1. Definitions and interpretation
The following definitions and rules of interpretation shall apply in this Agreement, each Service Schedule, each Order, the Service Operating Manual and each Statement of Work:
(a) All defined terms used in the Agreement formed under it shall have the meaning given to them in Schedule
(b) Unless the context otherwise requires, any gender includes all genders; the singular includes the plural and vice versa; and a reference to a person includes firms, partnerships, LLPs, associations, corporations, and bodies corporate.
(c) A reference to a party shall include its permitted successors and assigns.
(d) A reference to any enactment, order, regulation, code, standard, policy or other instrument shall be construed as a reference to the same as amended, replaced, consolidated or re-enacted from time to time.
(e) A reference to this Agreement includes all Statement of Works, Service Schedules, Service Operating Manual and Orders made under this Agreement.
(f) A reference to this Agreement or to any other document shall include any permitted variation, amendment, or supplement to such document;
(g) A reference to any clause, schedule, appendix or paragraph is a reference to such clause, Schedule, Appendix or paragraph of this Agreement.
(h) Headings are for convenience of reference only and shall not be taken into consideration in the interpretation or construction of this Agreement;
(i) Any obligation on a party not to do something includes an obligation not to allow that thing to be done. Any words following the terms including, include, for example (or similar) shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(j) If there is any conflict between any document incorporated by reference to this Agreement, then such conflict will be resolved by giving precedence to such different parts of this Agreement in the following order of precedence:- the provisions contained in the Order, the Statement of Works, the Services Schedules, the main body of this Agreement and the Service Operating Manual.
2. BASIS OF THE AGREEMENT
2.1 This Agreement governs the overall relationship of the parties in relation to the Services provided by the Supplier to the Company.
2.2 The Supplier shall provide the Services to the Company on and subject to the terms and conditions of this Agreement.
2.3 These conditions apply to this Agreement to the exclusion of any other terms that the Company seeks to impose or incorporate or which are implied by trade, custom, practice or course of dealing.
2.4 No addition to, variation of or exclusion of any term of this Agreement shall be binding on the Supplier unless in writing and signed by a duly authorised representative of the Supplier or is processed through the Supplier’s online ordering system.
2.5 Each Order, the relevant Service Schedule(s) and the Statement of Work shall form a separate contract made between the Company and the Supplier. The Service Operating Manual shall be a reference document only.
2.6 Any Order constitutes an offer by the Company to purchase the Services in accordance with the terms of this Agreement.
2.7 The Parties will also be required to enter into the relevant Service Schedule for the Services.
2.8 The Parties may also be required to complete a Statement of Work in respect of certain requested Services by the Company, which will or may as relevant include the scope of Services to be provided, a Project Plan to include Milestones and Deliverables, and any related Charges for that type of work.
3. AGREEMENT TERM AND RENEWAL
3.1 Subject to Clause 3.2, this Agreement shall commence on the Effective Date and unless terminated earlier in accordance with its terms, shall continue until the Expiry Date. Following the expiry of the Term, unless otherwise agreed between the Parties, the Term will automatically renew for additional service terms of one (1) year (“Renewal Term”), unless the Company has provided at least three (3) months’ written notice of its intention not to renew this Agreement, such notice to expire on the expiry of the original Term or the Renewal Term, as appropriate.
3.2 If applicable, each Statement of Work shall commence on its Statement of Work Commencement Date and shall continue, unless previously terminated or renewed according to the terms of the Statement of Work, until the expiry date stated in the Statement of Work .
4. SERVICES AND SUPPLIER OBLIGATIONS
4.1 The Services shall be provided from the Service Live Date or in accordance with any Project Plan referred to in the Statement of Work or any agreed Milestone Plan.
4.2 In supplying the Services, the Supplier shall:
(a) perform the Services in accordance with Good Industry Practice;
(b) perform the Services in all material respects in accordance with the Service Levels;
(c) use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Supplier’s obligations are fulfilled;
(d) ensure that it obtains, and maintains all consents, licences and permissions (statutory, regulatory, contractual or otherwise) it may require and which are necessary to enable it to comply with its obligations in this Agreement;
(e) comply with all applicable Laws.
4.3 Save as expressly provided in this Agreement, all conditions, warranties and other terms express or implied are strictly excluded to the fullest extent permitted by law. In particular the Supplier does not give any warranties, guarantees or assurances regarding the performance of the Equipment and/or the Services when used with, or run in conjunction with, any particular operating systems and/or software of the Company or any third parties. The Company acknowledges that the Supplier has not manufactured the Equipment and the Company shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer of the Equipment.
4.4 Where the Services include the sale of Equipment by the Seller as set out in the applicable Order or Statement of Work, risk in the Equipment will pass on delivery, from which date Charges will apply, but title and property shall not pass until the Charges have been paid in full by the Company.
4.5 The Supplier may make, and the Company will accept partial delivery of the Equipment. Each delivery shall be considered to be the subject of a separate contract and failure by the Supplier to make one or more deliveries in accordance with such contract shall not entitle the Company to treat the Agreement as a whole as repudiated.
4.6 The Company will be deemed to have accepted the Services Equipment provided by the Supplier once provided or delivered, unless within three (3) days of provision or delivery, the Company notifies the Supplier in writing of specific deficiencies, shortages or discrepancies in the Equipment delivered.
