PROFESSIONAL SERVICES TERMS AND CONDITIONS (the “Agreement”) v1.0
(A) LANET LTD, a private company limited by shares and registered in England and Wales incorporated under the laws of England under number 07669403, whose registered office is at 3 Wincanton Way, Bourne, England PE10 0ZJ (“Supplier”) has developed and will provide professional services (“Services”).
(B) The “Client”, the name of which is set out in the “Statement of Work” (the document describing the Services proposed in response to a request from the Client to the Supplier, that once duly signed by an authorised signatory of both parties shall form a binding agreement to provide Services to the Client by the Supplier, using the outline format provided by the Supplier), wishes to use the Supplier’s Services in its business operations.
(C) The Supplier has agreed to provide, and the Client has agreed to take and pay for, the Services, subject to the terms and conditions of this Agreement.
Clause, and paragraph headings shall not affect the interpretation of this Agreement.
A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
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 shall include all subordinate legislation made from time to time under that statute or statutory provision.
A reference to writing or written includes e-mail.
Any phrase introduced by the words including, includes, in particular or for example, or any similar phrase, shall be construed as illustrative and shall not limit the generality of the related general words.
References to Clauses are to the Clauses of this Agreement.
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
The parties agree, in consideration of the parties’ respective obligations under this Agreement, as follows:
1. ORDER OF PRECEDENCE
1.1 In the event of any conflict or inconsistency between the Clauses of this Agreement, the Variation Agreement (as defined below) and the Statement of Work (including any changes to the Statement of Work), the following order of precedence shall apply (in decreasing order) to the extent of such conflict or inconsistency:
(a) a “Variation Agreement” (a variation agreement which is sent by the Supplier to the Client to vary the terms of this Agreement and when signed forms part of the terms of this Agreement), which looks to vary the terms of this Agreement;
(b) Statement of Work; and;
(c) the Clauses in this Agreement.
2. SUPPLY OF SERVICES
2.1 Commencing on the date set out in the applicable Statement of Work (the “Commencement Date”), the Supplier shall perform the Services as set out in the Statement of Work in accordance with this Agreement. In supplying the Services, the Supplier agrees that:
(a) it shall supply the Services to the Client in accordance with the agreed Statement of Work in all material respects;
(b) it shall determine where the location of the Services shall be delivered unless agreed to in the relevant Statement of Work;
(c) it shall use commercially reasonable endeavours to meet any performance timelines specified under a Statement of Work but any such timelines shall be estimates only and time shall not be of the essence for the performance of the Services; and
(d) the Services will be provided using reasonable care and skill; and
(d) it will comply with all applicable laws, statutes, regulations from time to time in force.
2.2 The Supplier does not and cannot control the flow of data to or from its network and other portions of the internet. Such flow depends in large part on the performance of internet Services provided or controlled by third parties. At times, actions or omissions of such third parties can impair or disrupt connections to the internet (or portions thereof). Whilst the Supplier will use reasonable efforts to take all actions it deems appropriate to remedy and avoid such events, the Supplier cannot guarantee that such events will not occur. Accordingly, the Supplier disclaims any and all liability resulting from or related to such events.
2.3 The Client acknowledges that certain conditions outside of the Supplier’s control may adversely impact the ability of the Supplier to perform functions of the Services. Examples of such conditions include but are not limited to:
(a) failure of Client hardware, software or operating system;
(b) partial or full failure of third-party Services; or
(c) Network connectivity issues concerning the Supplier’s platform or third party servers.
2.4 Either party may request changes to any Statement of Work (in each case, a “Change Request”). Any Change Request shall be made in writing (including email) and sent to the Client Representative (as defined in Clause 9.4) or Supplier Representative (as defined in Clause 9.4), as appropriate and shall set out the change in sufficient detail so as to enable the other party to make a proper assessment of such change. Any agreed to changes shall continue to be subject to this Agreement.
2.5 Neither party shall be required to accept any Change Request made by the other party and shall not be bound by the Change Request unless it has been agreed in writing as set out above.
