Terms & Conditions
1.1 The definitions and rules of interpretation set out below apply in each Agreement.
Agreement the agreement between the Supplier and the Client for the provision of Project Services formed pursuant to a Statement of Work by the Parties signing that Statement of Work and accepting the terms referred to in that Statement of Work;
Applicable Data Protection Laws means:
(a) to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data;
(b) to the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the Supplier is subject, which relates to the protection of personal data;
Applicable Laws all applicable laws, statutes and regulations from time to time in force;
Authorised Representative means, in respect of each Party, the representative of that Party identified in the Statement of Work, or as otherwise notified to the other Party from time to time;
Business Day a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;
Business Hours the period from 9.00 am to 5.00 pm on any Business Day; Control the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be construed accordingly;
Client Dependency any matter responsibility for which is allocated to the Client in the Statement of Work, including the supply of any Client Equipment or Client Materials;
Client Equipment any equipment, including tools, systems, cabling or facilities, provided by the Client, its agents, subcontractors or consultants which is used directly or indirectly in the supply of the Project Services including any such items specified in the Statement of Work. Client Materials all documents, information, items and materials in any form, whether owned by the Client or a third party, which are provided by the Client to the Supplier in connection with the Project Services, including the items provided pursuant to Clause 4.1.5;
Client Personal Data any personal data which the Supplier processes in connection with an Agreement in the capacity of a processor on behalf of the Client;
Deliverables any output of the Project Services to be provided by the Supplier to the Client, as specified in the Statement of Work, including any specified documents, products and materials, but excluding the Supplier Equipment;
EU GDPR the General Data Protection Regulation ((EU) 2016/679), as it has effect in EU law;
Initial Term the period specified in the Statement of Work as the initial term during which the Project Services will be provided;
Intellectual Property Rights patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, website rights, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
Milestone means any element of the Services or any Deliverable (or set of Services and/or Deliverables) identified in the Statement of Work by reference to a Milestone Date and/or Milestone Payment;
Milestone Date means, in relation to any Milestone, the target date for achievement of that Milestone, if any, specified in the Statement of Work;
Milestone Payment means, in relation to any Milestone, the payment due on achievement of that Milestone, if any, specified in the Statement of Work;
Project Charges the sums payable for the Project Services as set out in the Statement of Work;
Project Critical Milestone any Milestone expressly identified as such in the Statement of Work;
Project Services those services specified in a Statement of Work that are to be provided by the Supplier pursuant to that Statement of Work;
Scope Change has the meaning given in Clause 6.1;
Start Date the date specified in the Statement of Work as the date with effect from which the Project Services will be provided;
Statement of Work a document agreed in writing between the Parties in which the Client requests the provision of specified Project Services;
Supplier Equipment any equipment, including interactive items provided for delegate use at an event, tools, systems, cabling or facilities, provided by the Supplier to the Client and used directly or indirectly in the supply of the Project Services, but excluding any such items which are the subject of an agreement between the parties under which title passes to the Client;
Supplier Personal Data any personal data that the Supplier processes in connection with the Agreement in the capacity of a controller;
UK GDPR has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018;
VAT value added tax or any equivalent tax chargeable in the UK or elsewhere.
1.2 Clause and paragraph headings shall not affect the interpretation of these conditions.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 Any documents incorporated into an Agreement by reference form part of that Agreement and shall have effect as if set out in full in the body of that Agreement. Any reference to the Agreement includes such documents.
1.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.6 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.7 Unless the context otherwise requires, a reference to one gender shall include a reference to the other gender.
1.8 Each Agreement shall be binding on, and enure to the benefit of, the parties to the Agreement and their respective personal representatives, successors and permitted assigns, and references to any Party shall include that Party’s personal representatives, successors and permitted assigns.
1.9 A reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time.
1.10 A reference to legislation or a legislative provision shall include all subordinate legislation made from time to time under that legislation or legislative provision.
1.11 A reference to writing or written includes email but not fax.
1.12 Any obligation on a Party not to do something includes an obligation not to allow that thing to be done.
1.13 A reference to the Agreement or to any other agreement or document is a reference to the Agreement or such other agreement or document, in each case as varied or novated from time to time.
1.14 References to Clauses are to the Clauses of these General Conditions of Service.
1.15 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. Commencement and Duration
2.1 Each Agreement shall:
2.1.1 commence on the date when the Statement of Work has been signed by the Client and the Supplier; and
2.1.2 continue in effect for the Initial Term stated in the Statement of Work, and thereafter in accordance with any provisions for renewal specified in the Statement of Work, in each case unless terminated earlier in accordance with Clause 13 (Termination).
