TERMS OF BUSINESS

PARTIES

(1) ASK REVILL . COM LTD trading as Dorset Creative, whose registered office is at Suite 2B, Lynes House, High Street, Ringwood, Hampshire, BH24 1BT and business address is 2nd Floor, 8-10 Christchurch Road, Bournemouth, Dorset, BH1 3NA with company number 06681102 (Supplier)

And

(2) Any company or person who has requested services or materials from the Supplier and has paid some or all of the charges for that work (Customer)

 

BACKGROUND 

(A)  The Supplier is in the business of providing IT software and services developed, maintained and supported by the Supplier.

(B)  The Customer wishes to obtain and the Supplier wishes to provide the software and services on the terms set out in this Agreement. 

 

AGREED TERMS

1. INTERPRETATION

The following definitions and rules of interpretation apply in this Agreement. 

1.1 Definitions.

Affiliate:  any entity that directly or indirectly controls, is controlled by, or is under common control with another entity.

Applicable Laws:  all applicable laws, statutes, regulations and codes from time to time in force.

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 in England on any Business Day.

Change Order:  has the meaning given in Clause 6.1.

Charges:  the sums payable for the Services, as set out in Schedule 2.

Control:  has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.

Customer’s Equipment:  any equipment, including tools, systems, cabling or facilities, provided by the Customer, its agents, subcontractors or consultants which is used directly or indirectly in the supply of the Services including any such items specified in Schedule 1.

Customer Materials:  all documents, information, items and materials in any form, whether owned by the Customer or a third party, which are provided by the Customer to the Supplier in connection with the Services, including the items provided pursuant to Clause 4.1(d).

Data Protection Legislation:  all legislation and regulatory requirements in force from time to time relating to the use of personal data and the privacy of electronic communications, including, without limitation (i) any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation, as well as (ii) the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation relating to data protection and privacy (for so long as and to the extent that the law of the European Union has legal effect in the UK).

Deliverables:  any output of the Services to be provided by the Supplier to the Customer as specified in Schedule 1 and any other documents, products and materials provided by the Supplier to the Customer in relation to the Services (excluding the Supplier’s Equipment).

Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up , goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, 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.

Mandatory Policies:  the Customer’s business policies in Schedule 3, as amended by notification to the Supplier from time to time.

Supplier’s Equipment:  any equipment, including tools, systems, cabling or facilities, provided by the Supplier to the Customer and used directly or indirectly in the supply of the Services including any such items specified in Schedule 1 but excluding any such items which are the subject of a separate agreement between the parties under which title passes to the Customer.

VAT:  value added tax or any equivalent tax chargeable in the UK.

1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this Agreement.

1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.4 The Schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Schedules.

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 genders.

1.8  This Agreement shall be binding on, and enure to the benefit of, the parties to this 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 a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

1.10 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.

1.11 Any obligation on a party not to do something includes an obligation not to allow that thing to be done. 

1.12  A reference to this Agreement or to any other agreement or document referred to in this Agreement is a reference of this Agreement or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of this Agreement) from time to time.

1.13 References to Clauses and Schedules are to the Clauses and Schedules of this Agreement and references to paragraphs are to paragraphs of the relevant Schedule.

1.14  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 This Agreement shall commence on the date that the Customer transfers any money to the Supplier (without the need for signed copies) and shall continue, unless terminated earlier in accordance with Clause 13 (Termination), until 1 year from the commencement of this Agreement when it shall terminate automatically without notice.

2.2 The Supplier shall provide the Services to the Customer in accordance with this Agreement.

3. SUPPLIER’S RESPONSIBILITIES  

3.1 The Supplier shall use reasonable endeavours to manage and supply the Services, and deliver the Deliverables to the Customer, in accordance with this Agreement in all material respects.

3.2 The Supplier shall use reasonable endeavours to meet Deliverables specified in Schedule 1 but any such dates shall be estimates only and time for performance by the Supplier shall not be of the essence of this Agreement.

3.3 The Supplier shall appoint a manager for the Services, such person as identified in Schedule 1. That person shall have authority to contractually bind the Supplier on all matters relating to the Services (including by signing Change Orders). The Supplier shall use all reasonable endeavours to ensure that the same person acts as the Supplier’s manager throughout the term of this Agreement, but may replace that person from time to time where reasonably necessary in the interests of the Supplier’s business. 

