RedStone Connect

Connect Labs (Connect IB). Standard Terms and Conditions

Standard terms and conditions

Published May 2016

 

The Client’s attention is particularly drawn to the provisions of clause 16 .

1. Definitions and interpretation

1.1 In these Conditions, unless the context otherwise requires, the following words have the following meanings:

"Acceptance Tests" means the tests conducted for the purposes of determining that the Services have been successfully completed;

"Account Manager" has the meaning given to it in clause 9.1 of these Conditions;

"Act" means the Data Protection Act 1998;

Agreement” means the agreement between the Service Provider and the Client for the supply of the Services in accordance with the Client Proposal and these Conditions;

"Background Works" means all Intellectual Property Rights, Confidential Information, systems and business processes belonging to or under the control of a party or its licensors prior to the Commencement Date;

"Business Day" means a day (other than a Saturday or Sunday) on which clearing banks are open for business in the City of London;

"Business Purpose" means the purpose(s) for which the Services will be used by the Client in the delivery of their normal business practises;

"Client" means the organisation or person who commissions Services from the Service Provider;

"Client Information and Materials" means any information or materials supplied by the Client to the Service Provider for the purposes of the Agreement;

"Client IPR" means all Intellectual Property Rights in the Client’s Background Works and the Client Information and Materials;

Client Proposal” means the document provided by the Service Provider to the Client that specifies the Services to be provided and the Fees payable;

"Commencement Date" has the meaning given to it in clause 2.2 of these Conditions;

"Conditions" means these terms and conditions as amended from time to time in accordance with clause 18.5;

"Confidential Information" means any information relating to the subject matter of the Agreement or the technical information (including but not limited to all specifications, drawings, designs and inventions), commercial information, business information, statistical information, financial information and personnel matters disclosed in writing, on disc, orally or by inspection of documents or pursuant to discussions between the parties, where the information is:

(a) identified as confidential at the time of disclosure; or

(b) ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure;

"Deliverables" means the deliverables to be delivered by the Service Provider as part of the Services and as detailed in the Client Proposal;

Employment Regulations” means the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246);

Fees” means the fees in respect of the Services as detailed in the Client Proposal, together with any other fees payable for additional services or products;

"Intellectual Property Rights" means any patents, registered designs, trademarks and service marks (whether registered or otherwise), moral rights, database rights, design rights, copyright and other intellectual property rights, including those rights subsisting in inventions, drawings, performances, software, improvements, discussions, business names, goodwill and the style of presentation of goods or services, and in any application for the protection thereof, throughout the world;

Order” means the Client’s order for Services as set out the Client’s written acceptance of the Service Provider’s quotation;

"Personal Data" as set out in section 1(1) of the Act;

"Pricing Schedule" means the list of Fees as set out in the Client Proposal;

Recurring Services” means any services provided on an ongoing basis, including but not limited to Software licensing, hosting, Software maintenance and Software support;

Replacement Supplier” means a replacement supplier who provides services that are the same or similar to the Services to the Client in replacement and/or substitution of the Service Provider

"Service Provider" means Connect IB Limited (company number: 09336000) whose principal office is at 41-44 Great Queen Street, London, WC2B 5AD;

"Services" means the services as described in the Client Proposal including but not limited to the provision of a licence of the Software in accordance with these Conditions; the Deliverables and the Recurring Services;

"Services Specification" means the specification for the Services set out in the Client Proposal;

"Software" means the Connect digital platform and any various enhancements, features or functionality as may be provided as well as any other software owned and utilised by the Service Provider to provide the Services; and

"Third Party Products" means those third party software products used in the provision of the Services, as notified to the Client by the Service Provider.

1.2 In these Conditions, unless the context otherwise requires:

(a) words in the singular include the plural and vice versa and words in one gender include any other gender;

(b) a reference to a statute or statutory provision includes:

(i) any subordinate legislation (as defined in Section 21(1), Interpretation Act 1978) made under it;

(ii) any repealed statute or statutory provision which it re-enacts (with or without modification); and

(iii) any statute or statutory provision which modifies, consolidates, re-enacts or supersedes it;

(c) a reference to:

(i) any party includes its successors in title and permitted assigns;

(ii) a "person" includes any individual, firm, body corporate, association or partnership, government or state (whether or not having a separate legal personality);

(iii) clauses and schedules are to clauses and schedules of these Conditions and references to sub-clauses and paragraphs are references to sub-clauses and paragraphs of the clause or schedule in which they appear;

(d) the table of contents and headings are for convenience only and shall not affect the interpretation of these Conditions.

