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1. Interpretation
The definitions and rules of interpretation in this condition apply in these terms and conditions.
1.1 Definitions:
Applicable Data Protection Laws: to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data. To the extent the EU GDPR applies, the law of 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.
Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.
Client Data: the data inputted by the Client or the Supplier on the Client’s behalf for the purpose of using the Services or facilitating the Client’s of the Services.
Client Personal Data: any personal data (as defined in UK GDPR) in the Client Data,which the Supplier is to process in connection with the Contract, in the capacity of a processor on behalf of the Client.
Client Materials: all materials, documents, specifications and data supplied by the Client to the Supplier to allow the Supplier to perform the Services.
Contract: the contract between the Supplier and the Client, for the supply of Services in accordance with the Order and these Conditions.
Conditions: these terms and conditions.
Contract Form: the contract form supplied by the Supplier to the Client, setting outthe key terms of the contract to be entered into, including the parties’ details, the nature and specification of the Services to be supplied, key dates and the Fees payable.
Consultancy Services: the one-off consultancy project agreed to be carried out by the Supplier, as described in the Order
Commencement Date: has the meaning given to it in condition 3.1
Client: the person, firm or company who purchases Services from the Supplier.
CT600: Company Tax Return Form.
Deliverables: all documents and materials produced and/or developed by the Supplier for the Client, as part of or in relation to the Services.
EU GDPR: means the General Data Protection Regulation (EU) 2016/679), as it has effect in EU law.
Fees: the fees/charges (including where applicable any Success Fee) payable by the Client to the Supplier for the Services as set out in the Order or as otherwise notified to the Client by the Supplier.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trademarks, trade names, rights in domain names, rights in get-up, rights in good will or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral 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.
Order: the Client’s order for the Services as documented by the Client’s delivering to the Supplier, a signed copy of the Contract Form.
Project Term: For Consultancy Services (excluding R & D Tax Credit Services), the fixed period for which the Contract shall be in force as detailed in the Order.In all other cases, the Project Term, shall mean the minimum period for which the Contract shall be in force as detailed in the Order.
Renewal Term: either the Extended Term or the Extended Period, as the case may be.
Retainer Services: the ongoing retainer services agreed to be supplied by the Supplier, as described in the Order.
R & D Tax Credit Services: the Consultancy Services or the Retainer Services (as the case may be) agreed to be provided by the Supplier for the purpose of assisting the Clientin their claim for R & D tax credits as set out in the Order and any additions to those services that may be agreed between the parties from time totime.
Services: the Consultancy Services or the Retainer Services (as the case may be)agreed to be provided by the Supplier as set out in the Order and any additional services that may be agreed between the parties from time to time.
Supplier: Inventya Ltd
Specification: the description and specifications for the Services to be supplied as detailed in the Order.
Success Fee: where applicable to the Services provided, the agreed % of the value of any grant, funding round, sale, R&D tax credit, or other financial benefit secured through the Services supplied by the Supplier to the Client as set outin the Order and/or these Conditions.
Term: the Project Term and any Renewal Term
UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section205 (4)) of the Data Protection Act 2018.
VAT: Value Added Tax as imposed by the Value Added Tax Act 1994 in the United Kingdom or any similar tax including, but not limited to, goods andservices tax (GST) or similar value added tax chargeable in other jurisdictions, including any member states of the European Union or elsewhere.
1.2 Condition, Schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 A reference to a company shall include any company, corporation orother body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and words in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.8 A reference to writing or written excludes faxes but includes email.
1.9 References to conditions and Schedules are to the conditions and Schedules of this agreement and references to paragraphs are to paragraphs ofthe relevant Schedule.
1.1 Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. Application of conditions
2.1 These conditions shall:
(a) apply to and be incorporated in the Contract; and
(b) prevail over any inconsistent terms orconditions contained in, or referred to in, the Client's purchase order,confirmation of order, or specification, or implied by law, trade custom,practice or course of dealing.
