the business purposes of any third party).
13.6 Where the Supplier is making available third party materials, software, documentation or data to the Customer Personnel pursuant to the Project, the Supplier Personnel will inform the Customer of the existence of any applicable Licence Terms. The Customer will ensure that any such third party aspects of the Supplier Materials will only be used by the Customer (and where permitted by the Project, the Customer Personnel) in accordance with the provisions of the Project.
13.7 The Customer agrees to defend the Supplier Personnel from and against all claims or actions against the Supplier Personnel, relating to breach by any of the Customer Personnel of: the Licence Terms; or obligations in the Project relating to the use of third party materials, software, documentation or data. Furthermore, the Customer shall fully indemnify and hold harmless the Supplier
Personnel from and against all losses, damages, costs (including all legal fees) and expenses incurred by or awarded against the Supplier Personnel as a result of, or in connection with, any such claims or actions.
13.8 Subject to Clause 3, 13.10 and 13.11, each Party (the “Indemnifier”) agrees to indemnify and keep indemnified the other Party (the “Indemnified”) against all losses, costs and expenses (including without limitation reasonable legal fees) incurred or suffered by the Indemnified resulting directly from any bona fide claim that the operation, possession or use of the whole or any part of the Indemnifier’s provided materials when used in accordance with the provisions of this Agreement infringes the Intellectual Property Rights of a third party. The Indemnified agrees to:
(a) give prompt written notice to the Indemnifier of any such claim of infringement as soon as it becomes aware of such claim of infringement;
(b) give the Indemnifier reasonable assistance (at the reasonable cost of the Indemnifier) in connection with the defence of any such claim of infringement and not admit liability or attempt to settle or compromise such claim without the prior written agreement of the Indemnifier (such agreement not to be unreasonably withheld);
(c) allow the Indemnifier to conduct the defence of any such claim; and
(d) use its reasonable endeavours to mitigate any damages, losses, costs and expenses resulting from such claim of infringement.
13.9 Without prejudice to the other provisions of the Project, in the event of a claim of infringement of the Intellectual Property Rights of a third party, the Indemnifier shall be entitled to (but not obliged to):
(a) procure the right for the Indemnified to continue using the infringing material; or
(b) make such modifications to the infringing material or relevant parts thereof so that the infringing material becomes non-infringing without incurring a material reduction in the quality or performance of the respective material; or
(c) replace the infringing material with non-infringing substitutes provided that such substitutes do not entail a material reduction in the quality or performance of the respective materials.
13.10 The Third Party IPR is made available by the Supplier on an ‘as is’ basis without any assurances, warranties or indemnities from the Supplier. The other provisions of the Project will therefore be construed accordingly. For the avoidance of doubt, Clause 13.8 does not apply as an indemnity from the Supplier to the Customer in respect of the Third Party IPR.
13.11 The Parties agree that the Supplier will not be liable for any third party Intellectual Property Right infringement to the extent that such infringement arises from: the acts or omissions of the Customer Personnel or their third parties; or the Supplier complying with the directions or requests of the Customer Personnel or their third parties; or the Supplier’s works being modified by the Customer Personnel or their third parties; or the Supplier’s works being modified under the direction of the Customer Personnel or their third parties. In any of the situations referred to in this Clause 13.11, the Parties agree that the Customer will indemnify the Supplier in respect of such infringement, with the Customer being the Indemnifier and the Supplier being the Indemnified for the purposes of Clause 13.8 (and in such circumstances, for the purposes of the indemnity in Clause 13.8, the infringing works will be deemed to have been provided by the Customer rather than the Supplier).
14. CHARGES AND PAYMENT
14.1 The Customer shall pay the Supplier the Charges plus VAT (if VAT is applicable).
14.2 The Supplier shall submit invoices for the Charges plus VAT (if VAT is applicable) to the Customer monthly in advance, or otherwise in accordance with the payment profile shown on the Order Form in the ‘Charges and Payment Profile’ section. Each invoice shall include all reasonable supporting information reasonably required by the Customer.