3. CLIENT’S OBLIGATIONS
3.1 The Client shall:
(a) co-operate with the Supplier in all matters relating to the Services;
(b) provide the Supplier with access to appropriate members of the Client’s staff and equipment, (including enabling logons and/or passwords) as such access is reasonably requested by the Supplier, in order for the Supplier to perform the Services;
(c) provide such information, documentation and data as the Supplier may reasonably request in order for the Supplier to perform the Services in a timely manner;
(d) use the Services only for lawful purposes and in accordance with this Agreement and not store, distribute or transmit any material through the Services that:
(i) is unlawful, harmful, threatening, defamatory, obscene, harassing or racially or ethnically offensive;
(ii) facilitates illegal activity;
(iii) depicts sexually explicit images; and/or
(iv) promotes unlawful violence, discrimination based on race, gender, age, disability, sexual orientation, religion and belief, gender reassignment, or any other illegal activities.
(e) shall remain responsible for the use of the Services under its control, including any use by third parties that Client has authorised to use the Services.
(f) shall not provide the Services to third parties without the prior written consent of the Supplier.
(g) ensure it has suitable licences in place for any third party software required (which is not issued by the Supplier) to allow the Supplier and its subcontractors full use in relation to the Services provided;
(h) keep secure from third parties any passwords issued to the Client by the Supplier;
(i) fully virus-check all data supplied to the Supplier pursuant to this Agreement;
(j) permit the Supplier to install the current version of software required to provide the Services from time to time when upgrades or fixes occur and to provide a reasonable level of assistance in implementation and testing;
(k) in respect of any Microsoft funded Services, sign and deliver the Proof of Execution (POE) on the last day of scheduled work;
(l) maintain and allow the Supplier continuous global admin access to the Client’s relevant Microsoft cloud Services portals for the duration of this Agreement;
(m) agree that if, in the course of performing the Services, it is necessary or desirable for the Supplier to access or use any Client owned equipment, Client software or Client data (or which is in the possession of the Client) then it shall where it is able to under the terms of its existing licences grant to Supplier a nonexclusive, royalty free licence, during the term of th Agreement to use the same solely for the purpose of delivering the Services;
(o) appoint a designated primary contact who manages any escalation and who shall be the key person for the Supplier to co-ordinate with;
(p) sign a client satisfaction certificate after each Deliverable has been delivered, certifying that the Deliverable has been completed;
(q) (for procurement of Microsoft products only) adhere to the CSP customer agreement (“CSP Agreement”), which is a direct agreement between Client and Microsoft and is a condition of Cloud Solution Provider Program that the Client enters into this agreement, the terms of which are found at https://www.microsoft.com/licensing/docs/customeragreement and which may be updated from time to time.
(r) Where a Microsoft Cloud service is deployed / utilised within the project (Azure, Enterprise Mobility Suite, Operations Management Suite or Microsoft 365) the Supplier will be assigned to the cloud subscription/s as the Digital Partner of Record and or Claiming Partner of Record) and/or Transacting Partner of Record (TPOR) and/or Partner Admin Link (PAL) and Admin on Behalf of (AOBO) for a minimum of twelve (12) months from project completion date;
(s) adhere to the dates scheduled for provision of Services by the Supplier to the Client as stated in the applicable Statement of Work or otherwise agreed between the parties in writing. In the event the Client wishes to reschedule or cancel the dates for the provision of Services, liquidated damages (“Liquidated Damages”) will become payable from the Client to the Supplier on the following basis:
(i) if dates are changed or cancelled at the Client’s request more than fourteen (14) days before the scheduled start date no Liquidated Damages are payable;
(ii) if dates are changed or cancelled between seven (7) days and fourteen (14) days before the scheduled start date Liquidated Damages equivalent to fifty percent (50%) of the Fees (as defined in Clause 4 below) for the Services to be provided at that time will be payable;
(iii) if dates are changed or cancelled less than seven (7) days before the scheduled start date Liquidated Damages equivalent to one hundred percent (100%) of the Fees (as defined in Clause 4 below) for the Services to be provided at that time will be payable.