1.3 If there is an inconsistency between any of the provisions of these Conditions and the Client Proposal, the provisions of the Client Proposal shall prevail, provided that the Client Proposal has been signed on behalf of the Client. For the avoidance of doubt, if the Client Proposal has not been signed on behalf of the Client, these Conditions shall prevail if there is any inconsistency between them and the Client Proposal.

 

 

2. Appointment

2.1 The Order constitutes an offer by the Client to purchase Services in accordance with the Agreement.

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

2.3 Any samples, drawings, descriptive matter or advertising issued by the Service Provider, and any descriptions or illustrations contained in the Service Provider's catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Agreement or have any contractual force.

2.4 Any quotation given by the Service Provider shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.

 

 

3. Service Provider obligations and warranty

3.1 The Service Provider shall provide the Services to the Client from the Commencement Date.

3.2 The Service Provider will provide the Services in accordance with the Services Specification.

3.3 The Service Provider shall perform the Services with reasonable care, skill and diligence.

3.4 The Service Provider shall provide all personnel as it reasonably considers necessary to perform the Services.

3.5 The Service Provider warrants to the Client that all personnel providing the Services possess such skill and experience as is reasonably necessary for the performance of the Services.

3.6 The Service Provider reserves the right to change the Services Specification at any time which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Service Provider shall notify the Client in any such event.

 

 

4. Client obligations

4.1 Software and Services:

(a) The Client may only access and/or use the Software and Services for the Client’s own Business Purposes and shall not access nor use the Software or the Services for or on behalf of a third party, nor allow any other person to access the Software or Services, nor disclose the Software or Services to any person in any way whatsoever. The Client is not entitled to modify or enhance the Software or Services or use the source code of the Software.

(b) Save to the extent set out in the Agreement or as may otherwise be permitted by law, the Client is strictly forbidden from using (and shall not use) the Software or Services in any other circumstances, and without limitation, shall not sub-contract, sub-licence or resell the Software or the Services.

(c) The Client shall not, without the prior written consent of the Service Provider, use the Software or Services in any country other than the United Kingdom.

(d) The Client hereby acknowledges that it is licensed to use the Software and Services only in accordance with the express terms of the Agreement and not further or otherwise.

4.2 Specific undertakings

(a) The Client shall:

(i) provide to the Service Provider the Client Information and Materials as reasonably requested by the Service Provider in a format agreed between the parties;

(ii) not obtain or attempt to obtain access to or interfere with any programs or data of the Service Provider or of any other client of the Service Provider in the possession of the Service Provider;

(iii) perform its obligations under the Agreement with reasonable care and skill;

(iv) make available appropriate personnel to liaise with the Service Provider and provide the Service Provider all reasonable assistance in completing the Services and if appropriate promptly provide the Service Provider with any relevant material or information requested by the Service Provider;

(v) observe all consumer or other legislation, instructions or guidelines issued by regulatory authorities, relevant licences and any other codes of practice which apply to the Client in relation to its use of the Software and/or the Services;

(vi) not use the Software and/or the Services in a way that does not comply with legislation or the terms of the Agreement;

(vii) not use the Software and/or the Services in any way that is unlawful;

(viii) not use the Software and/or the Services to send, receive, upload, download or display any information or material which is or which may be considered to be offensive, abusive, indecent, libellous, defamatory, obscene or menacing, or in breach of confidence, privacy, intellectual property rights or any other third party rights;

(ix) not use the Software and/or the Services for sending unsolicited advertising or promotional material (spam);

(x) ensure that any products or services sold via the Software and/or the Services are consistent with their description, of satisfactory quality and reasonably fit for purpose; and

(xi) be solely responsible for transactions for the sale of goods and services to its customers via the Software and/or the Services.

