General Terms & Conditions

20.05.21

1. Interpretation

1.1. Definitions:

Agreement: the agreement between Intec and the Customer for the supply of the Products, comprised of: (i) the Proposal; and (ii) the Agreement Terms.

Agreement Terms: together, the Conditions, the Product-Specific Terms (if any), the Third Party Terms (if any) and the Schedules referred to in or attached to the Proposal (if any) (Schedules).

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 for the Products, as set out in a Proposal.

Commencement Date: as defined in clause 2.3.

Conditions: these terms and conditions, as amended from time to time in accordance with clause 12.6.

Customer: the person or firm who purchases the Products from Intec, as specified in the Proposal.

Customer Materials: all materials, information, specifications and data supplied or made available by the Customer to the Supplier.

Deliverables: all documents, information, products and materials developed by the Supplier or its agents, subcontractors or personnel as part of or in relation to the Products in any form, including without limitation computer programs, data, reports and specifications (including drafts).

Group: in relation to a company, that company, any subsidiary or holding company from time to time  of that company, and any subsidiary from time to time of a holding company of that company; where holding company and subsidiary shall bear the meaning given to those terms in section 1159 of the Companies Act 2006.

Parties: together the Customer and the Supplier, and Party shall be construed accordingly.

Product-Specific Terms: additional terms and conditions applicable to the Products, as attached to, included in or otherwise incorporated by reference to a Proposal.

Proposal: the proposal issued by the Supplier to the Customer in respect of the Products, as attached hereto.

Products: the goods and/or services described in the Proposal, excluding any Third Party Products.

Start Date: the date from which the Supplier begins providing the Products, being, unless otherwise agreed in writing between the Parties, the later of (i) the date set out in the Proposal; and (ii) the Commencement Date.

Supplier: the person or firm who supplies the Products to the Customer, as specified in the Proposal.

Supplier Equipment: any equipment, including tools, systems, cabling or facilities, provided by the Supplier to the Customer and used directly or indirectly in the supply of the Products.

Supplier IPRs: all intellectual property rights subsisting in the Deliverables (excluding any Customer Materials incorporated in them) and/or otherwise used by the Supplier in the performance of the Agreement.

Term: the period for which the Agreement shall continue, as set out in the Proposal.

Third Party Products: the third party goods and/or services set out or referenced in a Proposal.

Third Party Terms: the obligations and other terms attached to, included in or otherwise incorporated by reference to a Proposal, with which the Customer agrees to comply, as such may be amended by the supplier of the Third Party Products from time to time.

UK GDPR: has the meaning give to it in the Data Protection Act 2018.

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

1.3  A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made from time to time under that statute or statutory provision.

1.4 References to clauses are to clauses of the Conditions, references to Schedules are to the Schedules of the Agreement and references to paragraphs are to paragraphs of the relevant Schedule.

1.5 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

2. Basis of contract

2.1. The Proposal constitutes an invitation by the Supplier to provide Products in accordance with the Proposal, these Conditions, any Schedules and any Product-Specific Conditions (Invitation).

2.2. If the Customer wishes to accept the Invitation, it shall sign the Proposal, at which point the Customer shall be deemed to have made an offer to purchase the Products in accordance with the Initiation.

2.3. Any offer made by the Customer pursuant to clause 2 shall only be deemed to be accepted by the Supplier upon earlier of: (i) the Supplier signing the Proposal; and (ii) the Supplier commencing the supply of the Products pursuant to the Proposal, at which point and on which date the Agreement shall come into existence (Commencement Date).

2.4. Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Products described in them. They shall not form part of the Agreement or have any contractual force.

2.5. The Agreement Terms apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.

2.6. Any Proposal given by the Supplier shall not constitute an offer, and is only valid for a period of thirty (30) days from its date of issue.

