Terms
1 Interpretation
1.1 The following definitions and rules of interpretation apply in this Agreement.
Agreement: the master services agreement entered into between the Supplier and the Customer comprising the Term Sheet and these Terms and Conditions.
Business Day: a day, other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Change Control Procedure: the procedures set out in clause 9.
Confidential Information: all confidential information (however recorded or preserved) a party or its Representatives directly or indirectly discloses, or makes available, to the other party or that party's Representatives in connection with this Agreement or a Statement of Work including:
(a) the existent and terms of this Agreement or a Statement of Work;
(b) all confidential or proprietary information relating to: (i) the business, assets, affairs, customers, clients, suppliers or plans of the disclosing party; (ii) the operations, processes, product information, know-how, technical information, designs, trade secrets or software of the disclosing party;
(c) any information, findings, data or analysis derived from the confidentiality information disclosed;
(d) any other information that is identified as being of a confidential or proprietary nature or would otherwise reasonable otherwise be presumed to be so.
Contract: a contract for the provision of Services comprised of this Agreement and the relevant Statement of Work.
Contract Managers: the persons appointed by each party to represent it in relation to day-to-day matters arising in relation to the Services, this Agreement and the Contracts.
Customer Data: any information that is provided by or on behalf of the Customer to the Supplier as part of the Customer's use of the Services, including any information derived from such information.
Customer Personal Data: any personal data comprised in the Customer Data.
Customer Site: any premises occupied by the Customer at which it receives the Services.
Customer-site Equipment: any equipment located or to be located on a Customer Site but controlled or to be controlled exclusively by the Supplier as part of the Services, but excluding the Hardware.
Customer’s Operating Environment: the Customer’s computing environment (consisting of hardware, software and telecommunications networks) that is to be used by the Customer in connection with its use of the Services and which interfaces with the Supplier’s System in order for the Customer to receive the Services, but excluding the Customer-site Equipment.
Customer Software: has the meaning given to that term in the definition of Software.
Dispute: has the meaning given in clause 25.1.
Dispute Notice: has the meaning given in clause 26.1.
Dispute Resolution Procedure: the procedure described in clause 26.
Effective Date: the date of this Agreement as set out in the Term Sheet.
Extended Term: has the meaning given in clause 14.1.
Fees: the fees payable to the Supplier, as calculated in accordance with the applicable Service Schedule and set out in the Statement of Work.
Force Majeure Event: an event which is beyond the reasonable control of the party seeking to rely on such event including:
(a) riot, civil unrest, military action, terrorism or war (whether declared or not) or threat of or preparation for war;
(b) damage to or destruction of premises or equipment, or breakdown of equipment, in each case not attributable to the party seeking to rely on such event;
(c) imposition of sanctions, embargo, blockade, or breaking off of diplomatic relations;
(d) epidemic (including any Public Health Emergency of International Concern or pandemic declared by the World Health Organization) or pandemic;
(e) any failure or refusal of any government or public authority to grant any necessary licence, permit or consent;
(f) interruption or failure of a utility service or transport or telecommunications network and/or breakdown of plant or machinery;
(g) severe delays or disruptions to the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
(h) any change in applicable law which materially impacts a party’s ability to perform any obligation under this Agreement and/or significantly increases the costs to be incurred and/or effort to be expended by any party in performing its obligations under this Agreement or a Statement of Work;
(i) earthquake, storm, fire, flood, landslide or other natural disaster; and
(j) industrial action, strikes or lock-outs by employees of third parties (excluding sub-contractors and suppliers of the party seeking to rely on such event unless no substitute is reasonably available).
Good Industry Practice: the use of standards, practices, methods and procedures conforming to applicable law and the exercise of that degree of skill, care, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced person engaged in the provision of services substantially similar or identical to the Services, having regard to factors such as the nature and size of the parties, the Service Level Arrangements, the term, the pricing structure and any other relevant factors.
Hardware: all physical telecommunications, networking and computer equipment (including switches, routers, cables, servers, racks, cabinets and peripheral accessories) provided and used by the Supplier (or any of its sub-contractors) to deliver any of the Services to the Customer as set out in the Service Schedule or Statement of Work (as applicable).
Incident: any Vulnerability, Virus or security incident which:
(a) may affect the Software;
(b) may affect the Supplier's network and information systems such that it could potentially affect the Customer or the Software; or
(c) is reported to the Supplier by the Customer.
Initial Term: the initial term of this Agreement as set out in the Term Sheet. Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all existing and future rights capable of present assignment, applications for and 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.
Mitigate: the taking of such reasonable steps that would be taken by a prudent supplier in accordance with Good Industry Practice to mitigate against the Incident in question, which may include (in the case of a Vulnerability) coding changes, but could also include specification changes (for example, removal of affected protocols or functionality in their entirety), provided these are approved by the Customer in writing in advance, and the terms Mitigated and Mitigation shall be construed accordingly.
Normal Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.
Relevant Terms: has the meaning given in clause 17.2.