5. COMPANY OBLIGATIONS
5.1. The Company shall:
(a) Use reasonable endeavour to co-operate with the Supplier in all matters relating to the Services and comply timeously with its obligations under this Agreement;
(b) provide such access to the Company’s premises and data, and such office accommodation and other facilities as may reasonably be requested by the Supplier;
(c) provide such information as the Supplier may reasonably request in order to carry out the Services in a timely manner and ensure such information is complete and accurate in all material respects;
(d) inform the Supplier of all health and safety rules and regulations and any other reasonable security requirements that apply at the Company’s premises, and provide any additional related information as requested by the Supplier; and
(e) comply with all applicable Laws.
6. COMPANY DEPENDENCIES
6.1 The Company acknowledges that the Supplier is dependent upon the Company fulfilling the Company Dependencies in order for the Supplier to deliver the Services and satisfy its obligations under this Agreement.
6.2 The Company shall:
(a) provide the Supplier with access to appropriate members of staff and nominated third parties;
(b) provide such documentation, data and/or other information that the Supplier requests that is necessary to perform its obligations in a timely manner;
(c) promptly notify the Supplier of any proposed change to the agreed requirements set out in this Agreement, Service Schedule or any Statement of Work, such change to be agreed in writing between the Parties;
(d) provide any consents, instructions or approvals promptly;
(e) procure for the Supplier such access and use of the Company’s premises and facilities, systems, software, licences and computing environment.
6.3 In the event the Company fails to meet a Company Dependency then:
(a) the Parties shall work together to mitigate the impact of such failure and if necessary shall agree a change to this Agreement to deal with the impact of such failure, including revising any Project Plan, timescales and Charges;
(b) the Supplier may charge for such additional costs incurred;
(c) the Supplier may raise an interim invoice for any work already completed ; and
(d) the Supplier shall not be liable for any delay, failure to comply with the terms of this Agreement, failure to deliver a Deliverable, failure to meet any Service Levels or any losses incurred by the Company or any third party as a result of the Company’s failure to meet the Company Dependency and the Company shall not be entitled to exercise any rights as a result of such failure.
7.1 Subject to the terms and conditions of this Agreement and the relevant Statement of Work, the Supplier grants to Company and each Group Company a non- exclusive, non-transferable irrevocable, non-transferable and royalty-free licence to use the Services (including the Supplier Application and Documentation specified in a Statement of Work) for the purpose of carrying out the business of the Company or any Group Company (as applicable).
7.2 If the Supplier has agreed to install, patch or otherwise manage software for the Company in reliance on the Company’s licence with a software vendor (other than the Supplier’s licence with such software vendor), then the Company represents and warrants that it has a written licence agreement with the software vendor that permits the Supplier to perform these activities. On the Supplier’s request the Company must immediately certify in writing that it is in compliance with the requirements of this Clause 7 and any other software licence.
7.3 If the Company fails to provide the required evidence of licensing, the Supplier may, at its option:
(a) charge the Company the standard fee for the use of the software in reliance on the Supplier’s licensing agreement with the vendor until such time as the required evidence is provided; or
(b) carry out a chargeable audit into the licensing arrangements of the Company on providing the Company with reasonable prior notice; or
(c) suspend or terminate the Agreement.
7.4 In the event of termination or expiry of this Agreement or applicable Statement of Work, the licence granted pursuant to Clause 7.1 shall terminate automatically on the date of such termination or expiry and the Company shall immediately cease all use of any Supplier Intellectual Property Rights and if so required by the Supplier, return or destroy documents and materials that contain any of the Supplier Intellectual Property Rights.
8. DISPUTE RESOLUTION
8.1 In the event that a Dispute arises between the parties, either Representative may, on reasonable notice to the other, call a meeting of the Representatives in order to seek a resolution of the issue in question.
8.2 If the Representatives, acting in good faith, have not reached a resolution of the issue in question within ten (10) Business Days of the calling of the meeting referred to in Clause 8.1(or earlier if both Representatives agree) the issue in question shall be referred, on the application of either party, to the senior management of the Company and the Supplier.
9. AUDIT AND INSPECTION
For the purpose of ensuring the Supplier’s compliance with this Agreement, the Supplier shall permit Auditors to conduct an audit of the Supplier during the Term provided the Company has given at least two (2) weeks prior written notice. Any audit will be conducted during normal business hours on a Business Day and the Auditors shall at all times comply with the Supplier’s safety and security rules and regulations. The Company agrees to reimburse the Supplier for all costs reasonably incurred in complying with any audit request. Audits may not be conducted more frequently than once in any twelve (12) month period unless required by Law. The Auditors shall, when conducting an audit, minimise any disruption to the Supplier’s business and confirms that it will operate under a duty of confidence in relation to information disclosed for the purposes of such audit.
10. ACCEPTANCE TESTING
10.1 Where the Statement of Work states that Services and/or Deliverables shall be subject to acceptance testing, then this Clause 10.1 (and the applicable terms of the relevant Statement of Work) shall apply. The Company shall promptly deliver Acceptance Criteria and test data which are required to show that the Deliverables comply with any pre agreed specifications in the Statement of Work to the Supplier for the Acceptance Tests.
10.2 The Supplier shall carry out the agreed Acceptance Tests for the Deliverables as soon as reasonably possible.
10.3 If any part of the Deliverables fails to pass the Acceptance Tests, the Company will, within forty-eight (48) hours from the completion of the Acceptance Tests, provide a written notice to the Supplier giving details of such failure(s). The Supplier will use reasonable endeavours to remedy the failures and the relevant Acceptance Tests will be repeated within a reasonable time.