3. Supply of Products

3.1. The Supplier shall supply (or procure the supply of) the Products to the Customer in accordance with the Agreement.

Services

3.2. Where the Products include services:

3.2.1. subject to clauses 2.2 and 3.2.3, the services shall be supplied from the Start Date and for the Term;

3.2.2. where the Proposal is stated to auto-renew indefinitely, the services shall be supplied from the Start Date until either the Customer or the Supplier gives to the other the minimum period of notice to terminate (as specified in the Proposal) (Notice Period), expiring on or after expiry of the Term;

3.2.3. where the Proposal is stated to auto-renew for multiple fixed renewal terms, the services shall be supplied from the Start Date and shall continue for the Term (Initial Term) and shall automatically extend for the fixed renewal term stated in the Proposal (Extended Term) at the end of the Initial Term and at the end of each Extended Term. The Customer or the Supplier may give written notice to the other, not later than the Notice Period before the end of the Initial Term or the relevant Extended Term, to terminate the Proposal at the end of the Initial Term or the relevant Extended Term, as the case may be;

3.2.4. the Supplier shall perform such services with reasonable care and skill and in accordance with applicable laws;

3.2.5. the Supplier shall use reasonable endeavours to meet the Service Levels in respect of such services.

3.3. If the Supplier fails to meet any Service Level in any three consecutive months, the Customer shall notify the Supplier within 14 days of the end of the third consecutive month and such failure shall be discussed between the Parties and a written action plan to remedy such failure will be provided by the Supplier within 30 days for approval by the Customer (Rectification Plan). Upon approval of the Rectification Plan by the Customer, it shall be implemented by the Supplier within 30 days (or such other period as is agreed in writing between the Parties) to rectify the failure and to prevent the reoccurrence of any such failures within the two months following completion of implementation.

3.4. The Customer hereby acknowledges and agrees that the Supplier is wholly reliant on the Customer Materials provided by the Customer to it and, accordingly:

3.4.1. the Customer agrees that it shall provide to the Supplier all Customer Materials reasonably requested by the Supplier, promptly upon request;

3.4.2. the Customer shall ensure that all Customer Materials made available to the Supplier are accurate, complete and up to date in all respects;

3.4.3. the Customer agrees that if any Customer Materials are inaccurate, incomplete and/or out of date the Supplier may need to increase its estimated costs and/or timescales in connection with the Products and shall not be in breach of the Agreement as a result thereof; and

3.4.4. the Supplier shall not be responsible for any failure or delay arising (directly or indirectly) from the Customer Materials and/or the Supplier’s reliance on them.

Goods

3.5. Where the Products include goods, the estimated delivery date of such goods, terms relating to the delivery of such goods and the quantity and description of such goods shall be as specified in the Proposal.

3.6. Where the Products include goods and the goods are stated in the Proposal to be subsidised as a result of a service purchased by the Customer:

3.6.1. the risk in the goods shall pass to the Customer on completion of delivery;

3.6.2. title to the goods shall not pass to the Customer until the goods have been paid for in full or, where there is no specific price payable for the goods (for example, where goods are provided in connection with a service and the price payable relates to both the goods and services) upon expiry of the minimum period for which the Customer is required to purchase the Products, as stated in the Proposal;

3.6.3. until title to the goods has passed to the Customer, the Customer shall use the goods only in the normal course of its business and shall:

3.6.3.1. not sell the goods or allow them to be used by any third party;

3.6.3.2. handle the goods with reasonable care and maintain the goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;

3.6.3.3. ensure the goods are identifiable as the Supplier’s property;

3.6.3.4. not pledge the goods or in any way charge the goods by way of security for any indebtedness;

3.6.3.5. not make or allow any person to make any alterations, additions to or reconfigurations of the goods without the Supplier’s prior written consent; and

3.6.3.6. use the goods solely in accordance with any reasonable and lawful instructions made available by the Supplier or, if there are no such instructions, in accordance with standard industry practice.

3.6.4. without prejudice to any other rights and remedies available to the Supplier, if the Customer breaches the Agreement or becomes subject to any event listed in clauses 2.3 or 10.2.4, the Supplier may:

3.6.4.1. by notice in writing, require the Customer to deliver up all such goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the goods are stored in order to recover them; and

3.6.4.2. require the Customer to pay to the Supplier, on demand: (i) any sums payable in respect of the goods which have not been paid as at the date the Customer breaches the Agreement or becomes subject to any event listed in clauses 2.3 or 10.2.4; and (ii) the difference between the discounted price for the goods and the goods’ recommended retail price.

