Terms and Conditions

BETWEEN:

  1. Pro2col Limited (Company Number 5038052) whose registered office is at 8 Spur Road, Cosham, Portsmouth, PO6 3EB ("Supplier"); and
  2. [ You ] the person/company buying the services ("Customer"),

hereinafter referred to as the Parties

Background

A      The Supplier is in the business of providing a variety of data transfer, file sharing and other IT services which it makes available to the Customer.

B      The Suppliers general terms and conditions of business are set out below in this Agreement and shall be supplied to the Customer with its formal quotation.

C      The Customer wishes to use the Supplier's Services in its business operations subject to the terms and conditions of this Agreement, together with any Support Services as may be provided.

D      In the provision of the Services, the Supplier shall also provide products from third party suppliers upon which the Customer shall also be subject to their licence terms outside of this Agreement.

These terms and conditions (“Agreement”) sets out the Supplier’s terms and conditions.

Upon receipt of a quotation from the Supplier, the Customer shall make an offer to purchase the Supplier’s Services when it confirms acceptance of these terms in this Agreement and provides to the Supplier a suitable Purchase Order. At this point a contract between the Supplier and the Customer shall come into force.

If appropriate, an accompanying Statement of Work may also be incorporated in to this Agreement. If there is any conflict or inconsistency between this Agreement, the Purchase Order, and any Statement of Work, the terms in this Agreement shall prevail.

BY ACCEPTING THIS AGREEMENT, YOU AS THE CUSTOMER AGREE TO THE TERMS OF THIS AGREEMENT. IF ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU AS THE CUSTOMER REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" AS THE CUSTOMER SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

1. Definitions

1.1           Except to the extent expressly provided otherwise, in this Agreement:

"Additional Charges" shall mean the additional sums which may be charged to the Customer in addition to the Subscription Package pursuant to the terms in this Agreement;

"Agreement" means this Agreement including any Schedules, and any amendments to this Agreement from time to time;

"Applicable Laws" means all applicable laws, enactments (in force at the time, taking into account any amendment, extension or re-enactment and includes any sub-ordinate legislation;

"Authorised Users" shall mean those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation.

"Business Day" means any weekday other than a Saturday, Sunday or public holiday in England and Wales;

"Charges" means the price payable (excluding VAT) to the Supplier by the Customer for the performance of the Services, which will be set out in the Purchase Order and may include the solutions products, professional fees, supports services, disbursements and/or expenses. Charges will also include any further amounts as may be agreed in writing by the parties from time to time.

"Commencement Date" means the date this Agreement comes into existence, which will be the earlier of the dates the Customer (i) communicates its acceptance of this Agreement to the Supplier as described in the Purchase Order or in writing (including by email), or (ii) continues to instruct the Supplier to perform the Services (including by email).

"Confidential Information" means all confidential information (however recorded, preserves or disclosed and whether marked as confidential or not) disclosed by a party or its representatives to the other party (whether before or after the Commencement Date) including the existence of the terms of this Agreement; any information that would be regarded as sensitive by a responsible business person and any information derived or analysis derived from Confidential Information. For the avoidance of doubt this will not include any information that is in the public domain, was available to the recipient on a non-confidential basis, and was lawfully in the possession of the recipient;

"Customer" shall mean the subscriber/purchaser of the Services;

"Customer Data” means the data inputted by the Customer, Authorised Users, or the Supplier on behalf of the Customer for the purpose of using the Services or facilitating the Customer's use of the Services;

"Data Protection Legislation" unless and until the General Data Protection Regulation (EU) 2016/679 (GDPR) is no longer directly applicable in the UK, (i) the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998; “Documentation” means any documents which may be made available to the Customer by the Supplier from time to time which sets out a description of the Services and the user instructions for the Services;

"Force Majeure" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks, storm, earthquake and wars);

"Intellectual Property Rights" means any and all intellectual property associated with the subject matter, including, without limitation, designs, formulas, procedures, methods, apparatus, ideas, creations, improvements, works of authorship, materials, processes, inventions, techniques, data, know-how, show how, algorithms, programs, subroutines, tools, patents and patentable materials, trademarks and service marks, copyrights and copyrightable materials, rights under licences, consents, orders, statutes and trade secrets and all other or similar equivocal rights (subsisting now or in the future) in any part of the World, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights for their full term.