10.4 If any part of the Deliverable fails in a material respect to pass the Acceptance Criteria, then the Company may either (1) accept the Deliverable subject to such change of acceptance criteria, or (2) reject the Deliverable as not being in conformity with this Agreement, and the parties will review and revise the Deliverables and Project Plan where appropriate.
11. CHARGES AND PAYMENT
11.1 In consideration of the Supplier performing its obligations under this Agreement the Company shall pay the Charges for the Services.
11.2 The Supplier may invoice the Company in advance for the Charges in accordance with the payment dates referred to in a Statement of Work, Service Schedule or the Order Form. If not specified the Charges shall be invoiced on the following basis:
(a) Equipment shall be invoiced on delivery;
(b) Statement of Works shall be invoiced either (i) on completion of Milestones on either a fixed cost or time incurred basis, as set out in the Statement of Work; or (ii) if there are no applicable Milestones, on a time and materials basis, and monthly in arrears;
(c) Service Schedules shall be invoiced monthly in advance;
(d) Third party software licences invoiced on the later of the date of purchase or charge incurred by Andgate Systems from the vendor ;
(e) Third party network services invoiced on the date of activation.
11.3 Invoices issued by the Supplier must:
(a) be valid tax invoices for the purposes of VAT legislation and be invoiced in pounds sterling;
(b) identify the Parties; specify the Services to which the invoice relates; and include the purchase order number or other reference number that may have been provided by the Company to the Supplier in connection with this Agreement and/or Statement of Work; and
(c) be sent to the address as may be notified to the Supplier from time to time.
11.4 The Company shall pay Charges for the Services within twenty eight (28) days following receipt of a valid invoice from the Supplier, provided that day is a Business Day, otherwise the next Business Day after such date unless different payment terms are agreed in the Statement or Work or the Order.
11.5 If any undisputed sum payable under this Agreement is not paid when due then the Supplier may claim interest from the due date until payment is made in full both before and after any judgment, at five per cent per annum over the Bank of England Bank Rate from time to time.
11.6 Any sum payable is exclusive of VAT which shall be payable in addition to that sum, and all payments by the Company shall be made without deduction or set off of any amount.
11.7 The Supplier shall be entitled to increase the Charges in respect of:
(a) any increase in the Consumer Price Index whereby the Charges may be increased by the same percentage as the increase in the Consumer Price Index;
(b) any increase in price by a third party licence or third party software provider, network provider, or any third party supplier of Equipment, in all cases which is used solely for the provision of the Services; and
(c) any increase in the volume of the Services, licences or support being provided by the Supplier.
12.1 The Parties shall for the duration of the Term each maintain adequate insurance cover against all risks which would normally be insured against by a prudent business, its property, directors and employees. Evidence of such insurance shall be provided on request by the other party.
13.1 Either party may by written notice (of such period as shall be set out in that written notice) served on the other party terminate this Agreement if:
(a) the other party is the subject of an Insolvency Event;
(b) the other party materially breaches its obligations under this Agreement (which shall include non-payment of any Charges due under this Agreement) and does not fix such breach within thirty (30) days of receiving written notice to do so
13.2 The Company will be entitled to terminate this Agreement where there are more than four (4) Business Critical Service Failures in any rolling twelve (12) month period.
13.3 If a Statement of Work or Service Schedule survives the expiry or termination of this Agreement, the terms of this Agreement will continue in force for the purpose of that Statement of Work, notwithstanding their expiry or termination for other purposes.
13.4 The Supplier will not be in breach of the Agreement or otherwise liable to the Company for any failure to perform or delay in performing its obligations under the Agreement and it reserves the right to defer the date of provision of the Services if it is prevented from or delayed in performing its obligations under the Agreement due to circumstances beyond its reasonable control including, without limitation, any act of God; governmental actions; war or national emergency; acts of threat of terrorism; protests; riot; civil commotion; fire; explosion; flood; epidemic or pandemic; lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce); restraints or delays affecting carriers; inability or delay in obtaining supplies of adequate or suitable materials; inability to access premises; breakdown or failure of technology or machinery; changes in law which result in the provision of Services as set out in the Agreement being or becoming illegal; theft or malicious damage to the Supplier’s property (whether physical or intangible); and/or failure of a utility service or transport or telecommunications network provided that, if the event in question continues for a continuous period in excess of thirty (30) days, either party shall be entitled to terminate the Agreement (or such part of the Agreement affected by such event) immediately by giving notice in writing to the other party.
14. EFFECT OF TERMINATION OF THIS AGREEMENT
14.1 In the event of termination or expiry of this Agreement:
(a) with effect from the Expiry Date, the Supplier shall cease to use the Company Materials, Company Data and Confidential Information and on the earlier of the receipt of the Company’s written instructions or six (6) months after the date of expiry or termination of this Agreement, the Supplier shall destroy all copies of the Company Data and promptly provide written confirmation to the Company that the data has been destroyed;
(b) this Agreement shall continue in force to the extent necessary to give effect to those of its provisions which expressly or by implication have effect after termination, in particular in respect of Statements of Work that may be continuing in accordance with Clause 14.3; and
(c) the rights of either party accrued on or prior to termination or expiry shall remain unaffected.
14.2 Upon termination of this Agreement for any reason whatsoever by the Company, the Company shall pay any Charges remaining unpaid for Services provided in accordance with this Agreement up to the end of the Term and will also have to reimburse the Supplier for committed third party costs it has or will incur in relation to the provision of the Services to the end of the Term. . Where the Supplier is committed to pay licensing, network and connectivity charges with third party suppliers beyond the date of termination or the end of the Term, then the Company will continue to pay such charges until those commitments come to an end.