3.6.5. the Customer shall notify the Supplier in writing immediately if the goods are subject to any theft, loss, damage or unauthorised use and:

3.6.5.1. the Customer shall continue to make payment for the goods in accordance with clause 8 of the Conditions; and

3.6.5.2. without prejudice to any other rights and remedies available to the Supplier, if the Customer requires a replacement of the goods, such replacement shall be provided at the full recommended retail price for such goods and such price shall be payable by the Customer on the terms specified by the Supplier in writing at the relevant time.

Technology funds

3.7. If the Proposal states that the Customer shall be entitled to a technology fund, the following terms shall apply:

3.7.1. the technology fund may be utilised, during the Term, to purchase such products and services as are provided by the Supplier from time to time; provided that, unless agreed otherwise in writing by the Supplier, the technology fund may not be utilised to purchase any products or services provided by any third party;

3.7.2. the technology fund shall be subject to any additional terms and conditions set out in the Proposal;

3.7.3. the technology fund may not be exchanged for cash, vouchers or any other form of value and is personal to the Customer and may not be transferred to any other person or entity; and

3.7.4. on termination of expiry of the Agreement, the value of the fund shall be deemed to be £0 and the Customer shall have no right to any refund or exchange in respect of the fund (this applies regardless of whether the fund has been fully utilised).

Other

3.8. The Supplier shall use reasonable endeavours to meet any performance dates specified in a Proposal but any such dates shall be estimates only and time for performance by the Supplier shall not be of the essence of the Agreement.

4. Customer’s obligations

4. The Customer shall:

4.1.1. comply in all respects with its obligations specified in the Proposal (the “Customer Obligations”) in a timely manner;

4.1.2. comply with all applicable laws, rules, regulations, regulatory requirements and codes of practice in respect of its receipt and use of the Products;

4.1.3. provide the Supplier, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, such information, access and cooperation as may be reasonably required by the Supplier from time to time;

4.1.4. obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable the Supplier to provide the Products, in all cases before the date on which the Products are to be provided;

4.1.5. where the Products include goods, be responsible (at the Customer’s cost) for preparing the delivery location of such goods for delivery and for the provision of all necessary access and facilities reasonably required to deliver and (where applicable) install the goods;

4.1.6. ensure that its network and systems comply with the relevant specifications provided by the Suppler or any provider of Third Party Products from time to time;

4.1.7. be, to the extent permitted by law and except as otherwise expressly provided in the Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet;

4.1.8. be responsible for the security of all usernames, passwords and credentials used to access the Products and Customer is responsible for any breach of security in connection with its usernames, passwords or credentials whether unauthorised or fraudulent. If Supplier discovers unauthorised or fraudulent use is being made of the Products, Customer agrees to the Supplier taking such action it deems reasonably necessary including without notice if required, to prevent any such access.

4.1.9. use the Products in accordance with the Supplier’s reasonable and lawful instructions (as such may be provided from time to time)

4.1.10. keep and maintain the Supplier Equipment in good condition  and not dispose of or use the Supplier Equipment other than in accordance with the Supplier’s written instructions or authorisation;

4.1.11. comply in a timely manner in all respects with the Third Party Terms in accordance with the terms of the Agreement.

4.2. The Customer shall not access, store, distribute or transmit any viruses, or any material during the course of or in connection with its use of or receipt of the Products that: (i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (ii) facilitates illegal activity; (iii) depicts sexually explicit images; (iv) promotes unlawful violence; (v) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; (vi) infringes or might reasonably be expected to infringe the intellectual property rights of any third party; or (vii) is otherwise illegal or causes damage or injury to any person or property.

4.3. The Customer shall not, 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 the Proposal: (i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Products or any document or materials related thereto, in any form or media or by any means; or (ii) (where any of the Products are software), attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Products; or (iii) use or access all or any part of a Product in order to build a product or service which competes with the Product; or (iv) use a Product to provide services to third parties; or (v) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make a Product available to any third party; or (vi) introduce or permit the introduction of, any bug or virus into the Supplier’s network and information systems.

