Renovotec Terms and Conditions

Renovotec Ltd Terms & Conditions for the supply of goods and services

Clause

Interpretation
Basis of contract
Goods
Delivery of Goods
Quality of Goods
Title and risk
Supply of Services
Support Services
Customer’s obligations
Charges and payment
Intellectual property rights
Data protection
Confidentiality
Limitation of liability: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
Termination
Consequences of termination
Force majeure
General

The Customer’s attention is particularly drawn to the provisions of clause (Limitation of liability).

1. Interpretation

The following definitions and rules of interpretation apply in these Conditions.

1.1 Definitions:

Business Day : a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

Business Hours : the period from 9.00 am to 5.00 pm on any Business Day.

Commencement Date : has the meaning given in clause 2.2.

Conditions : these terms and conditions as amended from time to time in accordance with clause 17.8.

Contract : the contract between the Supplier and the Customer for the supply of Goods and/or Services in accordance with these Conditions.

Customer : the person or firm who purchases the Goods and/or Services from the Supplier.

Deliverables : the deliverables set out in the Order produced by the Supplier for the Customer.

Delivery Location : has the meaning given in clause 4.1.

Force Majeure Event : has the meaning given to it in clause 16.

Goods : the goods (or any part of them) set out in the Order.

Goods Specification : any specification for the Goods, including any relevant plans or drawings, that is agreed in writing by the Customer and the Supplier.

Intellectual Property Rights : patents, utility models, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Maintenance Release : release of the Software that corrects faults, adds functionality or otherwise amends or upgrades the Software.

Order : the Customer’s order for the supply of Goods and/or Services, as set out in the Customer’s purchase Order Form, or the Customer’s written acceptance of the Supplier’s quotation, or overleaf, as the case may be.

Order Form : the Order Form that details the nature of the Goods and Services to be supplied under the Contract.

Relevant Device : any device as supplied by the Supplier or belonging to the Customer where the Supplier has been provided with a registered number.

Services: the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Order Form and including any managed service or software services.

Service Specification : the description or specification for the Services provided in writing by the Supplier to the Customer.

Supplier : Renovotec Limited registered in England and Wales with company number 03554098.

Supplier Materials : has the meaning given in clause 8.1(h).

Support Services : those services provided by the Supplier in connection with the Software as detailed in clause 8.

Support Services Fee : the fee payable (where applicable) by the Customer to the Supplier (as more particularly detailed in the Order form) for the right to receive Support Services.

Technical Support : help and support to be provided by the Supplier to the Customer, by telephone, remote access or otherwise in respect of problems identified by the Customer, where the Supplier deems this appropriate, as more particularly described in clause 8.

UK GDPR : has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.

Warranty Period : has the meaning given in clause 5.1.

1.2 Interpretation:

(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

(b) A reference to a party includes its successors and permitted assigns.

(c) A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.

(d) Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.

(e) A reference to writing or written excludes fax but not email.

2. Basis of contract

2.1 The Order constitutes an offer by the Customer to purchase Goods or Services or Goods and Services in accordance with these Conditions.

2.2 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).

2.3 Any samples, drawings or advertising issued by the Supplier and any descriptions of the Goods or illustrations or descriptions of the Services contained in the Supplier’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract nor have any contractual force.

2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.

2.5 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 30 Business Days from its date of issue.

2.6 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.

2.7 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.

3. Goods

3.1 The Goods are described in the Goods Specification and/or Customer’s purchase Order Form.

3.2 All drawings, illustrations or any product literature or other publication provided by the Supplier must be regarded as approximations only.

3.3 To the extent that the Goods are to be manufactured in accordance with a Goods Specification supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Supplier’s use of the Goods Specification. This clause 3.2 shall survive termination of the Contract.

3.4 The Supplier reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Customer in any such event.

3.5 The supplier’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Supplier in writing. The Customer acknowledges that it does not rely upon, and waives any claim for breach of any such representations which are not so confirmed by the Supplier.

3.6 The Supplier is unable to advise the Customer on the fitness of the Goods for any particular purpose, their storage or application. Unless the Supplier gives written advice or a written recommendation, the Customer is entirely responsible for satisfying itself that the Goods are fit for the intended use either by relying on their own expertise or by obtaining professional advice.