2.2 No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on the Supplier unless in writing and signed by a duly authorised representative of the Supplier.
3. Effect of Order and Basis of Contract
3.1 The Client's Order constitutes an offer by the Client to purchase the Services specified in it on these Conditions. Accordingly, the execution and return of the acknowledgement copy of the Order by the Supplier, or the Supplier's commencement or execution of work pursuant to the Order, shall establish the contract for the supply and purchase of those Services on these conditions at which point, and on which date, the Contract shall come into existence (Commencement Date). The Client’s standard terms and conditions (if any) attached to, enclosed with, or referred to in, the Order shall not govern the Contract.
4. Duration of Contract
4.1 Where the Services are Consultancy Services, then:
(a) Subject to condition 4.1(b) the Contract shall commence on the Commencement Date and shall continue, unless terminated earlier in accordance with condition 13 until the end of the Project Term, when it shall terminate automatically without notice.
(b) Not with standing condition 4.1 (a), where the Consultancy Services comprise of R&D Tax Credit Services, the Contract shall, unless terminated earlier in accordance with condition 13 or this condition 4.1(b) continue tothe end of the Project Term and shall automatically extend for 12 months (an ExtendedPeriod) at the end of the Project Term and at the end of each Extended Period. The Client may give written notice to the Supplier no later than 90 (ninety) days before the end of the Project Term or the relevant Extended Period, to terminate the Contract at the end of the Project Term or the relevant Extended Period, as the case may be.
4.2 Where the Services are Retainer Services, the Contract shall commence on the Commencement Date. Unless terminated earlier in accordance with condition 13 or this condition 4.2, the Contract shall continue to the end ofthe Project Term and shall automatically extend for 1-month periods (Extended Term) at the end ofthe Project Term and at the end of each Extended Term. The Client may give written notice to the Supplier, no later than 2 months before the end of the Project Term or the relevant Extended Term, to terminate the Contract at the end of the Project Term or the relevant Extended Term, as the case may be.
5. Supply of Services
5.1 The Supplier shall, in consideration of the Fees payable and subject tothese conditions, provide the Services to the Client for the Term.
5.2 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 Specification.
(c) use reasonable endeavours to perform the Services in accordance with any agreed timescales but the parties acknowledge and agree that, unless otherwise agreed in writing, time for performance of such Services shall not be of the essence.
(d) comply with all applicable laws, statutes and regulations from time to time in force, provided that the Supplier shall not be liable under the Contract if, as a result of such compliance, it is in breach of any of its obligations under the Contract.
(e) observe all reasonable health and safety rules and regulations and security requirements that apply at any of the Client’s premises and have been communicated to the Supplier,provided that the Supplier shall not be liable under the Contract if, as a result of such observation, it is in breach of any of its obligations under the Contract; and
(f) take reasonable care of all Client Materials in its possession and make them available for collection by the Client on reasonable notice and request,always provided that the Supplier may destroy the Client Materials if the Client fails to collect the Client Materials within a reasonable period after termination or expiry of the Contract.
6. Client Obligations
6.1 The Client shall during the Term:
(a) co-operate with the Supplier in all matters relating to the Services.
(b) provide, or where required procure the provision from third parties of,in a timely manner, such information as the Supplier may reasonably require, including but not limited to the Client Materials, and ensure that it is true, accurate and complete in all material respects.
(c) provide, for the Supplier, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Client’s premises and other facilities as reasonably required by the Supplier or any of them.
(d) obtain and maintain throughout the Term all necessary consents and permissions which may be required by the Supplier in order to allow the Supplier to provide the Services; and
(e) Where applicable to the Services, provide prompt instructions for any tax rebate to be paid into the Supplier’s designated bank account, if requested by the Supplier.
6.2 If the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Client, its agents,subcontractors, consultants or employees, the Supplier shall.
(a) not be liable for any costs, charges or losses sustained or incurred by the Client that arise directly or indirectly from such prevention or delay.
(b) be entitled to payment of the Fees despite any such prevention ordelay; 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.