Representative: an employee, consultant, officer, representative, adviser, agent or subcontractor of a party involved in the provision or receipt of the Services.
Services: the services of the type detailed in the applicable Service Schedule and selected by the Customer under the Statement of Work.
Service Levels: the service level arrangements (if any) applicable to the Services as set out in the relevant Service Schedule.
Service Schedule: a schedule describing the Services which the Supplier may provide to the Customer under this Agreement as identified in the Term Sheet or otherwise agreed between the parties.
Software: any software used by the Supplier (or any of its sub-contractors) to provide the Services to the Customer whether owned by a third party (being Third Party Software), by the Customer (being Customer Software) or by the Supplier (being Supplier Software).
Statement of Work: a statement of the work in the form appended to this Agreement (or such other form as may be agreed by the parties from time to time) agreed and signed by the parties.
Supplier Software: has the meaning given to that term in the definition of Software.
Supplier's System: the information and communications technology system to be used by the Supplier (or any of its sub-contractors) in performing the Services, including the Hardware, the Software, the Customer-site Equipment and communications links between the Hardware and the Customer-site Equipment and the Customer's Operating Environment.
Term Sheet: the key commercial terms agreed between the parties as set out in the term sheet attached to these Terms and Conditions.
Terms and Conditions: these Terms and Conditions of Supply.
Third Party Software: has the meaning given to that term in the definition of Software.
VAT: value added tax imposed by the Value Added Tax Act 1994 or any similar tax chargeable in the UK or elsewhere.
Virus: includes any malicious code, Trojan, worm and virus, lock, authorisation key or similar device that impairs or could impair the operation of the Software or the Services.
Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that, when exploited, results in a negative impact to confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.
Work Product: all deliverables and all other reports, documents, materials, techniques, ideas, concepts, trade marks, know-how, algorithms, software, computer code, routines or sub-routines, specifications, plans, notes, drawings, designs, pictures, images, text, audiovisual works, inventions, data, information and other items, expressions, works of authorship or work product of any kind that are authored, produced, created, conceived, collected, developed, discovered or made by the Supplier (or any of its sub-contractors) in connection with the Services or which relate in any manner to the Services or which result from any work performed by the Supplier (or any of its sub-contractors) for the Customer, including any and all Intellectual Property Rights therein.
1.2 Any terms defined in the Term Sheet shall have the same meaning in these Terms and Conditions unless otherwise expressly stated.
1.3 Clause, Schedule, Appendix and paragraph headings and any table of contents are included for convenience only and are not intended to and shall not affect the interpretation of this Agreement.
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and words in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as amended, extended, consolidated, replaced, superseded, re-enacted or otherwise converted, modified or incorporated into law from time to time.
1.8 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.9 A reference to writing or written excludes fax but not email.
1.10 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.
1.11 References to clauses and Schedules are to the clauses and schedules of this Agreement. References to paragraphs are to paragraphs of the relevant Schedule.
1.12 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.13 The Schedules and Appendices form part of this Agreement and shall have effect as if set out in full in the body of this Agreement (in the case of the Appendices, as detailed in the Term Sheet). Any reference to this Agreement includes the Schedules and applicable Appendices . If there is an inconsistency between any of the provisions in the main body of this Agreement and the Schedules or Appendices, the provisions in the main body of this Agreement shall prevail save to the extent expressly stated otherwise in that Schedule or Appendix.
2 Basis of Contract
2.1 The Customer appoints the Supplier and the Supplier accepts its appointment from the Effective Date in respect of the Services which the Supplier provides to the Customer from time to time pursuant to a Contract and in accordance with the provisions of this Agreement.
2.2 The Customer may from time to time request that the Supplier shall provide services. The Supplier shall, within a reasonable period following receipt of a request for services, indicate to the Customer whether it wishes to provide the services requested and, if the Supplier indicates that it does, the parties shall work together in good faith to produce and agree a Statement of Work in respect of the services requested.
2.3 Nothing in this Agreement shall oblige the Customer to request the provision of any services or, until such time as a Contract has been formed, oblige the Supplier to provide any services.
3 Service provision
3.1 The Supplier shall provide the Services in accordance with this Agreement and the Contract.
3.2 The Supplier shall:
3.2.1 perform the Services with reasonable skill and care and in accordance with Good Industry Practice and substantially in accordance with the Service Schedule;
3.2.2 devote such time and attention to the performance of the Services which is reasonably necessary for their satisfactory completion in accordance with the Contract; and
3.2.3 keep the Customer informed of the progress of the Services on a regular basis.
3.3 The Supplier reserves the right, in its absolute discretion, to:
3.3.1 modify the Supplier's System, its network, system configurations or routing configuration; or
3.3.2 modify or replace any Hardware or Software in its network or in equipment used to deliver any Service over its network, provided and to the extent that this has no adverse effect on the Supplier's ability to perform its obligations under this Agreement and its provision of the Services or the Service Level Arrangements. If such changes will have an adverse effect, the Supplier shall notify the Customer and the parties shall implement any necessary changes to the Services through the Change Control Procedure.