2.2 The Supplier shall provide the Project Services, in accordance with the terms of the Agreement, from the Start Date specified in the relevant Statement of Work.
3. Supplier's Responsibilities
3.1 The Supplier shall:
3.1.1 provide the Project Services, and deliver the Deliverables to the Client, in accordance with the Statement of Work in all material respects;
3.1.2 use reasonable endeavours to achieve any Milestones by the relevant Milestone Dates, but any such dates shall be estimates only, and time for performance by the Supplier shall not be of the essence of any Agreement save in respect of any Milestone identified as a Project Critical Milestone in the Statement of Work;
3.1.3 perform the Project Services with reasonable care and skill;
3.1.4 use personnel who are suitably skilled and experienced to perform tasks assigned to them;
3.1.5 ensure that, save to the extent that obtaining any consent, licence or permission constitutes a Client Dependency, it obtains, and maintains all consents, licences and permissions which are necessary to enable it to comply with its obligations in any Statement of Work; and
3.1.6 comply with all Applicable Laws.
3.2 The Supplier shall use reasonable endeavours to observe all health and safety and security requirements that apply at any of the Client's premises and that have been communicated to it under Clause 4.1.6, provided that it shall not be liable under an Agreement if, as a result of such observation, it is in breach of any of its obligations under that Agreement.
4. Client's Obligations
4.1 The Client shall:
4.1.1 fulfil the Client Dependencies;
4.1.2 co-operate with the Supplier in all matters relating to the Agreement;
4.1.3 appoint an Authorised Representative in respect of each Agreement, as identified in the Statement of Work, with authority to contractually bind the Client on all matters relating to the Agreement (including by signing Scope Changes);
4.1.4 provide, for the Supplier, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to such premises, office accommodation, data and other facilities as reasonably required by the Supplier for the performance of the Project Services, including any such access as is specified in the Statement of Work;
4.1.5 provide to the Supplier in a timely manner all documents, information, items and materials in any form (whether owned by the Client or a third party) required under the Statement of Work or otherwise reasonably required by the Supplier in connection with the Project Services and ensure that they are accurate and complete;
4.1.6 inform the Supplier of all health and safety and security requirements that apply at any of the Client's premises. If the Client wishes to make a change to those requirements which will materially affect provision of the Project Services, it can only do so via the change control procedure set out in Clause 6 (Change Control);
4.1.7 ensure that all the Client Equipment is in good working order and suitable for the purposes for which it is used and conforms to all relevant United Kingdom standards or requirements, and any other standards or requirements reasonably specified by the Supplier from time to time;
4.1.8 obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable the Supplier to provide the Project Services, including in relation to the installation of the Supplier Equipment, the use of all Client Materials and the use of the Client Equipment insofar as such licences, consents and legislation relate to the Client's business, premises, staff and equipment, and do so, in all cases, before the relevant Start Date; and
4.1.9 keep, maintain and, save where specified to the contrary in the Statement of Work, insure the Supplier Equipment in accordance with the Supplier's instructions from time to time, and not dispose of or use the Supplier Equipment other than in accordance with the Supplier's written instructions or authorisation.
4.2 If the Supplier's performance of its obligations under an Agreement is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, including the failure of the Client to fulfil any Client Dependency, then without prejudice to any other right or remedy it may have, the Supplier:
4.2.1 shall be allowed an extension of time to perform its obligations equal to the delay caused by the Client; and
4.2.2 shall be entitled to adjust the Project Charges for the Project Services affected by the relevant delay to reflect the additional costs incurred by the Supplier as a result of such delay, which may include additional costs arising from changes in currency exchange rates where the Project Services include goods or services provided by third parties which the Supplier is required to pay for in currencies other than pounds sterling.
5.1 The Client shall not, without the prior written consent of the Supplier, at any time from the date of the Agreement to the expiry of six months after the completion of the Project Services, solicit or entice away from the Supplier any person who is, or has been, engaged as an employee, consultant or subcontractor of the Supplier in the provision of the Project Services.
5.2 Any consent given by the Supplier in accordance with Clause 5.1 shall be subject to the Client paying to the Supplier a sum equivalent to 20% of the then current annual remuneration of the Supplier's employee, consultant or subcontractor or, if higher, 20% of the annual remuneration to be paid by the Client to that employee, consultant or subcontractor.
6. Change Control
6.1 Either Party may propose changes to the terms of an Agreement but, subject to Clause 6.5, no proposed changes to an Agreement shall come into effect until a relevant Scope Change has been signed by both Parties. A Scope Change shall be a document setting out the proposed changes and the effect that those changes will have on:
6.1.1 the Project Services;
6.1.2 the Project Charges;
6.1.3 the Milestones; and
6.1.4 any of the other terms of the Statement of Work.
