Agreement: means the agreement entered into between the Customer and the Supplier for the supply of the Services in accordance with the Contract Details and these Terms and Conditions, as amended from time to time in accordance with clause 14.
Applicable Laws: means all applicable laws, statutes, regulations and codes from time to time in force.
Charges: means the sums payable for the Services, as set out in the Contract Details of the signed Agreement.
Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control: shall be construed accordingly.
Customer Materials: means 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 4.1.2.
Data Protection Legislation: to the extent applicable to a party, the UK Data Protection Legislation, the EU GDPR and any other legislation and regulatory requirements relating to the use of personal data (including, without limitation, the privacy of electronic communications) which are in force from time to time in any relevant jurisdiction.
Deliverables: means all documents, products and materials developed by the Supplier or its agents, subcontractors and personnel as part of or in relation to the Services in any form, including without limitation computer programs, data, reports and specifications (including drafts) and the Deliverables set out in the Contract Details.
EU GDPR: the General Data Protection Regulation ((EU) 2016/679).
Intellectual Property Rights: means patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, 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.
Services: means the services, including without limitation any Deliverables, described in the Contract Details of the Agreement to be provided by the Supplier to the Customer.
Standard Contractual Clauses: means the standard contractual clauses in the EU Commission’s decision 2010/87/EU.
Supplier IPRs: means all Intellectual Property Rights subsisting in the Deliverables excluding any Customer Materials incorporated in them.
Terms and Conditions: means these terms and conditions set out in clause 1 (Interpretation) to clause 20 (General) (inclusive).
UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the Data Protection Act 2018, the UK GDPR and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
UK GDPR: has the meaning given to it in the Data Protection Act 2018.
VAT: means value added tax chargeable under the Value Added Tax Act 1994.
1.2.1 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision includes any subordinate legislation made from time to time under that statute or statutory provision.
1.2.2 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.
1.2.3 A reference to writing or written includes email.
2. COMMENCEMENT AND TERM
2.1. This Agreement shall commence on the Commencement Date and shall continue, unless terminated earlier by either party in accordance with its terms.
3. SUPPLY OF SERVICES
3.1. The Supplier shall provide the Services to the Customer in accordance with this Agreement from the Services Start Date.
4. CUSTOMER’S OBLIGATIONS
4.1. The Customer shall:
4.1.1 co-operate with the Supplier in all matters relating to the Services;
4.1.2 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 the Contract Details or otherwise reasonably required by the Supplier in connection with the Services and ensure that they are accurate and complete in all material respects; and
4.1.3 obtain and maintain all necessary licenses and consents and comply with all relevant legislation as required to enable the Supplier to provide the Services, including in relation to the use of all Customer Materials, in all cases before the date on which the Services are to start.
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:
4.2.1 not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay;
4.2.2 be entitled to payment of the Charges despite any such prevention or delay;
4.2.3 be entitled to recover any additional costs, charges or losses the Supplier sustains or incurs that arise directly or indirectly from such prevention or delay; and
4.2.4 be allowed an extension of time to perform its obligations equal to the delay caused by the Customer.
5. CHARGES AND PAYMENT
5.1. In consideration of the provision of the Services by the Supplier, the Customer shall pay the Supplier the Charges in accordance with the Contract Details and this clause 5.
5.2. 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:
5.2.1. the Supplier may suspend all or part of the Services until payment has been made in full;
5.2.2. the Customer shall pay interest on the overdue amount at the rate of five percent (5%) per annum above Barclays Bank’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount; and
5.2.3. the Supplier reserves the right to be paid on an indemnity basis by the Customer any costs incurred in recovering any money due under this agreement (and the costs of recovering such costs) including the Supplier’s administrative costs and any costs incurred with lawyers or debt collection agencies. The Supplier’s administrative costs may include the cost of employing the staff concerned and the overheads attributable to them for the time spent.
5.3. All sums payable by the Customer to the Supplier under this Agreement:
5.3.1. 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
5.3.2. shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6. INTELLECTUAL PROPERTY RIGHTS
6.1. The Supplier and its licensors shall retain ownership of all Supplier IPRs. The Customer and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials.
6.2. The Supplier grants the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free, licence to use, copy and modify the Supplier IPRs for the purpose of receiving and using the Services and the Deliverables in the Customer’s business during the term of the Agreement.
6.3. The Customer grants the Supplier a fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable licence to use, copy and modify the Customer Materials for the term of the Agreement for the purpose of providing the Services to the Customer in accordance with the Agreement.
6.4. The Customer shall indemnify the Supplier in full against all liabilities, costs, expenses, damages and losses (including all reasonable legal costs) suffered or incurred by the Supplier arising out of or in connection with any claim brought against the Supplier for actual or alleged infringement of a third party’s rights (including any Intellectual Property Rights) arising out of, or in connection with, the receipt or use of the Customer Materials by the Supplier in accordance with this Agreement (“IPR Claim”). The Supplier shall:
6.4.1. give the Customer prompt notice of any IPR Claim;
6.4.2. give the Customer sole control over the defence and/or settlement of the IPR Claim, provided that the Customer shall not agree to any settlement which places any obligation on the Supplier without the Supplier’s prior written consent; and
6.4.3. give the Customer reasonable assistance, at the Customer’s expense, in defending or settling the IPR Claim.