3.4 The undertaking in clause 3.2 shall not apply to the extent of any non-conformance that is caused by use of the Services contrary to the Supplier's instructions, including as set out in this Agreement.
3.5 If the Services do not conform with the undertaking in clause 3.2, the Supplier shall, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking in clause 3.2.
3.6 Notwithstanding the foregoing, the Supplier does not warrant that the Customer's use of the Services shall be uninterrupted or error-free.
3.7 This agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing materials, products or services that are similar to those provided under this Agreement.
4 Customer's obligations
4.1 The Customer shall:
4.1.1 provide the Supplier with:
(a) all necessary co-operation in relation to this Agreement; and
(b) all necessary access to such information as may be reasonably required by the Supplier, in order to provide the Services, including Customer Data, security access information, configuration services and software interfaces to the Customer's other business applications and to verify the Customer’s compliance with its obligations under this Agreement and/or any Contract;
4.1.2 provide such personnel assistance, as may be reasonably requested by the Supplier from time to time;
4.1.3 comply with all applicable and regulations with respect to its activities under this Agreement, including those set out in clause 17;
4.1.4 obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this Agreement and/or any Contract, including without limitation the Services;
4.1.5 ensure that the Customer’s Operating Environment comply with the relevant specifications provided by the Supplier from time to time;
4.1.6 be, to the extent permitted by law and except as otherwise expressly provided in this Agreement and/or any Contract, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from the Customer’s Operating Environment to the Supplier’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet; and
4.1.7 carry out all other Customer responsibilities and obligations set out in this Agreement or a Statement of Work in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties or performance of the Customer's responsibilities and obligations, the Supplier shall be entitled to an equitable adjustment to the date or dates in any time schedule or, if the Supplier incurs additional costs to avoid or mitigate the effects of Customer’s failure or delay in providing such assistance or performance of its responsibilities and obligations, the Supplier shall be entitled to make an equitable adjustment to the Fees (or a combination of the two as appropriate). The starting basis for determining the equitable adjustment to the Fees for the purposes of this clause 4.1.7 shall be the Supplier’s reasonable increased costs to the extent the same cannot be Mitigated. All such equitable adjustments shall be recorded through the Change Control Procedure as an agreed change.
4.2 The Customer shall not store, distribute or transmit through the Services any material that:
4.2.1 is unlawful, harmful, threatening, defamatory, obscene, harassing or racially or ethnically offensive;
4.2.2 facilitates illegal activity;
4.2.3 depicts sexually explicit images; and/or
4.2.4 promotes unlawful violence, discrimination based on race, gender, age, disability, sexual orientation, religion, belief or gender reassignment, or any other illegal activity.
4.3 The Customer shall remain responsible for the use of the Services under its control, including any use by third parties (whether fraudulent or invited by the Customer).
4.4 The Customer must take reasonable measures to ensure it does not jeopardise services supplied to third parties on the same shared access infrastructure as notified to the Customer by the Supplier in writing. This includes informing the Supplier promptly in the case of a denial-of-service attack or distributed denial-of-service attack. In the event of any such incident, the Supplier shall work with the Customer to alleviate the situation as quickly as possible. The parties shall discuss and agree appropriate action (including suspending the Services in whole or in part).
4.5 The Customer shall not provide the Services directly or indirectly to third parties.
5 Data protection
5.1 Each party shall comply with its obligations in respect of data protection set out in Schedule 2.
6 Security
6.1 Subject to clause 7.1.4, the Supplier warrants that it has in place appropriate safety and security systems, policies and procedures to prevent unauthorised access or damage to, and to ensure the business continuity of, any and all Services, the Supplier's System and related networks or resources and the Customer Data, including an incident management process which shall enable the Supplier, as a minimum, to discover and assess Incidents, and to prioritise those Incidents, sufficient to meet its obligations under clause 6.4.1.
6.2 The parties agree that if Incidents are detected or discovered, each of them shall co-operate with the other to Mitigate the Incident and, particularly if the Incident causes or threatens the loss of operational efficiency, loss or corruption of Customer Data, or the reduced management of risks posed to the security of the Software, the Supplier's System, or the Customer's Operating Environment, the parties shall assist each other to mitigate any losses and restore the Services to their original operating and security efficiency. The costs of complying with this clause 6.2 shall be apportioned between the parties on a pro rata basis according to fault.
6.3 The Customer shall promptly inform the Supplier if it suspects or uncovers any Incident and, subject to the cost allocations in clause 6.2, shall use all commercially reasonable endeavours to promptly mitigate such Incident.