6.3 The Client shall not without the prior written consent of the Supplier, at any time from the date of the Contract to the expiry of 12 months after its termination or expiry, solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee or subcontractor of the Supplier.
6.4 Any consent given by the Supplier in accordance with condition 6.3shall be subject to the Client paying to the Supplier on demand a sum equivalent to 20% of the then current annual remuneration of the Supplier's employee or subcontractor or, if higher, 20% of the annual remuneration to be paid by the Client to such employee or subcontractor.
7. Specific Service Provisions
Where Services include R & D Tax Credit Services
7.1 The Client shall appoint the Supplier on an exclusive basis as its agentfor R&D tax credit Services and shall not during the Term appoint any other person or entity to perform the same or equivalent services as this Service.
7.2 Following submission of the R&D Tax Credit Claim to HMRC, the Client shall pay, in addition to the Fees, the agreed Success Fee. The Success Fee is calculated as a percentage ofthe total value of the R&D tax credit claim, reflecting the facilitation and submission services provided. For the avoidance of doubt, the Success Fee shall become due and payable upon the earlier of:
(a) HMRC’s processing of the R&D tax credit claim; or
(b) The Supplier’s reasonable assumption that HMRC has processed the claim.
7.3 The Client undertakes during the Term, to act in good faith with the Supplier and shall keep the Supplier adequately informed of all communications it may receive directly from HMRC regarding its R & D Tax Credit claims.
7.4 The Supplier makes no warranties that the Client’s R & D Tax Credit Claim to HMRC will be successful. The Client acknowledges and agrees that the likelihood of success in securing R&D Tax credit funding is dependent upon the quality of the information provided by the Client. It is the responsibility of the Client to provide accurate and reliable information that can be demonstrated to HMRC in case of an audit.
7.5 The Supplier’s R&D Tax Credit Services do not include any support or representation in relation to HMRC enquiries, reviews, or audits of the Client’s R&D tax credit claim. If the Client requires support for such enquiries, this will be treated as a separate service and subject to additional fees as agreed in a separate contract or order form.
Where Services include Grant funding services
7.6 Where the Services are to include grant funding, the Client acknowledges and agrees that in respect of the Supplier’s performance of this Service, the likelihood of success in securing grant funding is dependent upon the quality of the information provided by the Client. The Client shall use its best endeavours to promptly provide the Supplier with all necessary or required information in support of any submission for grant funding.
7.7 Where the grant funding application is for the benefit of entities other than the Client (i.e. in a collaborative grant funding application), the Client shall use all reasonable endeavors to procure that such entities provide all necessary or required information to the Supplier in a timely manner.
7.8 Where the Client wishes to defer the submission of their grant funding application to a later date, then such submissions shall be deferred, however all Fees applicable to those Services, remain due and payable by the Client.For the avoidance of doubt, the Client shall not be entitled to any reimbursement of the Fees, whether in whole or in part where any request for a deferred submission has been made.
7.9 Where the grant funding application is successful, the Client shall pay in addition to the Fees, the agreed Success Fee. For the avoidance of doubt,the Success Fee shall become due and payable upon notification by the funding body that the grant application has been successful, irrespective of whether the Client accepts the grant award offer.
7.10 The Client acknowledges and agrees that the payment of the Fees is not conditional upon the success of the grant funding application and that any failure by the Supplier to secure grant funding for the Client shall not, in the absence of manifest error or default by the Supplier, constitute grounds for reimbursement of the Fees.
7.11 The Client undertakes during the Term to act in good faith with the Supplier and shall promptly communicate the outcomes of all grant funding bids to the Supplier.
Where Services include Fundraising services
7.12 Where the Services are for funding for growth the Client acknowledges and agrees that in respect of the Supplier’s performance of this Service, the likelihood of success in securing funding for growth is dependent upon the quality of the information provided by the Client. The Client shall use its best endeavours to promptly provide the Supplier with all necessary or required information in support of the submission for funding for growth.