"IT Infrastructure" shall mean the Customer’s entire IT infrastructure such as servers, computer hardware (whether hosted or on premises), software, services and configurations.

"Modifications" means any modifications, amendments or Upgrades to the Services or Software by the Supplier; “Personal Data” has the meaning given to it under the Data Protection Legislation;

"Process (and Processing)" has the meaning given to it under the Data Protection Legislation;

"Schedule" means any schedule attached to the main body of this Agreement and any additional schedules which may include any Statement of Work for the Customer as agreed between the Parties. Any additional schedules will incorporate this Agreement;

"Services" means any services to be performed by the Supplier to the Customer under this Agreement as outlined in the Customer’s Purchase Order and any associated Statement of Work (if applicable).

"Site" means the Customer’s premises, buildings or place of operations and its IT Infrastructure where all or part of the Services shall be performed by the Supplier. The location of the Site (if applicable) shall be outlined in the Statement of Work.

"Software" means any computer software products purchased by the Customer, including for the avoidance of doubt any Supplier Modified Open Source Software, any software explicitly created by the Supplier which it has designed, developed and installed, or any other form of third party software;

"Sub-Contractor" means any person engaged by the Supplier to perform all or any part of the Services on behalf of the Supplier;

"Subscription Package(s)" means any chosen subscription package(s) to be purchased by the Customer if appropriate, which entitles its Authorised Users to access and use the Services and the Documentation in accordance with this Agreement;  

"Supplier Personnel" means any of the Supplier’s employees, directors, officers, Sub-Contractors, agents, consultants and representatives involved (either directly or indirectly) in the performance of the Services;

"Support Services" means any support services provided by any Third Party Software Providers in support of the Software.

"Specification" means the Customer’s specific requirements for the provision of the services as outlined in the Purchase Order and any associated Statement of Work

"Term" means the term of this Agreement commencing in accordance with Clause 18.1;

"Third Party Software Provider" shall be the provider of any Software to the Supplier;

"Working Hours" means the applicable weekday support desk access times for the chosen perpetual Software or Subscription Package.

2. Overview

2.1          This is an Agreement for the Supplier to supply the Software & Services to the Customer as appropriate.

2.2          This Agreement shall cover the Software & Services provided by the Supplier unless terminated in accordance with Clause 19 or upon completion of the Services  (Termination).

2.3          Any Customer orders made via a viable Purchase Order, if accepted by the Supplier, shall be subject to these terms and conditions in this Agreement, and to the availability of all relevant Services and Software.

2.4          This Agreement is not evidence of, and does not create, an exclusive relationship between the Supplier and the Customer.

2.5          Performance of the Services will commence on the Commencement Date. If no Commencement Date is specified, either party must provide the other reasonable notice of the date on which the Services shall commence and any commencement of the Services will then start as agreed by both Parties.

2.6          This Agreement will apply to the performance of the Services by the Supplier to the Customer to the exclusion of any other terms and conditions, including any that are, or may be, included in any initial quotations or otherwise.

2.7          This Agreement may only be extended or renewed by mutual agreement of the Parties in writing.

3. Changes to the Agreement

3.1          This Agreement is valid from the Commencement Date and shall remain valid throughout the Term of this Agreement. However, this Agreement shall be reviewed annually and from time to time and without notice, it may be necessary for the Supplier to change the scope of the Services or provision of Software as a variation, provided that such changes do not materially affect the nature or overall scope of the Services or Software.

3.2          During this Agreement, either party may request to the other to vary any aspect of the Services, whether by addition, amendment or otherwise and unless a variation is agreed by both Parties and in writing, it shall not be valid or binding.

3.3          Any amendments to the Customer’s Services requirements or otherwise shall be agreed between the Parties.

4. Services

4.1          The Supplier shall, during the Term, provide the Services and make available the Documentation (if any) to the Customer on and subject to the terms of this Agreement.