6.4 The Supplier shall:
6.4.1 notify the Customer immediately if it becomes aware of any Incident and respond without delay to all queries and requests for information from the Customer about any Incident, whether discovered by the Supplier or the Customer, in particular bearing in mind the extent of any reporting obligations the Customer may have under applicable data protection or cybersecurity legislation and that the Customer may be required to comply with statutory or other regulatory timescales;
6.4.2 at the Customer's cost, promptly cooperate with any request for information made in respect of:
(a) any Incident;
(b) any of the information provided in Schedule 2 or any policies referred to in clause 6.1; or
(c) any requests for information, or inspection, made by a regulator with competent jurisdiction over the Customer (including in connection with any applicable data protection or cybersecurity legislation).
7 Warranties
7.1 The Customer warrants, represents and undertakes that:
7.1.1 it has the full capacity and authority to enter into and perform this Agreement and that this Agreement is executed by a duly authorised representative of the Customer;
7.1.2 it has the authority to grant any rights to be granted by the Customer to the Supplier under this Agreement, and for the same to be used in the provision of the Services and otherwise in connection with this Agreement;
7.1.3 it owns or has obtained valid licences, consents, permissions and rights to use and where necessary to license to the Supplier, any materials reasonably necessary for the fulfilment of all the Customer's obligations under this Agreement, including any third-party licences and consents in respect of any Customer Software;
7.1.4 it shall comply with and use the Services in accordance with the terms of this Agreement and all applicable laws, and shall not do any act that shall infringe the rights of any third party including the publishing or transmission of any materials contrary to relevant laws or in breach of the Acceptable Use Policy;
7.1.5 it shall comply with all laws and regulations applicable to the Customer in performing its obligations under this Agreement; and
7.1.6 the Supplier's possession and use in accordance with this Agreement of any materials (including third-party materials) supplied by the Customer to the Supplier shall not cause the Supplier to infringe the rights, including any Intellectual Property Rights, of any third party.
7.2 The Supplier warrants, represents and undertakes that:
7.2.1 it has the full capacity and authority to enter into and perform this Agreement and that this Agreement is executed by a duly authorised representative of the Supplier;
7.2.2 it owns, or has obtained all valid licences, consents, permissions and rights necessary to enable the Supplier to comply with its obligations under this Agreement and to use any of the Intellectual Property Rights necessary for the fulfilment of all its obligations under this Agreement including for the Customer's use and receipt of the Services, and the Supplier shall not breach the provisions of any such necessary licences, consents, permissions and rights or cause the same to be breached;
7.2.3 it shall comply with all laws and regulations applicable to the Supplier in performing its obligations under this Agreement;
7.2.4 the Customer's possession and use in accordance with this Agreement of any materials (including third-party materials) supplied by the Supplier to the Customer shall not cause the Customer to infringe the rights, including any Intellectual Property Rights, of any third party;
7.2.5 any software, systems or telecommunications used or provided by or on behalf of the Supplier in performing its obligations under this Agreement shall be tested for Viruses and Vulnerabilities and any of the same that are identified shall be Mitigated against before the date of use of such software, systems or telecommunications by the Supplier;
7.2.6 all personnel and sub-contractors used by the Supplier in the performance of this Agreement are adequately skilled and experienced for the activities they are required to perform; and
7.2.7 it will use all reasonable endeavours not to introduce, or permit the introduction of, any Viruses or Vulnerabilities into Customer's Operating Environment, or the Customer's other network and information systems, while performing the Services.
8 Charges and payment
8.1 The Customer shall pay the Fees in accordance with this clause 8 and the relevant Statement of Work.
8.2 The Supplier shall invoice the Customer in accordance with the Invoice Terms.
8.3 The Customer shall pay the invoices in cleared funds in accordance with the Payment Terms.
8.4 All payments made by the Customer under this Agreement are exclusive of VAT, which the Customer shall pay in addition to the Fees and (where applicable) expenses at the rate and in the manner prescribed by law from time to time. The Supplier shall provide the Customer with a valid VAT invoice.
8.5 If the relevant Statement of Work makes provision for the payment by the Customer of the Supplier's expenses, the Customer shall reimburse the Supplier for reasonable out of pocket travelling, accommodation and other expenses incurred by the Supplier in the provision of the Services provided that:
8.5.1 such expenses have been reasonably and necessarily incurred in the performance of the Services;
8.5.2 the Customer shall be given reasonable opportunity to arrange (and pay directly for) any travel and/or accommodation required by the Supplier for the performance of the Services;
8.5.3 such expenses shall not include any mark-ups or administrative fees;
8.5.4 where such expenses include UK Value Added Tax that has been charged to Supplier at the time such expenses were incurred, an amount equal to such UK Value Added Tax shall be deducted by the Supplier from the expenses by way of discount prior to Supplier adding UK Value Added Tax to the Supplier’s relevant invoice;
8.5.5 such expenses shall have been expressly authorised in advance by the Customer in writing; and
8.5.6 the Supplier shall provide the Customer with such documentary evidence in support of any expense claims as the Customer may reasonably require.