6.2 If the Supplier wishes to make a change to an Agreement, it shall provide a draft Scope Change to the Client.
6.3 The Client acknowledges that requested changes to the Client’s requirements, including changes to the timescales and Milestone Dates (whether the effect of such changes is to advance or delay such dates) may affect the Project Charges for the provision of the relevant Project Services. If the Client wishes to make a change to an Agreement:
6.3.1 it shall notify the Supplier and provide as much detail as the Supplier reasonably requires of the proposed changes, including the timing of the proposed changes; and
6.3.2 the Supplier shall, as soon as reasonably practicable after receiving the information at Clause
6.3.1, provide a draft Scope Change to the Client.
6.4 If the Parties agree to a Scope Change, they shall sign it and that Scope Change shall amend the relevant Agreement.
6.5 The Supplier shall be entitled to change the specification of the Project Services without the requirement for completion of a Scope Change at any time on notice to the Client:
6.5.1 where such change is required to achieve continued compliance with any change in Applicable Laws; or
6.5.2 where such change is not materially detrimental to the quality of the Project Services.
6.6 Where the Supplier is required to implement a change to the Project Services, or the processes that it uses to deliver the Project Services, in order to achieve continued compliance with any change in Applicable Laws, and where the implementation of such changes will have an effect on the cost to the Supplier of delivering the Project Services:
6.6.1 the Supplier shall be entitled to propose an increase to the Project Charges reflecting the increase in costs of delivering the Project Services by providing a draft Scope Change to the Client;
6.6.2 in the event that the Parties are unable to agree the Scope Change proposed pursuant to Clause 6.6.1, and without prejudice to any other rights of the Parties under the Agreement, the Supplier shall be entitled to terminate the Agreement with effect immediately prior to the date on which the relevant change in Applicable Laws would otherwise require the Supplier to implement the relevant changes to the Project Services, or the processes that it uses to deliver the Project Services.
7. Charges and Payment
7.1 In consideration of the provision of the Project Services by the Supplier, the Client shall pay the Project Charges in accordance with the Statement of Work. The Project Charges stated in a draft Statement of Work will remain valid for acceptance for a period of 30 days from the date of the draft.
7.2 Where the Project Charges are calculated on a time and materials basis the method of calculating the charges payable for the Services shall be calculated in accordance with the Statement of Work.
7.3 Where the Project Charges are calculated on a fixed price basis, including where Milestone Payments are specified, the amount of those charges shall be as set out in the Statement of Work.
7.4 Save where expressly stated to the contrary in the Statement of Work, the Project Charges exclude the following, which shall be payable by the Client monthly in arrears, following submission of an appropriate invoice:
7.4.1 the cost of hotel, subsistence, travelling, excess baggage and any other ancillary expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Project Services; and
7.4.2 the cost of repairing or replacing any Supplier Equipment which is lost, stolen, damaged or destroyed in the course of providing the Project Services, save where:
(a) such loss, theft, damage or destruction is caused by an act or omission of the Supplier or of the individuals whom the Supplier engages in connection with the Project Services, or
(b) the Supplier has undertaken in the Statement of Work to procure insurance for, or taken responsibility for the security of, the Supplier Equipment.
7.5 The Supplier reserves the right, subject to prior consultation with the Client in respect of such price changes, and consideration of potential changes to the scope of the Project Services to mitigate the effect of such price changes, to increase the Project Charges in circumstances where the actual costs incurred by the Supplier in providing the Project Services (whether in sterling or in such other currency as the Supplier is required to use for the payment of a third party) increase as a result of matters outside the Supplier’s control, including as a result of currency fluctuation or changes in the price of third party goods or services.
7.6 The Supplier may change any Project Charges calculated on a fixed price basis annually with effect from each anniversary of the date of the Agreement in line with the percentage increase in the Retail Prices Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the date of the Agreement and shall be based on the latest available figure for the percentage increase in the Retail Prices Index.
7.7 The Supplier shall invoice the Client for the Project Charges at the intervals specified, or on the achievement of the Milestones indicated, in the Statement of Work. If no intervals are so specified, the Supplier shall invoice the Client at the end of each month for Project Services performed during that month. Any periodic payment of Project Charges or Milestone Payment is non-refundable when paid.