4.4. If the Supplier’s performance of its obligations under the Agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, or its failure to comply with clause 1 (Customer Default) the Supplier shall be entitled to suspend performance of its obligations pursuant to the Agreement until the Customer remedies the Customer Default and shall continue to be entitled to payment of the Charges and also any additional costs, charges or losses the Supplier sustains or incurs arising from such Customer Default.

5. Third Party Products

5.1. In respect of Third Party Products, the Customer acknowledges and agrees that:

5.1.1. the terms and conditions upon which such Third Party Products shall be supplied shall be determined by the provider of the Third Party Products in its sole discretion;

5.1.2. the Customer shall be solely and exclusively responsible for reviewing the Third Party Requirements (which may include any warranties provided by the provider of the Third Party Products in respect of the Third Party Products), ensuring it has fully and properly understood the Third Party Requirements and determining the appropriateness of such requirements for the Customer’s business;

5.1.3. save as expressly stated in the Proposal, the Supplier provides no warranties, guarantees or assurances in respect of the Third Party Products and/or the provider thereof and the agreement to purchase such Third Party Products shall be entirely at its own risk; the Customer shall not be relieved or released from any of its obligations under the Agreement as a result of any act or omission of the provider of any Third Party Products; and

5.1.4. in the event that the Customer terminates the Agreement prior to expiry of the Term, in addition to Intec’s and the Supplier’s other losses, Intec and/or the Supplier may also suffer losses in respect of any Third Party Products and, without prejudice to any other rights and remedies available to Intec and/or the Supplier, the Customer may be responsible for reimbursing Intec and/or the Supplier for the reasonable cost of such losses.

5.2. Where any terms of the Agreement relate to the Third Party Product(s) and/or arise from the terms and conditions of supply and/or other requirements of the provider of a Third Party Product (Third Party Requirements), the Supplier may, notwithstanding clause 12.6 of this agreement:

5.2.1. vary such Third Party Requirements, on notice in writing to the Customer, and such variation shall take effect from the date specified by the provider of the Third Party Product;

5.2.2. unless expressly agreed otherwise in the Purchase Order, where the Supplier includes in the Purchase Order, a link to any Third Party Requirements, the Customer hereby acknowledges and agrees that the Third Party Requirements available at such link may be varied from time to time by the provider of the Third Party Products and, whilst the Supplier shall use its reasonable endeavours to inform the Customer as soon as reasonably practicable after being notified in writing by the Third Party Products of any such variation, the Customer shall be solely responsible for ensuring it monitors any changes to the Third Party Requirements and agrees to any varied Third Party Requirements; and

5.3. Where it is specified in a Purchase Order that the Customer is required to enter into a direct agreement with the provider of Third Party Products:

5.3.1. it shall enter into a direct agreement with the provider of the Third Party Products, on and subject to such provider’s Third Party Requirements (as such may be varied from time to time); and

5.3.2. neither Intec nor the Supplier shall have any liability whatsoever in respect of such Third Party Products.

6. Intellectual property

6.1. The Supplier and its licensors shall retain ownership of all Supplier IPRs and hereby grants the Customer a non-exclusive, royalty-free, revocable licence to use the Supplier IPRs as necessary for the purpose of receiving and using the Products and the Deliverables in the Customer’s business during the term of the Agreement.

6.2. The Customer hereby grants the Supplier a fully paid-up, worldwide, non-exclusive, royalty-free licence to copy and modify the Customer Materials for the purpose of providing the Products to the Customer in accordance with the Agreement.

6.3. The Customer shall indemnify the Supplier and each member of its Group in full against any costs, expenses, losses or liabilities suffered or incurred in connection with any claim brought against the Supplier and/or any member of its Group 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.

7. Data protection

7.1. For the purposes of this clause 7, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the UK GDPR.

7.2. Both Parties will comply with all applicable laws relating to the processing and protection of personal data (Data Protection Laws).

7.3. The Parties have determined that, for the purposes of Data Protection Laws:

7.3.1. the personal data processed by the Supplier for the purpose of the administration and management of its relationship with the Customer (including the names, contact details and job titles of personnel, representatives and agents of the Customer) shall be processed by the Supplier as controller; and

7.3.2. the personal data processed by the Supplier in the course of providing the Purchased Products to the Customer (Personal Data) shall be processed by the Supplier as a processor on behalf of the Customer and shall be further described in a Purchase Order.