4.2          The Supplier shall perform all Services by exercising reasonable care and skill in accordance with the information available to it at the time the Services are performed and based on the Customer’s instructions.

4.3          The Supplier shall use reasonable efforts to ensure that it completes the Services within the agreed timeframes for the Customer, but time will not be of the essence in the performance of the Services. The hours, timing and schedule of the performance of the Services will be determined at the discretion of the Supplier, except for any scheduled meetings with the Customer.

4.4          The Supplier shall be responsible for ensuring that it complies with all statutes, regulations, byelaws, standards, codes of conduct and any other rules relevant to the provision of the Services.

4.5          The Supplier makes no guarantees, warranties or representations, express or implied, as to the quality, accuracy or completeness of the Services and furthermore, the Supplier does not claim that the Services or any deliverables in respect of this Agreement will be free of any errors, defaults of interruptions.

4.6          The Customer will not direct, control or demand the manner in which the Supplier will perform the Services. However, the Supplier will have due regard to the Customer’s reasonable requirements.

4.7          The Supplier shall be entitled to sub-contract all or any part of the Services to a Sub-Contractor. If a Sub-Contractor is engaged by the Supplier, the Sub-Contractor will have the appropriate skills and competency to perform all or any part of the Services for which it is engaged.

4.8           All Professional Services purchased must be used within three years of the purchase date.  At this time any unused service time will expire without refund.

5. Support Services

5.1          The Supplier shall only provide first line support to the Customer in respect of either the Services or purchase of the Software.

5.2          All support contracts for vendor software are underwritten by the vendor and details will be provided for accessing the relevant vendor support portal upon receipt of order. If the Customer elects to purchase Support Services directly from the Supplier, these shall be provided, and details of these will be specifically set out in a Statement of Work, a sample of which is attached to this Agreement. If there are no Support Services provided, the Schedule will remain blank.

5.3          The Customer acknowledges however, that any Support Services shall be subject to the Third Party Software Provider’s terms and conditions and any EULA associated with the Software and therefore any Support Services shall be excluded from the terms in this Agreement.

6. Software

6.1          The Customer acknowledges that the delivery of the Services will involve the use of Software either owned by the Supplier or third parties under a licence agreement with the Supplier. As such the Customer agrees that it shall not do anything to infringe either the Supplier or the third party’s Intellectual Property Rights such as reverse engineer, disassemble or decompile any Software provided to it.

6.2          Title in the Software shall pass to the Customer and shall not belong to the Supplier. The Customer therefore agrees to abide by all other terms governing the use of such Software and will adopt the third party software’s licence terms as required in the form of an EULA.

6.3          The Suppliers gives no warranty to the Customer in respect of any Software that is purchased by the Company from a Third Party Software Provider for resale to the Customer but shall take reasonable steps to assist the Customer in pursuing warranty claims against the relevant software provider. Furthermore, the Supplier makes no representations or warranties whatsoever with regards to the use of the Software.

6.4          Unless otherwise specified in the Agreement, the Supplier shall only deliver non-modifiable and executable run-time versions of the Software.

6.5          The Supplier may suspend the provision of the Services, use of Software or Support Services if any amount due to be paid by the Customer to the Supplier under this Agreement is overdue, and the Supplier has given to the Customer at least 30 days' written notice, following the amount becoming overdue, of its intention to suspend the on this basis.  In the event, that such outstanding sums remain unpaid for more than 2 months, the Supplier shall terminate this Agreement in accordance with sub-clause 19.1.11.

6.6          Where an EULA or other such licence terms shall be granted by a Third Party Software Provider and/or the Supplier to the Customer then the Customer shall not have the benefit of the licence until payment in full has been received by the Supplier.

7. Customer’s Obligations

7.1           Save to the extent that the Parties have agreed otherwise in writing, the Customer must provide to the Supplier, or procure for the Supplier, such:

(a)             co-operation, support and advice; and

(b)            information and documentation; as are reasonably necessary to enable the Supplier to perform its obligations under this Agreement.

7.2           The Customer must provide to the Supplier, or procure for the Supplier, such access to the Customer's computer hardware, software, networks and systems as may be reasonably required by the Supplier to enable the Supplier to perform its obligations under this Agreement.