3.4 Not applicable.

3.5 The Supplier shall:

(a) supply access to an on-call technical support service available at any time outside of the Business Hours and this access is included in the Agreement. Although the Supplier is unable to provide guaranteed response or resolution times outside Business Hours.

(b) consider written requests from the Customer’s Manager to complete a response or resolution outside of Business Hours in exchange for an additional “out of hours” fee, invoiced separately to this Agreement. Out of hours costs are specified in Schedule 2. However, the Supplier cannot guarantee any request will be feasible and each request will be considered on a case by case basis. Any out of hours arrangement will always be requested in writing by the Customer’s Manager and acceptance of the out of hours work will be confirmed in writing by the Manager of the Supplier.

3.6 For the avoidance of doubt the Supplier shall not be liable within this Agreement for following situations:

(a) A problem has been caused by using equipment, software or Service(s) in a way that is not recommended by the Supplier or manufacturer’s recommendations;

(b) The Customer has made unauthorised changes to the configuration or set up of affected equipment, software or Services;

(c) The Customer has prevented the Supplier from performing required maintenance and update tasks; or

(d) The issue has been caused by unsupported equipment, software or other services.

3.7 In the case of developing software, website and/or applications, the Supplier will develop the products and/or perform services to be reasonably functionally compatible with the current browser version and/or the current version of the device, that is where ‘current version’ means the current version at the Commencement Date of this Agreement at Clause 2.1, and for the most recent previous browser version and/or the most recent previous version of the device, that is where ‘most recent previous version’ means the most recent previous version at the Commencement Date of this Agreement at Clause 2.1. Any and all versions prior to or newer than this, are and will be unsupported.

4. CUSTOMER’S OBLIGATIONS  

4.1 The Customer shall:

(a)  co-operate with the Supplier in all matters relating to the Services;

(b)  appoint a manager for the Services, such person as identified in Schedule 1. That person shall have the authority to contractually bind the Customer on matters relating to the Services (including by signing Change Orders);

(c)  provide, for the Supplier, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Customer’s premises, office accommodation, data and other facilities as reasonably required by the Supplier including any such access as is specified in Schedule 1;

(d)  provide to the Supplier in a timely manner all documents, information, items and materials in any form (whether owned by the Customer or third party) required under Schedule 1 or otherwise reasonably required by the Supplier in connection with the Services and ensure that they are accurate and complete in all material respects;

(e)  inform the Supplier of all health and safety and security requirements that apply at the Customer’s premises, such requirements are as set out in Schedule 3;

(f)  ensure that all the Customer’s Equipment is in good working order and suitable for the purposes for which it is used in relation to the Services and conforms to all relevant United Kingdom standards and requirements;

(g)  obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable the Supplier to provide the Services, including in relation to the installation of the Supplier’s Equipment, the use of all Customer Materials and the use of the Customer’s Equipment insofar as such licences, consents and legislation relate to the Customer’s business, premises, staff and equipment, in all cases before the date on which the Services are to start;

(h)  keep, maintain and insure the Supplier’s Equipment in good condition and shall not dispose of or use the Supplier’s Equipment other than in accordance with the Supplier’s written instructions or authorisation;

4.2 If the Supplier’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, then, without prejudice to any other right or remedy it may have, the Supplier shall be allowed an extension of time to perform its obligations equal to the delay caused by the Customer.

5. NON-SOLICITATION

5.1  Except in respect of any transfer of employees of the Supplier to the Customer pursuant to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246), the Customer shall not, without the prior written consent of the Supplier, at any time from the date of this Agreement to the expiry of twelve (12) months after the termination or expiry of this Agreement, solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of the Supplier in the provision of the Services.

5.2 Any consent given by the Supplier in accordance with Clause 5.1 shall be subject to the Customer paying to the Supplier a sum equivalent to thirty percent (30%) of the then current annual remuneration of the Supplier’s employee, consultant or subcontractor or, if higher, thirty percent (30%) of the annual remuneration to be paid by the Customer to that employee, consultant or subcontractor.