7.13 Where the funding for growth application is for the benefit of entities other than the Client (i.e. in a collaborative funding for growth application),the Client shall use all reasonable endeavours to procure that such entities provide all necessary or required information to the Supplier in a timely manner.
7.14 Where this Service is provided, and the funding for growth investment campaign is successful, the Client shall pay, in addition to the Fees, the agreed Success Fee.
7.15 The Client acknowledges and agrees that the payment of the Fee is not conditional upon the success of the funding for growth investment campaign and that any failure by the Supplier to secure funding for growth for the Client shall not, in the absence of manifest error or default by the Supplier,constitute grounds for reimbursement of the Fee.
Where Services include Project Management and Grant Compliance Services
7.16 Where the Services are for project management and claim preparation(compliance) services, the client recognizes that the supplier will offer guidance aligned with the obligations and eligibility criteria outlined in the grant funding agreement. Nevertheless, the Client retains ultimate responsibility for project execution and the accurate submission of claims. It is the Client's duty to thoroughly review and approve all project documents before they are submitted to the funding entity. The Client shall use its best endeavours to promptly provide the Supplier with all necessary or required informationin support of the submission claims and project reports to the funding authority.
7.17 Where the Services are for the benefit of entities other than the Client(i.e. in a collaborative funding for growth application), the Client shall useall reasonable endeavours to procure that such entities provide all necessaryor required information to the Supplier in a timely manner for joint reporting purposes.
7.18 The Client undertakes during the Term, to act in good faith with the Supplier and shall keep the Supplier informed of all communications it receives from the Funding Authority and shall promptly notify the Supplier of any potential issues that would impact the operational and financial delivery ofthe project.
7.19 The Fees for the Services shall be paid to the Supplier on such dates or in such instalments as determined by the Supplier and set out in the Orderform.
THE CLIENT’S ATTENTION IS DRAWN TO THIS CLAUSE 7.20
CLIENTS FROM INNOVATE UK OR OTHER GOVERNMENT FULLY FUNDED PROGRAMMES
7.20 The Client acknowledges that by entering into the Contract, itshall be liable for all Fees due pursuant to the Contract and the Services provided to it by the Supplier. The Client acknowledges that where they are also receiving separate funded services from the Supplier, funded by InnovateUK or other Government Fully Funded Programmes (Funded Support Programmes) that such services are entirely separate from this Contract. Any services provided by the Supplier pursuant to this Contract are not included in any business support package through other Funded Support Programmes. The Client’s attention is drawn to the conflict-of-interest provisions set out in clause 8 below.
8. Conflict of Interest Provisions
Commercial Engagement Statement and Declaration of Understanding
8.1 Where the Client is receiving funded business advisory support services from the Supplier through a Funded Support Programmes, and the Client wishes to procure additional commercial services (i.e. the Services) under the Contract then the Client acknowledges and agrees:
8.1.1 That the engagement under the Contract is a commercial agreement,separate from any Funded Support Programme.
8.1.2 the Services are not included in the Funded Support Programme.
8.1.3 while both the Services under the Contract and the services under the Funded Support Programme may be concurrent, they do not interrelate with each other and
8.1.4 that the nature of the Services and the difference between the Services and the services under the Funded Support Programme have been explained by the Supplier prior to entering into the Contract, and all questions have been answered to the Client’s satisfaction
Competitive Research
8.2 By entering into the Contract, the Client confirms to the Supplier that they have undertaken adequate research into other providers of similar commercial services available in the market and after reviewing the services and prices offered by other providers, the Client has decided to enter into the Contract with the Supplier without undue influence from the Supplier or any of its employees or agents.
Disclosure and Compliance
8.3 The Client acknowledges that the Services under the Contract will be provided by a separate department of the Supplier, distinct from the team delivering the services under the Funded Support Programme. By agreeing to these Conditions, the Client consents to each department disclosing to the other, the commercial engagement under the Contract and the engagement under the Funded Support Programme.
8.4 The Client agrees to the above statements and acknowledges the need to adhere to the Supplier’s Conflict of Interest policy.