7.3           The Customer shall ensure that the Authorised Users use the Services in accordance with the terms and conditions of this Agreement and comply with any associated EULA or third party software licence terms, and shall also be responsible for any Authorised User’s breach of this Agreement.

7.4           The Customer shall obtain and shall maintain all necessary licences, consents, and permissions or otherwise necessary for the Supplier, its contractors and agents to perform their obligations under this Agreement, including without limitation the Services.

7.5           The Customer shall be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems. Any problems, conditions, delays, delivery failures and all other loss or damage that may arise from or relate to the Customer's network connections or telecommunications links or further issues caused by the internet or third party providers that provide these Services shall be the responsibility of the Customer.

7.6          The Customer shall brief the Supplier and all Supplier Personnel of all health, safety and security matters that apply to it and them at the Site; and provide on-Site working space, facilities, storage and equipment as reasonably required by the Supplier.

7.7          In respect of the IT Infrastructure, the Customer shall:

7.7.1     provide access (whether on-Site or off-Site) to the Supplier and Supplier Personnel to the IT Infrastructure as required to perform the Services;

7.7.2      take all reasonable steps to secure, care for, maintain and operate the IT Infrastructure in accordance with generally accepted industry practice; and

7.7.3     take responsibility for all data stored on and transferred to and from the IT Infrastructure

8. The Supplier’s Obligations

8.1           The Supplier shall provide the Customer with such information and advice in connection with the Services, the Software and Support Services, and the provision thereof, as the Customer, may from time to time, reasonably require.

8.2           The Supplier will comply with all guidelines, rules and requirements as advised by the Customer to the Supplier in connection with Site health, safety and security matters. To clarify, at no times shall the Supplier be responsible for any health, safety and security matters related to the Site and these matters will be the sole and exclusive responsibility of the Customer.

9. Price and Payment

9.1          In consideration for the Supplier performing the Services pursuant to this Agreement, the Customer must pay the Supplier the Charges as outlined in the Purchase Order and in such currency as may be agreed between the Parties.

9.2          The Supplier shall invoice the Customer for the Charges in accordance with the terms of this Agreement. The Customer shall pay each invoice submitted to it by the Supplier within 30 days of receipt to a bank account nominated in writing by the Supplier from time to time.

9.3          Any Charges are exclusive of VAT, which will be additionally charged where applicable to the Customer and outlined in any invoice.

9.4          Where any payment pursuant to this Agreement is required to be made on a day which is not a Business Day, it may be made on the next following Business Day.

9.5          Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier any sum due under this Agreement on the due date:

9.5.1      the Customer shall pay interest at the rate of 8.5 % per annum over the Bank of England’s base rate from time to time, on the unpaid amount until payment (whether payment happens before or after any court judgment). The Customer shall pay the overdue amount together with any interest; and

9.5.2      the Supplier may suspend all or part of the Services until payment has been made in full.

10. Intellectual Property Rights

10.1       The Customer acknowledges that all of the Intellectual Property Rights in the Services or Software together with any related materials or Documentation are and shall remain the property of either the Supplier or its Third Party Software Providers and the Customer shall acquire no rights in either the Services or Software.

10.2       The Customer shall enter in to such terms as required by the Third Party Software Providers in the provision of the Software and shall receive the appropriate licences to use and operate the Software.

10.3       In respect of any Software where the proprietary rights are vested in the Supplier, but only on a non-exclusive, non-transferable licence for the purpose for which the Software has been made available to the Customer, this is deemed to be granted by the Supplier and only then on condition that the Customer fulfils all of its relevant obligations arising out of the Agreement.

10.4       The Customer will not infringe any of the Intellectual Property Rights of the Supplier or anybody else (for example, by copying the Software in a way that this Agreement does not allow), and will report any infringement to the Supplier as soon as it becomes aware of it.

10.5       Additional or varying terms relating to the Supplier’s Intellectual Property Rights may apply to this Agreement and if this is the case, these will be set out in a further Schedule and agreed by the Parties in writing.