6. CHANGE ORDER 

6.1 Either party may propose changes to the scope or execution of the Services but no proposed changes shall come into effect until a Change Order has been signed by both parties. A Change Order shall be a document setting out the proposed changes and the effect that those changes will have on:

(a)  the Services; 

(b)  the Supplier’s existing charges; 

(c)  the timetable of the Services; and 

(d)  any of the terms of this Agreement.

6.2 If the Supplier wishes to make a change to the Services it shall provide a draft Change Order to the Customer.

6.3 If the Customer wishes to make a change to the Services:

(a)  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 

(b)  the Supplier shall, as soon as reasonably practicable after receiving the information at Clause 6.3(a), provide a draft Change Order to the Customer.

6.4 If the parties:

(a)  agree to a Change Order, they shall sign it and that Change Order shall amend this Agreement; or 

(b)  are unable to agree a Change Order, either party may require the disagreement to be dealt with in accordance with the dispute resolution procedure in Clause 27 (Multi-tiered dispute resolution procedure). 

6.5 The Supplier may charge for the time it spends on preparing and negotiating Change Orders which implement changes proposed by the Customer pursuant to Clause 6.3 on a time and materials basis at the Supplier’s daily rates specified in Schedule 2. 

7. CHARGES AND PAYMENT  

7.1 In consideration of the provision of the Services by the Supplier, the Customer shall pay the Charges.

7.2 Where the Charges are calculated on a time and materials basis: 

(a)  the Supplier’s daily fee rates for each individual person as set out in Schedule 2 are calculated on the basis of an eight-hour day, worked during Business Hours; 

(b)  the Supplier shall be entitled to charge an overtime rate of £124.50 plus VAT per hour (minimum charge of 1 hour) chargeable all time on Saturday and weekdays after 5pm and before 9am and £190 plus VAT per hour (minimum charge of 1 hour) chargeable all time on Sunday and Public Bank Holidays, as set out in Schedule 2, on a pro rata basis, for any time worked by individuals whom it engages on the Services outside Business Hours; and 

(c)  the Supplier shall ensure that every individual whom it engages on the Services completes time sheets to record time spent on the Services, and the Supplier shall indicate the time spent per individual in its invoices. 

7.3 The Charges exclude the following which shall be payable by the Customer monthly in arrears, following submission of an appropriate invoice:

(a)  the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services; and

(b)  the cost to the Supplier of any materials or services procured by the Supplier from third parties for the provision of the Services as such items and their cost are approved by the Customer in advance via email from time to time. 

7.4 The Supplier may increase the Charges on an annual basis with effect from each anniversary of the date of this Agreement in line with the percentage increase in the Retail Price Index in the preceding twelve (12) month period, and the first such increase shall take effect on the first anniversary of the date of this Agreement and shall be based on the latest available figure for the percentage increase in the Retail Prices Index.

7.5 The Supplier shall invoice the Customer for the Charges at the intervals specified in Schedule 2. If no intervals are so specified the Supplier shall invoice the Customer at the end of each month for Services performed during that month. 

7.6 The Customer shall pay each invoice submitted to it by the Supplier within twenty-one (21) days of receipt to a bank account nominated in writing by the Supplier from time to time.

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

(a)  the Customer 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 7.7(a) will accrue at 8% a year above the Bank of England’s base rate from time to time, but at 8% a year for any period when that base rate is below 0%;

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

7.8 All sums payable to the Supplier under this Agreement:

(a)  are exclusive of VAT, and the Customer shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and 

(b)  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 In relation to the Deliverables:

(a)  the Supplier and its licensors shall retain ownership of all Intellectual Property Rights in the Deliverables, excluding the Customer Materials;

(b)  the Supplier grants the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free irrevocable licence during the term of this Agreement to copy and modify the Deliverables (excluding the Customer Materials) for the purpose of receiving and using the Services and the Deliverables in its business; and

(c)  the Customer shall not sub-license, assign or otherwise transfer the rights granted in Clause 8.1(b).

8.2 In relation to the Customer Materials, the Customer:

(a)  and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials; and 

(b)  grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Customer Materials for the term of this Agreement for the purpose of providing the Services to the Customer. 