9. Charges and payment
9.1 Where the Services provided are Consultancy Services, the Fees for the Services shall be the fees/charges as set out in the Order or as otherwise notified to the Client from time to time. The Fees for the Services shall be paid to the Supplier on such dates or in such instalments as determined by the Supplier, including upon the Contract coming into force, in advance of any work carried out or in advance of any submissions, or on the Supplier achieving pre-specified project milestones.
9.2 Where the Services provided are Retainer Services, the Fees for the Services shall be as set out in the Order or as otherwise notified to the Client and shall be payable to the Supplier on a monthly basis. The Supplier shall invoice the Client monthly in advance for the Fees payable for the following month concerned.
9.3 Fair Usage and Cancellation of Contract which include Retainer Services: Where the Services are or include Retainer Services, the Client acknowledges that a fair usage policy will apply to such Retainer Services as outlined by the Supplier at the commencement of the Contract or otherwise as notified to the Client by the Supplier from time to time. In the event that a Client wishes to cancel their Retainer contract, and it is found that the Client has utilized more hours than have been paid for up to the point of cancellation, the Client shall be liable to pay the Supplier the difference between the hours used and the hours paid for. The Supplier will provide the Client with monthly statements detailing the hours of service utilized versus the hours billed, to ensure transparency and facilitate the fair usage policy.Any payments due under this clause must be settled within 21 days from the issuance of the final statement by the Supplier following the cancellation ofthe Retainer contract.
9.4 Where the Services provide for payment of a Success Fee, the Success Fee shall be calculated as set out in the Order or as otherwise notified to the Client from time to time. All Success Fees shall be payable upon receipt of invoice.
9.5 All Fees (including Success Fee) are exclusive of VAT and any other applicable taxes and duties or similar charges, which shall be payable by the Client at the rate and manner from time to time prescribed by law.
9.6 Without prejudice to any other right or remedy that the Supplier may have, if the Client fails to pay the Supplier on the due date the Supplier may:
(a) charge interest on such sum from the due date for payment at the annual rate of 8% above the Bank of England’s base lending rate accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment; and
(b) suspend all Services until payment has been made in full.
9.7 Time for payment shall be of the essence of the Contract.
9.8 Unless otherwise specified by the Supplier, the Client shall pay each invoice submitted to it by the Supplier in full, and in cleared funds,upon receipt. The Client shall pay all Fees in either pounds sterling or Euros (as determined by the Supplier and notified to the Client) to a bank account nominated in writing by the Supplier from time to time.
9.9 All Fees payable to the Supplier under the Contract shall become due immediately on termination of the Contract, despite any other provision. This condition is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
9.10 All amounts due under the Contract shall be paid by the Client to the Supplier in full without any set-off, counter claim, deduction or with holding (other than any deduction or with holding of tax as required by law). The Supplier may, without prejudice to any other rights it may have, set off any liability of the Client to the Supplier against any liability of the Supplier to the Client.
10. Intellectual Property Rights
10.1 In relation to the Deliverables:
(a) the Supplier and its licensors shall retain ownership of all Intellectual Property Rights in the Deliverables excluding the Client Materials which are incorporated in them.
(b) Subject to the payment of the Fees, the Supplier grants the Client, or shall procure the direct grant to the Client of, a fully paid-up, worldwide, non-exclusive, royalty-free, licence during the Term, to copy and modify such Deliverables for the purpose of receiving the Services and the Deliverables in the Client’s business.
10.2 In relation to the Client Materials, the Client and its licensors shall retain ownership of all Intellectual property Rights in the Client Materials and grants to the Supplier a fully paid-up, worldwide, non-exclusive,royalty-free, non-transferable licence to copy and modify the Client Materials for the Term for the purpose of providing the Services to the Client in accordance with the Contract.