4. Delivery of Goods

4.1 The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready.

4.2 Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location.

4.3 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.4 The Supplier may deliver Goods in instalments. Deliveries of further instalments and performance of further sections may be withheld until the Goods comprised in earlier instalments are paid for. Default by the Supplier, howsoever caused, in respect of one or more instalments shall not entitle the Customer to terminate the relevant Contract as a whole.

4.5 If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.6 If the Customer fails to accept delivery of the Goods within three Business Days of the Supplier notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by the Supplier’s failure to comply with its obligations under the Contract in respect of the Goods:

(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day following the day on which the Supplier notified the Customer that the Goods were ready; and

(b) the Supplier shall store the Goods until actual delivery takes place, and charge the Customer for all related costs and expenses (including insurance).

4.7 If ten Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not accepted actual delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.

4.8 Upon delivery to the Customer, all Goods should be examined. The Supplier shall not be liable for any shortages in, or non-delivery of, Goods unless the same is notified by the Customer to the Supplier (together with all specific details) in writing within 7 days or their delivery. Subject to such notice being provided, the Supplier shall, if it is satisfied that any Goods have not been delivered as a result of a Force Majeure Event, at its sole discretion, either arrange for delivery as soon as it is reasonably practicable to do so, or give credit to the Customer for such Goods. Shortages in, or non-delivery of, some or part of the Goods, shall not affect the Contract in respect of the other parts of the Goods.

5. Quality of Goods

5.1 The Supplier warrants that on delivery, and for a period in line with the manufacturer’s warranty from the date of delivery (Warranty Period), the Goods shall:

(a) conform with the Goods Specification;

(b) be free from material defects in design, material and workmanship;

(d) be fit for any purpose held out by the Supplier.

5.2 Subject to clause 5.3, if:

(a) the Customer gives notice in writing to the Supplier during the Warranty Period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;

(b) the Supplier is given a reasonable opportunity of examining such Goods; and

(c) the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Customer’s cost, the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.

5.3 The Supplier shall not be liable for the Goods’ failure to comply with the warranty set out in clause 5.1 if:

(a) the Customer makes any further use of such Goods after giving a notice in accordance with clause 5.2;

(b) the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice regarding the same;

(c) the defect arises as a result of the Supplier following any drawing, design or specification supplied by the Customer;

(d) the Customer alters or repairs such Goods without the written consent of the Supplier;

(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or

(f) the Goods differ from the Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

5.4 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.

5.5 These Conditions shall apply to any warranty repaired or replacement Goods supplied by the Supplier.

6. Title and risk

6.1 The risk in the Goods shall pass to the Customer on completion of delivery unless otherwise agreed in writing.

6.2 Title to the Goods shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums.

6.3 Until title to the Goods has passed to the Customer, the Customer shall:

(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;

(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Supplier’s behalf from the date of delivery;

(d) notify the Supplier immediately if it becomes subject to any of the events listed in 15.2(b) to 15.2(d); and

(e) give the Supplier such information as the Supplier may reasonably require from time to time relating to:

(i) the Goods; and

(ii) the ongoing financial position of the Customer.

6.4 At any time before title to the Goods passes to the Customer, the Supplier may:

(a) require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.

7. Supply of Services

7.1 The Supplier shall supply the Services to the Customer in accordance with the Service Specification or Order Form in all material respects.

7.2 The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in the Service Specification but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services. At its sole discretion the Supplier may subcontract any or all of its obligations to the Customer in connection with the performance of the Services.

7.3 The Supplier reserves the right to amend the Service Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.

7.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.

8. Support Services

8.1 Subject to the Support Services Fee being paid when due the Supplier undertakes to provide the Support Services described in clause 8 until the Contract is terminated.

8.2 The Supplier will:

(a) supply all new general availability releases of the Software products that the Customer has ordered under the Contract;

(b) provide Technical Support for the Software on the terms set out in clauses 8.3-8.11.