(iv) In the event the Client delays the Go-live Date (which falls outside of the Liquidated Damages) the Supplier may charge the Client such delays in accordance with the Statement of Work.
For purposes of this Clause, “Go-live Date” means the date specified in the Statement of Work.
3.2 If the Supplier considers that the Client is not, or may not, be complying with any of the Client’s obligations, it shall be entitled to rely on this as relieving the Supplier’s performance under this Agreement if the Supplier, promptly after the actual or potential non-compliance has come to its attention, has notified details of it to the Client in writing.
4.1 It is agreed that:
(a) the Client shall pay to the Supplier the fees, costs, expenses or other costs in accordance with any agreed Statement of Work (the “Fees”). Unless otherwise agreed, the Fees are exclusive of any value added tax and travel related expenses; and
(b) invoices will be raised as set out in the relevant Statement of Work. All invoices shall be payable thirty (30) days from date of invoice unless otherwise set out in the Statement of Work and time for payment shall be of the essence under this Agreement. In the event of any undisputed invoices not being paid by the Client after given 30 days after notice of any such delays, the Supplier reserves the right to suspend or terminate the Services; and
(c) the Supplier shall obtain the Client’s approval before incurring any other costs in relation to the Services, other than costs that are stated in the applicable Statement of Work which are deemed to have been approved by the Client in advance and any expenses not exceeding £100 (excluding VAT) per day. The Supplier shall provide the Client, at the Client’s request, with receipts for all expenses submitted for reimbursement.
4.2 Clause 4.3 shall apply if the Services are to be provided on a time-and-materials basis. The remainder of this Clause 4 shall apply to all Fees, whether payable on a fixed price, annual or time and materials basis.
4.3 Where the Services are provided on a time-and-materials basis:
(a) the Supplier’s standard hourly or daily rates are calculated on the basis of “Normal Business Hours” (being 9.00am to 5.00pm local UK time on Business Days) but, for the avoidance of doubt, shall be payable on the basis of actual time worked with the minimum price payable calculated as a four-hour half-day;
(b) the Supplier shall be entitled to charge an overtime rate for time worked outside Normal Business Hours, but within “Business Days” (a day other than Saturday, Sunday or public holiday in England when banks are open for business), as set out in the Statement of Work;
(c) the Supplier shall be entitled to charge an overtime rate for time worked outside of Business Days of 1.5 times the standard daily rates; and
(d) the Supplier shall complete the relevant time recording systems to calculate the Fees for each invoice charged on a time and materials basis.
4.4 For the avoidance of doubt, the Supplier may increase any fees related to any Third-Party Services (as defined in Clause 11) in line with any increases imposed upon the Supplier by such third parties upon 30 days’ notice.
4.5 Notwithstanding and subject to Clause 4.4, the Supplier reserves the right, on giving the Client 30 days’ notice, to increase the Fees on an annual basis with effect from each anniversary of the Commencement Date. If the Client does not agree with this increase, then they may terminate this Agreement upon 30 days written notice and before such price increase takes effect. If the Supplier does not receive written notice within thirty (30) days, the Client is deemed to have agreed to the amendment to the Fees.
4.6 If the Client fails to pay any amount properly due and payable within such period, the Supplier shall have the right to charge interest on the overdue amount at a rate of 2 per cent per annum above Bank of England base rate, accruing on a daily basis from the due date up to the date of actual payment.
5.1 The relevant Statement of Work shall specify which “Deliverables” (documents, products and materials developed by the Supplier in relation to the Services in any form, each a “Deliverable”) that are to be subject to “Acceptance Testing” (as defined in the relevant Statement of Work) and provide a framework for the nature of the testing that will be required.