10.3 The Client:
(a) warrants that the receipt and use of the Client Materials in the performance of the Contract by the Supplier, its agents, subcontractors or consultants shall not infringe the rights, including any Intellectual Property Rights, of any third party and
(b) shall indemnify the Supplier in full against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with any claim brought against the Supplier, its agents, subcontractors or consultants for actual or alleged infringement of a third party's Intellectual Property Rights arising out of, or in connection with, the receipt or use in theperformance of the Services, of the Client Materials.
11. Data Protection
11.1 The Client shall own all right, title and interest in and to all of the Client Data and shall have sole responsibility for the legality, reliability,integrity, accuracy and quality of the Client Data.
11.2 In the event of any loss or damage to Client Data by the Supplier, the Client’s sole and exclusive remedy shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Client Data from the latest back-up of such Client Data maintained by the Supplier. The Supplier shall not be responsible for any loss, destruction, alteration, or disclosure of Client Data caused by any third party (except those third parties which are sub-contractedby the Supplier to perform services related to Client Data maintenance and back-up).
11.3 For the purposes of the remainder of this condition 11, the terms controller,processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the UK GDPR and the term Supplier shall mean the Supplier or any member of its group.
11.4 Both parties will comply with all applicable requirements of the Applicable Data Protection Laws. This condition 11.4 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under Applicable Data Protection Laws.
11.5 In respect of any Client Personal Data, the parties acknowledge that if for the purpose of the Contract, the Supplier is required to process the Client Personal Data, the Client is the controller and the Supplier is a processoracting on behalf of the Client. The processing of Client Personal Data by the Supplier under the Contract shall be restricted in respect of its duration tothe Term and, in respect of its subject matter, nature and purpose, to such processing activities and purposes as the Supplier is reasonably required to undertake in connection with its performance under the Contract (Purpose). The types of Client Personal Data and categories of data subject shall be restricted to Client Data and such other Personal Data concerning such other data subjects as the Client provides to the Supplier in connection with the Contract.
11.6 Without prejudice to condition 11.4, the Client will ensure that it has in place all necessary appropriate legal bases, consents (if required), notices and policies to enable the lawful transfer of Client Personal Data to the Supplier for the duration of the Term and for the purpose of the Contract.
11.7 The Supplier will:
(a) obtain a commitment of confidentiality from any person it allows to process Client Personal Data;
(b) implement appropriate technical and organisational measures to: (a) ensure an appropriate level of security of Client Personal Data; and (b) assistthe Client to respond to requests for exercising data subjects’ rights;
(c) assist the Client to comply with its obligations in respect of any Client Personal Data breach (including notification of the same to the supervisory authority and/or data subjects);
(d) make available to the Client all information reasonably necessary to demonstrate compliance with this condition 11; and
(e) on termination or expiry of the Contract (however caused), at the Client’s choice and cost, delete or return to the Client all Client Personal Data and copies there of that it has within its power, ownership or control.
11.8 The Client provides its prior, general authorisation for the Supplier to
(a) appoint processors to process the Client Personal Data (if required),provided that the Supplier
(i) shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on the Supplier in this condition 11
(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 Law, 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 for the Purpose, provided that the Supplier shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws and only to organisations within the Supplier’s group.
12. Limitation of liability
12.1 The following provisions set out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and subcontractors) to the Client in respect of:
(a) any breach of the Contract however arising;
(b) any use made by the Client of the Services, the Deliverables or any part of them; and
(c) any representation, misrepresentation (whether innocent or negligent),statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
12.2 All warranties, conditions and other terms implied by statute or common law are, to the greatest extent permitted by law, excluded from the Contract.
12.3 Nothing in these conditions excludes the liability of the Supplier:
(a) for death or personal injury caused by the Supplier's negligence; or
(b) for fraud or fraudulent misrepresentation.
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or
(d) any other liability which cannot be limited or excluded by applicable law.