10.6       The Customer will indemnify the Supplier on demand against all costs, claims, demands, expenses and liabilities of whatsoever nature arising out of or in connection with any claim by any third party, that alleges infringement of its Intellectual Property Rights caused by the Customer.

11. Cancellation and Returns

11.1       If the Customer wishes to amend any details of the Services it must do so in writing as soon as possible and will be subject to the discretion of the Supplier as to whether such changes can be effected.

11.2       Once an official order for Services has been accepted and scheduled, the Customer may cancel or postpone the delivery; however this will incur a penalty payment to the Supplier which will be variable depending on how short notice the Customer gives. The following penalty payments will apply (appropriate percentage of the total order):

a) Within five working days  –           75%

b) Within ten working days  –           50%

c) Within fifteen working days –         25%

d) More than fifteen working days –     0%

11.3       The return of any Software shall be at the sole discretion of the Supplier but in any circumstance where the Suppliers agrees to accept a return of the Software products for any reason, the Customer shall provide the return within 7 days from the date of delivery.

12. Connectivity and Systems

12.1        The Customer acknowledges that the Supplier uses third party Software from Third Party Software Providers which it has limited control over (if any) and may operate this Software to enable it to perform the Services and fulfil its obligations under this Agreement.

12.2       The Customer will become direct licensees of some aspects of the Software and shall therefore be subject to the terms of any such licence.

12.3       To enable the Supplier to perform the Services, it may be necessary for the Customer to use or receive access to third party hosted servers, third party suppliers and Third Party Software Providers which it has limited control over (if any) and the Customer acknowledges that the operation of these may be affected by such third parties from time to time.

13. Warranties

13.1        The Parties warrant to each other that they have the legal right and authority to enter into this Agreement and to perform their obligations under this Agreement.

13.2        The Supplier warrants to the Customer that:

13.2.1   it will comply with all applicable legal and regulatory requirements applying to the exercise of the Supplier's rights and the fulfilment of the Supplier's obligations under this Agreement;

13.2.2   the Services will meet this Agreement’s requirements;

13.2.3   the Supplier has or has access to all necessary know-how, expertise and experience to perform its obligations under this Agreement;

13.2.4   to the best of its ability, it will perform the Services with reasonable care and skill and in accordance with good industry practice;

13.2.5   it has obtained and will maintain for the duration of the Agreement all permissions, licences and consents necessary to provide the Services; and

13.2.6   the Supplier and the Supplier Personnel’s fulfilment of their obligations under this Agreement will not breach any obligations they have to any third party.

13.3   The Customer warrants and represents to the Supplier that

13.3.1   it has obtained and will maintain for the duration of the Agreement all permissions, licences and consents necessary to enable the Supplier to provide the Services.

14. Confidentiality

14.1       The Parties agree the following:

14.1.1        that they will keep confidential all the Confidential Information that they disclose to each other for the duration of this Agreement and six years after termination of this Agreement,  and shall not use or exploit such Confidential Information in any way except for the performance of this Agreement, not make it available to any third party or copy, reduce to writing or otherwise record such information except as permitted in this Agreement and shall apply the same security measures and degree of care to such confidential information as the recipient applies to its own Confidential Information;

14.1.2        they will hold in confidence all Confidential Information of the other Party and not to disclose, or cause it to be disclosed, to any person other than its personnel and professional advisors;

14.1.3        not to make use of the Confidential Information of the other Party (including by duplicating or distributing it), except as is necessary for the performance, supply, use and enjoyment of the Services and for the administration of this Agreement; and

14.2       The Supplier shall have the rights to use the name, logo or trademarks of the Customer on any of its products and/or services (including marketing materials or website). The Supplier acknowledges that consent can be withheld at the Customer’s absolute discretion and may be granted subject to the Supplier’s compliance with the Customer brand guidelines in force from time to time.

14.3       Clause 14.1 does not apply to: (i) information that becomes or is in the public domain (other than due to a breach of these terms); (ii) information that is already known to a Party (where that Party can reasonably prove and demonstrate it); (iii) information that must be disclosed due to legal, regulatory or governmental requirements, rules or orders; and (iv) information that the Parties have agreed in writing may be disclosed.