14.3 The Customer shall pay each invoice due and submitted to it by the Supplier, within 30 days of receipt (or such other period as specified in the ‘Charges and Payment Profile’ section of the Order Form), to a UK bank account nominated in writing by the Supplier.
14.4 The Customer agrees that it will still pay the Supplier the amounts which would have been due for those Services, Deliverables or
periods (as applicable) in respect of which the Supplier’s performance of its obligations has been prevented or hindered by the Customer Personnel or their third parties (including in respect of any breach of Clause 17.4 by the Customer Personnel), with such payments being calculated as if the Supplier had performed its obligations.
14.5 If the Customer fails to make any payment due to the Supplier under the Project by the due date for payment, then, without limiting the Supplier's remedies under Clause 16:
(a) the Customer shall pay interest on the overdue amount at such rate as prescribed by law. The Customer shall promptly pay the interest together with the overdue amount; and
(b) the Supplier may (at its discretion) suspend all or part of the Services until payment has been made in full.
Disputed Invoices
14.6 The Customer will be entitled to withhold payment of all or part (as applicable) of an invoice in the event that the Customer has a bona fide dispute concerning such invoice, provided that:
(a) details of the dispute and bona-fide disputed amount are notified by the Customer to the Supplier in writing prior to the respective due date for the invoice;
(b) the undisputed elements of the respective invoice are paid by the due date; and
(c) the Parties use reasonable endeavours to resolve the dispute as soon as reasonably possible.
Unless all of the requirements of this Clause 14.6 are fulfilled, the Customer agrees that it may not withhold or set-off any amounts in respect of any invoice. Furthermore, the Customer agrees that it may only withhold amounts (or set-off amounts) in respect of that invoice which relates to Charges for those elements of the Services which are subject to the dispute.
14.7 The Customer agrees that its only set-off and withholding rights in respect of payments are those contained in Clause 14.6. The Customer agrees that if it attempts to withhold or set-off any amounts other than as permitted by Clause 14.6, this will constitute a material breach of the Agreement which is incapable of remedy.
Expenses
14.8 In addition to any expenses referred to in the ‘Charges and Payments’ section of the Order Form, the Customer will also pay the following expenses to the Supplier (which will be re-charged to the Customer at cost, unless otherwise expressly stated below or in the Order Form):
(a) mileage expenses for travelling to and from any of the Customer Personnel’s or Customer Personnel’s third
parties’ sites, at £0.45+VAT per mile;
(b) reasonable subsistence expenses;
(c) courier or premium delivery costs; (d) non-UK telephone call charges; and (e) premium number call charges.
15.
15.1 Notwithstanding any provision to the contrary, nothing in the Agreement shall apply to limit or exclude the Supplier Personnel’s liability for:
(a) death or personal injury caused by: their negligence, or the negligence of their personnel, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; or
(c) any other liability which cannot be limited or excluded by applicable law.
15.2 Notwithstanding any provision to the contrary, all of the provisions of the Agreement apply subject to Clause 15.1.
15.3 Subject to Clause 15.1, all limitations and exclusions of liability in the Agreement for the benefit of the Supplier, apply whether the claims or liability arise under contract (including without limitation, in relation to any deliberate repudiatory and fundamental breaches), statute, tort (including without limitation negligence) or otherwise.
15.4 Subject to Clause 15.1, the Supplier shall not be liable in any circumstances to the Customer for consequential, special, incidental or indirect losses, or the following losses (howsoever arising, including whether direct, consequential, special, incidental or indirect losses):
(a) loss of profits;
(b) loss of revenue;
(c) loss of sales or business
(d) economic loss;
(e) loss of contracts;
(f) loss of anticipated savings;
(g) loss of goodwill;
(h) or any losses arising from a claim by a third party for any of the above losses.