14.3 Upon early termination of this Agreement by the Company as a result of any of the termination events occurring under Clause 13.1,2 and 13.4, where the Company has paid the Supplier any Charges for Services that have not been performed or provided at the date of termination, the Supplier shall, upon demand, repay such Charges to the Company.
15. HANDOVER/ EXIT
15.1 If the Company has requested the Supplier in writing in accordance with Clause 26, to provide assistance in relation to transitioning the terminated Services back in-house or to an alternative provider, the Supplier will use reasonable efforts to provide the assistance requested for such agreed period after termination provided that (i) the Company pays the Supplier for its assistance at the Supplier’s then prevailing time & materials rates; (ii) the Supplier shall be entitled to invoice in advance for such part of the anticipated assistance that it considers reasonable; and (iii) where the transition is to an alternative provider, that provider shall have entered into with the Supplier confidentiality undertakings in form and substance reasonably acceptable to the Supplier.
16.WARRANTIES AND REPRESENTATIONS
16.1 Each party represents and warrants to the other that:
(a) it has full power and capacity to execute, deliver, and perform its obligations under this Agreement;
(b) it has entered into this Agreement in reliance upon its own enquiries, investigations and other due diligence;
(c) it has, and will maintain, all licenses and consents that it requires in order to perform its obligations under this Agreement;
(d) at the Effective Date there are no actions, suits or proceedings or regulatory investigations pending or, to its knowledge, threatened against it before any court or administrative body or arbitration tribunal that might affect its ability to meet and carry out its obligations under this Agreement.
17.1 The Supplier shall indemnify the Company against all liability arising in relation to any infringement of any Intellectual Property Rights of any third party in connection with any software or materials provided by the Supplier to the Company in the performance of the Services. This indemnity will not apply where such software or materials are used (a) in combination with other materials not previously approved in writing by the Supplier and/or (b) otherwise in accordance with this Agreement.
17.2 The Company will indemnify the Supplier against all liability arising in relation to any infringement of any Intellectual Property Rights of any third party or otherwise in connection with any Company data as stored and processed by means of the Services.
17.3 In relation to the indemnities at Clauses 17.1 and 17.2, the party being indemnified (the “Indemnitee”) must notify the other party (the “Indemnitor”) promptly of the claim and provide the Indemnitor with all information relating to it. The Indemnitor shall have exclusive control over all negotiations and litigation and the Indemnitee will grant all reasonable assistance to the Indemnitor in the defence of such claim.
18.1 Neither party excludes nor limits its liability (if any) to the other:
(a) for personal injury or death caused by its negligence;
(b)for breach of Clause 2222 (Confidentiality); or
(c) for fraud or fraudulent misrepresentation.
18.2 The Supplier’s maximum aggregate liability arising out of or in connection with the Agreement, whether in contract, tort, misrepresentation, under statute or otherwise, howsoever arising or caused including by negligence and also including any liability under an indemnity contained in this Agreement and/or arising from a breach of, or a failure to perform or defect or delay in performance of, any of the Supplier’s obligations under the Agreement and/or any defect in the Services or any of them or any part of them and/or any use made of the Services or any of them or any part of them will be limited in respect of all events and/or claims which occur in any one Year to an amount equal to the amount of the aggregate Charges which (i) have been paid (ii) remain to be paid and (iii) are scheduled in accordance with the relevant Agreement or Statement of Work to be paid in respect of that Year.
18.3 Subject to Clause 1, neither party shall have any liability to the other party for any damages for lost profits, lost revenues, loss of data, anticipated savings, any special, indirect or consequential loss arising out of the performance of failure to perform under this Agreement.
19. INTELLECTUAL PROPERTY
19.1 The Company shall not acquire any right, title or interest in the Intellectual Property Rights of the Supplier or its licensors which shall be the exclusive property of and shall vest in the Supplier or its licensors (as appropriate).
19.2 All rights, title and interest (including without limitation all Intellectual Property Rights) in and to the Company Materials shall be the exclusive property of and shall vest in the Company.
19.3 The Company hereby authorises the Supplier to use any Intellectual Property Rights in materials provided to it by the Company for the purposes only of performing its obligations under this Agreement. The Supplier will have no other rights in respect of the Intellectual Property Rights of the Company or the Intellectual Property Rights in any materials provided to it by the Company.
19.4 All Intellectual Property Rights in the Developed Software (including all Intellectual Property Rights in all source code of that Developed Software), Deliverables or otherwise created as part of and arising from the provision of the Services are owned and shall remain owned by the Supplier but the Company is hereby granted a non-exclusive, non-transferable licence to copy and use such Developed Software and Deliverables for its own internal purposes. The Developed Software and Deliverables may only be disclosed to third parties with the Supplier’s prior written consent.
19.5 The Company shall be responsible for all third party software provided to or licensed to the Supplier as part of the Company software, being any software which is owned or licensed by the Company (other than pursuant to this Agreement) which is used or will be used by the Supplier in providing the Services.
19.6 The parties agree that all source code in respect of any Developed Software shall be held in a source management system to be agreed by the Company and that within fourteen (14) days of a request by the Company, the Supplier shall:
(a) deliver a copy of the source code of the Developed Software and such other material and documentation as is necessary (including any technical information, password/encryption details required to access the Developed Software, updates and upgrades thereto and new versions thereof) (“Source Code”) to the Company; and
(b) deliver a further copy of the Source Code to the Company each time that there is a change to the Developed Software.