14.4       The Parties may use and retain the Confidential Information for their own internal business processes and purposes, which will include the retention of Confidential Information in electronic and computer records, files and devices.

15.   Limitations and Exclusions on Liability

15.1   Except as expressly and specifically provided in this Agreement:

15.1.1   the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, 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 or the Customer by the Supplier in connection with the Services, or any actions taken by the Supplier at the Customer's direction;

15.1.2   all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and

15.1.3   the Services and the Documentation are provided to the Customer on an "as is" basis.

15.2       The Supplier shall have no liability to the Customer for any wasted or lost management time, loss of profits, loss of business, loss of goods, loss of use, loss of revenue, loss of data and information or for any indirect, special or consequential losses or damages that the Customer suffers, sustains or incurs (including as a result of an action brought by a third party) in connection with the Services or otherwise, regardless of whether or not such losses or damages were reasonably foreseeable or actually foreseen by the Parties.

15.3       Except in respect of death or personal injury caused by the Supplier’s negligence, or for any liability which may not be excluded or limited, or as expressly provided in these terms, the Supplier shall not be liable to the Customer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of this Agreement or otherwise in connection with this Agreement, for any economic losses (including loss of profits, contracts, business or anticipated savings) or for any indirect, special or consequential loss, damage, costs, expenses or other claims or for loss of goodwill or reputation or for damage to or loss of Data (whether caused by the negligence of the Supplier, its servants or agents or otherwise).

15.4       In no event will the total aggregate liability of the Supplier under or in connection with this Agreement in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement (including negligence) exceed the aggregate of 12 month’s fees, save for any claims arising howsoever from any infringement of the Supplier’s intellectual property rights by the Customer either directly or indirectly.

15.5       The Supplier shall not be liable to the Customer or be deemed to be in breach of this Agreement by reason of any delay in performing, or any failure to perform, any of the Supplier’s obligations in relation to Software, if the delay or failure was due to an event of Force Majeure.

15.6       Without changing clause 15.2, the Supplier will not have any legal responsibility for:

15.6.1          any loss of profit or reputation or business by the Customer; and

15.6.2          any loss or corruption of data by the Customer.

16. Insurance

16.1       During the Term of this Agreement and for a period of 2 years thereafter, the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance in an amount not less than £5,000,000 and, shall on the Customer’s request, produce both the insurance certificate giving details of the cover and the receipt for the current year’s premium.

17. Anti-Bribery

17.1        The Supplier shall:

17.1.1          comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 and any other legislation (“Relevant Requirements”);

17.1.2          not engage in any activity, practice or conduct which might constitute an offence if such activity, practice or conduct had been carried out in the UK;

17.1.3          have and shall maintain in place throughout the term of this Agreement, its own policies and procedures to ensure compliance with the Relevant Requirements and will enforce them where appropriate; and

17.1.4          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.

18. Term

18.1       This Agreement starts on the Commencement Date and will continue for the period specified in the Purchase Order unless terminated in accordance with clause 19.

18.2       The Term shall continue for the period purchased by the Customer, but the Parties may extend the Agreement by mutual agreement.

19. Termination

19.1       Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party, if one of them is involved in any of the following (of which 19.1.1 to 19.1.6 indicate that either the Customer or Supplier may be in financial difficulty):

19.1.1          the passing of a resolution for it to be liquidated (but not for a liquidation whilst that company is still trading solvently as part of that company's group re-organisation);

19.1.2          the presenting of a petition to wind it up (which the court doesn't dismiss within 7 days);

19.1.3          any step is taken by anyone to appoint a receiver of any kind over any of its assets;

19.1.4          it can't pay its debts as they become due for payment (as described in section 123 of a piece of legislation called the Insolvency Act 1986);

19.1.5          it enters into an arrangement, with people it owes money to, to put off or delay the payment of its debts;

19.1.6          any person takes any step to enforce any charge created by it over any of its assets which would give that person control over those assets;

19.1.7          it stops carrying on a substantial part of its business (or all its business);

19.1.8          there is a change in its control (in this case, 'control' has the meaning given in section 1124 of a piece of legislation known as the Tax Act 2010);

19.1.9          there is a material breach of any term of this Agreement which is not capable of being remedied or if the breach is capable of remedy, fails to remedy it within 28 days of being asked to do formally in writing;

19.1.10       it repeatedly breaches any terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;

19.1.11       any overdue fees remain outstanding after 2 months;

19.1.12       any warranty given in clause 13  of this Agreement is found to be untrue or misleading

19.2       Either party may terminate this Agreement by giving to the other not less than 30 days’  written notice, to expire on or at any time after the first 6 months.