8.6 If the Customer fails to make any payment due to the Supplier under this Agreement by the due date for payment, then, without limiting the Supplier's remedies under clause 14:
8.6.1 the Supplier may suspend the Customer’s access to the Software or Services until such non-payment has been resolved. The Customer shall be responsible for any additional costs that are incurred as a result of such suspension or to reconnect to the Software or Services; and
8.6.2 the Customer shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
8.7 The Supplier reserves the right to increase the Fees on an annual basis with effect from each anniversary of the Service State Date by an amount which is no less than the percentage increase in the Consumer Prices Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Services Start Date and shall be based on the latest available figure for the percentage increase in the Consumer Prices Index.
9 Change control
9.1 If either party wishes to change the scope of the Services (including Customer requests for additional services), it shall submit details of the requested change to the other in writing.
9.2 If either party requests a change to the scope of the Services, the Supplier shall, within a reasonable time, provide a written estimate to the Customer of:
9.2.1 the likely time required to implement the change;
9.2.2 any variations to the Fees arising from the change; and
9.2.3 any other impact of the change on the terms of this Agreement.
9.3 If either party wishes the other party to proceed with the relevant change referred to in clause 9.2, the Supplier has no obligation to do so unless and until the parties have agreed in writing the necessary variations to its charges, and any other relevant terms of this Agreement to take account of the change.
10 Service review and governance
10.1 Each party shall appoint a Contract Manager to act as the main point of contact for the other party in respect of all day-to-day matters relating to the supply of the Services and this Agreement. The Contract Managers as at the Effective Date are shown in the Term Sheet.
10.2 The parties may appoint a separate Contract Manager for each Contract and the parties shall record the identity of such Contract Managers in the relevant Statements of Work.
10.3 Each party may change the identity of any of its Contract Managers at any time and each Contract Manager may appoint a suitable deputy or alternate to perform some or all of the Contract Manager's functions in his absence. Each party shall notify the other in writing of any change or appointment of a deputy or alternate.
10.4 The parties shall ensure that the Contract Managers meet at intervals outlined in the Term Sheet, to review the performance of the Services and discuss any disagreements which may arise. These meetings shall be minuted by the Supplier's Contract Manager and copies of those minutes shall be circulated to, and approved by, both parties.
10.5 Before each Review Meeting, the Customer's Contract Manager shall notify the Supplier's Contract Manager, and vice versa, of any problems relating to the provision of the Services for discussion at the Review Meeting. At each such meeting, the parties shall agree a plan to address such problems. In the event of any problem being unresolved or a failure to agree on the plan, the matter shall be resolved in accordance with the Dispute Resolution Procedure. Progress in implementing the plan shall be included in the agenda for the next review meeting.]
11 Proprietary rights
11.1 Unless expressly stated otherwise in a Statement of Work or Service Schedule, nothing in this Agreement, a Statement of Work or a Service Schedule affects either party's rights in and to any Intellectual Property Rights that existed prior to the date of this Agreement or the Contract (including pre-existing Intellectual Property Rights of either party contained in or relating to Confidential Information).
11.2 The Customer acknowledges and agrees that, as between the parties, the Supplier and/or its licensors own all Intellectual Property Rights in the Work Product and in all other materials connected with the provision of the Software, Services and/or developed or produced in connection with this Agreement or Statement of Work by the Supplier, its officers, employees, sub-contractors or agents. Except as expressly stated in this Agreement, this Agreement does not grant the Customer any rights to such Intellectual Property Rights.
11.3 The Supplier acknowledges and agrees that the Customer owns and retains all rights, title and interest in and to the Customer Data. The Customer shall have sole responsibility for the legality, reliability, integrity and accuracy and quality of all such Customer Data. Save to the extent necessary for the provision of the Services and performance of its obligations under this Agreement or a Statement of Work, the Supplier shall have no rights to access, use or modify the Customer Data unless it has the prior written consent of the Customer.
11.4 The Supplier grants to the Customer:
11.4.1 a perpetual (for the term of this Agreement and thereafter), irrevocable, sub-licensable, non-transferable, non-exclusive, royalty-free, worldwide licence to use all of the Supplier's Intellectual Property Rights to the extent and as incorporated by the Supplier into the Work Product solely in connection with the Customer's (and its permitted sub-licensees') use of the Work Product in accordance with this Agreement; and
11.4.2 if applicable, a right to use the Software in accordance with the relevant Service Schedule.
11.5 The Customer grants to the Supplier a revocable, sub-licensable, non-transferable, non-exclusive, royalty-free, worldwide limited licence for the term of this Agreement and each Contract which continues thereafter to use, exploit, copy, reproduce, manufacture, sub-license, modify, improve, enhance and make derivative works of the Customer's Intellectual Property Rights solely to the extent and as incorporated into the Work Product and solely to the extent necessary to enable the Supplier to comply with its obligations under this Agreement or a Contract.
12 Confidentiality
12.1 The provisions of this clause 12 shall not apply to any Confidential Information that:
12.1.1 is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause 12);
12.1.2 was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;
12.1.3 was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party's knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party;
12.1.4 the parties agree in writing is not confidential or may be disclosed; or
12.1.5 is developed by or for the receiving party independently of the information disclosed by the disclosing party.
