Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Charges: the charges payable by the Customer for the supply of the Services by the Supplier, as set out in the Contract Details.
Conditions: these agreed terms and conditions set out in clause 1 to clause 9 (inclusive).
Contract: the contract between the Customer and the Supplier for the supply of the Services in accordance with the Contract Details, these Conditions and any applicable Schedules.
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: all materials, equipment and tools, drawings, specifications and data supplied by the Customer to the Supplier.
Deliverables: 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).
Expenses: the expenses payable by the Customer as set out in the Contract Details.
Frontline Services: (where applicable) the services, including without limitation any Deliverables to be provided by the Supplier (or its subcontractors) pursuant to this Contract, as described in Schedule 3.
ILS Services: (where applicable) the services, including without limitation any Deliverables to be provided by the Supplier pursuant to this Contract as described in Schedule 1.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Services: the ILS Services, Vismo Services and/or Frontline Services as the case may be.
Services End Date: the day on which the Supplier is to cease provision of the Services (if applicable), as set out in the Contract Details.
Services Start Date: the day on which the Supplier is to start provision of the Services, as set out in the Contract Details.
Supplier IPRs: all Intellectual Property Rights subsisting in the Deliverables excluding any Customer Materials incorporated in them.
Vismo Services: (where applicable) the services, including without limitation any Deliverables to be provided by the Supplier (or its subcontractors) pursuant to this Contract, as described in Schedule 2.
(a) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(b) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(c) A reference to writing or written includes email.
2. Commencement and term
This Contract shall commence on the date when it has been signed by both parties and shall continue, unless terminated earlier in accordance with its terms, until either party gives to the other not less than three months’ written notice to terminate.
3. Supply of services
3.1. The Supplier shall supply the Services to the Customer from the Services Start Date in accordance with this Contract.
3.2 The Services may consist of any combination of ILS Services, Vismo Services and Frontline Services, as set out in the Contract Details and the relevant Schedules. Where ILS Services are to be provided, the provisions of Schedule 1 shall apply. Where Vismo Services are to be provided, the provisions of Schedule 2 shall apply. Where Frontline Services are to be provided, the provisions of Schedule 3 shall apply.
3.3 In supplying the Services, the Supplier shall:
(a) perform the Services with reasonable care and skill;
(b) use reasonable endeavours to perform the Services in accordance with the service description set out in the applicable schedule;
(c) use reasonable endeavours to meet any performance dates discussed between the parties or set out in the Contract Details or the applicable schedule but any such dates shall be estimates only and time for performance by the Supplier shall not be of the essence.
(d) ensure that the Deliverables, and all goods, materials, standards and techniques used in providing the Services are of satisfactory quality and are fit for purpose;
(e) comply with all applicable laws, statutes, regulations and codes from time to time in force, provided that the Supplier shall not be liable under this agreement if, as a result of such compliance, it is in breach of any of its obligations under this agreement.
(f) observe all reasonable health and safety rules and regulations, safeguarding and security requirements that apply at any of the Customer's premises and have been communicated to the Supplier, provided that the Supplier shall not be liable under this agreement if, as a result of such observation, it is in breach of any of its obligations under this Contract, or if the Supplier assesses that those rules and regulations will place its staff at undue risk;
(g) take reasonable care of all Customer Materials in its possession and make them available for collection by the Customer on reasonable notice and request, always provided that the Supplier may destroy the Customer Materials if the Customer fails to collect the Customer Materials within a reasonable period after termination of this Contract;
(h) appoint a Supplier Representative for the Services, as set out in the Contract Details. The Supplier may replace that person from time to time where reasonably necessary in the interests of the Supplier’s business.
4. Customer's obligations
4.1. The Customer shall:
(a) co-operate with the Supplier and its subcontractors in all matters relating to the Services;
(b) 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 or any of them;
(c) provide, in a timely manner, such information documents, items and materials as the Supplier and it subcontractors may require, and ensure that it is accurate in all material respects;
(d) appoint a Customer Representative for the Services, as set out in the Contract Details. Where the Customer Representative does not have the authority to contractually bind the Customer, the Customer must immediately inform the Supplier of this and provide the Supplier with full details of a person who does have the authority to contractually bind the Customer on all matters relating to the Services.
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, the Supplier shall:
(a) 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;
(b) be entitled to payment of the Charges despite any such prevention or delay; and
(c) 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.
5. Intellectual property
5.1. 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.
5.2. 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 copy 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 Contract.
5.3. The Customer grants the Supplier a fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable licence to copy and modify the Customer Materials for the term of this Contract for the purpose of providing the Services to the Customer in accordance with this Contract.
5.4. The Customer shall keep the Supplier indemnified in full against any sums awarded by a court against the Supplier as a result of or in connection with any claim brought against the Supplier for 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.