19.3       Termination of this Agreement will not affect any rights or obligations that the Supplier or the Customer have already acquired under it.

20. Post-Termination

20.1       On termination of this Agreement for any reason, the Parties must return each other's equipment, materials and Confidential Information and permanently delete any Software belonging to the other which is not held under a continuing licence. They must pay any outstanding sums owed to each other as soon as possible.

20.2       On termination, the Supplier agrees that it shall co-operate with the Customer and any replacement contractor to ensure a smooth transition from the Supplier to the Customer or its replacement contractor. The Customer agrees its shall pay any further Charges to the Supplier in connection herewith in all circumstances other than termination by the Customer for a Supplier breach of this Agreement.

20.3       Any rights or obligations to which any of the Parties to this Agreement may be entitled or be subject before its termination shall remain in full force and effect where they are expressly stated to survive such termination.

20.4       Termination shall not affect or prejudice any right to damages or other remedy which the terminating party may have in respect of the event giving rise to the termination or any other right to damages or other remedy which either party may have in respect of any breach of this Agreement which existed at or before the date of termination.

21. Data Protection

21.1   In so far as required, both parties agree that they will comply with all applicable requirements of the Data Protection Legislation. This clause 21 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.

21.2   The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the data controller and the Supplier is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).

21.3   Without prejudice to the generality of clause 21.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Supplier for the duration and purposes of this Agreement.

21.4   Without prejudice to the generality of clause 21.1, the Supplier warrants and undertakes that it shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under this Agreement:

21.4.1   process that Personal Data only on the written instructions of the Customer unless the Supplier is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Supplier to process Personal Data (Applicable Laws). Where the Supplier is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Customer;

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

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

21.4.4   Accept this Agreement as explicit consent by the Customer for the Supplier to transfer any Personal Data outside of the European Economic Area. The Supplier will ensure that the following conditions are fulfilled in doing so: and

21.4.4.1   the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;

21.4.4.2   the data subject has enforceable rights and effective legal remedies

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

21.4.4.4   the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Customer Data;

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

b)   notify the Customer without undue delay on becoming aware of a Personal Data breach;

c)   at the written direction of the Customer, delete or return Customer Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the Personal Data;

d)   maintain complete and accurate records and information to demonstrate its compliance with this clause 21 (and allow for audits by the Customer or the Customer's designated auditor); and

e)   in circumstances where it is necessary to transfer any Personal Data to the US, the Supplier may transfer such data to those Third Party Software Providers if they are part of the Privacy Shield which requires them to provide similar protection to Customer Data shared between the Europe and the US.

21.5   The Customer consents to the Supplier appointing the current third-party processors of Personal Data under this Agreement as per the privacy policy and any other additional third-party processors appointed by the Supplier from time to time, provided that the Supplier will give to the Customer a prior written 60 days’ notice to advise of any such additional third-party processors and the Customer does not object to the appointment of any such additional third-party processors during the 60 days’ notice period. Should the Customer object in writing to any such additional third-party processors being appointed by the Supplier, it will have the right to terminate this Agreement upon giving the Supplier at least 30 days’ prior written notice in which case the Customer shall be entitled to the refund of the paid Fee proportionate to the number of full months left from the then current Term or a Renewal Period from the termination date until the end of the applicable Term or a Renewal Period, which shall be the Customer’s sole and exclusive remedy if the Customer objects to any new third-party processor. The Supplier confirms that it has entered or (as the case may be) will enter with each of the third-party processors into a written agreement substantially on that third party's standard terms of business incorporating terms which are substantially similar to those set out in this clause 21. As between the Customer and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 21.