7.8 If the Client wishes to cancel the provision of any element of the Project Services then it may serve notice on the Supplier indicating its desire to cancel, and specifying the relevant element(s) of the Project Services. The Project Charges will remain payable in full in such circumstances, but the Supplier will use reasonable endeavours to reduce the wasted costs (including wasted personnel costs) that it will incur in respect of such cancelled Project Services by, for example, redeploying internal and external resource committed to the delivery of the relevant Project Services, and cancelling relevant third party arrangements where practicable. Where the Supplier is able to reduce the wasted costs that it will incur in respect of such cancelled Project Services, it will deduct the value of such savings from future Project Charges due under this Agreement, provided always that:
7.8.1 such reduction is conditional on the ability of the Supplier to reduce its wasted costs, and the Client acknowledges that such reduction will not always be achievable;
7.8.2 the provision of any such reduction is entirely at the discretion of the Supplier and, in particular, may not be available if the Client’s notice of cancellation is given within a period of 30 days before the intended date for delivery; and
7.8.3 such reduction will be applied to future Project Charges only, and there will be no reimbursement of periodic payment of Project Charges or Milestone Payment already made prior to the date on which the Supplier gives notice of its wish to cancel.
7.9 The Client shall pay each invoice submitted to it by the Supplier to a bank account nominated in writing by the Supplier from time to time:
7.9.1 within 30 days of the date of the invoice; or
7.9.2 where notified by the Supplier of such requirement, within such period of the date of invoice as is necessary to allow the Supplier to fulfil its payment obligation to any third party used by the Supplier in connection with the provision of the Project Services.
7.10 Without prejudice to any other right or remedy that it may have, if the Client fails to pay the Supplier any sum due under any Agreement on the due date:
7.10.1 the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this Clause will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%; and 7.10.2 the Supplier may suspend part or all of the Project Services specified under the relevant Statement of Work or any other Statement of Work then in effect until payment has been made in full.
7.11 All sums payable to the Supplier under an Agreement:
7.11.1 are exclusive of VAT, and the Client shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and
7.11.2 shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
8. Intellectual Property Rights
8.1 Save where specified to the contrary in the Statement of Work:
8.1.1 the Supplier and its licensors shall retain ownership of all IPRs in the Deliverables, excluding the Client Materials, and in all other material or content provided by the Supplier to the Client in connection with the performance of this Agreement, including any quotations or proposals and any preliminary design work embodying design concepts, visualisations and similar original content;
8.1.2 the Supplier grants the Client, or shall procure the direct grant to the Client of, a fully paid-up, worldwide, non-exclusive, royalty-free, perpetual and irrevocable licence to use, copy and modify the Deliverables (excluding the Client Materials) for the purpose of receiving and using the Project Services and the Deliverables for its own internal business purposes; and
8.1.3 the Client shall not sub-license, assign or otherwise transfer the rights granted in Clause 8.1.2 save as permitted in accordance with the Statement of Work or otherwise agreed in writing by the Supplier.
8.2 In relation to the Client Materials:
8.2.1 the Client and its licensors shall retain ownership of all IPRs in the Client Materials;
8.2.2 the Client acknowledges that the Deliverables, including any Client Materials incorporated into the Deliverables, may be retained and used by the Supplier during and after the term of the Agreement for the Supplier’s own internal business purposes, as examples of the Supplier’s prior work products; and 8.2.3 the Client grants to the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Client Materials:
(a) for the term of the Agreement for the purpose of providing the Project Services to the Client; and
(b) during the term of the Agreement and thereafter to the extent required by the Supplier for the purpose of exercising the Supplier’s rights under Clause 8.2.2.
8.3 The Supplier:
8.3.1 warrants that the receipt and use of the Project Services and the Deliverables by the Client and its permitted sub-licensees (if any) shall not infringe any rights of third parties to the extent that the infringement results from copying;
8.3.2 shall, subject to Clause 12.5, indemnify the Client against all liabilities, costs, expenses, damages and losses suffered or incurred or paid by the Client arising out of or in connection with any claim brought against the Client for actual or alleged infringement of a third parties Intellectual Property Rights, to the extent that the infringement or alleged infringement results from copying, arising out of, or in connection with, the receipt or use of the Project Services and Deliverables.
8.3.3 shall not be in breach of the warranty at Clause 8.3.1, and the Client shall have no claim under the indemnity at Clause 8.3.2 to the extent the infringement arises from:
(a) the use of Client Materials in the development of, or the inclusion of the Client Materials in, the Project Services or any Deliverable;
(b) any modification of the Project Services or any Deliverable, other than by or on behalf of the Supplier; and/or
(c) compliance with the Client's specifications or instructions.