4.3 Security Requirements:

(a) The Client is solely responsible for the security and proper use of any usernames or identification, passwords or other security devices used in connection with the Software and/or the Services, in accordance with the instructions of the Service Provider.

(b) The Client must immediately inform the Service Provider if there is or it suspects that there is a security breach. In such a circumstance, the Service Provider reserves the right to change passwords or take any other precautions the Service Provider considers necessary, and shall have the right to temporarily suspend the Services.

4.4 Loss of data:

(a) The Client is responsible for all risks of loss of or damage to its data except for loss or damage caused by the negligence of the Service Provider, its agents or subcontractors or the failure of the Service Provider to provide the Services in accordance with the terms contained in these Conditions.

4.5 Warranties:

(a) The Client warrants that the Client Information and Materials are accurate and complete.

(b) The Client warrants to the Service Provider that it has full power and authority to enter into and perform the Agreement.

(c) The Client warrants to the Service Provider that the Client has registered under the Act and will maintain such registration for the duration of the Agreement.

4.6 Indemnity:

The Client shall indemnify the Service Provider against all damages, losses and expenses incurred by the Service Provider as a result of the Client’s breach of clauses 4.2(a)(vii), 4.2(a)(viii) or 4.2(a)(ix). This clause 4.6 shall survive termination of this Agreement.

4.7 Other:

The Client agrees to comply with the operating, management and control processes agreed from time to time between the parties in respect of the Services.

 

5. Acceptance

5.1 The Service Provider shall devise the Acceptance Tests, which will be recorded in writing and communicated to the Client.

5.2 Acceptance Tests will be carried out by the Service Provider in the presence of the Client and the Client shall co-operate fully with the Service Provider in conducting the Acceptance Tests.

5.3 Responsibility for ensuring that the Acceptance Tests are correctly carried out shall rest primarily on the Service Provider, provided that the Client co-operates fully with the Service Provider in all Acceptance Tests.

5.4 Successful completion of the Acceptance Tests will constitute acceptance by the Client of the Services and that fact will be recorded in an acceptance notice.

5.5 Following each Acceptance Test session the Client will provide the Service Provider with a list of defects, if any, to be rectified. If any failure to pass the Acceptance Tests results from a defect which is caused by an act or omission of the Client, or by one of the Client’s sub-contractors or agents for whom the Service Provider has no responsibility (“Non-Service Provider Defect”), such tests shall be deemed to have been passed notwithstanding the Non-Service Provider Defect. The Service Provider shall provide assistance reasonably requested by the Client in remedying such defect by supplying additional services or products. If so requested, the Client shall pay the Service Provider in full for all such additional services and/or products at the Service Provider’s then current fees and prices.

5.6 The Service Provider will use its reasonable endeavours to rectify any defects with the Services (except for Non-Service Provider Defects) within 7 (seven) Business Days of receipt of the aforesaid notification and will advise the Client of when the Acceptance Tests may be re-conducted. Such re-conducted Acceptance Tests shall be carried out in accordance with this clause 5.

5.7 This Acceptance Tests procedure will be repeated until the Acceptance Tests are successfully completed.

5.8 Acceptance of the Services shall be deemed to have taken place upon the occurrence of any of the following events:

(a) the Client uses any part of the Software and/or Deliverables (as the case may be) for any revenue-earning purposes or to provide any services to third parties other than for test purposes; or

(b) the Client unreasonably delays the start of the relevant Acceptance Tests or any retests for a period of seven working days from the date on which the Service Provider is ready to commence running such Acceptance Tests or retests.

 

 

 

6. Software Faults

6.1 If the Service Provider shall become aware of any fault in any of the Software that might affect the performance of the Services then the Service Provider shall as soon as practicable notify the Client. Upon becoming aware of any fault the Service Provider shall use its reasonable endeavours to procure that such fault is corrected as required by the Services Specification.

6.2 Where such fault was caused by the actions of the Client then the Service Provider shall be entitled to charge for any necessary work carried out in remedying such faults at the standard daily rates.