5.2 In relation to any Acceptance Testing:
(a) the Client shall have a reasonable period of time, up to five Business Days unless otherwise specified in the Statement of Work, from the Supplier’s delivery of each Deliverable under the relevant Statement of Work (“Acceptance Periods”) to confirm that such Deliverable conforms to the acceptance criteria as specified or referred to in a Statement of Work or as otherwise agreed between the parties. If the Client determines that a Deliverable does not conform to the acceptance criteria, the Client shall by the last day of the Acceptance Period provide to the Supplier a written list of the non-conformities to the acceptance criteria;
(b) Client shall use best efforts to correctly and efficiently ensure appropriate Acceptance Testing in relation to any Deliverable which is subject to Acceptance Tests and shall notify the Supplier within the Acceptance Period if any of the Deliverables do not conform to the acceptance criteria. In the event that Client has undertaken the Acceptance Testing within the Acceptance Period and fails to reject any Deliverable within the relevant Acceptance Period, for all purposes under this Agreement such Deliverable, shall be deemed accepted as if the Client had issued a written acceptance thereof. Once the Deliverable has been accepted by the Client and payment has been settled in accordance with Clause 4, the Deliverable shall become the property of the Client. For the avoidance of doubt, should any non-conformities be found in earlier stages of the Deliverables but which were not highlighted to the Supplier during the applicable Acceptance Period, such non-conformities shall not be subject to the remedies as set out in Clause 5.2(c) below.
(c) If there are any non-conformities within any Deliverable, which have been highlighted by Client or the Supplier during the Acceptance Period and whereby the Deliverable has not been accepted by the Client for this reason and such non-conformity is a directly attributable act or omission on the part of the Supplier, the Supplier shall (without prejudice to the Client’s other rights and remedies) carry out all necessary remedial work without additional charge as part of the next Deliverable which shall accordingly be modified.
(d) If any non-conformity cannot be remedied by the Supplier due to an error, defect or fault which the Supplier is able to demonstrate to the reasonable satisfaction of the Client to be outside the Supplier’s control and which has disabled the Supplier’s ability to remedy such non-conformity, then the Supplier reserves the right to terminate work on that specific Deliverable. The Supplier agrees not to charge Client, any amounts paid or payable by the Client to the Supplier which specifically relate to the non-conforming Deliverable which cannot be remedied.
6. TERM AND TERMINATION
6.1 This Agreement shall commence on the Commencement Date for a period of 12 months unless otherwise set out in the applicable Statement of Work (“Initial Term”) and shall continue in force unless and until terminated in accordance with the provisions of this Agreement or of any Statement of Work as applicable.
6.2 This Agreement shall , unless terminated earlier in accordance with this Agreement, automatically be extended for successive twelve (12) month periods (“Extended Term”) at the end of the Initial Term and at the end of each Extended Term, unless a party gives written notice to the other party, not later than ninety (90) days before the end of the Initial Term or the relevant Extended Term, to terminate this Agreement at the end of the Initial Term or the relevant Extended Term, as the case may be.
6.3 Without prejudice to any rights that the parties have accrued under this Agreement, or any of their respective remedies, obligations or liabilities, either party may terminate this Agreement and applicable Statement of Work (which is subject to the event listed below) with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any material term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified 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; or
(c) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
7. CONSEQUENCES OF TERMINATION
7.1 If this Agreement terminates in accordance with Clause 6 (and only in such circumstances), then subject to the total Fees incurred, the Client will pay the Supplier, any costs that have been actually and properly incurred by the Supplier including any and all outstanding fees and any termination fees from any Third Party Services (as defined in Clause 11.1) prior to the date of termination and/or as otherwise specified by the Supplier to the Client as being payable, unless otherwise agreed.
7.2 The Supplier will, if requested by the Client, provide to the Client a copy of any materials created as part of the Services.
8. LIMITATION OF LIABILITY
8.1 Nothing in this Agreement shall limit or exclude either party’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its personnel, agents or subcontractors;
(b) fraud or fraudulent misrepresentation made by that party on which the other party can be shown to have relied.
8.2 Subject to Clause 8.1, neither party shall be liable 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 for:
(a) loss of profits;
(b) loss of sales or business or business opportunity;
(c) loss of agreements or contracts;
(d) loss of actual or anticipated savings;
(e) loss of reputation;
(f) loss of, damage to or corruption of data;
(g) loss of or damage to goodwill; and
(h) any indirect or consequential loss.