However, this Clause 15.4 does not operate to prevent the ability of the Customer to recover those amounts paid to the Supplier by the Customer where performance of the associated obligations in respect of those Charges has not been undertaken by the Supplier, in which case its recovery will not exceed that amount which directly equates to the amount paid by the Customer for provision of the respective Service or Deliverable which has not been delivered or performed by the Supplier, with such amounts not to violate the limitations of liability referred to in Clause 15.5. Liability Caps
15.5 Subject to Clause 15.1, the aggregate liability of the Supplier for the totality of all claims, in relation to an Order Form (and the Conditions as they apply to that Order Form), where the causes of the claims arise in a particular Year, shall be limited to the greater of:
(a) the total amount of Charges (excluding VAT) paid by the Customer to the Supplier in respect of that Order Form (in relation to which the causes of the claims occurred) in the respective Year in which the causes of the claims arose; and
(b) £1,000.
Therefore, by way of illustration, if 2 different claims arose at different times, where the causes of both of those claims occurred in Year 1, and if the applicable Charges in Year 1 which have been paid by the Customer to the Supplier were £2,000+VAT, then the maximum amount recoverable by the Customer against the Supplier, for the totality of those 2 claims would be £2,000 (and not £2,000 per claim, and not £2,000+VAT).
15.6 Without prejudice to the other provisions of the Agreement, if for any reason, the Supplier is found liable where its liability is not limited or excluded by any other provision of the Agreement (except with regard to the types of liability referred to in Clause 15.1, as this Clause 15.6 does not affect Clause 15.1), the Supplier’s aggregate liability for the totality of all such unlimited or non-excluded claims, shall be limited to the amount of £1,000 in total (and not per claim).
15.7 If claims are brought by the Customer against the Supplier, and the liability cap applicable to the Order Form (and the Conditions as they apply to that Order Form) has become exhausted as a result or if the liability cap has become exhausted in respect of Clause 15.6 (namely, £1,000 has been paid, or agreed to be paid, by the Supplier to the Customer pursuant to Clause 15.6), then no additional amounts (other than in respect of Clause 15.1) may be pursued by the Customer against the Supplier, in respect of any causes of action arising under the Order Form (and the Conditions as they apply to that Order Form), or the Agreement in respect of any claim which would fall within the circumstances envisaged by Clause 15.6 (if the liability cap under Clause 15.6 has been exhausted) and the provisions of Clause 15.9 will also apply in such circumstances. Reduction of Availability of Liability Cap
15.8 The Parties agree that if in respect of any claim any amount is agreed (whether agreed voluntarily by the Supplier, or pursuant to a Court Order, or agreed otherwise (including as a refund, set-off or withholding)) to be provided (or permitted) by the Supplier to the Customer in relation to an Order Form (and the Conditions as they apply to that Order Form) (the agreed amount being referred to as the “Agreed Liability”), then such amount will be deducted from the available liability cap in respect of Clause 15.5 (or Clause 15.6, as applicable), so that the amount of the liability cap remaining for other claims in relation to that Order Form (and the Conditions as they apply to that Order Form) is reduced by the Agreed Liability. Consequences of Exhausting the Liability Cap
15.9 If the liability cap has become exhausted, then the respective Order Form in respect of which the liability cap has been exhausted, or the Agreement if the liability cap under Clause 15.6 has become exhausted, will automatically terminate with immediate effect (as if the termination was for convenience) unless otherwise agreed by the Parties in writing.
General Liability Provisions
15.10 Subject to Clause 15.1, the Supplier will not be liable for any issues, costs or expenses associated with the Customer undertaking any software and/or data restoration, and the Customer confirms that this is reasonable in view of the provisions contained within the Agreement, including Clause 3.6.
15.11 Nothing in Clause 15 shall exclude or restrict the Customer’s obligation to pay any charges in relation to the Agreement.
15.12 The Customer agrees that it will notify the Supplier of any breaches (whether by the Supplier or the Customer) of the Project within 30 days of the date of which it became aware of the breach (or if earlier, the date from when it should have reasonably become aware of the breach). Furthermore, the Customer will use reasonable endeavours to mitigate all of its losses, costs and expenses in relation to the Agreement and any breaches of it.