6.3 The Service Provider may suspend the Services for repair, maintenance or improvement. In the case of Planned Maintenance (as defined in the Services Specification) the Service Provider shall give as much notice of possible of suspension and in any event no less than 24 hours’ notice. The Service Provider is not obliged to give notice in the event of Emergency Maintenance (as defined in the Services Specification) but will do so if it is reasonably practicable to do so.

 

 

7. Data Protection

7.1 The Client warrants to the Service Provider that the Client has registered under the Act and will maintain such registration for the duration of the Agreement.

7.2 The Client must protect such of the Client's Information and Materials as constitutes Personal Data in accordance with the provisions and principles of the Act and the Client warrants that it will collect such Personal Data in accordance with the Act and that it has obtained all consents necessary for the Service Provider to process such Personal Data in accordance with the Agreement.

7.3 The Client shall indemnify the Service Provider against all claims and proceedings and all liability, loss, costs and expenses incurred in connection therewith made or brought by any person in respect of any loss damage or distress caused to that person by breach of the provisions of this clause or the Act by the Client, its staff or agents or by the Service Provider. The obligations of this clause shall not be affected by the expiry or termination of this Agreement.

7.4 The Service Provider warrants that, to the extent it processes any Personal Data on behalf of the Client:

(a) it shall act only on instructions from the Client; and

(b) it has in place appropriate technical and organisational security measures against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data.

 

 

8. Third Party Products

8.1 Any Third Party Products shall be supplied in accordance with the relevant licensor’s standard terms. The one-off licence fee for such Third Party Products is included in the Fees payable under clause 10.

 

 

9. Project Management

9.1 Each party shall appoint a account manager who shall provide professional and prompt liaison with the other party and shall have the necessary expertise and authority to commit the relevant party (the “Account Managers”).

9.2 The Account Managers shall meet for project reviews that shall be held in accordance with the Services Specification.

9.3 The Client and the Service Provider can change their respective Account Managers from time to time on written notice to the other party.

 

 

10. Fees and payment

10.1 In consideration of the provision of the Services, the Client shall pay the Service Provider the Fees in accordance with the Pricing Schedule.

10.2 Invoices shall be submitted in accordance with the Service Provider’s invoicing procedure. The invoices shall be payable by the Client, in full and cleared funds, within 30 days of receipt to a bank account nominated in writing by the Service Provider.

10.3 Where under the Agreement any party agrees to pay to any other party any sum or to furnish to any other party consideration which (in either case) is consideration for a taxable supply that sum or consideration shall be exclusive of Value Added Tax payable on it and the recipient of the supply shall pay Value Added Tax or any other relevant tax in addition to any sum or consideration on receipt of a valid invoice from the relevant party.

10.4 The Client shall pay to the Service Provider all incurred expenses in addition to the Fees, subject to the Service Provider providing the Client with suitable documentary evidence.

10.5 The Service Provider reserves the right to increase its Fees, provided that such charges cannot be increased more than once in any 12 month period. The Service Provider will give the Client written notice of any such increase 3 months before the proposed date of the increase. If such increase is not acceptable to the Client, it shall notify the Service Provider in writing within 4 weeks of the date of the Service Provider’s notice and the Service Provider shall have the right without limiting its other rights or remedies to terminate the Agreement by giving 2 weeks' written notice to the Client.

10.6 Without prejudice to any other right or remedy the Service Provider may have, if the Client defaults in the payment when due of any sum payable under the Agreement (whether payable by agreement or an order of a court or otherwise), the liability of that party shall be increased to include interest on that sum from the date when such payment was due until the date of actual payment at a rate of 4% above the base rate from time to time of National Westminster Bank PLC. Such interest shall accrue from day to day.

10.7 The Client shall pay all amounts due under the Agreement in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Service Provider may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by the Service Provider to the Client.

10.8 All sums payable to the Service Provider under the Agreement shall become due immediately on its termination, despite any other provision. This clause 10.8 is without prejudice to any right to claim for interest under the law, or any such right under the Agreement.

 

 

11. Confidentiality

11.1 Neither party shall disclose Confidential Information to any third party and shall only release Confidential Information to those of its employees as are required to know such Confidential Information and provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information received. Each receiving party shall treat Confidential Information with the same degree of care as it treats information of its own which it would not wish to be disclosed.