20. DATA PROTECTION
20.1 The Parties hereby acknowledge and agree that the Company is a controller and the Supplier is a processor (as each term is defined under the DPA) of any Personal Data disclosed by the Company to the Supplier for the purposes of the Agreement.
20.2 The Supplier shall use the Personal Data only for the purposes of fulfilling its obligations under the Agreement and shall:
(a) subject to Clause 20.3, process the Personal Data only in accordance with instructions from the Company, including with regard to transfers of personal data to a third country or an international organisation;
(b) subject to Clause 20.4, obtain prior authorisation (such authorisation not to be unreasonably withheld or delayed) from the Company if the Personal Data may be processed by another person, and shall ensure such processing is governed by a contract or other legal act with obligations equivalent to those set out in the Agreement. The Supplier shall remain liable to the Company for the performance by the processor of its obligations;
(c) put in place the technical and organisational measures necessary to ensure that the Personal Data is protected against accidental or unlawful loss, destruction, damage, unauthorized access, use, modification, disclosure or other misuse
(d) only transfer Personal Data to a third country or international organisation if a finding of adequacy has been made in respect of the relevant country or, in the absence of a finding of adequacy, enter into an EU Commission approved model clause controller to processor data transfer agreement with the Company; and
(e) the Supplier shall assist the Company to comply with its obligations set out in the DPA where the DPA requires the Supplier (as processor) to do so, taking into account the nature of processing and the information available to the Supplier. In particular, Supplier shall:
(i) notify the Company if, in the Supplier’s opinion, an instruction of the Company infringes the DPA;
(ii) provide information requested by the Company to enable it to respond to requests to exercise rights of data subjects made pursuant to the DPA as soon as reasonably practicable following receipt of a written request from the Company; and
(iii) notify the Company within two (2) Business Days of the Supplier becoming aware of a breach by the Supplier of the DPA. The Supplier will investigate any such breach and provide a report to the Company setting out the results of such investigation as soon as reasonably practicable.
20.3 The Company accepts and acknowledges that, in order to deliver the Services effectively and/or to meet the requirements of the Agreement, the Supplier may, from time to time, need to transfer Personal Data to a third country or international organisation. Unless it has informed the Supplier otherwise in writing, the Company therefore confirms that it consents to such transfer and that this Clause 20.3 constitutes written instructions from the Company for the purposes of Clause 20.2(a).
20.4 The Supplier shall ensure that any Supplier Personnel, acting as the Supplier’s sub-processor, is under a contractual obligation to process the Personal Data in accordance with the DPA. The Company therefore confirms that it consents to such use of the Supplier Personnel and that this Clause 20.4 constitutes authorisation from the Company for the purposes of Clause 20.2(c).
20.5 Other than as required by the DPA, the Supplier will not be required under Clause 20.2(e) to assist with the Company’s own security, technology and related processes, in respect of which the Supplier has no insight.
21. COMPANY DATA
21.1 The Supplier shall not (and shall procure that the Supplier Personnel do not) store, copy, disclose, or use the Company Data except as necessary for the performance by the Supplier of its obligations under this Agreement or as otherwise expressly authorised in writing by the Company.
21.2 Upon receipt or creation by the Supplier of any Company Data and during any collection, processing, storage and transmission by the Supplier of any Company Data, the Supplier shall take all precautions necessary to preserve the integrity of the Company Data and to prevent any corruption or loss of the Company Data.
22.1 During the course of the Agreement, the Company and the Supplier will need to disclose to the other Confidential Information. The Confidential Information is being provided for the sole purpose of the Supplier performing its obligations under this Agreement and is not to be used for any other purpose. For the purposes of this Clause 22, the term “Disclosing Party” shall mean a Party which discloses or makes available its Confidential Information and “Recipient” shall mean the Party which receives the Confidential Information.
22.2 Confidential Information does not include any information that:
(a) is or becomes publicly available (other than as a result of its disclosure by the Recipient in breach of this Agreement);
(b) was lawfully in the Recipient’s possession free of any duty of confidentiality before the information was disclosed to it;
(c) is independently developed by the Recipient without reference to Confidential Information of the Disclosing Party; or
(d) the parties agree in writing is not confidential or may be disclosed.
22.3 The Recipient will keep the Confidential Information confidential and will not without the prior written consent of the Disclosing Party, disclose (directly or indirectly) or reveal the Confidential Information or any part of it to any person other than its representatives which need to see such Confidential Information and the Recipient shall not use the Confidential Information for any purpose other than the proper performance of this Agreement. In addition, the Recipient agrees to reveal the Confidential Information only to those of its representatives who need to know the Confidential Information for the purposes of this Agreement and who are informed by the Recipient of the confidential nature of the Confidential Information.
22.4 The Recipient agrees to use, and to cause its representatives to use, the same degree of care that it uses to protect its own confidential and proprietary information to prevent unauthorised, use, disclosure, publication or dissemination of the Confidential Information, but in no event less than a reasonable degree of care.
22.5 The Recipient shall be liable under this Agreement for the acts and/or omissions of its employees, officers, agents and sub-contractors as if they were the acts and/or omissions of the Recipient.
22.6 If the Recipient or anyone to whom it is entitled to transmit the Confidential Information becomes required by Law to disclose any of the Confidential Information, the Recipient shall, if legally permitted, provide prompt notice to the Disclosing Party so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this clause.