12.4 Subject to condition 12.2 and condition 12.3:
(a) the Supplier shall not in any circumstances be liable, whether in tort(including for negligence or breach of statutory duty however arising), contract, misrepresentation (whether innocent or negligent) or otherwise for:
(i) loss of profits; or
(ii) loss of sales or business; or
(iii) depletion of good will or similar losses; or
(iv) loss of anticipated savings; or
(v) loss of contracts; or
(vi) loss of use; or
(vii) wasted expenditure; or
(viii) loss or corruption of data or information; or
(ix) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
(b) the Supplier's total liability in contract, tort (including negligenceor breach of statutory duty however arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the amount equal to the Fees actually paid by the Client for the Services during the previous 12-month period.
13. Termination
13.1 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Contract without liability to the other if:
(a) the other party commits a material breach of any term of the Contract and (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 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;
(c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companiesor the solvent reconstruction of that other party;
(d) the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
(e) a petition is filed, a notice is given, a resolution is passed, or anorder is made, for or in connection with the winding up of that other party other than for the sole purpose of ascheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstructionof that other party;
(f) an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other party(being a company, partnership or limited liability partnership);
(g) the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(i) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution,sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14days;
(j) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalentor similar to any of the events mentioned in condition 13.1(b) to condition13.1(i) (inclusive); or
(k) the other party's financial position deteriorates so far as toreasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy; or
13.2 Without prejudice to any other rights or remedies to which the Supplier may be entitled, the Supplier may terminate the Contract without liability tot he Client:
(a) immediately on notice, if the Client fails to pay any amount due underthe Contract on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment; or
(b) by giving no less than 28 days’ notice to the Client to terminate the Contract.
14. Consequence of Termination
14.1 Upon expiry or termination of the Contract, however caused, the Supplier’s provision of the Services will cease with immediate effect without prejudice to any other rights or remedies ofthe Client, and the Client shall pay to the Supplier on demand all Fees andother sums due but unpaid at the date of such demand, together with any interest accrued pursuant to condition 8.4 and,in respect of Services supplied or any otherServices which are to be paid for, pursuant to the Contract, but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt.
14.2 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
14.3 Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of Contract which existed at or before the date of termination.
15. Force majeure
15.1 Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure results from events, circumstances or causes beyond its reasonable control.
16. Confidential Information
16.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by this condition 16.
16.2 Each party may disclose the other party’s confidential information:
(a) 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 the 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 condition 16; and/or.
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
16.3 Neither party shall use any other party’s confidential information for any purpose other than to perform its obligations under the Contract.
17. Waiver
17.1 A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
17.2 A delay or failure to exercise, or the single or partial exercise of,any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
18. Entire agreement
18.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter.
18.2 Each party acknowledges that, in entering into the Contract, it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract.
18.3 Each party agrees that it shall have no claim for innocent or negligentmisrepresentation or negligent misstatement based on any statement in the Contract.
19. Assignment
19.1 The Supplier may at any time assign, mortgage, charge, subcontract,delegate, declare a trust over or deal in any other manner with any or all ofits rights and obligations under the Contract.
19.2 The Client shall not assign, transfer, mortgage, charge, subcontract,delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract.
20. No partnership or agency
20.1Nothing in the Contract is intended to or shall operate to create a partnership between the parties, or unless stated otherwise in these Conditions, to authorise either party to act as agent for the, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
21. Third party rights
21.1 The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
22. Notices
22.1 Any notice or other communication given to a party under or in connection with this contract shall be in writing and shall be:
(a) 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
(b) sent by email to the email address of such party’s representative, asspecified in the Contract Details Form (or an address substituted in writing by the party to be served).
22.2 Any notice or other communication shall be deemed to have been received:
(a) if delivered by hand, at the time the notice is left at the proper address;
(b) 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
(c) if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
22.3 This condition does not apply to the service of any proceedings orother documents in any legal action or, where applicable, any arbitration orother method of dispute resolution.
23. Governing law
23.1 The Contract and any disputes or claims arising out of or in connectionwith it or its subject matter or formation (including non-contractual disputesor claims) are governed by and interpreted in accordance with the law of England and Wales.
24. Jurisdiction
24.1 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).