11.2 The obligations set out in this clause 11 shall not apply to Confidential Information which the receiving party can demonstrate:

(a) is required by law or any securities exchange or regulatory or governmental body to which the receiving party is subject wherever situated;

(b) the receiving party reasonably considers it necessary to disclose the information to its professional advisers, auditors and bankers provided that it does so on terms protecting the information;

(c) the information has come into the public domain through no fault of the receiving party;

(d) the information was previously disclosed to the receiving party without any obligation of non disclosure; or

(e) a disclosing party has given its consent in writing.

11.3 The restriction contained in this clause 11 shall not prevent any personnel of the Service Provider from using their own personal skill in any business in which they may be lawfully engaged after the Agreement has come to an end.

11.4 The obligation of Confidentiality in this clause 11 shall not be affected by the expiry or termination of the Agreement.

 

 

12. Intellectual Property Rights

12.1 The Software, the Services, the Deliverables and any other software programs or tools used in conjunction with the Services shall remain the property of the Service Provider or any third party licensor and all title, copyright and other proprietary rights therein of whatever nature shall remain vested in the Service Provider or such third party.

12.2 The Client grants to the Service Provider free of charge a limited, non-exclusive, non-transferable, royalty-free, worldwide licence to use any relevant Client IPR solely for the purposes of providing the Services. Such licence shall automatically terminate upon the termination or expiry of the Agreement. All Client IPR shall be treated as Confidential Information and shall be returned to the Client on termination or expiry of the Agreement. The Client warrants that the Service Provider's use of Client IPR in relation to the Agreement shall not infringe any third party Intellectual Property Rights or any law (whether or not English) or third party right relating to defamation, fraud, malice, blasphemy, obscenity or misrepresentation.

12.3 The Service Provider grants to the Client for the term of the Agreement a limited, non-exclusive, non-transferable royalty-free licence to use the Intellectual Property Rights in the Software and/or the Deliverables for its Business Purpose in the United Kingdom. Such licence shall automatically terminate upon the termination or expiry of the Agreement. All Intellectual Property Rights in the Software and/or the Deliverables shall be treated as Confidential Information and shall be returned to the Service Provider on termination or expiry of the Agreement.

12.4 The Client shall notify the Service Provider if the Client becomes aware of any unauthorised use of the whole or any part of the Software by any person as soon as practicable, (and in any event within three Business Days of the Client becoming aware).

12.5 The Client Information and Materials remain the property of the Client at all times and the Client grants to the Service Provider a worldwide non-exclusive licence to use the Client Information and Materials for the purposes of delivering the Services.

12.6 If any claim is brought against the Service Provider that the Client Information and Materials and/or the Client IPR, or their use by the Service Provider, infringes the Intellectual Property Rights of a third party, the Client will at its own expense:

(a) settle or defend the claim; and

(b) pay any damages or costs finally awarded against the Service Provider as the result of the claim; and

(c) fully indemnify the Service Provider in respect of all costs, losses, damages and expenses incurred by the Service Provider in respect of such infringement.

12.7 If any claim is brought against the Client that the Software, or its use by the Client, infringes Intellectual Property Rights of a third party effective in the United Kingdom, the Service Provider will at its own expense:

(a) settle or defend the claim; and

(b) pay any damages or costs finally awarded against the Client as the result of the claim; and

(c) fully indemnify the Client in respect of all costs, losses, damages and expenses incurred by the Client in respect of such infringement.

12.8 The Service Provider's obligations under clause 12.7 above are conditional on the Client:

(a) promptly notifying the Service Provider in writing of the claim; and

(b) permitting the Service Provider to control the defence and all settlement negotiations.

12.9 In the event that such a claim as contemplated in clause 12.7 is made, or appears likely to be made, the Service Provider will endeavour, at its own expense and so far as is reasonably practicable, to:

(a) procure the right for the Client to continue using the affected Software and/or the Deliverables (as the case may be); or

(b) modify or replace it so as to avoid the infringement, in either case without a deterioration in the levels of performance of the Services.

12.10 Notwithstanding the above provisions, the Service Provider shall have no obligation under this clause 12 in respect of any claim which arises from the Client's misuse of the Software and/or the Deliverables or any alteration of the Software and/or the Deliverables, unless the alteration was made by or on behalf of the Service Provider.