22.7 The Recipient will not make, keep or reproduce any document or part of a document comprised in the Confidential Information without the prior written consent of the Disclosing Party, provided that the Recipient will be entitled to reproduce the Confidential Information without consent strictly to the extent necessary for its proper performance of this Agreement and provided it is kept securely. Further, at the request of the Disclosing Party, the Recipient will promptly return to the Disclosing Party all Confidential Information and any documents and materials containing, reflecting, or based on the Confidential Information and/or will erase on request all Confidential Information from its computer systems, except for Confidential Information stored on disaster recovery archives (or similar platforms). The Recipient will be entitled to retain copies of the Confidential Information to the extent required by Law.
22.8 Without the prior written consent of the Disclosing Party, neither the Recipient nor its representatives shall disclose to any person the fact that the Confidential Information has been made available, that discussions or negotiations are taking place or have taken place concerning a transaction between the parties or any of the terms, conditions or other facts with respect to any such transaction, including the status of any such transaction.
22.9 The Disclosing Party reserves all rights in the Confidential Information. The Disclosing Party does not make any express or implied warranty or representation concerning the Confidential Information, or the accuracy or completeness of the Confidential Information and the Disclosing Party expressly disclaims any and all liability that may be based on the Confidential Information or any errors therein or omissions therefrom.
23. INADEQUACY OF DAMAGES
23.1 Without prejudice to any other rights or remedies the Company may have, the Supplier acknowledges and agrees that damages alone would not be an adequate remedy for any breach of the terms of the Agreement by the Supplier. Accordingly, the Company shall be entitled to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of the terms of this Agreement.
24.1 The Company may not at any time assign, transfer, subcontract or deal in any other manner with all or any of its rights or obligations under the Agreement without the prior written consent of the Supplier.
24.2 The Supplier may assign, transfer subcontract or deal in any other manner with all or any of its rights or obligations under the Agreement.
25.1 A variation of this Agreement, Service Schedule or a Statement of Work shall only be effective if it is in writing and signed by the parties (or their Representatives).
26.1 Any notice or other communication given to a party under or in connection with the Agreement shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier.
26.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in Clause 1 if sent by pre-paid first class post or other next working day delivery service, at 9.00am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.
26.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
27.1 If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Agreement.
28.1 A waiver of any right or remedy under the Agreement or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
29. NO PARTNERSHIP AND AGENCY
29.1 Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
30. THIRD PARTIES
30.1 A person who is not a party to the Agreement shall not have any rights to enforce its terms under the Contracts (Rights of Third Parties) Act 1999
31.1 The parties acknowledge that TUPE shall not apply to the commencement of the Services by the Supplier because the Company does not carry out the Services (or activities equivalent to the Services) prior to the Effective Date.
31.2 The parties acknowledge and agree that where all or part of the Services cease to be provided by the Supplier for any reason after the Effective Date under this Agreement or Statement of Work a relevant transfer for the purposes of TUPE is not expected to apply.
31.3 Notwithstanding the terms of Clause 2, if there is deemed or alleged to be a relevant transfer for the purposes of TUPE upon the cessation of the Services under the Agreement or Statement of Work (whether to the Company or a successor contractor as the case may be) the Company or successor contractor shall be entitled to dismiss any Supplier Personnel alleged or deemed to transfer to them and the Supplier shall indemnify and keep the Company indemnified against:
(a) any Employee Liabilities and Employment Costs arising out of or in connection with:
(i) the employment or engagement of any such Supplier Personnel; or
(ii) the termination of the employment or engagement of any person; and
(iii) any claims made against the Company pertaining to such Supplier Personnel and which are deemed or alleged to transfer to the Company upon the cessation of Services, whether under TUPE Regulations 4(1), 4(3), 7(1), 13, 14 or otherwise.
31.4 The Supplier shall comply with all aspects of TUPE on any termination and/or partial termination of this Agreement to the extent that TUPE is applicable.
32.1 Except as otherwise agreed in writing, during the Term and for twelve (12) months after the Expiry Date, neither Party shall solicit any person employed or contracted as a consultant by the other Party who has been involved in the provision or the receipt of the Services.
33.1 This Agreement and any Statement of Work may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement or Statement of Work (as the case may be).
34. GOVERNING LAW AND JURISDICTION
34.1 This Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed at all times in accordance with the laws of England and the parties submit to the exclusive jurisdiction of the courts of England.
In this Agreement and each Statement of Work, the following definitions have the following meanings:
Acceptance Criteria shall have the meaning set out in Clause 10 or a Statement of Work;
Acceptance Tests means the acceptance tests (if any) set out in a Statement of Work to test that the Acceptance Items operate in accordance with the requirements of the Application Specification, agreed configuration, Services description or any other requirement as specified in the relevant Statement of Work;
Agreement means the contract between the Supplier and the Company which consists of these terms and conditions contained within the main body of the Agreement, the relevant Service Schedule(s), the relevant Statement(s) of Work, the Order(s), the Service Operating Manual and any other documents expressly incorporated by reference.