8.3 Technical Support will be available during the standard support hours of 9am to 5.30pm Monday to Friday (excluding bank or public holidays, the Christmas shutdown period (being the days between Christmas bank holidays and the New Year bank holidays, in England), unless otherwise agreed in writing).

8.4 All service requests will be assigned a priority level as agreed between the Supplier’s customer care team and the Customer’s nominated representative. The priority level may be amended by mutual agreement after initial investigatory work. The priority levels are defined as follows:-

(a) Priority 1: Critical – Very high impact in all business areas, extreme impact on users and disruption is excessive.

(b) Priority 2: Urgent – High impact on significant business areas or specific VIP users.

(c) Priority 3: Medium – Medium impact, a group of users or individual user is experiencing system or business application problems but are still able to work, system or application performance issues without failure.

(d) Priority 4: Low – Low impact and urgency.

8.5 The Supplier will endeavour to respond to a service request during the hours stated in clause 8.3 in accordance with the service levels set out below in an effort to answer the Customer’s query or supply information on how to remedy, avoid or bypass a reported problem as soon as practicable, but do not guarantee a resolution within these timeframes. The service levels are:

(a) Priority 1: Within 1 working hour

(b) Priority 2: As set out in the agreed SLA

(d) Priority 4: As set out in the agreed SLA

Wherever possible, the Supplier will deal with service requests on a remote basis. Where this is not possible, on-site support will be provided but this will be at an additional charge; the charging structure will be agreed between the Supplier and the Customer prior to any call-out proceeding.

8.6 The Supplier will ensure that its employees, agents or subcontractors carrying out the Support Services will comply with the Customers security procedures and health and safety regulations whilst on the Customer’s premises provided that due notice of such procedures is brought to the Supplier’s attention with sufficient time for its representatives to familiarise themselves with them. The Supplier will not be responsible for any delays caused as a result of any steps required to comply with the Customer’s health and safety or security procedures.

8.7 The Supplier will have problems arise from:

(a) Any modifications to the Software or Hardware carried out by anyone other than the Supplier or its authorised agent;

(b) use of the Software or Hardware in combination with products which are not supported by the Supplier and which have not been approved in advance for use by the Supplier in combination with the Software;

(d) any failure by the Customer to implement in a timely fashion any Maintenance Release or other advice that the Supplier advises; or

(e) any breach of the Customer’s obligations under the Contract.

(f) the rectification of lost or corrupted data arising by reason other than the negligence of the Supplier;

(g) attendance to faults caused by the Customer’s failure to use the Software or Hardware in accordance with any instructions provided by the Supplier to the Customer either orally or in writing, or caused by operator error or omission.

8.8 The Support Services do not include electrical or other environmental work external to the Software or the recovery or reconstruction of any lost or spoiled data or software.

8.9 The Supplier will only provide Technical Support to the Customer providing the Customer is using the latest version of the Software provided to it in accordance with clause 8.2.

8.10 To enable the Supplier to provide Technical Support the Customer will:

(a) co-operate with the Supplier as the Supplier reasonably directs and provides such information that the Supplier requires to fulfil its obligations to the Customer under this clause 8;

(b) provide the Supplier with the necessary access to the Relevant Devices as required to troubleshoot and resolve the issue, on a permanent, uninterrupted (save for the occurrence of a Force Majeure Event) basis;

(c) in circumstances where the Supplier has carried out work in response to a service request but, upon investigation, it transpires that the query or problem logged was not covered by the Contract, the Customer undertakes to pay to the Supplier such fees and expenses incurred by the Supplier in performing the subject matter of the service request at the rates applicable at the time the Services were performed.

8.11 The Supplier will use its reasonable endeavours to provide Technical Support in accordance with good industry practice. Technical Support relates directly to the Software or Hardware. The Supplier will use its reasonable endeavours to ensure that the Customer receives full and conclusive responses where practical and reasonable. All Technical Support is subject to the following:

(a) it is provided on the Software or Hardware only;

(b) it is provided to Customers or their designated representatives who have undertaken training to the satisfaction of Supplier;

(c) where the customer is a body corporate it shall appoint a prime support contact in relation to the Contract and any queries emanating out of it; such representative shall have all the necessary authority to bind the Customer.