8.3 The Supplier:

(a)  warrants that the receipt, use of the Services and the Deliverables by the Customer shall not infringe any rights of third parties to the extent that infringement results from copying;

(b)  shall, subject to Clause 12 (Limitation of liability), indemnify the Customer in full against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Customer arising out of or in connection with any claim brought against the Customer 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, use or supply of the Services and the Deliverables; and

(c)  shall not be in breach of the warranty at Clause 8.3(a), and the Customer shall have no claim under the indemnity at Clause 8.3(b), to the extent the infringement arises from: 

(i)  the use of the Customer Materials in the development of, or the inclusion of the Customer Materials in any Deliverable; 

(ii)  any modification of the Deliverables or Services, other than by or on behalf of the Supplier; and 

(iii)  compliance with the Customer’s specifications or instructions.

8.4 The Customer:

(a)  warrants that the receipt and use of the Customer Materials in the performance of this Agreement by the Supplier, its agents, subcontractors or consultants shall not infringe the rights, including any Intellectual Property Rights; and

(b)  shall indemnify the Supplier in full against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred 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, arising out of, or in connection with, the receipt or use in the performance of this Agreement of the Customer Materials.

8.5 If either party (the Indemnifying Party) is required to indemnify the other party (the Indemnified Party) under this Clause 8, the Indemnified Party shall: 

(a)  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(b) or Clause 8.4(b) (as applicable) (IPRs Claim); 

(b)  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; 

(c)  provide the Indemnifying Party with such reasonable assistance regarding the IPRs Claim as is required by the Indemnifying Party, subject to reimbursement by the Supplier of the Indemnified Party’s costs so incurred; and

(d)  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. COMPLIANCE WITH LAWS AND POLICIES 

9.1 In performing its obligations under this Agreement, the Supplier shall comply with:

(a)  the Applicable Laws; and

(b)  the Mandatory Policies, provided that the Customer shall give the Supplier not less than thirty (30) days written notice (email to suffice) of any change to such policies. 

9.2 Changes to the Services required as a result of changes to the Applicable Laws or the Mandatory Policies shall be agreed via the change order procedure set out in Clause 6.

10. DATA PROTECTION 

10.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 10 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.

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

10.3 Without prejudice to the generality of Clause 10.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Supplier for the duration and purposes of this Agreement.

10.4 Without prejudice to the generality of Clause 10.1, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under this Agreement:

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

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

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

(d)  not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:

(i)  the Customer or the Supplier has provided appropriate safeguards in relation to the transfer; 

(ii)  the data subject has enforceable rights and effective legal remedies; 

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

(iv)  the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data; 

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

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

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

(h)  maintain complete and accurate records and information to demonstrate its compliance with this Clause 10.

10.5 The Customer consents to the Supplier appointing a third-party processor of Personal Data under this Agreement. The Supplier confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this Clause 10. As between the Customer and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this Clause 10.

10.6  Either party may, at any time on not less than thirty (30) days’ written notice (email to suffice), revise this Clause 10 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 replaced by attachment to this Agreement).

11. CONFIDENTIALITY 

11.1 Each party undertakes that it shall not at any time during this Agreement, and for a period of five (5) years after termination of this Agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party except as permitted by Clause 11.2. Confidential information shall be marked “Confidential”.

11.2 Each party may disclose the other party’s confidential information: 

(a)  to its employees, officers, representatives 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 this Agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this Clause 11; and 

(b)  as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority. 

11.3 No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement.

11.4 Unless agreed otherwise in writing with the Director of the Supplier, the Customer agrees that the Supplier will be permitted to publicly display any information in relation to this Agreement, about any of the work planned, work in progress and work done in accordance with this Agreement, where that information is not subject to Clause 11.1 of this Agreement. This includes any information about the work as well as the output prototypes and partially completed or completed materials or products.  Any public display of such information will be shared in accordance with Clause 10 of this Agreement.

12. LIMITATION OF LIABILITY 

12.1 The Supplier shall ensure that it has obtained appropriate insurance cover in respect of its own legal liability for individual claims in accordance with the liability caps below. The limits and exclusions in this Clause reflect the insurance cover the Supplier has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss.