15.13 Subject to Clause 15.1, the Customer agrees that after 12 months following the earlier of: (1) the occurrence of the relevant breach; and (2) termination of the Order Form in relation to which the breach relates; the Customer may not bring any claims against the Supplier which relate to the respective breach.
15.14 The Customer acknowledges that the Charges have been calculated on the basis that the Supplier will exclude and limit its liability as set out in the Project.
15.15 The Customer agrees that the limitations and exclusions of liability contained in the Agreement are reasonable in view of the nature and extent of the obligations accepted by each Party pursuant to the Agreement.
15.16 All of the Customer’s claims, losses and potential claims which arise from the same original cause, a single source or a repeated or continuing problem will be treated as a single claim, loss or potential claim for the purposes of the Agreement.
15.17 If a claim relates to a breach of the Project, such claim will be deemed to apply in respect of that Order Form which, if not in force, would not have given rise to the respective claim. If for any reason, such claim cannot be attributed to an Order Form in this manner, then it will be deemed to be attributable to that Order Form which has had the lowest amount of Charges paid in respect of it by the Customer in the Year in which the cause of the respective claim arose (or if there is no such Order Form in that Year, then the aggregate limit in Clause 15.5(b) will apply in respect of that claim).
16. TERMINATION
16.1 Without affecting any other right or remedy available to it, a Party (the “Injured Party”) may terminate the respective Order Form (termination pursuant to Clause 16.1(a), would be in respect of that Order Form in relation to which the breach has occurred) with immediate effect by giving written notice to the other Party (the “Defaulting Party”) if:
(a) the Defaulting Party commits a material breach of the Project which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing by the Injured Party to do so;
(b) the Defaulting Party takes any step or action in connection with: its entering into administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring); being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring); having a receiver appointed to any of its assets; or ceasing to carry on business; (or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction);
(c) the Defaulting 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 Defaulting Party's financial position deteriorates to such an extent that in the Terminating Party's reasonable opinion the Defaulting Party's capability to adequately fulfil its obligations under the Project has been placed at material risk.
16.2 Without affecting any other right or remedy available to it, the Supplier may terminate the Order Form with immediate effect by giving written notice to the Customer if: the Customer fails to pay any amount due in relation to that Project on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment (with such written notice containing a warning of pending termination if the payment is not made).
16.3 Notwithstanding any provision to the contrary, the Supplier may terminate:
(a) any or all Order Forms; or
(b) the Agreement (which would result in the termination at the same time of all Order Forms and the Conditions); immediately upon written notice, if the Supplier is unable to perform the Services or its obligations pursuant to the Project or the Agreement, due to it no longer having the benefit of any technology contracts or licences or resources which it had or requires with (or from) its third parties for performance of the Project or Agreement (in circumstances where such licences, resources or technology contracts have been terminated, or the respective third party has ceased to provide services, technology, resources, data or software for the benefit of the Supplier). Such termination will be deemed to be a termination for convenience, and the Supplier will refund within 30 days of such termination, any pre-paid charges for any future Services which have not been performed at the date of termination. For the avoidance of doubt, this Clause 16.3 can only be invoked by the Supplier where it would not be reasonably possible for the Supplier to perform, or continue to perform any of the Services or its obligations. The Supplier would in such circumstances, use reasonable endeavours to provide advance written notice of such forthcoming termination, provided that it would be reasonably practicable for the Supplier to do so (but the Customer acknowledges that depending upon the circumstances, this may not be possible in all cases).
16.4 The Supplier may terminate any Data Services on 120 days prior written notice for convenience at any time, and the Supplier will refund within 30 days of such termination, any pre-paid charges for any future Data Services which have not been performed at the date of termination.
16.5 If any of the Customer Personnel breach the Licence Terms, then the Supplier may terminate in whole or in part (with immediate effect) any or all Projects which are reliant to any extent, upon such Licence Terms being complied with by any of the Customer Personnel. Such termination by the Supplier of the Projects will be for breach by the Customer, and consequently the Customer will not be entitled to any refunds of any pre-paid charges, and will be obliged to pay the remaining charges which would have been payable in respect of such terminated Projects.