8.12 The following matters are expressly excluded from Technical Support but may be provided subject to a separate agreement or Order: training; general advice and consultancy; data transfer services; Customer System support; links and integration with third party products; delivery of software, or revisions, or upgrades; site visits; investigation into or corrections to data loss or corruption.

8.13 The Customer agrees that the Supplier shall be relying upon the accuracy of all representations, statements, information, materials and documents (“Data”) supplied by the Customer in connection with the Support Services and the Supplier shall be under no obligation to test, check or confirm the accuracy of any Data prior to performing the Services unless previously agreed in writing. The Supplier accepts no responsibility or liability whatsoever for or resulting from any Data prepared and/or supplied by the Customer or a third party on the Customer’s behalf.

9. Customer’s obligations

9.1 The Customer shall:

(a) ensure that the terms of the Order (if submitted by the Customer) and the Goods Specification are complete and accurate;

(b) co-operate with the Supplier in all matters relating to the Services;

(c) provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Services;

(d) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;

(e) prepare the Customer’s premises for the supply of the Services;

(f) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;

(g) at all times remain responsible for system administration, security, backups, restores and recovery actions;

(h) comply with all applicable laws, including health and safety laws;

(i) keep all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation; and

(j) comply with any additional obligations as set out in the Service Specification and the Goods Specification.

9.2 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):

(a) without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;

(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 8.2; and

(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.

10. Charges and payment

10.1 The price for Goods shall be the price set out in the Order.

10.2 Unless stipulated in the Order the Contract Price excludes all and any charges in connection with the delivery of the Goods. The prices quoted in the Order are exclusive of VAT and/or other applicable purchase or sales taxes for which the Customer is liable at the same time as payment is due for the supply of the Services or Goods.

10.3 The price payable for the Goods shall (where appropriate) be the Supplier’s list prices therefore current at the time of despatch. The Supplier shall have the right at any time to revise such prices.

10.4 The Supplier may invoice the Customer on or at:

(a) completion of delivery or part delivery of Goods;

(b) monthly or annually for Services including managed services, unless otherwise specified;

(d) contract signature for one-off charges.

10.5 Payment of invoices is due 30 days following the date of the invoice (or as otherwise stated on the invoice), in full and cleared funds to a bank account nominated in writing by the Supplier and in the same currency as the invoice. Time for payment shall be of the essence of the Contract.

10.6 Non-payment by the Customer by the Due Date shall entitle the Supplier to demand payment of all outstanding balances under the Contract or any other contract or agreement between the parties whether due or not and to cancel forthwith any outstanding orders without prejudice to all other rights the Supplier may have.

10.7 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under clause 15, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 10.7 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

10.8 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

11. Intellectual property rights

11.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer or any Third Party) shall be owned by the Supplier.

11.2 The Supplier grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to copy the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Services and the Deliverables in its business.

11.3 The Customer shall not sub-license, assign or otherwise transfer the rights granted by clause 11.2.

11.4 The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Services to the Customer.

12. Data protection

12.1 The following definitions apply in this clause 12:

(a) Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures : as defined in the Data Protection Legislation.

(b) Data Protection Legislation : all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR, the Data Protection Act 2018 (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) [and the guidance and codes of practice issued by the Information Commissioner or other relevant regulatory authority and applicable to a party.

12.2 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 12 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.

12.3 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller and the Supplier is the Processor.

12.4 Without prejudice to the generality of clause 12.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Supplier and/or lawful collection of the Personal Data by the Supplier on behalf of the Customer for the duration and purposes of the Contract.

12.5 Without prejudice to the generality of clause 12.2, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under the Contract:

(a) process that Personal Data only on the documented written instructions of the Customer unless the Supplier is required by Domestic Law to otherwise process that Personal Data. Where the Supplier is relying on Domestic Law as the basis for processing Personal Data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Domestic Law unless the Domestic Law prohibits the Supplier from so notifying the Customer;

(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);

(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and

(d) not transfer any Personal Data outside of the UK unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:

(i) the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;

(ii) the Data Subject has enforceable rights and effective legal remedies;

(iii) the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and

(iv) the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data.