12.2 Each party shall keep the other party's Confidential Information secret and confidential and shall not:
12.2.1 use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with this Agreement or a Statement of Work (Permitted Purpose); or
12.2.2 disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause 12.
12.3 A party may disclose the other party's Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that:
12.3.1 it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and
12.3.2 at all times, it is responsible for such Representatives' compliance with the confidentiality obligations set out in this clause 12.
12.4 The Customer acknowledges and agrees that the Supplier's Confidential Information includes the Work Product.
12.5 The Supplier acknowledges and agrees that the Customer Data is the Confidential Information of the Customer.
12.6 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority (including, any relevant securities exchange) or by a court, arbitral or administrative tribunal or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 12.6, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
12.7 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party's Confidential Information other than those expressly stated in this Agreement are granted to the other party or to be implied from this Agreement.
12.8 Except as expressly stated in this Agreement, no party makes any express or implied warranty or representation concerning its Confidential Information.
12.9 The provisions of this clause 12 shall survive for a period of two years from termination or expiry of this Agreement, or if later, the last Statement of Work entered into under this Agreement.
12.10 Each party shall notify the other promptly of any breach or suspected breach of the provisions of this clause 12.
12.11 Nothing in this clause shall prevent the Supplier from making any public announcement communication or circular (announcement) concerning the existence of this agreement, the wider transaction contemplated by it, or the relationship between the parties or from referring to the Customer as a client of the Supplier in any marketing or promotional literature, bids, pitches, responses to tender or presentations or discussions with other clients or potential clients.
13 Limitation of liability
13.1 This clause 13 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer whether in contract, tort (including for negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise in respect of:
13.1.1 any breach of this Agreement or a Contract;
13.1.2 any use made by the Customer of the Services; and
13.1.3 any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with this Agreement and each Contract.
13.2 Except as expressly provided in this Agreement or a Contract:
13.2.1 the Customer assumes sole responsibility for results obtained from the use of the Services, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer's direction; and
13.2.2 all warranties, conditions and other terms implied by statute, common law or otherwise are, to the fullest extent permitted by law, excluded from this Agreement and each Contract.
13.3 Nothing in this Agreement or any Contract excludes or limits the liability of the Supplier for:
13.3.1 death or personal injury caused by the Supplier's negligence;
13.3.2 fraud or fraudulent misrepresentation; and
13.3.3 any other liability which cannot lawfully be excluded or limited.
13.3.4 Subject to clause 13.3:
13.3.5 the Supplier shall not be liable for any loss of profits, loss of business, depletion of goodwill or similar losses, or for any indirect or consequential loss, costs, damages, charges or expenses however arising; and
13.3.6 the Supplier's total aggregate liability arising in connection with the performance or contemplated performance of this Agreement or a Contract shall be limited to the price paid for the Services during the 12 months preceding the date on which the claim arose.
14 Term and termination
14.1 This Agreement shall commence on the Effective Date. Unless terminated earlier in accordance with this clause 14, this Agreement shall continue in force for the Initial Term and shall automatically extend for successive periods equal to the Initial Term (Extended Term) at the end of the Initial Term and at the end of each Extended Term. Either party may give written notice to the other party, equal to the Notice Period before the end of the Initial Term or the relevant Extended Term, to terminate this Agreement at the end of the then current Initial Term or the relevant Extended Term, as the case may be.
14.2 Each Contract shall commence on the date stated in the relevant Statement of Work and, subject to earlier termination in accordance with clause 14 or the relevant Statement of Work, shall continue until:
14.2.1 in the case of discrete work projects, the end of the Contract period given in the Statement of Work or the completion of the performance of the Services in accordance with the Contract, whichever is the later; and
14.2.2 in the case of ongoing Services, the end of the Contract period given in the Statement of Work.
14.3 Without prejudice to any other right or remedy available to it, either party may terminate this Agreement or a Contract with immediate effect by giving written notice to the other party if:
14.3.1 the other party commits a material breach of any term of this Agreement or a Contract 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;
14.3.2 the other party takes or has taken against it (other than in relation to a solvent restructuring) any step or action towards its entering bankruptcy, administration, provisional liquidation or any composition or arrangement with its creditors, applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court), being struck off the register of companies, having a receiver appointed to any of its assets, or its entering a procedure in any jurisdiction with a similar effect to a procedure listed in this clause 14.3.2;
14.3.3 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
14.3.4 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
14.3.5 the other party fails to pay any amount due under this Agreement and/or on the due date for payment and remains in default not less than 30 days after being notified to make such payment.
14.4 The party not affected by a continuing Force Majeure Event may terminate this Agreement and/or any Contract in accordance with clause 16.2.
15 Consequences of termination
15.1 If this Agreement is terminated under clause 14.1, the Contracts in effect (if any) shall be unaffected by the termination and the terms of this Agreement shall remain in effect in respect of such Contracts until the termination or expiration of each such Contract.