16.6 If the Licence Terms are terminated between any of the Customer Personnel and the respective licensors, the Customer will immediately notify the Supplier of this, and the Supplier may terminate in whole or in part (with immediate effect) any or all Projects which are reliant to any extent, upon such Licence Terms being complied with by any of the Customer Personnel.
16.7 If the Licence Terms are terminated by the Customer exercising its termination rights (if any) under the Licence Terms, then where the Supplier terminates any Projects pursuant to Clause 16.6 as a result, then the Supplier will provide a pro-rata refund in respect of any remaining services which are not going to be performed or made available by the Supplier as a result.
16.8 On termination of an Order Form for whatever reason:
(a) the Customer shall pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest (where applicable) and, in respect of Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice. All such amounts shall be payable within 30 days of receipt of the respective invoice or request (where an invoice has already been issued);
(b) subject to Clause 15, termination of the Order Form shall not affect any of the Parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Project which existed at or before the date of termination;
(c) all licences provided by the Supplier Personnel will immediately terminate (except the termination will not: (1) affect the licence granted pursuant to Clause 13.5, provided that the Website is used in accordance with the Agreement; nor (2) affect the ability for the Customer to retain and use the Deliverables in accordance with the Agreement);
(d) the Customer will immediately cease using the Supplier Materials (except where otherwise stated in the Order Form or in Clause 16.8(c)) which have been made available to the Customer (and return or destroy them, as requested by the Supplier), and the Supplier will immediately cease using the Customer Materials (and return or destroy them, as reasonably requested by the
Customer); and
(e) any provision of the Project that expressly or by (i) to its Personnel who need to know such implication is intended to come into or continue in force information for the purposes of the Project on or after termination of the Order Form (including or Agreement. Each Party shall ensure that Clause 15) shall remain in full force and effect (even its Personnel to whom it discloses the other though the Order Form will be deemed to be terminated, Party's confidential information maintain and no further Services will be required to be performed the confidentiality of such information; or in respect of that Order Form (unless any such Services (ii) as may be required by law, a court of are expressly stated to apply upon termination of the competent jurisdiction or any governmental Order Form by way of any exit arrangements)). or regulatory authority.
16.9 Termination of an Order Form will terminate the Conditions as they (c) No Party shall use any of the other Party's confidential apply to that Order Form, but it will not terminate or affect the information for any purpose other than in connection continuance in force of the Conditions to operate as a framework with the Project or the Agreement. agreement, unless the Conditions are terminated pursuant to Clauses 17.4 Non-solicit.
16.10 and 16.11. (a) Neither Party shall (except with the prior written
16.10 Notwithstanding any provision to the contrary in the Agreement: consent of the other Party) directly or indirectly solicit
(a) the Conditions can only be terminated so that they no or entice away (or attempt to solicit or entice away) longer operate as framework agreement, pursuant to from the employment or engagement of the other Party
Clause 16.11; and any person employed or engaged by such other Party
(b) the Agreement as a whole can only be terminated by who has been involved in the performance of any fulfilling both of these requirements: obligation under the Agreement or (in the case of the
(i) first terminating all Order Forms in Customer) in the receipt of the Services at any time accordance with the provisions of the during the Agreement, and for a further period of 6 respective Projects; and then months after the termination of the Agreement, other
(ii) terminating the Conditions in accordance than by means of a national advertising campaign open with Clause 16.11. to all comers and not specifically targeted at any of the
16.11 Subject to Clause 16.12, the Conditions can only be terminated for staff of the other Party.
convenience and then only after: (b) If either Party commits any breach of Clause 17.4(a),
(a) all Order Forms have been terminated (with Order the breaching Party shall, on demand, pay to the Forms being terminated either in accordance with the claiming Party a sum equal to one year's basic salary or other provisions of the Conditions, or the termination the annual fee that was payable by the claiming Party to provisions included in the respective Order Form); and that employee, worker or independent contractor plus only then the recruitment costs incurred by the claiming Party in
(b) by either Party providing 7 days prior written notice to replacing such person. This is without prejudice to the the other Party of such termination of the Conditions. claiming Party’s additional rights and remedies (and
16.12 The Licence Terms can also be terminated in accordance with the such breach would be deemed to be a material breach provisions of the Licence Terms or the other terms of the Project or of the Agreement which is incapable of remedy).