6. Charges and payment
6.1. In consideration for the provision of the Services, the Customer shall pay the Supplier the Charges and the Expenses in accordance with this clause 6.
6.2. All amounts payable by the Customer exclude amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.
6.3. The Supplier shall submit invoices for the Charges and Expenses plus VAT if applicable to the Customer as follows:
(a) where Services are being provided on the basis of an ongoing retainer (Retained Work), monthly in arrear, on or around the last working day of each month;
(b) where ILS Services are carried out in relation to a specific project or piece of work (Project Work), rather than on the basis of an ongoing retainer, on completion of the ILS Services or on completion of phases of work as agreed in the Contract Details;
(c) where Vismo Services are provided, other than as part of Retained Work, in advance of such Services being provided; and
(d) where Frontline Services are provided, both in advance of the Services being provided (in respect of set up costs) and thereafter monthly in arrear, on or around the last working day of each month.
Each invoice shall include all reasonable supporting information required by the Customer.
6.4. The Customer shall pay each invoice due and submitted to it by the Supplier, within 14 days of receipt, to a bank account nominated in writing by the Supplier.
6.5. If the Customer fails to make any payment due to the Supplier under this Contract by the due date for payment, then, without limiting the Supplier's remedies under clause 8:
(a) the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Bank of England'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.
(b) the Supplier may suspend all Services until payment has been made in full.
6.6. All amounts due under this agreement shall be paid by the Customer to the Supplier in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
7. Limitation of liability
7.1. Nothing in this Contract shall limit or exclude the Supplier'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; and
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
7.2. Subject to clause 7.1, 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:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) any indirect or consequential loss.
7.3. Subject to clauses 7.1 and 7.4, the Supplier's total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this Contract shall be limited to the average annual Charges (calculated by reference to the Charges in successive 12 month periods from the Services Start Date) paid by the Customer under this Contract.
7.4. In relation to any liability which arises as a result of the provision of the Vismo Services or the Frontline Services, the Supplier shall use reasonable endeavours to recover the Customer’s losses from the relevant subcontractor. The total liability of the Supplier for losses which arise out of the Vismo Services and/or the Frontline Services will, in all circumstances, be limited to such amount as is recovered from the relevant subcontractor.
7.5. The conditions 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.
8.1. Without affecting any other right or remedy available to it, either party to this Contract may terminate it 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 Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under this Contract has been placed in jeopardy.
8.2. Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer fails to pay any amount due under this Contract on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment; or
(b) there is a change of Control of the Customer.
8.3. On termination of this Contract for whatever reason:
(a) the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of 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 not be entitled to any refund or reduction in the Charges payable as a result of any unexpired period of any periodic licence granted under this Contract;
(c) termination of the Contract shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract which existed at or before the date of termination; and
(d) any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
9. Force Majeure
9.1 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 building, fire explosion or accident; and
(g) any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause, or companies in the same group as that party);
(h) non-performance by suppliers or subcontractors; and
(i) interruption or failure of utility service.
9.2. Provided it has complied with clause 9.4, 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 reasonably extended accordingly.
9.3. Subject to clause 9.5, 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.
9.4. The Affected Party shall:
(a) as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the agreement; and
(b) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
9.5. If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than 2 weeks, the party not affected by the Force Majeure Event may terminate this agreement by giving 1 weeks written notice to the Affected Party.
9.6. If the Force Majeure Event causes a delay in the Supplier (or any of its employees, contractors, consultants or agents) departing the country in which the Force Majeure Event has occurred (or which has otherwise been affected by the Force Majeure Event) beyond the original scheduled date of return, the Customer shall be obliged to pay to the Supplier 50% of the usual daily rate which forms part of the Charges plus all costs and expenses (including but not limited to accommodation and food) incurred by the Supplier (or any of its employees, contractors, consultants or agents) for the duration of such delay.
10.1. Assignment and other dealings
(a) The Customer shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Contract without the Supplier’s prior written consent.
(b) The Supplier may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under this Contract.
(a) 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 10.2(b).
(b) Each party may disclose the other party's confidential information:
(i) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under this Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 10.2; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) No party shall use any other party's confidential information for any purpose other than to perform its obligations under this Contract.
10.3. Entire agreement
(a) This Contract 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.
(b) 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 Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Contract.
10.4. Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
10.5. Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:
(a) waive that or any other right or remedy; or
(b) prevent or restrict the further exercise of that or any other right or remedy.
10.6. Severance. If any provision or part-provision of this Contract 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 this Contract.
(a) Any notice or other communication given to a party under or in connection with this Contract shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier or email.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 10.7(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by email, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
10.8. Third party rights. No one other than a party to this agreement shall have any right to enforce any of its terms.
10.9. Governing law. This Contract, 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.
10.10. 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 Contract or its subject matter or formation.