15.2 If this Agreement is terminated under clause 14.3 all Contracts shall terminate automatically upon the date of such termination.
15.3 If this Agreement is terminated under clause 14.4, all Contract shall, at the Supplier’s option, terminate upon the date of such termination.
15.4 The expiration or termination of any Contract shall not affect this Agreement as a whole or any part of any other Contracts in place between the parties.
15.5 Save as provided below, each party’s rights, liabilities and obligations under this Agreement and/or any Contract shall cease upon its termination or expiration. Each party’s accrued rights and liabilities and the rights and obligations of each party that are expressly or by implication intended to come into force upon, or remain in force on or after expiry or termination of this Agreement and/or any Contract shall remain in full force and effect.
15.6 On expiry or termination of this Agreement and/or any Contract for any reason:
15.6.1 the Customer shall immediately pay to the Supplier all outstanding unpaid invoices and interest in respect of any Services supplied up to and including the date of expiry or termination. For Services supplied but which have not been invoiced, the Supplier shall submit an invoice (or invoices) to the Customer for such supply of Services which the Customer shall pay within 30 days of receipt of any invoice;
15.6.2 the Supplier shall immediately cease provision of the Services;
15.6.3 each party shall return and make no further use of any Software, equipment, property, materials and other items (and all copies of them) belonging to the other party;
15.6.4 each party shall return to the other party all documents and materials (and any copies) containing the other party’s Confidential Information and, to the extent possible, erase any Confidential Information from its computer systems save that each party may retain such documents and materials containing or based on the other party’s Confidential Information as it is required to retain by applicable law, to satisfy the requirements of a regulatory authority or body of competent jurisdiction or the rules of any listing authority or stock exchange, to which it is subject or as may be required to comply with its obligations under this Agreement or any Contract (and the provisions of clause 12 shall continue to apply to any such retained materials);
15.6.5 where a Service provides the capability for the Customer to download a copy of its data from the Service, the Customer shall be responsible for doing so prior to the termination of this Agreement and/or the Contract. Where the Service does not provide such capability, the Supplier shall provide at the Customer’s cost all reasonable assistance, information and documentation requested by the Customer to facilitate the handover of the Services to the Customer or its nominated replacement supplier provided that:
15.6.6 such request is received by the Supplier within ten days after the effective date of the expiry or termination of this Agreement and/or any Contract;
15.6.7 the Customer has at that time paid all fees and charges outstanding at (and including any resulting from) expiry or termination (whether or not due at the date of expiry or termination); and
15.6.8 where the Customer requests a copy of its data, the Supplier shall use commercially reasonable endeavours to deliver the most recent backup of that data in a format it deems reasonably appropriate within 30 days of the Customer’s request; and
15.6.9 no earlier than ten days after the effective date of the expiry or termination of this Agreement and/or any Contract, the Supplier shall (subject to clause 15.7) promptly expunge from the Supplier's System and otherwise destroy or dispose of all of the Customer Data in its possession or control. The Customer shall pay all reasonable costs and expenses incurred by the Supplier in returning and disposing of Customer Data and expunging it from the Supplier's System.
15.7 The Supplier shall be considered to have satisfied its obligation to "expunge" or "destroy" or "dispose" of any electronic data, for the purposes of clause (b), where it puts such electronic data beyond use.
15.8 Either party may request the other party to certify in writing that they have complied with their obligations under clause 15.6.
16 Force majeure
16.1 Neither party shall have any liability to the other under this Agreement or any Contract if it is prevented from, or delayed in, performing its obligations under this Agreement or such Contract, arising from any Force Majeure Event, provided that:
16.1.1 the other party is notified of such an event and its expected duration; and
16.1.2 it uses all reasonable endeavours to mitigate, overcome or minimise the effects of the Force Majeure Event concerned.
16.2 If the period of delay or non-performance arising from any Force Majeure Event continues for one month or more, the party not affected may terminate this Agreement or the affected Contract by giving not less than 14 days' written notice to the other party.
17 Anti-bribery and anti-slavery requirements and human trafficking
17.1 The Supplier shall:
17.1.1 comply with all applicable laws, statutes and regulations relating to anti-bribery and anti-corruption, including the Bribery Act 2010 (Relevant Requirements);
17.1.2 have and maintain in place throughout the term of this Agreement and each Contract its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements, and shall enforce them where appropriate; and
17.1.3 promptly report to the Customer any request or demand for any undue financial or other advantage of any kind received by the Supplier in connection with the performance of this Agreement.
17.2 The Supplier shall ensure that any person associated with the Supplier or who is otherwise performing services in connection with this Agreement does so only on the basis of a written contract that imposes on and secures from such person terms equivalent to those imposed on the Supplier in this clause 17 (Relevant Terms). The Supplier shall be responsible for the observance and performance by such persons of the Relevant Terms, and shall be directly liable to the Customer for any breach by such persons of any of the Relevant Terms.
17.3 For the purpose of this clause 17, the meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), section 6(5) and (6) of that Act, and section 8 of that Act respectively. For the purposes of this clause 17 a person associated with the Supplier also includes any sub-contractor of the Supplier.