the Agreement. (c) Furthermore, the Customer agrees not to directly or
17. GENERAL indirectly solicit or entice away (or attempt to solicit or
17.1 Force majeure. Neither Party shall be in breach of the Project, nor entice away) from the employment or engagement of liable for any delay in performing, or failing to perform, any of its the Supplier’s subcontractors, any person employed or obligations under the Project, if such delay or failure results from engaged by the Supplier’s subcontractors who has been events, circumstances or causes beyond its reasonable control. involved in the performance of any of the Supplier’s However, the Parties will not be excused from performance of their obligations under the Agreement at any time during the obligations under this Clause due to any delays or failures arising Agreement, and for a further period of 6 months after from their Personnel (namely: the Customer Personnel in respect of the termination of the Agreement, other than by means the Customer; and the Supplier Personnel in respect of the Supplier) of a national advertising campaign open to all comers unless the delay or failure by their Personnel is due to events, and not specifically targeted at any of the staff of the
circumstances or causes beyond such Personnel’s reasonable control. Supplier’s subcontractors.
This Clause does not affect the Customer’s payment obligations (d) If the Customer commits any breach of Clause 17.4(c), under the Agreement, including in respect of Clauses 3.5 and 14.4. the Customer shall, on demand, pay to the Supplier a
17.2 Assignment and other dealings. sum equal to the costs of procuring (and where
(a) The Customer shall not assign or transfer any or all of reasonably necessary, training) a replacement for the its rights and obligations under the Agreement without solicited employee, worker or independent contractor the Supplier’s prior written consent. plus the recruitment costs, procurement costs and legal
(b) The Supplier may assign the Project or the Agreement costs incurred by: the Supplier in replacing the affected with the Customer’s prior written consent, such consent subcontractor; or the subcontractor in replacing such not to be unreasonably withheld. person. This is without prejudice to the Supplier’s
(c) The Supplier may subcontract its obligations, although additional rights and remedies (and such breach by the this does not detract from the Supplier’s obligation to Customer would be deemed to be a material breach of fulfil such obligations through such subcontractor. the Agreement which is incapable of remedy).
(d) The Supplier may use any subcontractors in relation to (e) The Customer shall not, for the duration of this Agreement, the Project or Agreement, from time to time, at the and for a period of 6 months after its termination (the Supplier’s sole discretion. However, where such restricted period being referred to as the “Restricted replacement or additional subcontractors will be Period”), enter into a contract with any of the Supplier’s processing Personal Data, the Supplier will only contractors or subcontractors (who have been involved in appoint such subcontractors as processors in the performance of any obligations of the Supplier under accordance with Clause 10. this Agreement (such parties being referred to as the 17.3 Confidentiality. “Restricted Parties”)) for services similar to any of those (a) Each Party undertakes that it shall not at any time which the Customer has received from such Restricted disclose to any person any confidential information Parties via the Supplier pursuant to this Agreement.
concerning the business, affairs, customers, clients or (f) If the Customer breaches Clause 17.4(e), then it will suppliers of the other Party or its Personnel or of any immediately pay to the Supplier an amount equal to the member of the Group to which such other Party charges the Supplier would have reasonably charged the belongs, except as permitted by clause 17.3(b). Customer for the services and materials which the Customer
(b) Each Party may disclose the other Party's confidential has procured during the Restricted Period from the information: Restricted Parties, and the Parties agree that such liquidated damages are a genuine pre-estimate of the loss that the
Supplier will suffer as a result of such breach. This is without prejudice to the Supplier’s additional rights and remedies (and such breach by the Customer would be deemed to be a material breach of the Agreement which is incapable of remedy).