8.4 The Client:
8.4.1 acknowledges that it is responsible for ensuring that all Client Materials are fully cleared for use by the Supplier for the purposes specified in this Agreement, and warrants that the Client Materials will not contain any material other than material:
(a) which has been created or commissioned by the Client; or
(b) which the Client has otherwise been licensed to use for purposes including those purposes specified in this Agreement; and undertakes that it will provide all such information to demonstrate that such material is owned by or licensed to the Supplier for these purposes as the Supplier requests;
8.4.2 warrants that the receipt and use in the performance of the Agreement of the Client Materials by the Supplier, its agents, subcontractors or consultants shall not infringe any rights of third parties to the extent that infringement results from copying; and
8.4.3 shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses and all other reasonable professional costs and expenses) suffered or incurred or paid by the Supplier arising out of or in connection with any claim brought against the Supplier, its agents, subcontractors or consultants for actual or alleged infringement of a third party's Intellectual Property Rights, to the extent that the infringement or alleged infringement results from copying, arising out of, or in connection with, the receipt or use in the performance of the Agreement of the Client Materials.
8.5 If either Party (Indemnifying Party) is required to indemnify the other Party (Indemnified Party) under this Clause 8, the Indemnified Party shall:
8.5.1 notify the Indemnifying Party in writing of any claim against it in respect of which it wishes to rely on the indemnity at Clause 8.3.2 or Clause 8.4.3 (as applicable) (IPRs Claim);
8.5.2 allow the Indemnifying Party, at its own cost, to conduct all negotiations and proceedings and to settle the IPRs Claim, always provided that the Indemnifying Party shall obtain the Indemnified Party's prior approval of any settlement terms, such approval not to be unreasonably withheld;
8.5.3 provide the Indemnifying Party with such reasonable assistance regarding the IPRs Claim as is required by the Indemnifying Party, subject to reimbursement by the Indemnifying Party of the Indemnified Party's costs so incurred; and
8.5.4 not, without prior consultation with the Indemnifying Party, make any admission relating to the IPRs Claim or attempt to settle it, provided that the Indemnifying Party considers and defends any IPRs Claim diligently, using competent counsel and in such a way as not to bring the reputation of the Indemnified Party into disrepute.
9. Data Protection
9.1 For the purposes of this Clause 9, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the UK GDPR.
9.2 Both Parties will comply with all applicable requirements of Applicable Data Protection Laws. This Clause 9 is in addition to, and does not relieve, remove or replace, a Party's obligations or rights under Applicable Data Protection Laws.
9.3 The Parties have determined that, for the purposes of Applicable Data Protection Laws, the respective roles of the Parties in respect of personal data processed under or in connection with each Agreement shall be as set out in the then-current version of the Supplier's data protection policy available at https://www.thinkaps.com/#privacy-policy (the Data Protection Policy) or, where applicable, the Statement of Work.
9.4 Should the determination in Clause 9.3 change, the Parties shall use all reasonable endeavours to make any changes that are necessary to this Clause 9, and, where applicable, the Statement of Work.
9.5 The Client consents to, (and shall procure all required consents, from its personnel, representatives and agents, in respect of) all actions taken by the Supplier in connection with the processing of Supplier Personal Data, provided these are in compliance with the Data Protection Policy. In the event of any inconsistency or conflict between the terms of the Data Protection Policy and any other element of the Agreement, the Data Protection Policy will take precedence.
9.6 Without prejudice to the generality of Clause 9.2, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Supplier Personal Data and Client Personal Data to the Supplier and lawful collection of the same by the Supplier for the duration and purposes of any Agreement.
9.7 In relation to the Client Personal Data, the Data Protection Policy or, where applicable, the Statement of Work, sets out the scope, nature and purpose of processing by the Supplier, the duration of the processing and the types of personal data and categories of data subject.