Application Specification means the specification of the Supplier Application as set out in the Statement of Work;
Applicable Terms means the terms of this Agreement on which the Services will be purchased by the Company save only for the details that are required to be entered into a Statement of Work in accordance with Clause 2.1;
Authorised Users means those employees, agents and independent contractors of the Company who are authorised by the Company to use the Supplier Application and Documentation and other Services;
Auditor means any of the following who is exercising the Company’s rights under Clause 9 (a) the Company; (b) a regulatory authority which has responsibility for the regulation or governance of any of the activities of the Company or any other Group Company; and (c) the agents and representatives of the Company or such regulatory authority;
Available Services means any services, including without limitation any Deliverables, Supplier Application maintenance and support services and/or Hosting Services which the Supplier is willing to provide to the Company and the Group Companies;
Business Continuity Plan means a business continuity and disaster recovery plan to be implemented and maintained by the Supplier;
Business Critical Service Failure means catastrophic business disruption where the business unit or subunit is unable to operate for an extended period and the ticket has been escalated to a high technical level, as defined in the Service Operating Manual;
Business Day means any day other than a Saturday, Sunday or a day that is a public or bank holiday in England;
Charges means the charges for the Services included within the Order and/or any Statement of Work;
Company Data means all data relating to the Group Company or the customers of any of them which is processed, stored, generated, or capable of access by, or which otherwise comes into the possession of, the Supplier, any Subcontractor or any Supplier Personnel including (without limitation) Company Personal Data;
Company Dependency means the obligations of the Company on which the Supplier is dependent to be able to fulfil its obligations under this Agreement, including the Company Dependencies specifically detailed in each Statement of Work;
Company Material means all materials, equipment and tools, drawings, specifications and Company Data supplied by the Company to the Supplier;
Company Personal Data means Personal Data relating to employees, directors or customers of a Group Company and any other Personal Data for which the Group Company is a Data Controller;
Confidential Information means all information of a confidential or proprietary nature relating to the business, prospects or activities of the party in question which is given to, generated by, or otherwise comes into the possession of the other party in the course of the negotiation or performance of this Agreement or any Statement of Work;
Control has the meaning set out in section 1124 Corporation Tax Act 2010;
Default means a breach of any term of this Agreement or any tortious act or statement, breach of statutory duty, or misrepresentation that gives rise to liability under any Laws
Deliverable means a document, plan, program or other product which is included in the Services or the Supplier is obliged to provide to the Company in the course of providing Services and/or the Supplier Application including but not limited to the Developed Software and includes all drafts and working papers created for the purpose of producing the same;
Developed Software means any bespoke software to be developed specifically for the Company pursuant to any Statement of Work;
Dispute means any dispute, difference or question of interpretation arising out of or in connection with this Agreement, including any dispute, difference or question of interpretation relating to the Services;
Documentation means the operating manuals, user instruction manuals, technical literature, specifications and other documentation relating to the Supplier Application;
DPA means all applicable data protection and privacy legislation in force from time to time including the Data Protection Act 2018 and the General Data Protection Regulation (Regulation (EU) 2016/679) and all associated regulations, rules, guidelines and best practice in relation to data protection and any replacements and/or re-enactments of them particularly in the event the UK leaves the EU;
Employee Liabilities means all liabilities, including but not limited to claims for redundancy payments, unlawful deductions from wages, unfair, wrongful or constructive dismissal compensation, compensation for age, sex, race or disability discrimination or discrimination on the grounds of religion, belief, age or sexual orientation or claims for equal pay, compensation for less favourable treatment of part-time workers, and any other claims whether in tort (including negligence), contract or statute or otherwise, and any demands, actions, proceedings and any award, compensation, damages, tribunal awards, fine, loss, order, penalty, disbursement, payment made by way of settlement and costs and expenses reasonably incurred in connection with a claim or investigation, and any expenses and legal costs on an indemnity basis;
Employment Costs means all costs associated with employment including all wages, taxes, national insurance, pension contributions and other costs related to the same;
Effective Date means the date of this agreement;
Equipment means all network, dedicated server, hardware, devices, managed router, firewall devices, software managed devices, loader balances, VPN whether being used by the Supplier to provide the Services, or by the Company to receive them;
Expiry Date means the date this Agreement is terminated in accordance with its terms;
Good Industry Practice means the exercise of the degree of skill, diligence, prudence and foresight that one would reasonably and ordinarily expect from a person skilled and experienced in the practice or activity in question;
Group Company includes the Company and each undertaking that is, at the time in question and from time to time, a parent undertaking, or subsidiary undertaking of a parent undertaking or the Company (the terms parent undertaking and subsidiary undertaking being interpreted in accordance with section 1162 of the Companies Act 2006)
Hosting Services means the services that the Supplier provides to allow Authorised Users to access and use the Supplier Application, including hosting set-up (i.e. configuration and implementation) and on-going hosting services, as set out in Statement of Work;
Insolvency Event means an event where a person it is unable to pay its debts (within the meaning of sections 123, 267 or 268, as applicable, of Insolvency Act 1986); proposes or becomes subject to a voluntary arrangement or convenes a meeting of its creditors to consider such a proposal or, being a company has a proposal for a compromise or arrangement sanctioned by the court pursuant to section 899 Companies Act 2006 (save for the sole purpose of a solvent reconstruction or amalgamation); has a receiver or manager appointed over any of its assets, undertaking or income; takes any step towards its winding-up or bankruptcy as applicable (save, in the case of a company, a solvent liquidation for the sole purpose of effecting a reconstruction or amalgamation) or is subject to a petition issued by any court for its winding-up or bankruptcy (as applicable) that is not withdrawn upon the party’s application; being a company, has an administrator appointed in respect of it or is the subject of an application for administration filed at any court or a notice of appointment of an administrator filed at any court or a notice of intention to appoint an administrator filed at any court by any person; being a company, is the subject of a notice to strike off the register at Companies House; or has any distraint, execution or other process levied or enforced on any of its property
Intellectual Property Rights means any and all intellectual property rights including patents, trademarks, design rights, copyright (including without limitation in the object code and source code, in drawings, plans, specifications, designs and computer software and including all ideas, concepts, themes, characters, stories and places contained in or forming part of any copyrightable work) rights in the databases, domain names, topography rights, know-how, look and feel, rights in confidential information and all similar rights (whether or not registered or capable of registration and whether subsisting in the United Kingdom or any other part of the world) together with the right to apply for registration of and/or register such rights and any and all goodwill relating or attached thereto and all extensions and renewals thereof;
Key Milestone means a Milestone that is specified to be a key milestone in any Statement of Work or Project Plan;
Laws means (a) all laws (including the common law); (b) all regulations, policies and codes of conduct which are legally-binding; or (c) directions of a regulatory authority with which the Company and the other Group Companies are reasonably required to comply and which, in each case, are applicable to the business of the Company and the other Group Companies or to any activities of the parties undertaken pursuant or in relation to this Agreement;
Licenced IP means any Supplier IP and/or Third Party IP identified as such in any Statement of Work;
Longstop Date means the longstop date identified in relation to completion of any Key Milestone in a Project Plan or where no Longstop Date has been agreed, within thirty (30) Business Days following the date specified for completion of that Key Milestone;
Losses means losses, liabilities, damages, wasted expenditure, costs and expenses (including legal fees on a solicitor/own client basis and all other costs related to the investigation, prosecution or defence of legal claims);
Milestone means any act, event or achievement which is specified to be a milestone in a Statement of Work or Project Plan;
Modification means any Upgrade, New Version or other release of the Supplier Application issues by the Supplier;
New Version means any new version of the Supplier Application which from time to time is publicly marketed and offered for purchase by the Supplier in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product;
“Personal Data” means personal data (as defined in the DPA) to which the Supplier may (by or on behalf of the Company) be granted access, during the course of the provision of the Services.