8.3 Subject to Clauses 8.1 and 8.2, the parties’ total liability to the other, whether in contract, tort (including negligence), breach of its statutory duty, or otherwise, arising under or in connection with this Agreement shall be limited to one hundred and twenty-five per cent (125%) of the total Fees incurred under this Agreement.
9.1 Each party agrees and undertakes that it will treat all confidential information disclosed to it by the other party in connection with the Services as strictly confidential and shall use it solely for the purpose intended by the Services and shall not, without the prior consent of the other party, publish or otherwise disclose to any third party any such confidential information except for the purposes intended by the relevant Statement of Work.
9.2 To the extent necessary to implement the provisions of any Services, each party may disclose confidential information to its employees, agents, sub-contractors and professional advisers, in each case under the same conditions of confidentiality as set out in Clause 9.1.
9.3 The obligations of confidentiality set out in this Clause 9 shall not apply to any information or matter which: (i) is in the public domain other than as a result of a breach of this Agreement; (ii) was in the possession of the receiving party prior to the date of receipt from the disclosing party or was rightfully acquired by the receiving party from sources other than the disclosing party; (iii) is required to be disclosed by law, or by a competent court, tribunal, securities exchange or regulatory or governmental body having jurisdiction over it wherever situated; or (iv) was independently developed by the receiving party without use of or reference to the confidential information.
9.4 For purposes of this Agreement confidential information shall mean all confidential information (however recorded or preserved) disclosed by a party or its employees, officers, representatives, advisers or subcontractors involved in the provision or receipt of the Services (together, its “Representatives”) to the other party and that party’s Representatives in connection with this Agreement which information is either labelled as such or should reasonably be considered as confidential because of its nature and the manner of its disclosure.
10. INTELLECTUAL PROPERTY AND LICENCE TO SOFTWARE
10.1 Subject to Clause 10.2 below, on creation by the Supplier and upon the Supplier receiving undisputed payment in full, all intellectual property rights in bespoke materials or code created under the Services (“Bespoke IPR”) for the Client shall vest automatically in the Client. The Supplier hereby assigns to the Client its present and future rights and full title and interest in such creations, including but not limited to workflows, widgets, business processes, and customised web coding which are used in order to provide the Services. The Client hereby provides an irrevocable, worldwide, royalty-free licence to the Supplier for the duration of this Agreement to use such Bespoke IPR strictly for the purposes of providing the Services.
10.2 Notwithstanding Clause 10.1 above, the Supplier shall retain exclusive ownership of (i) all of its pre-existing intellectual property (“Background Materials”); and (ii) ideas, concepts, techniques and know-how discovered, created or developed by the Supplier during the performance of the services that are of general application and that are not based on or derived from the Client’s business or the Client’s confidential information (“General IP”) together with the Background Materials, (the “Supplier’s Intellectual Property”). The Supplier grants to the Client a non-exclusive, irrevocable, worldwide, royalty free and non-transferable license to use the Supplier’s Intellectual Property.
10.3 For the purposes of this Agreement, Intellectual Property Rights shall mean, all 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, 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, 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.
10.4 In consideration of the Fee paid by the Client to the Supplier, receipt of which the Supplier hereby acknowledges, the Supplier grants to the Client a non-exclusive, revocable, worldwide, non transferable licence for the duration of this Agreement until terminated to use of the Software. For the purposes of this Clause 10 “Software” means the Supplier’s solutions as set out in the Azure Marketplace as updated from time to time.
10.5 In relation to scope of use:
(a) for the purposes of Clause 10.4:
(i) use of the Software shall be restricted to use of the Software in object code form for the purpose of processing the Client ‘s data for the normal business purposes of the Client (which shall not include allowing the use of the Software by, or for the benefit of, any person other than an employee of the Client); and
(ii) “use of the Software” means loading the Software into temporary memory or permanent storage on the relevant computer, provided that installation on a network server for distribution to other computers is not “use” if the Software is licensed under this licence for use on each computer to which the Software is distributed;
(b) the Client may not use the Software other than as specified in Clause 10.5 and clause 10.5(a) without the prior written consent of the Supplier, and the Client acknowledges that additional fees may be payable on any change of use approved by the Supplier.