7.4. 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 and access to the Personal Data by the Supplier for the duration and purposes of each Purchase Order.

7.5. In respect of the Personal Data, 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 shall be as described in the relevant Purchase Order.

7.6. The Supplier shall, in relation to the Personal Data:

7.6.1. process that Customer Personal Data only on the documented instructions of the Customer, which shall be to process the Customer Personal Data for the purposes set out in the Proposal, unless the Supplier is required by applicable laws to otherwise process that Personal Data (in which case the Supplier shall notify the Customer of this before performing the processing required by such law unless those laws prohibit the Supplier from so notifying the Customer on important grounds of public interest). The Supplier shall inform the Customer if, in the opinion of the Supplier, the instructions of the Customer infringe Data Protection Laws;

7.6.2. implement appropriate technical and organisational measures to protect against unauthorised or unlawful processing of the Personal Data and against accidental loss or destruction of, or damage to, the Personal Data, having regard to the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as 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;

7.6.3. ensure that any personnel engaged and authorised by the Supplier to process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;

7.6.4. assist the Customer insofar as this is possible (taking into account the nature of the processing and the information available to the Supplier), and at the Customer’s cost and written request, in responding to any request from a data subject and in ensuring the Customer’s compliance with its obligations under Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

7.6.5. notify the Customer without undue delay on becoming aware of a personal data breach involving the Customer Personal Data;

7.6.6. at the written direction of the Customer, and at the Customer’s cost and expense, (at the option of the Supplier, either) delete or return the Personal Data and copies thereof to the Customer on termination of the Purchase Order to which the Personal Data relates unless the Supplier is required by applicable laws to continue to process that Personal Data. For the purposes of this clause 6.6, Personal Data shall be considered deleted where it is put beyond further use by the Supplier; and

7.6.7. maintain such records as are reasonably required to demonstrate its compliance with this clause 7 and makes copies of such records (to the extent relating to the Personal Data) available to the Customer on its reasonable request during the Term to demonstrate the Supplier’s compliance with this clause 7 and the Data Protection Laws. If the Customer, acting reasonably, determines that the records provided in accordance with this clause 6.7 are insufficient to demonstrate the Supplier’s compliance with this clause 7 and Data Protection Laws it may, during the Term, on not less than thirty days’ prior written notice, allow for a reasonable audit by the Customer or the Customer’s designated auditor (subject to such auditor entering into such binding confidentiality undertakings as are approved by the Supplier), for this purpose. Any such audit shall not be carried out more than once in any twelve month period and shall be conducted in such a manner as to minimise any disruption to the Supplier’s business.

7.7. The Customer provides its prior, general authorisation for the Supplier to:

7.7.1. appoint processors to process the Personal Data, provided that the Supplier:

7.7.1.1. shall ensure that the terms on which it appoints such processors comply with Data Protection Laws, and are consistent with the obligations imposed on the Supplier in this clause 7;

7.7.1.2. shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of the Supplier; and

7.7.1.3. shall inform the Customer of any intended changes concerning the addition or replacement of the processors, thereby giving the Customer the opportunity to object to such changes provided that if the Customer 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 Data Protection Law, the Customer shall indemnify the Supplier for any losses, damages, costs (including legal fees) and expenses suffered by the Supplier in accommodating the objection. Where applicable, for the purpose of this clause, the Customer shall be deemed to have consented to the appointment of the provider of any Third Party Products as a processor where the Customer purchases Third Party Products in a Purchase Order;

7.7.2. transfer Personal Data outside of the UK as required, provided that the Supplier shall ensure that all such transfers are effected in accordance with Data Protection Laws. 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 Commissioner from time to time (where the UK GDPR applies to the transfer).

8. Charges and payment

8.1. In consideration for the provision of the Products, the Customer shall pay the Supplier the Charges in accordance with the payment schedule specified in the Proposal or, if there is no payment schedule specified, in accordance with clause 6.