7. DATA PROTECTION
7.1. Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 7 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
7.2. The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller and the Supplier is the processor of the personal data set out in this clause 7.
7.3. The scope of the processing by the Supplier is the Supplier’s provision of the Services to Customer.
7.4. The nature and purpose of processing by the Supplier is any processing required for the purposes of providing the Services to Customer in accordance with this Agreement.
7.5. The duration of the processing is the term of this Agreement until deletion of all personal data by the Supplier in accordance with this Agreement.
7.6. The types of personal data processed by the Supplier are:
First Name, Last Name, Job Title, Company Name, Company Location, Email Address, LinkedIn profile url and any other categories of personal data that may be requested from time to time by Customer in writing.
7.7. The categories of data subject whose personal data will be processed by the Supplier are:
Employees, directors and other personnel of Customer’s sales prospects.
7.8. Without prejudice to the generality of clause 7.1, 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 or the lawful collection of the same by the Supplier for the duration and purposes of this Agreement.
7.9. Without prejudice to the generality of clause 7.1, the Supplier shall, in relation to any personal data processed in connection with the performance by the Supplier of its obligations under this Agreement:
7.9.1. process that personal data only on the documented written instructions of the Customer which shall be to process the personal data for the purposes set out in clause 7.4 above, unless the Supplier is required by Applicable Laws to otherwise process that personal data. Where the Supplier is relying on Applicable Laws 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;
7.9.2. ensure that it has in place appropriate technical and organisational measures, 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;
7.9.3. ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential;
7.9.4. not transfer any personal data outside of the UK unless the Supplier has ensured that such transfers are effected in accordance with Data Protection Legislation. For these purposes, the Customer shall promptly comply with any reasonable request of the Supplier, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the Information Commission from time to time (where the UK GDPR applies to the transfer);
7.9.5. assist the Customer, at the Customer’s cost, insofar as this is possible (taking into account the nature of the processing and the information available to the Supplier) 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;
7.9.6. notify the Customer without undue delay on becoming aware of a personal data breach involving the Customer’s personal data;
7.9.7. 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. For the purposes of this clause 7.9.7 personal data shall be considered deleted when it is put beyond further use by the Supplier;
7.9.8. maintain complete and accurate records and information to demonstrate its compliance with this Clause 7 and allow the Customer and its auditors (provided such auditors are subject to confidentiality obligations reasonably acceptable to the Supplier), at the Customer’s own cost and expense and upon reasonable prior written notice not more than once in any 12 month period (unless required more frequently by any regulatory authority), to conduct audits or inspections during the term and for 12 months thereafter, in connection with the processing of any such personal data to ensure any processing by the Supplier is in accordance with Data Protection Legislation; and
7.9.9. promptly inform the Customer if, in the opinion of the Supplier, an instruction infringes the Data Protection Legislation. If, after the Supplier has informed the Customer that in the opinion of the Supplier an instruction infringes the Data Protection Legislation the Customer confirms the instruction, The Customer shall indemnify the Supplier in full against any costs, losses or expense (including, but not limited to any third party claim, fine or award) incurred by Supplier as a result of Supplier following Customer’s instruction.
7.10. The Supplier has entered into a supplementary agreement with each of its affiliates processing its customers’ personal data containing the Standard Contractual Clauses on behalf of all of the Supplier’s customers. The Customer consents to the Supplier entering into such agreement on the Customer’s behalf with the relevant Supplier affiliates who may process its personal data. The Supplier shall provide the Customer with a copy of any such agreement upon the Customer’s written request.
7.11. The Customer hereby provides its prior, general authorisation for the Supplier to appoint sub-processors to process the Customer’s personal data, provided that the Supplier:
7.11.1 . shall ensure that the terms on which it appoints such sub-processors comply with Data Protection Legislation and are consistent with the obligations imposed on the Supplier in this 7;
7.11.2. shall remain responsible for the acts and omission of any such sub-processor as if they were the acts and omissions of the Supplier; and
7.11.3. shall inform the Customer of any intended changes concerning the addition or replacement of the sub-processors, thereby giving the Customer the opportunity to object to such changes provided that any such objection is based on an actual or likely breach of Date Protection Legislation. In the event the Customer objects to a new sub-processor, the parties shall discuss in good faith a resolution to the objection. Such discussions shall not affect the Supplier’s rights to use the new sub-processor.
7.12. For the purposes of this clause 7 the terms “controller“, “personal data“, “personal data breach”, “process”, “processor” and “processing” shall have the meanings set out in the UK Data Protection Legislation and “sub-processor” means any third party appointed by or on behalf of Supplier to process the
Customer’s personal data in connection with this Agreement.