(g) The Customer will also ensure that the Customer Personnel will comply with the equivalent restrictions (mutatis mutandis) as referred to in Clauses 17.4(a) to 17.4(f) inclusive, and the Customer agrees that failure by any of the Customer Personnel to comply with such restrictions will be deemed to be a breach by the Customer and have the same consequences as if the Customer had breached the respective provisions above of Clause 17.4.
17.5 TUPE.
(a) The Customer confirms that no Employees will transfer from the Customer Personnel to the Supplier Personnel by operation of law as a result of the entering into of this Project (whether as a result of TUPE or otherwise), so that they are held to be employees of any of the Supplier Personnel.
(b) The Customer confirms that it shall indemnify and keep the Supplier Personnel indemnified in full from and against any and all TUPE Liabilities suffered or incurred by the Supplier Personnel, as a result of any and all claims or demands made or brought against the Supplier Personnel, by or on behalf of any Employee on the grounds that his or her employment and/or TUPE Liabilities in connection with that employment, its termination or cessation howsoever arising have or should have transferred to the Supplier Personnel, whether pursuant to TUPE or otherwise.
17.6 Entire agreement.
(a) Subject to Clauses 2.2 and 2.3, the Agreement, contains the entire agreement between the Parties with respect to the subject matter of the Agreement (the “Subject Matter”) and supersedes and replaces all other written and oral communications between the Parties relating to the Subject Matter (furthermore, any previously executed: confidentiality agreements; and data processing agreements; are hereby terminated). Except for the express provisions in the Agreement (and any express provisions contained in any documentation which is expressly incorporated), all other warranties, conditions, terms, representations (whether made innocently or negligently), statements, undertakings and obligations whether express or implied by statute, common law, custom, usage or otherwise are hereby excluded to the maximum extent permitted by law.
(b) Each Party excludes its liability for any representations (whether made innocently or negligently) not contained expressly within the Agreement. The Parties hereby confirm that they have not relied upon any representations (whether made innocently or negligently), communications or other matters which have not been expressly stated in the Agreement, whether as an inducement to enter into the Agreement or otherwise. Each Party agrees that its only liability in respect of those representations (whether made innocently or negligently), warranties and provisions that are set out in the Agreement shall be for breach of contract (in accordance with the provisions of the respective Project). This Clause 17.6(b) operates subject to Clauses 17.6(c) and 17.6(d).
(c) Notwithstanding any provision to the contrary in the Agreement (except for Clauses 15.1 and 17.6(d)), all implied: terms, conditions and warranties, (including without limitation those relating to satisfactory quality and fitness for purpose); whether (1) implied by statute, common law, custom, usage or otherwise, or (2) otherwise would be incorporated by any express reference to compliance with laws; are hereby excluded to the maximum extent permitted by law. This Clause 17.6(c) operates subject to Clause 17.6(d).
(d) Notwithstanding any provision to the contrary, nothing in the Agreement limits or excludes either Party’s liability for fraudulent misrepresentations.
17.7 Variation. No variation of the Order Form, Project, Conditions or Agreement shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).
17.8 Waiver. No provision of the Project shall be waived unless agreed to be waived by both Parties in writing (except where there is a prescribed time limit in which to exercise a right or remedy, in which case the elapsing of the time limit will constitute a waiver of the respective right or remedy). If any provision is waived, then that waiver shall operate for that instance only and not future instances, unless agreed otherwise by both Parties in writing.
17.9 Severance. If any provision or part-provision of the Project is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Project.
17.10 Third party rights. No one other than the Parties shall have any right to enforce any of the terms of the Project (except that the Supplier Personnel shall have the right to enforce those provisions of the Project which expressly confer rights and benefits in respect of them, pursuant to the Contracts (Rights of Third Parties) Act 1999). However, the Parties may vary, terminate or undertake other acts by joint agreement between the Parties in writing, without requiring the consent of any third party.
17.11 Governing law. The Project, 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.
17.12 Jurisdiction. Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Project or its subject matter or formation.