10.6 The Client may not use any such information provided by the Supplier or obtained by the Client during any such reduction permitted under Clause 10.5 (a) to create any software whose expression is substantially similar to that of the Software nor use such information in any manner which would be restricted by any copyright subsisting in it.
10.7 The Client shall not:
(a) sub-license, assign or novate the benefit or burden of this licence in whole or in part, unless expressly consented to in writing by the Supplier;
(b) allow the Software to become the subject of any charge, lien or encumbrance; and
(c) deal in any other manner with any or all of its rights and obligations under this Agreement, without the prior written consent of the Supplier.
10.8 The Client shall:
(a) ensure that the Software is installed on designated equipment only;
(b) keep a complete and accurate record of the Client ‘s copying and disclosure of the Software and its users, and produce such record to the Supplier on request from time to time;
(c) notify the Supplier as soon as it becomes aware of any unauthorized use of the Software by any person; and
(d) pay, for broadening the scope of the licences granted under this licence to cover the unauthorized use, an amount equal to the fees which the Supplier would have levied (in accordance with its normal commercial terms then current) had it licensed any such unauthorised use on the date when such use commenced.
10.9 The Client shall permit the Supplier to inspect and have access to any premises (and to the computer equipment located there) at or on which the Software is being kept or used, and have access to any records kept in connection with this licence, for the purposes of ensuring that the Client is complying with the terms of this licence, provided that the Supplier provides reasonable advance notice to the Client of such inspections, which shall take place at reasonable times.
10.10 The Client shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties, and except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software (as applicable) in any form or media or by any means; or
(b) attempt to adapt, make error corrections, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services except to the extent that any reduction of the Software to human readable form (whether by reverse engineering, decompilation or disassembly) is necessary for the purposes of integrating the operation of the Software with the operation of other software or systems used by the Customer, unless the Supplier is prepared to carry out such action at a reasonable commercial fee or has provided the information necessary to achieve such integration within a reasonable period, and the Customer shall request the Supplier to carry out such action or to provide such information (and shall meet the Supplier’s reasonable costs in providing that information) before undertaking any such reduction; or
(c) access all or any part of the Software in order to build a product or service which competes with all or any part of the Software during the term of this Agreement and for a period of six (6) years thereafter; or
(d) use the Software to provide services to third parties unless otherwise agreed by the Supplier; or
(e) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Software available to any third party except the authorised end users; or
(f) attempt to obtain, or assist third parties in obtaining, access to the Software, other than as provided under this Clause 10.
10.11 The Client shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software and, in the event of any such unauthorised access or use, promptly notify the Supplier.
10.12 The rights provided under this Clause 10 are granted to the Client only, and shall not be considered granted to any subsidiary or holding company of the Client unless otherwise agreed in a Statement of Work.
10.13 The Client acknowledges that it is responsible for ensuring that the Client’s hardware, and operating software for such hardware is compatible with the Software and the Supplier gives no warranty in relation thereto unless agreed otherwise in writing between the Parties in the Statement of Work.
11. THIRD PARTY SERVICES
11.1 The Supplier shall (if requested by the Client) procure the third-party licences and or services (together, “Third Party Services”) as set out in the applicable Statement of Work. The Supplier expressly excludes any warranty to the Client that the Third Party Services supplied or licensed by it under this Agreement will operate substantially in accordance with, and perform, the material functions and features as set out in the its marketing, sales or other associated documentations. The Client shall remain liable for any and all payments owed to the Supplier throughout this Agreement and until the end of the respective licence terms and shall adhere to any End User Licence Agreements and any other agreements sent by such third party in relation to the Third Party Services.