(e) assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

(f) notify the Customer without undue delay on becoming aware of a Personal Data Breach;

(g) at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the Contract unless required by Domestic Law to store the Personal Data; and

(h) maintain complete and accurate records and information to demonstrate its compliance with this clause 12 and allow for audits by the Customer or the Customer’s designated auditor and immediately inform the Customer if, in the opinion of the Supplier, an instruction infringes the Data Protection Legislation.

12.6 The Customer does not consent to the Supplier appointing any third party processor of Personal Data under the Contract.

13. Confidentiality

13.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause

13.2 Each party may disclose the other party’s confidential information:

(a) to its employees, officers, representatives, contractors or subcontracts or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 13; and

(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

13.3 No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.

14. Limitation of liability: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.

14.1 The restrictions on liability in this clause 14 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

14.2 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.

14.3 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:

(a) death or personal injury caused by negligence;

(b) fraud or fraudulent misrepresentation;

(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); and

(d) defective products under the Consumer Protection Act 1987.

14.4 Subject to clause 14.3, the Supplier’s total liability to the Customer shall not exceed the Order value

14.5 This clause 14.5 sets out specific heads of excluded loss and exceptions from them:

(a) Subject to clause 14.2 and clause 14.3, clause 14.5(b) excludes specified types of loss.

(b) The following types of loss are wholly excluded:

(i) loss of profits;

(ii) loss of sales or business;

(iii) loss of agreements or contracts;

(iv) loss of anticipated savings;

(v) loss of use or corruption of software, data or information;

(vi) loss of or damage to goodwill; and

(vii) indirect or consequential loss.

14.6 The Supplier has given commitments as to compliance of the Goods and Services with relevant specifications in clause 5 and clause 7. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

14.7 This clause 14 shall survive termination of the Contract.

15. Termination

15.1 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party, subject to clause 15.3, not less than 30 days’ written notice.

15.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

(a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;

(b) the other party commits a material breach of any other term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;

(c) the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;

(d) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 ;

(e) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

(f) the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;

(g) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

(h) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);

(i) the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;

(j) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;

(k) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;

(l) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 15.2(d) to clause 15.2(k) (inclusive);

(m) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or

(n) the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy; or

(o) the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.

15.3 In relation to managed services, this agreement will renew automatically on each relevant anniversary of the agreement date. The customer may terminate the agreement by providing the Supplier with written notice of their intention to terminate no later than 90 days before any relevant anniversary of the agreement date.

15.3 Upon termination of this agreement by the Customer in accordance with clause 15.3, the Customer will not be entitled to a refund of any fees paid for the managed services provided up to the next anniversary of the date of this agreement and will be liable for payment of all amounts due for the full notice period.

15.4 The Customer will not be entitled to a refund of any fees paid for the managed services provided up to the next anniversary of the date of this agreement and will be liable for payment of all amounts due for the full notice period.

15.5 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 15.2 or the Supplier reasonably believes that the Customer is about to become subject to any of them.

16. Consequences of termination

16.1 On termination of the Contract:

(a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;

(b) the Customer, at its own expense, shall return all of the Supplier Materials and any Deliverables or Goods which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.

16.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.

16.3 Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.

17. Force majeure

Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control (a Force Majeure Event). The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 12 week, the party not affected may terminate the Contract by giving 28 days’ written notice to the affected party.

18. General

18.1 Assignment and other dealings.

(a) The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.

(b) The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.

18.2 Notices.

(a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be:

(i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case);

(ii) sent by email to addresses (or an address substituted in writing by the party to be served as specified in the Order Form.

(b) Any notice shall be deemed to have been received:

(i) if delivered by hand, at the time the notice is left at the proper address;

(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting;

(iii) if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.

(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

18.3 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision or part provision of the Contract is deemed deleted under this clause 18.3 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.

18.4 Waiver.

(a) A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

(b) A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

18.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.

18.6 Entire agreement.

(a) The Contract constitutes the entire agreement between the parties.

(b) Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

18.7 Third party rights.

(a) The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

(b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

18.8 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).

18.9 Governing law. The Contract and any dispute or claim (including noncontractual 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.

18.10 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.

Terms and Conditions