12.2 Nothing in this Agreement limits any liability which cannot legally be limited, including but not limited to liability for: 

(a)  death or personal injury caused by negligence; 

(b)  fraud or fraudulent misrepresentation; and 

(c)  breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).

12.3 Subject to Clause 12.2, the Supplier’s total liability to the Customer in respect of all breaches within any contract year shall not exceed the total charges in the contract year in which the breaches occurred; 

(b)  contract year. A contract year means a twelve (12) month period commencing with the date of this Agreement or any anniversary of it; 

(c)  total charges. The total charges means all sums paid by the Customer and all sums payable under this Agreement in respect of goods and services actually supplied by the Supplier, whether or not invoiced to the Customer; and 

(d)  total liability. The Supplier’s total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this Agreement.

12.4 This Clause 12.4 sets out specific heads of excluded loss and exceptions from them:

(a)  Subject to Clause 12.2, the types of loss listed in Clause 12.4(c) are wholly excluded by the parties, but the types of loss and specific losses listed in Clause 12.4(d) are not excluded. 

(b)  If any loss falls into one or more of the categories in Clause 12.4(c) and also falls into a category, or is specified, in Clause 12.4(d), then it is not excluded.

(c)  The following types of loss are wholly excluded: 

(i)  Loss of profits 

(ii)  Loss of sales or business.

(iii)  Loss of agreements or contracts. 

(iv) Loss of anticipated savings.

(v)  Loss of use or corruption of software, data or information. 

(vi) Loss of or damage to goodwill.

(vii)  Indirect or consequential loss. 

(d)  The following types of loss and specific loss are not excluded:

(i)  Sums paid by the Customer to the Supplier pursuant to this Agreement, in respect of any Services not provided in accordance with this Agreement;

(ii)  Wasted expenditure; 

(iii)  Additional costs of procuring and implementing replacements for, or alternatives to, Services not provided in accordance with this Agreement. These include but are not limited to consultancy costs, additional costs of management time and other personnel costs, and costs of equipment and materials; and

(iv)  Losses incurred by the Customer arising out of or in connection with any third party claim against the Customer which has been caused by the act or omission of the Supplier. For these purposes, third party claims shall include but not be limited to demands, fines, penalties, actions, investigations or proceedings, including but not limited to those made or commenced by subcontractors, the Supplier’s personnel, regulators and customers of the Customer.

12.5 The Supplier has given commitments as to compliance under Clause 3. 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 this Agreement. 

12.6 Unless the Customer notifies the Supplier that it intends to make a claim in respect of an event within the thirty (30) day’s written notice period, the Supplier shall have no liability for that event. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.

13. TERMINATION  

13.1 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:

(a)  the other party commits a material breach of any term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so; 

(b)  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 is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 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 Insolvency Act 1986;

(c)  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; 

(d)  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 that other party (being a company) 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;

(e)  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 if an administrator is appointed, over the other party (being a company); 

(f)  the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver; 

(g)  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;

(h)  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 fourteen (14) days;

(i)  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(b) to Clause 13.1(h) (inclusive);

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

(k) a Force Majeure (as defined below).

13.2 Without affecting any other right or remedy available to it, the Supplier may terminate this Agreement with immediate effect by giving written notice to the Customer if: 

(a)  the Customer fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than ten (10) days after being notified in writing to make such payment; or

(b)  there is a change of control of the Customer.

14. CONSEQUENCES OF TERMINATION

14.1 On termination or expiry of this Agreement:

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

(b)  the Customer shall, immediately return all of the Supplier’s Equipment. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of the Supplier’s Equipment. Until they have been returned or repossessed, the Customer shall be solely responsible for their insurance and safe keeping;

(c)  the Supplier shall on request return any of the Customer Materials not used up in the provision of the Services; and

(d)  the following clauses shall continue in force: Clause 1 (Interpretation), Clause 5 (Non-solicitation), Clause 8 (Intellectual property rights), Clause 11 (Confidentiality), Clause 12 (Limitation of liability), Clause 14 (Consequences of termination), Clause 18 (Waiver), Clause 20 (Severance), Clause 22 (Conflict), Clause 27 (Multi-tiered dispute resolution procedure), Clause 28 (Governing law) and Clause 29 (Jurisdiction). 