12. CLIENT PERSONAL DATA
12.1 For the purposes of Clauses 12.1 to12.8, the following definitions shall apply:
“Applicable Data Protection Legislation”: means:
a) To the extent the UK data protection law applies: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
b) To the extent the EU GDPR applies: the law of the European Union or any member state of the European Union to which the Supplier is subject, which relates to the protection of personal data;
“Client Personal Data” means any personal data which the Supplier processes in connection with this Agreement, in the capacity of a processor on behalf of the Client;
“Applicable Laws” means all applicable laws, statutes, regulations from time to time in force which relate to the business of the applicable party;
“EU GDPR” means the General Data Protection Regulation ((EU) 2016/679) as it has effect in EU law; and
“UK GDPR” has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
12.2 The terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the Applicable Data Protection Legislation;
12.3 Both parties will comply with all applicable requirements of Applicable Data Protection Legislation. Clause 12.1 to 12.8 are in addition to, and do not relieve, remove or replace, a party’s obligations or rights under Applicable Data Protection Legislation.
12.4 The parties have determined that, for the purposes of Applicable Data Protection Legislation, the Supplier shall process the personal data set out in Schedule 1, as a processor on behalf of the Client.
12.5 Without prejudice to the generality of Clause 12.3, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Client Personal Data to the Supplier for the duration and purposes of this agreement.
12.6 In relation to the Client Personal Data, Schedule 1 sets out the scope, nature and purpose of processing by the Supplier, the duration of the processing and the types of personal data and categories of data subject.
12.7 Without prejudice to the generality of Clause 12.3 the Supplier shall, in relation to Client Personal Data:
(a) process that Client Personal Data only on the documented instructions of the Client, which shall be to process that Personal Data for the purpose as set out in Schedule 1;
(b) implement appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Client Personal Data and against accidental loss or destruction of, or damage to, Client Personal Data, which the Client has reviewed and confirms are appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
(c) ensure that any personnel engaged and authorised by the Supplier to process Client Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
(d) assist the Client insofar as this is possible (taking into account the nature of the processing and the information available to the Supplier), and at the Client’s cost and written request, in responding to any request from a data subject and in ensuring the Client’s compliance with its obligations under Applicable Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(e) notify the Client without undue delay on becoming aware of a personal data breach involving the Client Personal Data;
(f) at the written direction of the Client, delete or return Client Personal Data and copies thereof to the Client on termination of this Agreement unless the Supplier is required by Applicable Law to continue to process that Client Personal Data. For the purposes of this clause 12.7(f) Client Personal Data shall be considered deleted where it is put beyond further use by the Supplier; and
(g) maintain records to demonstrate its compliance with Clauses 12.1 to 12.8 and allow for reasonable audits by the Client or the Client’s designated auditor, for this purpose, on reasonable written notice.
12.8 The Client hereby provides its prior, general authorisation for the Supplier to:
(a) appoint processors to process the Client Personal Data, provided that the Supplier:
(i) shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Legislation, and are consistent with the obligations imposed on the Supplier in Clauses 12.1 to 12.8;
(ii) shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of the Supplier; and
(iii) shall inform the Client of any intended changes concerning the addition or replacement of the processors, thereby giving the Client the opportunity to object to such changes provided that if the Client objects to the changes and cannot demonstrate, to the Supplier’s reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Legislation, the Client shall indemnify the Supplier for any losses, damages, costs (including legal fees) and expenses suffered by the Supplier in accommodating the objection.
(b) transfer Client Personal Data outside of the UK as required to deliver the Services, provided that the Supplier shall ensure that all such transfers are effected in accordance with Applicable Data Protection Legislation. For these purposes, the Client shall promptly comply with any reasonable request of the Supplier, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the Commissioner from time to time (where the UK GDPR applies to the transfer).
13. NO PARTNERSHIP OR AGENCY
13.1 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 part of the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
14.1 The Supplier may assign or otherwise transfer the whole or any part of this Agreement, including any of its rights and obligations under this Agreement, without the prior written consent of the Client.
15. ENTIRE AGREEMENT AND COUNTERPARTS
15.1 This Agreement, each Statement of Work (together with any documents referred to therein) and any Variation 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.