12.11 The Service Provider may include the statement “Designed by Connect IB Limited” on the home page of the Software in a form to be agreed.

12.12 The obligations in this clause 12 shall not be affected by the expiry or termination of the Agreement.

 

 

13. Employment Regulations

13.1 The Service Provider acknowledges and agrees that the Client does not require the Service Provider to assign any employee of the Service Provider, or, if applicable, procure the assignment of any employee of any permitted sub-contractor of the Service Provider, wholly or mainly to the provision of the Services.

13.2 The Service Provider agrees to arrange its staff, and, if applicable, procure that any permitted sub-contractor of the Service Provider arranges its staff, in relation to the provision of the Services in such a way that no individual is at any time wholly or mainly assigned to the provision of the Services and consequently that no contract of employment of any individual will transfer from the Service Provider (or any sub-contractor of the Service Provider) to the Client or to any Replacement Supplier by virtue of the Employment Regulations, on the cessation or partial cessation of the provision of the Services by the Service Provider, or otherwise.

13.3 The Client hereby indemnifies and holds harmless the Service Provider from and against any and all payments, losses, fines, penalties, awards, liabilities, costs, damages and expenses (including reasonable legal expenses on an indemnity basis) that the Service Provider may suffer or incur directly or indirectly arising from or in connection with:

(a) any failure by the Client or by any Replacement Supplier to comply with its or their obligations under the Employment Regulations; or

(b) the transfer of the employment to or engagement by the Client or by any Replacement Supplier of any personnel of the Service Provider or the termination of any such employment or engagement by the Client or by any Replacement Supplier; or

(c) the transfer of the employment to the Service Provider of any personnel of the Client or personnel of the Replacement Supplier or the termination of any such employment by the Service Provider.

 

 

14. Term and termination

14.1 The Agreement shall take effect upon the Commencement Date and except as provided below in this clause 14, shall remain in effect for an initial period of time as defined in the Client Proposal. Thereafter, the Agreement shall continue until terminated by either party on 12 months’ notice.

14.2 Without affecting any other right or remedy available to it, either party may by notice in writing immediately terminate the Agreement if the other party shall:

(a) commit a material breach of the Agreement which in the case of a breach capable of remedy shall not have been remedied within 30 days of the receipt of a notice from the other party identifying the breach and requiring its remedy; or

(b) be unable to pay its debts or enters into compulsory or voluntary liquidation (other than for the purpose of effecting a reconstruction or amalgamation in such manner that the entity resulting from such reconstruction or amalgamation if a different legal entity shall agree to be bound by and assume the obligations created by the Agreement) or compounds with or convenes a meeting of its creditors or has a receiver or manager or an administrator appointed; or

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

14.3 Without affecting any other right or remedy available to it, the Service Provider may either suspend the Services or terminate the Agreement with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under the Agreement on the due date for payment and remains in default not less than 7 days after being notified in writing to make payment.

14.4 On expiry or termination of the Agreement, all provisions of the Agreement shall cease to have effect, except that any provision which can reasonably be inferred as continuing or is expressly stated to continue shall continue in full force and effect.

14.5 On termination or expiry of the Agreement:

(a) the Client shall immediately pay to the Service Provider all of the Service Provider's outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, the Service Provider may submit an invoice, which shall be payable immediately on receipt;

(b) the licences granted pursuant to clause 12.2 and clause 12.3 will terminate;

(c) the Client shall return all of the Service Provider’s equipment, materials, Software, the Deliverables and any Intellectual Property Rights of the Service Provider. If the Client fails to do so, then the Service Provider may enter the Client's premises and take possession of them. Until they have been returned or repossessed, the Client shall be solely responsible for their safe keeping; and

(d) the Client shall remove and erase the Intellectual Property Rights of the Service Provider and the Software and/or the Deliverables (as the case may be) from its computer system. The Service Provider shall be entitled to enter the Client’s premises and shall be entitled to access to the Client’s equipment, materials, computer hardware and/or computer software to satisfy itself that the Intellectual Property Rights of the Service Provider and the Software and/or the Deliverables (as the case may be) has been deleted and removed.