17.4 In performing its obligations under this Agreement the Supplier shall comply with:
17.4.1 comply with the Modern Slavery Act 2015 and any and all other applicable anti-slavery and/or human trafficking laws, statutes, regulations and codes whether or not legally binding from time to time in force (Anti-Slavery Requirements);
17.4.2 have and maintain throughout the term of this Agreement policies and procedures to ensure its compliance with the Anti-Slavery Requirements;
17.4.3 not engage in any activity, practice or conduct that would constitute an offence under sections 1, 2 or 4 of the Modern Slavery Act 2015 if such activity, practice or conduct were carried out in the United Kingdom; and
17.4.4 include in its contracts with its direct sub-contractors and supplier’s provisions which are at least as onerous as those set out in this clause 17.4.
17.5 The Supplier shall notify the Customer as soon as the Supplier becomes aware of:
17.5.1 any breach of the Anti-Slavery Requirements by the Supplier or any of its direct sub-contractors; or
17.5.2 any actual or suspected slavery or human trafficking in a supply chain which has a connection with this Agreement.
18 Waiver
8.1 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.
18.2 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.
19 Severance
19.1 If any provision or part-provision of this Agreement or a Contract is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement or a Contract.
19.2 If any provision or part-provision of this Agreement or a Contract is deemed deleted under clause 19.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
20 Entire agreement and variation
20.1 This agreement and each Contract constitutes the entire agreement between the parties and supersedes all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter.
20.2 Each party acknowledges that in entering into this Agreement or a Contract it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
20.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation[or negligent misstatement based on any statement in this Agreement or a Contract.
20.4 Nothing in this clause shall limit or exclude any liability for fraud.
20.5 No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
21 Assignment and other dealings
21.1 The Supplier may at any time assign, transfer, mortgage, charge, sub-contract, delegate, declare a trust over or deal in any other manner with all or any of its rights and obligations under this Agreement or a Contract without the consent of the Customer.
21.2 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, mortgage, charge, sub-contract, delegate, declare a trust over or deal in any other manner with any of its rights or obligations under this Agreement or a Contract.
22 No partnership or agency
22.1 Nothing in this Agreement or a Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, or constitute any party the agent of another party nor authorise any party to make or enter into any commitments for or on behalf of any other party.
22.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
23 Third party rights
23.1 Except as expressly provided elsewhere in this Agreement or a Contract, no one other than a party to this Agreement or a Contract, its successors and permitted assignees, shall have any right to enforce any of its terms.
23.2 The rights of the parties to rescind or vary this Agreement are not subject to the consent of any other person.
24 Rights and remedies
Except as expressly provided in this Agreement or a Contract, the rights and remedies provided under this Agreement or a Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
25 Notices
25.1 Any notice given to a party under or in connection with this Agreement or a Contract shall be in writing and shall be:
25.1.1 delivered by hand or by pre-paid first-class post or other next Business Day delivery service; or
25.1.2 sent by email, to the relevant party’s address for notices set out in the Terms Sheet or such other address as may be notified to the other party from time to time.
25.2 Any notice shall be deemed to have been received:
25.2.1 if delivered by hand, at the time the notice is left at the proper address;
25.2.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
25.2.3 if sent by email, at the time of transmission, or, if this time falls outside Normal Business Hours in the place of receipt, when Normal Business Hours resume.
25.3 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.
26 Dispute resolution
26.1 If a dispute arises under or in connection with this Agreement or a Contract (Dispute), including any Dispute arising out of any amount due to a party, then before bringing any legal proceedings or commencing any other alternative dispute resolution procedure in connection with such Dispute, a party must first give written notice (Dispute Notice) of the Dispute to the other party describing the Dispute and requesting that it is resolved under the dispute resolution procedure described in this clause 26.
26.2 If the parties are unable to resolve the Dispute within 30 days of delivery of the Dispute Notice, each party shall promptly (and in any event within five Business Days):
26.2.1 appoint a representative who has authority to settle the Dispute and is at a higher management level than the person with direct responsibility for the administration of this Agreement (Designated Representative); and
26.2.2 notify the other party of the name and contact information of its Designated Representative.
26.3 Acting reasonably and in good faith the Designated Representatives shall discuss and negotiate to resolve the Dispute, including agreeing the format and frequency for such discussions and negotiations, provided that all reasonable requests for relevant information relating to the Dispute made by one party to the other party shall be complied with as soon as reasonably practicable).
26.4 If the parties are unable to resolve the Dispute within 30 days after the appointment of both Designated Representatives, either party may proceed with any other available remedy.
26.5 Notwithstanding any other provision of this Agreement or a Contract, a party may seek interim or other equitable relief necessary (including an injunction) where damages would be an inadequate remedy.
27 Governing law and jurisdiction
27.1 This agreement and each Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
27.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or a Contract or its subject matter or formation (including non-contractual disputes or claims).