9.8 Without prejudice to the generality of Clause 9.2, the Supplier shall, in relation to Client Personal Data:
9.8.1 process that Client Personal Data only on the documented instructions of the Client, which shall be to process the Client Personal Data for the purposes set out in the Data Protection Policy or, where applicable, the Statement of Work unless the Supplier is required by Applicable Laws to otherwise process that Client Personal Data (Purpose). Where the Supplier is relying on Applicable Laws as the basis for processing Client Processor Data, the Supplier shall notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Provider from so notifying the Client on important grounds of public interest. The Supplier shall inform the Client if, in the opinion of the Supplier, the instructions of the Client infringe Applicable Data Protection Laws;
9.8.2 implement the technical and organisational measures set out in the Data Protection Policy or, where applicable, the Statement of Work to protect against unauthorised or unlawful processing of Client Personal Data and against accidental loss or destruction of, or damage to, Client Personal Data, which the Client has reviewed and confirms are 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;
9.8.3 ensure that any personnel engaged and authorised by the Supplier to process Client Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
9.8.4 assist the Client insofar as this is possible (taking into account the nature of the processing and the information available to the Supplier), and at the Client's cost and written request, in responding to any request from a data subject and in ensuring the Client's compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
9.8.5 notify the Client without undue delay on becoming aware of a personal data breach involving the Client Personal Data;
9.8.6 at the written direction of the Client, delete or return Client Personal Data and copies thereof to the Client on termination of the agreement unless the Supplier is required by Applicable Law to continue to process that Client Personal Data. For the purposes of this Clause 9.8.6 Client Personal Data shall be considered deleted where it is put beyond further use by the Supplier; and
9.8.7 maintain records to demonstrate its compliance with this Clause 9, and allow for reasonable audits by the Client or the Client's designated auditor, for this purpose, on reasonable written notice.
9.9 The Client provides its prior, general authorisation for the Supplier to:
9.9.1 appoint processors to process the Client Personal Data, provided that the Supplier:
(a) shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on the Supplier in this Clause 9;
(b) shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of the Supplier; and
(c) shall inform the Client of any intended changes concerning the addition or replacement of the processors, thereby giving the Client the opportunity to object to such changes provided that if the Client objects to the changes and cannot demonstrate, to the Supplier's reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, the Client shall indemnify the Supplier for any losses, damages, costs (including legal fees) and expenses suffered by the Supplier in accommodating the objection;
9.9.2 transfer Client Personal Data outside of the UK as required for the Purpose, provided that the Supplier shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Client shall promptly comply with any reasonable request of the Supplier, including any request to enter into standard data protection Clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the Commissioner from time to time (where the UK GDPR applies to the transfer).
9.10 Either Party may, at any time on not less than 30 days' notice, propose the revision of this Clause 9 by replacing it with any applicable controller to processor standard Clauses or similar terms forming part of an applicable certification scheme (which shall apply when agreed in writing between the Parties, such agreement not to be unreasonably withheld or delayed).
10.1 Each Party undertakes that it shall not at any time during the term of an Agreement, and for a period of five years after termination or expiry of an Agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other Party or of any member of the group of companies to which the other Party belongs, including the content of any quotations or proposals and any preliminary design work embodying design concepts, visualisations and similar original content prepared by the Supplier for the Client at any time, except as permitted by Clause 10.2.1.
10.2 Each Party may disclose the other Party's confidential information:
10.2.1 to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the Party's rights or carrying out its obligations under or in connection with an Agreement. Each Party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other Party's confidential information comply with this Clause 10; and
10.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
10.3 No Party shall use the other Party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with an Agreement.
11. Staff Transfer
11.1 The Parties do not consider that the performance of any Agreement will result in any transfer of employment pursuant to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) (the Employment Regulations), and the Client shall indemnify the Supplier for and against all claims, costs, expenses or liabilities whatsoever and howsoever arising incurred or suffered by the Supplier including without limitation all legal expenses and other professional fees (together with any VAT thereon), in relation to:
11.1.1 anything done or omitted to be done in respect of any person employed or engaged at any time by the Client which is deemed to have been done by the Supplier by virtue of the Employment Regulations; and
11.1.2 any claim of any nature made by any person employed or engaged at any time by the Client who claims to have become an employee of, or have rights against, the Supplier by virtue of the Employment Regulations, including any such claim made in respect of the termination of that person’s employment.
12. Limitation of Liability
12.1 References to liability in this Clause 12 (Limitation of liability) include every kind of liability arising under or in connection with an Agreement including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
12.2 Nothing in this Clause 12 shall limit the Client's payment obligations under any Agreement.
12.3 No provision of any Agreement shall limit the Client's liability under the following Clauses:
12.3.1 Clause 8.4 (IPR indemnities); and
12.3.2 Clause 11 (Staff Transfer).
12.4 No provision of any Agreement shall limit any liability which cannot legally be limited, including liability for:
12.4.1 death or personal injury caused by negligence;
12.4.2 fraud or fraudulent misrepresentation; and
12.4.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
12.5 Subject to Clause 12.4, the Supplier's total liability to the Client for all loss or damage arising out of or in connection with events or circumstances occurring in any Contract Year shall not exceed 100% of the Project Charges paid under the affected Agreement in respect of that Contract Year, or, where the relevant events or circumstances affect specific Project Service only, 100% of the Project Charges paid in respect of the specific Project Services affected by the relevant events or circumstances in that Contract Year. In this Clause 12.5, the term ‘Contract Year’ refers to the period of 12 months commencing on the Start Date and each subsequent period of 12 months commencing on an anniversary of that date.