8.2. Where the Charges are calculated on a time and materials basis and unless expressly stated otherwise in the relevant Proposal:

8.2.1. the Supplier’s daily fee rates provided in the Proposal are calculated on the basis of an eight-hour day, worked during Business Hours, being the period from 9.00am to 5.00pm on any Business Day;

8.2.2. the Supplier shall be entitled to charge an overtime rate as set out in the relevant Proposal on a pro rata basis for any time worked by individuals whom it engages (with the Customer’s agreement) on the Products outside Business Hours; and

8.2.3. the Supplier shall ensure that every individual whom it engages on the Products completes time sheets to record time spent on the Products, and the Supplier shall, where requested, indicate the time spent per individual in its invoices.

8.3. Where the Charges are calculated on a fixed price basis, the amount of those charges shall be as set out in the Proposal.

8.4. Charges exclude the following, which shall be payable by the Customer within 30 days following submission of an appropriate invoice or as otherwise stated in the Proposal:

8.4.1. the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Products; and

8.4.2. the cost to the Supplier of any materials or services procured by the Supplier from third parties for the provision of the Products as such items and their cost are set out in the Proposal or otherwise approved by the Customer in advance from time to time.

8.5. 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 and shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

8.6. The Customer shall pay each invoice submitted to it by the Supplier within 30 days of the date of the invoice and to the bank account nominated in writing from time to time by the Supplier. If the Customer fails to make any payment due to the Supplier under the Agreement by the due date for payment, then, without limiting the Supplier’s remedies under clause 10

8.6.1. the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, at a rate of 5% per annum above the base rate of the Bank of England from time to time, whether before or after judgment; and

8.6.2. the Supplier may suspend all or part of the supply of the Products until payment has been made in full.

8.7. The Supplier may increase the Charges from time to time to reflect any increase in its input costs (including, but not limited to, the cost of any Third Party Products). The Supplier shall provide written notice of such increase to the Customer as soon as reasonably practicable following receipt of its own notice from the supplier of such input. Such increase in the Charges shall take effect from the date specified in the written notice.

9. Limitation of liability

9.1. Nothing in the Agreement shall limit or exclude the Supplier’s liability for: death or personal injury caused by its negligence, or the negligence of its personnel, agents or subcontractors; fraud or fraudulent misrepresentation; and/or any other liability which cannot be limited or excluded by applicable law.

9.2. Subject to clause 9.1, 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 the Agreement for: loss of profits; loss of sales or business; loss of agreements or contracts; loss of anticipated savings; loss of use or corruption of software, data or information; loss of or damage to goodwill; and any indirect or consequential loss.

9.3. Subject to clauses 9.1 and 9.2, the Supplier’s total aggregate liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, howsoever arising under or in connection with the Agreement shall be limited to the amount received by the Supplier from the Customer pursuant to the Agreement during the twelve months preceding the date the liability arose, provided that if any liability arises during the first twelve months of the Agreement, the Supplier’s total aggregate liability to the Customer shall be the amounts received from the Customer and payable by the Customer, to the Supplier, in the first twelve months of the Term.

9.4. The Supplier is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Products may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

9.5. Except as expressly and specifically provided in this Agreement:

9.5.1. the Customer assumes sole responsibility for results obtained from the use and/or receipt of the Products, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Products, or any actions taken by the Supplier at the Customer’s direction; and

9.5.2. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement.

9.6. Any liability of the Supplier for non-delivery of any goods comprising the Products shall in all circumstances be limited to replacing such goods within a reasonable time or issuing a credit note at the pro rata agreed rate against any invoice raised for such goods.

9.7. This clause 9 shall survive termination or expiry of the Agreement (howsoever caused).

10. Commencement and Termination

10.1. The Agreement shall commence on the date when it has been signed by the Parties and shall continue, unless terminated earlier in accordance with clause 2, until the Supplier is no longer required, pursuant to clause 3.2, to provide any Products.

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

10.2.1. the other Party commits a material breach of any term of the Agreement which breach is irremediable;

10.2.2. the other Party commits a material breach of any term of the Agreement and fails to remedy that breach within a period of 14 days after being notified in writing to do so; or

10.2.3. 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

10.2.4. the other Party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Agreementis in jeopardy; or

10.2.5. a Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than four (4) weeks.