14.6 The Client shall indemnify the Service Provider against all damages, losses and expenses incurred by the Service Provider arising as a result of the Client’s failure to comply fully with clause 14.5(c) and/or clause 14.5(d). The obligations of this clause shall not be affected by the expiry or termination of this Agreement.

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

 

 

15. Dispute Resolution

15.1 In the event of any dispute arising out of or relating to the Agreement, each party agrees not to commence legal proceedings without first attempting in good faith to resolve the dispute amicably and speedily in accordance with the dispute resolution procedure set out in this clause 15.

15.2 Any such dispute shall be referred in the first instance to the Account Managers for resolution.

15.3 If the dispute is not resolved by negotiation between the Account Managers it shall be referred at the written notice of either party to the respective Chief Executive/Managing Director of the Client and the Service Provider. The Chief Executives/Managing Directors may each nominate a deputy to deal with the matter on his/her behalf.

15.4 If the dispute is not resolved at this stage within 14 days of being referred in accordance with clause 15.3 (or such longer period as the parties may agree), the parties shall meet to consider whether, and on what terms, they wish to refer the matters in dispute to external mediation, arbitration, or assessment by an independent expert.

15.5 If the parties do not agree on such referrals within 7 days after the end of the period allotted for resolution of the dispute by the Chief Executives/Managing Directors, this dispute resolution procedure shall be considered at an end as regards the dispute in question.

15.6 This dispute resolution procedure shall also be considered at an end as regards the dispute in question if the parties agree to refer the matters in dispute to a non-binding arbitration, expert's assessment or mediation and the resulting findings or recommendations are not acceptable to both parties.

15.7 This dispute resolution procedure shall not prevent a party to the Agreement from taking injunctive action.

 

 

16. Remedies

16.1 The Client shall always inform the Service Provider on it becoming aware of any default of the Agreement by the Service Provider and afford the Service Provider a reasonable opportunity to correct such default in accordance with the Agreement.

16.2 The Client shall indemnify the Service Provider and keep the Service Provider fully and effectively indemnified on demand against any loss of or damage to any property or injury to or death of any person caused by any negligent act or omission, wilful misconduct or breach of the Agreement of the Client, its employees, agents or sub-contractors.

16.3 Nothing in the Agreement shall limit or exclude the liability of either party for:

(a) death or personal injury resulting from its negligence, or the negligence of its employees, agents or subcontractors;

(b) fraud or fraudulent misrepresentation; or

(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; or

(d) or any other liability which cannot be limited or excluded by applicable law.

16.4 Subject to clause 16.3, the aggregate liability of the Service Provider in respect of claims based on events in any calendar year arising under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall in no circumstances exceed 125% of the total Fees paid by the Client under the Agreement in that calendar year.

16.5 Subject to clause 16.3, the Service Provider shall not be liable to the Client whether in contract, tort (including negligence), breach of statutory duty or otherwise, arising under or in connection with the Agreement for loss of profits; loss of business; loss of opportunity; loss of contracts; loss of management time; loss of or damage to goodwill; damage to, loss of use, or corruption to software, information, data; loss of anticipated savings; or any indirect or consequential loss, in all cases, howsoever caused.

16.6 The terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Agreement.

16.7 If the Service Provider's performance of its obligations under the Agreement is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, the Service Provider shall not be liable for any costs, charges or losses sustained or incurred by the Client that arise directly or indirectly from such prevention or delay.

16.8 Subject to clause 16.3, the Service Provider shall not be liable to the Client for any loss arising out of any failure by the Client:

(a) to input and upload to the Services accurate and complete data;

(b) to perform its obligations under the Agreement; or

(c) to keep full and up-to-date security copies of the computer programs and data it uses in accordance with best computing practice.

 

 

17. Force Majeure

17.1 Subject to clause 17.2 neither party shall be deemed to be in breach of the Agreement, or otherwise be liable to the other, by reason of any delay in performance or non-performance of any of its obligations under the Agreement to the extent that such delay or non-performance is due to any cause beyond its reasonable control including but not limited to the acts, defaults or omissions of suppliers or sub-contractors or strike, lockout or other form of industrial action; acts of God, flood, drought, earthquake or other natural disaster; epidemic or pandemic; terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; nuclear, chemical or biological contamination or sonic boom; any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent; collapse of buildings, fire, explosion or accident; and interruption or failure of utility service (“Event of Force Majeure”). For the avoidance of doubt, an Event of Force Majeure shall not preclude the Client from paying any charges due to the Service Provider.