8. LIMITATION OF LIABILITY
8.1. Nothing in the Agreement shall limit or exclude the Supplier’s liability for:
8.1.1. death or personal injury caused by its negligence;
8.1.2. fraud or fraudulent misrepresentation; or
8.1.3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or
8.1.4. any other liability which cannot be limited or excluded by applicable law.
8.2. 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 the Agreement.
8.3. The Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement for loss of profits; loss of sales or business; loss of agreements or contracts; loss of anticipated savings; loss of or damage to goodwill; loss of use or corruption of software, data or information; and any indirect or consequential loss.
8.4. Each party’s total liability to the other party, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement shall be limited:
8.4.1. in the case of any breach of clause 7 to £100,000 in the aggregate; and
8.4.2. for all other liabilities to the fees paid by the Customer to the Supplier in the 12 months preceding the date of the claim and if in the first 12 months, the fees paid or payable.
9.1. 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:
9.1.1. 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 ten (10) days after being notified in writing to do so;
9.1.2. the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
9.1.3. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
9.2. The Supplier may also terminate this Agreement:
9.2.1. for late payment of any Charges in accordance with the ‘Payment Schedule’ section of the Contract Details; and
9.2.2. if there is a change of control of the Customer.
9.3. Where this Agreement is terminated by the Supplier due to the Customer’s breach or pursuant to clause9.2, the Customer shall pay early termination charges to the Supplier equivalent to 2 months’ Charges for the Services.
9.4. On termination of this Agreement:
9.4.1. 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;
9.4.2. the following clause of the Contract Details shall continue in force: clause 2 (Conflict);
9.4.3. the following clauses of the Terms and Conditions shall continue in force: clause 1 (Interpretation), clause 6 (Intellectual property rights), clause 8 (Limitation of liability), clause 9.3 (Consequences of termination), clause 12 (Confidentiality), clause 14 (Entire agreement), clause 15 (Waiver), clause 16 (Severance); clause 20 (Governing law) and clause 21 (Jurisdiction);
9.4.4. the following clause of the Terms and Conditions shall continue in force for as long as the Supplier retains any personal data related to this Agreement in its possession or control: clause 7 (Data protection); and
9.4.5. termination of the Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination.
10. FORCE MAJEURE
10.1. Neither party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control (“Force Majeure Event”). The time for performance of such obligations shall be extended accordingly.
10.2. If the Force Majeure Event prevents, hinders or delays the affected party’s performance of its obligations for a continuous period of more than eight (8) weeks, either party may terminate this Agreement by giving two (2) weeks written notice to the affected party. On the expiry of this notice period, the Agreement will terminate. Such termination shall be without prejudice to the rights of the parties in respect of any breach of the Agreement occurring prior to such termination.
11. ASSIGNMENT AND OTHER DEALINGS
11.1. The Agreement is personal to the Customer and the Customer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Agreement.
11.2. 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 and/or obligations under the Agreement. Where the Supplier subcontracts any of its obligations under the Agreement it shall remain liable for the performance of the Agreement and the acts and/or omissions of the Supplier’s subcontractors shall be deemed to be the acts and/or omissions of the Supplier.
12.1. Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 12.2.
12.2. Each Party may disclose the other party’s confidential information:
12.2.1 to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Agreement. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with clause 12; and
12.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.3. Neither 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 the Agreement.
13.1. The Customer shall not, without the prior written consent of the Supplier, at any time from the date of the Agreement to the expiry of twelve (12) months after the termination or expiry of the Agreement solicit or entice away from the Supplier or employ or attempt to employ directly or indirectly (for example through taking up services of another company or through a consulting arrangement) any person who is, or has been, engaged as an employee, consultant or subcontractor of the Supplier in the provision of the Services in the preceding twelve (12) months. For the purposes of this clause, these restrictions of non-solicitation extend also to cover any person being employed by a company within the group of companies in which the Supplier is a part of.
13.2. If the Customer breaches clause 13.1, the Customer shall pay to the Supplier a sum equivalent to 40% of the annual remuneration to be paid by the Customer to that employee, consultant or subcontractor plus recruitment costs incurred by the Supplier in replacing such person. The parties confirm that these liquidated damages are reasonable and proportionate to protect the legitimate interests of the Supplier.
14. ENTIRE AGREEMENT
14.1. The 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.
14.2. Each party acknowledges that in entering into the Agreement it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Agreement.
15.1. No variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
16.1. A waiver of any right or remedy under the Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
16.2. A failure or delay by a party to exercise any right or remedy provided under the 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 the Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
17.1. 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.
17.2. If any provision or part-provision of the Agreement is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
18.1. Any notice given to a party under or in connection with the Agreement shall be in writing and shall be;
18.1.1 delivered by hand or reputable international courier at its physical address specified in the Contract Details; or
18.1.2 sent by email to the corporate email address of the other party’s signatory.
18.2. Any notice given by either party shall be deemed to have been received:
18.2.1 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
18.2.2 if sent by a reputable international courier, at the time recorded by the courier; and
18.2.3 if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 17.2.3, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
18.3. 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.
19. THIRD PARTY RIGHTS
19.1. The Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.
20. GOVERNING LAW
20.1. 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.
21.1. 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.