Project Plan means any project plan which is set out in a Statement of Work or which is required to be prepared and agreed in accordance with a Statement of Work;
Open Source Software means software which is publicly available (in source code form) on such licence terms that anyone may study, modify, distribute and otherwise commercially exploit that software without attribution, without payment of any royalty and without the requirement to undertake any formalities (such as registering with or entering into a formal agreement with the rights owner);
Order means an order form which sets out the Charges for the Services which will be processed by the Company through the Supplier’s online ordering system;
Regulatory Authority/ies means all governmental, statutory or regulatory bodies and any other competent authorities in any jurisdiction having responsibility for the regulation or governance of any of the activities of the Company or the Supplier;
Representative in relation to a party means the person appointed to such position to manage the day to day relationship between the parties;
Service Level means each of the minimum performance standards set out in in a Statement of Work;
Service Level Default means a failure to meet a Service Level;
Service Live Date means the first date the Services have been delivered to the Company in accordance with the requirements of the Agreement and have become available for use by the Company.
Service Operating Manual means the reference document which describes the mode of operation and support for the Services, including but not limited to service level agreements, processes and standards.
Service Schedule means the Service specific schedule applicable to each relevant Service.
Services means the services which the Supplier is to carry out for the Company under this Agreement as described in the Service Schedule and/or a Statement of Work (including those professional services such as implementation, hosting and maintenance, training, consulting etc.) and/or the Service Operating Manual which are included within, or required for the performance of, a Statement of Work and which shall be fully described in the Statement of Work.
Statement of Work an agreement for the provision of Services by the Supplier to the Company, a template of which is at Schedule 2;
Subcontractor means any subcontractor or supplier (including any other member of the Supplier Group) engaged by the Supplier in connection with this Agreement or the provision of any of the Services;
Supplier Application means the software (and all related Deliverables) described or referred to in a Statement of Work to which the Company is to be given access on the terms of that Statement of Work;
Supplier Group means each undertaking that is, at the time in question and from time to time, a parent undertaking, or subsidiary undertaking of a parent undertaking or the Supplier (the terms parent undertaking and subsidiary undertaking being interpreted in accordance with section 1162 of the Companies Act 2006);
Supplier Personnel means (i) any individual employed or engaged by the Supplier and (ii) the Subcontractor and any individual employed or engaged by the Subcontractor in connection with this Agreement or the provision of any of the Services;
Supplier Premises means premises from which the Supplier, any Subcontractor or any Supplier Personnel provide any part of the Supplier Application and/or Services or in which books and records relating to the Services or this Agreement are stored;
Supplier Resources means the Supplier Personnel, the Subcontractors, Supplier Premises and the systems, tools and other resources of the Supplier;
Term means the period commencing on and from the Effective Date and ending on the Expiry Date, or in the case of a Statement of Work, the period commencing on and from the Statement of Work Commencement Date and ending on the expiry date stated in the Statement of Work;
Third Party IP means any Intellectual Property Rights of and belonging to a third party which form part of and/or are necessary for the use of the Deliverables and/or Services and are identified in any Statement of Work as agreed with the Company as only being licenced to the Company in accordance with Clause 19 (excluding in all cases and for the avoidance of any doubt any Intellectual Property Rights in Company Materials);
TUPE means the Transfer of Undertakings (Protection of Employment) Regulations 2006;
Upgrade means an upgrade of the Supplier Application which corrects faults, adds functionality or otherwise amends or upgrades the Supplier Application, which does not constitute a New Version;
VAT means value added tax as provided for in the Value Added Tax Act 1994;
Statement of Work means an order for the purchase of Services agreed in accordance with the provisions of Clause 2 specifying, among other things, the Services, Supplier Application, Deliverables, Statement of Work Commencement Date, the applicable Charges, the billing period and the other matters identified in the Statement of Work template at Schedule 2 (Services);
Statement of Work Commencement Date means the date for commencement of the Services specified in a Statement of Work