15.2 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 or negligent misstatement based on any statement in this Agreement.
15.3 No alteration to or variation of this Agreement shall take effect unless and until a Variation Agreement is signed on behalf of each of the parties by a duly authorised representative.
16.1 If any provision or part-provision of this 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 paragraph shall not affect the validity and enforceability of the rest of this Agreement.
17. THIRD PARTY RIGHTS
17.1 No one other than a party to this Agreement and Microsoft (in respect of enforcing the terms of the CSP Agreement) shall have any right to enforce any of its terms.
18.1 Both parties agree to reasonably cooperate in connection with the creation of mutually beneficial marketing communications, which shall include, at a minimum, a press release, case study and a reference to Client on Supplier’s website, provided that in no event shall either party use the name, trademarks or other proprietary identifying symbols of the other party without such party’s prior written consent, which consent shall not be unreasonably withheld or delayed.
19.1 Any notice or other communication required to be given to a party under or in connection with this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first class post or other next working day delivery service, at its registered office (if a company) or (in any other case) its principal place of business or shall be sent by electronic mail to the email address set out in the Statement of Work or otherwise notified to either party by the other party in writing.
19.2 Any notice or communication shall be deemed to have been received, if: (a) delivered by hand, on signature of a delivery receipt, (b) sent by post, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or (c) sent by electronic mail, on the next Business Day to when it was sent.
19.3 This Clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this clause, “writing” shall include e-mail.
20. FORCE MAJEURE
20.1 Neither party to this Agreement shall be deemed to be in breach of this Agreement or any Statement of Work, or otherwise liable to the other party in any manner whatsoever for any failure or delay in performing its obligations under this Agreement or any Statement of Work due to a force majeure event. For the purposes of this Agreement, force majeure means any cause preventing either party from performing any or all of its obligations which arises from or is attributable to acts, events, omissions or accidents beyond the reasonable control of the party so prevented including, without limitation, act of God, war, pandemic, epidemic, riot, civil commotion, compliance with any law or governmental order, rule, regulation or direction, flood or storm, save that strike or lock out of the party’s own staff shall not entitle them to claim that to be a force majeure event (“Force Majeure”).
20.2 A party shall only be entitled to claim relief under this Clause if it:
(a) informs the other party as soon as reasonably possible that an event of Force Majeure has occurred; and
(b) uses all reasonable endeavours to recommence the performance of its obligations in accordance with this Agreement and any affected Statement of Work as soon as possible and keeps the other party informed as to progress and the estimated dates on which that party will be able to recommence full performance of its obligations.
20.3 In the event that the Supplier is unable to provide any Services in accordance with the requirements of this Agreement and any relevant Statement of Work due to an event of Force Majeure, the Fees payable under each affected Statement of Work shall be subject to a pro-rata reduction so that the Client is not required to pay for any Services which are not performed due to that event of Force Majeure.
21.1 The Client shall not solicit the Supplier’s staff or contractors who have been employed or engaged in the Services or the performance of this Agreement during the lifetime of this Agreement and for a period of twelve (12) months thereafter. For the purposes of this Clause ‘solicit’ means the soliciting of such person with a view to engaging such person as an employee, director, subcontractor or independent contractor.
21.2 In the event that the Client is in breach of Clause 21.1 above then the Client shall pay to the Supplier by way of liquidated damages an amount equal to thirty percent (30%) per cent of the gross annual budgeted fee income (as at the time of the breach or when such person was last in the service of the relevant party) of the person so employed or engaged. This provision shall be without prejudice to the Supplier’s ability to seek injunctive relief.
21.3 The parties hereby acknowledge and agree that the formula specified in Clause 21.2 above is a reasonable estimate of the loss which would be incurred by the loss of the person so employed or engaged.
22. ANTI BRIBERY
22.1 The parties agree to abide by all applicable laws, regulations and sanctions to anti-bribery and anti-corruption, including the Bribery Act 2010.
23. GOVERNING LAW AND JURISDICTION
23.1 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.
23.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.