21.6   The parties may by mutual agreement revise this clause 21 by replacing it with any applicable clauses or similar terms in compliance with the Data Protection Legislation.

21.7   The Customer agrees to indemnify and keep indemnified the Supplier and defend it at the Customer’s own expense against all costs, claims, damages or expenses incurred by the Supplier or for which the Supplier may become liable due to any failure by the Customer or its employees or agents to comply with any of the Customer’s obligations under this clause 21.

21.8   The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.

21.9       The Supplier shall, in providing the Services, comply with its internal policies relating to the privacy and security of the Customer Data.  

22. Remedies

22.1       Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

23. General Clauses

23.1       The Supplier and the Customer will always act properly and fairly towards each other.

23.2       This is the whole agreement between the Supplier and the Customer on this matter, and it replaces all earlier agreements on the same subject. They agree to sign any other documents necessary to put this Agreement into effect.

23.3       The Customer may not assign any of its rights or obligations under this Agreement without getting the written consent of the Supplier, and nor may it sell or transfer any right or obligation or grant a "security" over any right. The Supplier may any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under this Agreement and can subcontract or delegate in any manner any or all of its obligations to a third party.

23.4       Changes to this Agreement are only effective if they are made in writing and signed by the Supplier and the Customer.

23.5       No delay or failure by the Supplier or the Customer to enforce its rights under this agreement will be treated as though it had given up those rights.

23.6       The Supplier and the Customer will each pay its own costs for preparing this agreement.

23.7       This Agreement doesn't create a partnership or a joint venture between the Parties.

23.8        This Agreement doesn't confer any right on anyone who isn't a signatory to it.

23.9        If any part of this Agreement is unenforceable, the rest will remain in force.

23.10    The Supplier and the Customer may sign separate copies of this Agreement. Those copies taken together have the same effect as if each of them had signed the same document.

24. Unforeseen Circumstances

24.1       Neither the Supplier nor the Customer will be in breach of this Agreement, or responsible for its non-performance, or for any delay, arising from things that happen which are beyond its reasonable control events of Force Majeure. In these circumstances, whoever is affected will have a reasonable extension of time. But if the delay continues for 90 days or more, the non-affected side may terminate this Agreement.

25. Notices

25.1       Notices sent under this agreement must be in writing. They can either be sent by pre-paid first-class post or recorded delivery, or they can be delivered personally. The addresses for sending notices are the addresses given at the beginning of this agreement. Notices may be sent by email but only if agreed between the Parties in advance and upon proof of delivery.

25.2       If a notice is sent properly under clause 25.1, it will be assumed that it has been received at the time of delivery if it is delivered personally, or within 48 hours of posting if it is sent by first class or recorded post.

26. Inadequacy of Damages

26.1       Without prejudice to any other rights or remedies that the Supplier may have, the Customer acknowledges and agrees that damages alone would not be an adequate remedy for any breach of the terms of this Agreement by the Customer. Accordingly, the Supplier shall be entitled to the remedies of an injunction, specific performance or equitable relief for any threatened or actual breaches of this Agreement.

27. Dispute Resolution

27.1       The Parties shall attempt to resolve any dispute arising out of or relating to this Agreement through negotiations between their appointed representatives who have the authority to settle such disputes.

27.2       If negotiations under clause 27.1 do not resolve the matter within 1 month of receipt of a written invitation to negotiate, the parties will attempt to resolve the dispute in good faith through an agreed Alternative Dispute Resolution (“ADR”) procedure.

28. Compliance with Law and Governing Law

28.1       The Supplier shall obtain, and maintain, all necessary licences and consents and comply with all applicable law in relation to the Services and installation of Software.

28.2       English law applies to this Agreement and any non-contractual dispute or claim arising in connection with this Agreement, and the parties agree to settle disputes and claims resulting from it only in the English courts.

29. Acceptance of these Terms

Acceptance of the terms in this Agreement and documents incorporated herein (including any Purchase Order, Statement of Works or Schedule) shall be made at the point in time that the Customer places its order with the Supplier.

May 2018
Version 4.1