12.6 Subject to Clauses 12.2, 12.3 and 12.4, the Client's total liability to the Supplier for all loss or damage arising out of or in connection with events or circumstances occurring in any Contract Year shall not exceed 100% of the Project Charges paid or payable under the affected Agreement in respect of that Contract Year. In this Clause 12.6, the term ‘Contract Year’ refers to the period of 12 months commencing on the Start Date and each subsequent period of 12 months commencing on an anniversary of that date.
12.7 The caps on the Client's liabilities shall not be reduced by:
12.7.1 amounts paid by the Client in discharging its payment obligations under any Agreement;
12.7.2 amounts awarded or agreed to be paid under:
(a) Clause 8 (IPR indemnities); and
(b) Clause 11 (Staff Transfer);
12.7.3 amounts awarded by a court or arbitrator, using their procedural or statutory powers in respect of costs of proceedings or interest for late payment.
12.8 Subject to Clause 12.2, Clause 12.3 and Clause 12.4, this Clause 12.8 specifies the types of losses in respect of which each Party’s liability is excluded under each Agreement:
12.8.1 loss of profits (save for any profit due to the Supplier as part of any Project Charges which shall not be excluded);
12.8.2 loss of sales or business;
12.8.3 loss of agreements or contracts;
12.8.4 loss of anticipated savings; 12.8.5 loss of use or corruption of software, data or information;
12.8.6 loss of or damage to goodwill; and
12.8.7 indirect or consequential loss.
12.9 The Supplier has given commitments as to compliance of the Services with relevant specifications in Clause 3.1 (Supplier's Responsibilities). In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from each Agreement.
12.10 Unless the Client notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Client became, or ought reasonably to have become, aware of its having grounds to make a claim in respect of the event and shall expire 12 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
13.1 Without affecting any other right or remedy available to it, either Party may terminate an Agreement, with immediate effect by giving written notice to the other Party if:
13.1.1 the other Party commits a material breach of any term of the Agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
13.1.2 the other Party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the IA 1986;
13.1.3 the other Party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other Party with one or more other companies or the solvent reconstruction of that other Party;
13.1.4 the other Party applies to court for, or obtains, a moratorium under Part A1 of the IA 1986;
13.1.5 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other Party (being a company, limited liability partnership or partnership) other than for the sole purpose of a scheme for a solvent amalgamation of that other Party with one or more other companies or the solvent reconstruction of that other Party;
13.1.6 an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other Party (being a company, partnership or limited liability partnership);
13.1.7 the holder of a qualifying floating charge over the assets of that other Party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
13.1.8 a person becomes entitled to appoint a receiver over all or any of the assets of the other Party or a receiver is appointed over all or any of the assets of the other Party;
13.1.9 a creditor or encumbrancer of the other Party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other Party's assets and such attachment or process is not discharged within 14 days;
13.1.10 any event occurs, or proceeding is taken, with respect to the other Party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Clause 13.1.2 to Clause 13.1.9 (inclusive);
13.1.11 the other Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
13.1.12 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 any Agreement is in jeopardy.
13.2 Without affecting any other right or remedy available to it, the Supplier may terminate any Agreement then in effect between the Parties with immediate effect by giving written notice to the Client if:
13.2.1 the Client fails to pay any amount due under an Agreement on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment; or
13.2.2 there is a change of Control of the Client.
14. Consequences of Termination
14.1 On termination or expiry of an Agreement:
14.1.1 the Client shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of the Project Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable in accordance with the relevant payment terms set out in the Agreement;
14.1.2 the Client shall, as soon as reasonably practicable, return all of the Supplier Equipment. If the Client fails to do so, then the Supplier may enter the Client's premises and take possession of the Supplier Equipment. Until the Supplier Equipment has been returned or repossessed, the Client shall be solely responsible for its safe keeping; and
14.1.3 the Supplier shall on request return any of the Client Materials not used up in the provision of the Project Services.
14.2 The termination or expiry of an Agreement (howsoever arising) shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry. Any provision of an Agreement that expressly or by implication is intended to come into or continue in force on or after termination of an Agreement shall remain in full force and effect.
15. Force Majeure
15.1 Force Majeure Event means any circumstance not within a Party's reasonable control including, without limitation:
15.1.1 acts of God, flood, drought, earthquake or other natural disaster;
15.1.2 epidemic or pandemic;
15.1.3 terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
15.1.4 nuclear, chemical or biological contamination or sonic boom;
15.1.5 any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
15.1.6 collapse of buildings, fire, explosion or accident;
15.1.7 any labour or trade dispute, strikes, industrial action or lockouts;
15.1.8 non-performance by suppliers or subcontractors; and
15.1.9 interruption or failure of utility service.