17.2 The party affected by any Event of Force Majeure (the “Affected Party”) shall immediately give the other party written notification of the nature and extent of the Event of Force Majeure and the parties shall enter into bona fide discussions with a view to alleviating its effects or to agreeing upon such alternative arrangements as may be fair and reasonable.

17.3 If the Affected Party is affected by the Event of Force Majeure and the written notice in relation to the Event of Force Majeure has not been withdrawn within 60 days the other party shall be at liberty to terminate the Agreement with immediate effect by serving a written notice on the Affected Party. The service of such notice shall be without prejudice to any rights or obligations which have accrued prior to termination of the Agreement.

17.4 Provided it has complied with clause 17.3, the Affected Party shall not be in breach of the Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.

 

 

18. General

18.1 Compliance with laws

Each party shall comply with all applicable statutory and regulatory requirements in relation to the performance of the Agreement.

18.2 Entire agreement and conflicts

(a) The Agreement sets out the entire agreement and understanding between the parties in respect of the subject matter of the Agreement.

(b) The Client acknowledges that it has entered into the Agreement in reliance only upon the representations, warranties, and promises specifically contained or incorporated in the Agreement and save as expressly set out in the Agreement, the Service Provider shall have no liability in respect of any other representation, statement, warranty or promise made (whether innocently or negligently) that is not set out in the Agreement unless it was made fraudulently. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Agreement.

18.3 Assignment

The Agreement shall be binding on and endure for the benefit of the successors in title of the parties but shall not be assignable by any party without the prior written consent of the other.

18.4 Severance

(a) If any provision or part-provision of the Agreement 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 Agreement.

(b) If any provision or part-provision of the Agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

18.5 Variation

No purported variation of the Agreement shall be effective unless it is in writing and signed by or on behalf of each of the parties.

18.6 Releases and waivers

(a) The rights, powers and remedies conferred on any party by the Agreement and remedies available to any party are cumulative and are additional to any right, power or remedy which it may have under general law or otherwise.

(b) A waiver of any right or remedy under the Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach of default.

(c) No single or partial exercise, or failure or delay in exercising any right, power or remedy by any party shall constitute a waiver by that party of, or impair or preclude any further exercise of, that or any right, power or remedy arising under the Agreement or otherwise.

 

19. Notices

19.1 Any notice to a party under the Agreement shall be in writing signed by or on behalf of the relevant party’s Account Manager or a statutory director of that party and shall, unless delivered to a party personally, be left at, or sent by prepaid first class post or prepaid recorded delivery to the registered address of the party or as otherwise notified in writing from time to time and marked for the attention of the other party’s Account Manager.

19.2 Except as referred to in sub-clause 19.3, a notice shall be deemed to have been served:

(a) at the time of delivery if delivered personally;

(b) 2 Business Days after posting in the case of an address in the United Kingdom and 3 Business Days after posting for any other address; or

19.3 If the deemed time of service is not during normal business hours in the country of receipt, the notice shall be deemed served at opening of business on the next business day of the country.

19.4 In proving service it will be sufficient to prove:

(a) in the case of personal service, that it was handed to the party or delivered to or left in an appropriate place for receipt of letters at its address; and

(b) in the case of a letter sent by post, that the letter was properly addressed, stamped and posted.

19.5 A party shall not attempt to prevent or delay the service on it of a notice connected with the Agreement.

19.6 Clauses 19.1 to 19.5 (inclusive) do not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

 

 

20. No partnership or agency

20.1 Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.

20.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.

 

21. Governing law and jurisdiction

21.1 The Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with English Law.

21.2 Each of the parties irrevocably submits to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Agreement to the exclusive jurisdiction of the courts of England.

 

22. Exclusion of third party rights

Unless expressly provided in the Agreement, no term of these Conditions is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.

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