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

10.3.1. the Customer fails to pay any amount due under the Agreement on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment;

10.3.2. the Agreement includes the supply of any Third Party Products and the Supplier’s agreement with the supplier of such Third Party Products is terminated; or

10.3.3. the Customer is the subject of a change of control and the Supplier (acting reasonably) determines that it no longer wishes to provide the Products to the Customer as a result of such change of control. For the purpose of the clause control has the meaning given in section 1124 of the Corporation Tax Act 2010.

10.4. The Customer may terminate the Agreement on notice in writing to the Supplier if the Supplier fails to implement a Rectification Plan agreed in accordance with clause 3 within two months following the date the Rectification Plan was agreed and such failure has not been remedied within 30 days of notice in writing to do so. This clause shall constitute the Customer’s sole remedy for any failure to meet the Service Levels.

11. Consequences of Termination

11.1. On termination or expiry of the Agreement:

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

11.1.2. the Customer shall, return all of the Supplier Equipment. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of the Supplier Equipment. Until the Supplier Equipment has been returned or repossessed, the Customer shall be solely responsible for its safe keeping;

11.1.3. the Supplier shall on request return any of the Customer Materials not used up in the provision of the Products; and

11.1.4. on request by the Customer, the Supplier may agree to provide such reasonable assistance in the transitioning of the Products to the Customer or any third party nominated by it, provided that the Supplier shall be entitled to charge the Customer for its reasonable costs incurred in the provision of such services.

11.2. Termination or expiry of the Agreement shall not affect any of the rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of such termination or expiry. Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Agreement shall remain in full force and effect.

12. General

12.1. Force majeure. Provided it has complied with clause 2, neither the Supplier nor the Customer (as the case may be) 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 it is prevented, hindered or delayed in or from performing any of its obligations under the Agreement by events, circumstances or causes beyond its reasonable control (Force Majeure Event). The time for performance of such obligations shall be extended accordingly.

12.2. The Party affected by the Force Majeure Event (Affected Party) shall: (i) as soon as reasonably practicable after the start of the Force Majeure Event, notify the other Party in writing 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 (ii) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.

12.3. Assignment and other dealings. 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 the Agreement without the Supplier’s prior written consent. 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 and/or obligations under the Agreement.

12.4. Confidentiality. Each Party undertakes that it shall not: (i) at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other Party (or any member of its Group), except to members of its Group and/or its or their employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the Party’s obligations under the Agreement (Representatives); or (ii) use the other Party’s confidential information for any purpose other than: to perform its obligations under the Agreement. Each Party shall ensure that its Representatives to whom it discloses the other Party’s confidential information comply with this clause 12.4. The Parties hereby acknowledge and agree that the foregoing undertakings shall not apply to the extent any disclosure and/or use is required by law, a court of competent jurisdiction or any governmental or regulatory authority. Each Party shall, on request and on termination of the Agreement, return to the other Party all confidential information belonging to the other Party which is in physical form and to the extent reasonably practicable, destroy any other records containing confidential information. The obligations in this clause shall continue following termination of the Agreement.

12.5. Entire agreement. 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. 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.

12.6. Variation. No variation of this agreement shall be effective unless it is in writing and signed by the Parties (or their authorised representatives). The rights of the Parties to rescind or vary this agreementare not subject to the consent of any other person.

12.7. Notices. Any notice or other communication given to a Party under or in connection with the Agreement shall be in writing and shall be: (i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or (ii) sent by email to the address specified in writing for this purpose from time to time. A notice or other communication shall be deemed to have been received: (i) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; (ii) 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 or at the time recorded by the delivery service; or, (iii) if sent by email, on the next business day after transmission.

12.8. Waiver. A waiver of any right or remedy under the Agreementor by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. 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

12.9. Severance. If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Agreement.

12.10. Conflict. If there is any inconsistency between the terms of the documents listed below, a term contained in a document higher in the list shall have priority over one contained in a document lower in the list:

12.10.1. the Proposal;

12.10.2. the Third Party Terms;

12.10.3. the Product Specific Terms;

12.10.4. the Conditions; and

12.10.5. the Schedules.

12.11. Counterparts. The Proposal may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.

12.12. Governing law and Jurisdiction. The laws of England and Wales shall apply to the Agreement and all disputes and claims (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation. 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 the Agreement or its subject matter or formation.