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

15. FORCE MAJEURE

15.1 Force Majeure Event means any circumstance not within a party’s reasonable control including, without limitation:

(a)  acts of God, flood, drought, earthquake or other natural disaster; 

(b)  epidemic or pandemic; 

(c)  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; 

(d)  nuclear, chemical or biological contamination or sonic boom; 

(e)  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; 

(f)  collapse of buildings, fire, explosion or accident; and

(g)  non-performance by suppliers or subcontractors (other than by companies in the same group as the party seeking to rely on this Clause); and

(h)  interruption or failure of utility service. 

15.2  Provided it has complied with Clause 15.4, if a party is prevented, hindered or delayed in or from performing any of its obligations under this Agreement by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of this 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 corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.

15.4 The Affected Party shall: 

(a)  as soon as reasonably practicable after the start of the Force Majeure Event but no later than five (5) days from its start, notify the other party in writing (email to suffice) 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 this Agreement; and 

(b)  use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations. 

15.5 If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than four (4) weeks, the party not affected by the Force Majeure Event may terminate this Agreement by giving two (2) weeks written notice to the Affected Party. 

16. ASSIGNMENT AND OTHER DEALINGS 

16.1 This Agreement is personal to the Customer and the Customer 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 this Agreement.

16.2  The Supplier may at any time assign, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under this Agreement. 

17. VARIATION   

Subject to Clause 6, no variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

18. WAIVER

18.1 A waiver of any right or remedy under this 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 this 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 this Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy. 

19. RIGHTS AND REMEDIES

The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

20. SEVERANCE  

20.1 If any provision or part-provision of this 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 this Agreement.

20.2 If any provision or part-provision of this 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  This Agreement constitutes the entire agreement between the parties 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 this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Agreement.

22. CONFLICT  

If there is an inconsistency between any of the provisions of this Agreement and the provisions of the Schedules, the provisions of this Agreement shall prevail. 

23. NO PARTNERSHIP OR AGENCY  

23.1 Nothing in this 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  

Unless it expressly states otherwise, this Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.

25. NOTICES  

25.1 Any notice given to a party under or in connection with this Agreement shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case).

25.2 Any notice shall be deemed to have been received: 

(a)  if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and 

(b)  if sent by next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.

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. 

25.4 Unless otherwise stated, a notice given under this Agreement is not valid if sent by email.

26. COUNTERPARTS 

26.1 This Agreement 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.

26.2 Transmission of an executed counterpart of this Agreement (but for the avoidance of doubt not just a signature page) by email (in PDF, JPEG or other agreed format) shall take effect as delivery of an executed counterpart of this Agreement. If either method of delivery is adopted, without prejudice to the validity of this Agreement thus made, each party shall provide the other with the original of such counterpart as soon as reasonably possible thereafter.

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 this Agreement or the performance, validity or enforceability of it (Dispute) then except as expressly provided in this Agreement, the parties shall follow the procedure set out in this Clause:

(a)  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 manager of the Customer and manager of the Supplier shall attempt in good faith to resolve the Dispute; 

(b)  if the manager of the Customer and manager of the Supplier are for any reason unable to resolve the Dispute within thirty (30) days of service of the Dispute Notice, the Dispute shall be referred to the Director of the Customer and Rowena Revill of the Supplier who shall attempt in good faith to resolve it; and 

(c)  if the Director of the Customer and Rowena Revill of the Supplier are for any reason unable to resolve the Dispute within thirty (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 thirty (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 29 (Jurisdiction) which Clause shall apply at all times.

27.3 If the Dispute is not resolved within thirty (30) days after service of the ADR notice, or either party fails to participate or to continue to participate in the mediation before the expiration of the said period of thirty (30) days, or the mediation terminates before the expiration of the said period of thirty (30) days, the Dispute shall be finally resolved by the courts of England and Wales in accordance with Clause 29 (Jurisdiction). 

28. GOVERNING LAW  

This 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 the law of England and Wales.

29. JURISDICTION  

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 this Agreement or its subject matter or formation.

This Agreement has been entered into on the date on which the Customer paid any or all charges to the Supplier. The Schedules of this Agreement are sent directly to the Customer with their first invoice.