15.2 Provided it has complied with Clause
15.3, if a Party is prevented, hindered or delayed in or from performing any of its obligations under an Agreement by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of that Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly. 15.3 The Affected Party shall:
15.3.1 as soon as reasonably practicable after the start of the Force Majeure Event, notify the other Party of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the agreement; and
15.3.2 use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
15.4 If the Force Majeure Event prevents, hinders or delays the Affected Party's performance of its obligations for a continuous period of more than fourteen days, either Party may terminate the relevant Agreement by giving seven days’ written notice to the Affected Party.
16. Assignment and other dealings
16.1 The Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under any Agreement.
16.2 The Supplier may at any time assign, mortgage, charge, delegate, declare a trust over or deal in any other manner with any or all of its rights under an Agreement, provided that the Supplier gives prior written notice of such dealing to the Client.
Subject to Clause 6 (Change control), no variation of an Agreement shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).
18.1 A waiver of any right or remedy under an Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
18.2 A failure or delay by a Party to exercise any right or remedy provided under an Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under an Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
18.3 A Party that waives a right or remedy provided under an Agreement or by law in relation to one Party, or takes or fails to take any action against that Party, does not affect its rights in relation to any other Party.
19. Rights and Remedies
The rights and remedies provided under an Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
20.1 If any provision or part-provision of an Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Agreement.
20.2 If any provision or part-provision of an Agreement is deemed deleted under Clause 20.1 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.
21. Entire Agreement
21.1 Each Agreement constitutes the entire agreement between the Parties in respect of its subject matter and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
21.2 Each Party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in an Agreement.
22.1 If there is an inconsistency between any of the provisions of an Agreement the following order of precedence will apply, with the provisions of the earlier-named element of the Agreement prevailing over any conflicting provision of a later-named element:
22.1.1 Service-Specific Conditions;
22.1.2 Statement of Work;
22.1.3 General Conditions of Service.
23. No Partnership or Agency
23.1 Nothing in any Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties, constitute any Party the agent of another party, or authorise any Party to make or enter into any commitments for or on behalf of any other Party.
23.2 Each Party confirms it is acting on its own behalf and not for the benefit of any other person.
24. Third Party Rights
24.1 Unless it expressly states otherwise, no Agreement gives rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.
24.2 The rights of the Parties to rescind or vary an Agreement are not subject to the consent of any other person.
25.1 Any notice given to a Party under or in connection with the Agreement 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 at its registered office (if a company) or its principal place of business (in any other case); or
25.1.2 sent by email to the email address specified for the Authorised Representative of the relevant receiving Party.
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 Business Day delivery services, at 9.00 am on the second Business Day after posting; or
25.2.3 if sent if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when business hours resume.
25.3 This Clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
26.1 The Statement of Work may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one Statement of Work.
26.2 Transmission of an executed counterpart of the Statement of Work (but for the avoidance of doubt not just a signature page) email or other method of electronic document exchange (in PDF, JPEG or other agreed format) shall take effect as the transmission of an executed "wet-ink" counterpart of the Statement of Work.
26.3 No counterpart shall be effective until each Party has executed and delivered at least one counterpart.
27. Multi-tiered Dispute Resolution Procedure
27.1 If a dispute arises out of or in connection with an Agreement or the performance, validity or enforceability of it (Dispute) then the Parties shall follow the procedure set out in this Clause 27:
27.1.1 either Party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, the Authorised Representatives of the Parties shall attempt in good faith to resolve the Dispute;
27.1.2 if the Authorised Representatives of the Parties are for any reason unable to resolve the Dispute within 30 days of service of the Dispute Notice, the Dispute shall be referred to senior officers of each Party who shall attempt in good faith to resolve it; and
27.1.3 if the senior officers of each Party are for any reason unable to resolve the Dispute within 30 days of it being referred to them, the Parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the Parties, the mediator shall be nominated by CEDR. To initiate the mediation, a Party must serve notice in writing (ADR notice) to the other Party to the Dispute, requesting a mediation. A copy of the ADR notice should be sent to CEDR. The mediation will start not later than 30 days after the date of the ADR notice.
27.2 The commencement of mediation shall not prevent the Parties commencing or continuing court proceedings in relation to the Dispute under Clause 28 which Clause shall apply at all times.
28. Governing Law and Jurisdiction
28.1 Each Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with English law.
28.2 Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with an Agreement or its subject matter or formation.