1.1 The terms “Us, “We”, “Our”, “You” and “Your” are as defined in the Order Form.
1.2 In the Agreement, the following words and phrases have the meaning given below (unless context otherwise requires):
| Agreement | means these Conditions, the Order Form, the front sheet of the Agreement and any documents incorporated by reference in these Conditions and Order Form; |
| Applicable Law | means in each applicable jurisdiction, any applicable law, statute, bye-law, regulation, order regulatory policy, guidance or industry code, rule of court or directive or requirement of any Regulatory Body, delegate or subordinate legislation or notice of any Regulatory Body from time to time and reference to “Applicable Laws” will be construed accordingly; |
| Authorised Users | means those employed, agents and independent contractors of You who are authorised by You to use the subscription services; |
| Available | means that the Subscription Services and Software are available such that functionality can be accessed by Authorised Users with no material loss of performance or functionality and reference to “Availability” will be constructed accordingly; |
| Business Day | means a day other than Saturday, Sunday or public holidays in England when banks in London are open for business; |
| Cancellation Fee | has the meaning given in Condition 6.14; |
| Committed Fees | means an amount equal to all:
(a) Unpaid initial Fees, Subscription Fees, Support Fees and Professional Service Fees due and payable by You to Us as at the date of termination of the Agreement; plus (b) Subscription Fees and Support Fees that would have been due and payable by You to Us from the date of termination until the end of the then current Subscription Term (as at the date immediately prior to the date of termination); |
| Change of Control | means the beneficial ownership of more than fifty percent (50%) of the issued share capital of a company of the legal power to direct or cause the direction of the general management of the company, and “controls”, “controlled” and the expression “change of control” will be construed accordingly; |
| Conditions | means these terms and conditions; |
| Confidential Information | means information that is the proprietary or confidential and is either clearly labelled as such or identified as confidential information in Condition 15; |
| Control | means the ability to control or direct, directly or indirectly, the board, executive body, decision making process or management of an entity by virtue of ownership, right of appointment, right to control election or appointment, voting rights, the ability to control the exercise of voting rights, management agreement or any other agreement; |
| CRTPA | has the meaning given in condition 29.1; |
| Data Controller, Data Processor, Data Subject, Processor/Processing, Personal Data, Personal Data Breach and Special Categories or Personal Data | will have the same meaning as given to them in the Data Protection Laws; |
| Data Protection Laws | means applicable legislation protecting the personal data of natural persons including in particular the Data Protection Act 2018 (and the UK General Data Protection Regulations as referred to in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018 (“GDPR”), together with binding guidance and codes of practice issued from time to time by relevant supervisory authorities; |
| Effective Date | the date as set out in the Order Form, binding You and Us to the deliverables, payments and Conditions within it; |
| Excluded Losses | means:
(a) loss of profits; (b) loss of revenue; (c) loss of use; (d) loss of goodwill; (e) loss of data; (f) loss due to interruption of business; or (g) loss of anticipated savings; |
| Expenses | means:
(a) travelling expenses, hotel costs, subsistence and associated expenses incurred by Our Personnel in connection with the provision of Professional Services; (b) the cost of services provided by third parties for the performance of the Professional Services; and (c) the cost of any materials; |
| Fees | means the fees payable by You to Us under the Agreement; Including the initial fee, Subscription Fees and Professional Service Fees; |
| Fair Use Policy | means Our fair use policy in relation to Your use of the Support Services made available or such other website address as may be notified to You from time to time; |
| Force Majeure Event | has the meaning given in Condition 20; |
| Group | means, in relation to any company, any other person or entity that directly or indirectly Controls, is Controlled by, or is under common Control with such company; |
| Initial Subscription Term | means the initial term of the Subscription Services as set out in the Order Form; |
| Insolvency Event | means the occurrence of any of the following events in respect of the relevant entity (or any event analogous to any of the following in any jurisdiction):
(a) the entity passing a resolution for Your winding up, or having a winding up petition presented against the entity, or a court of competent jurisdiction making an order for the entity to be wound up or dissolved of tr the entity otherwise being otherwise dissolved (other than for the purpose of a bona fide reconstruction of amalgamation; (b) the appointment of an administrator of, or the making of an administration order (or the giving of notice of intention to appoint an administrator) in relation to, the entity, or the appointment of a receiver or administrative receiver of, or an encumbrancer taking possession of or selling the whole or part of the entity’s undertaking, assets, rights or revenue; (c) the entity entering into an arrangement compromise or composition in satisfaction of its debts with the entity’s creditors or any class of them or taking steps to obtain a moratorium or making an application to a court of competent jurisdiction for protection from the entity’s creditors; or (d) the entity being unable to pay Your debts or being capable of being deemed unable to pay its debts within the meaning of section 123 of the insolvency Act 1986; |
| Inspection | has meaning given condition 9.1; |
| Installation
Man Day |
means the installation services as specified in the Order Form;
has the meaning given in condition 6.10; |
| Man Day Rate | means the charge rates applicable in respect of the applicable roles for a Man Day, as identified in the Order Form; |
| Normal Business Hours | means 8:00am to 6:00pm (UK time), each Business Day; |
| Order | means Your order using the Order Form for the services and reference to “Ordered” will be construed accordingly; |
| Order Form
Our Personnel |
means the order form which describe the services being Ordered and fees payable;
means all employees, staff, officers, individual contractors, other workers, agents and consultants, of Us, Our Group and/or any sub-contractor who are engaged in the provision of the Subscription Services and/or Support Services from time to time; |
| Our IT and Data Policy | means Our back-up, privacy and security policy relating to the back-up, privacy and security of Your Data available at www.kappture.co.uk or such other website address as may be notified to You from time to time, as such documents may be amended from time to time by Us in Our discretion; |
| Payment Terms | means the payment terms applicable from time to time as set out in the Order Form; |
| Permitted Unavailability | means:
(a) planned maintenance carried out during the maintenance window of 10:0pm to 04:00am (UK time); and (b) unscheduled maintenance, provided the We have used reasonable endeavours to give you at least 8 (eight) Normal Business House notice in advance; |
| Professional Services | means:
(a) services that are expressly stated under the Agreement or Order or anticipated to be provided on a time and materials or Man Day Rate basis; and (b) services that You and Us agree in writing are to be provided on a time and materials or Man Day Rate basis; |
| Professional Services Fee | means the Man Day Rate payable by You to Us for the Professional Services plus any and all associated Expenses; |
| Prohibited Material | means any material that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing or radically or ethnically offensive; (b) facilitates legal activity; (c) depicts sexually explicit images; (d) promotes unlawful violence; (e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or (f) is otherwise illegal or causes damage or injury to any person or property; |
| Rate Card | means the rate card from time to time set available upon request or notified to You from time to time; |
| Regulatory Bodies | means in each applicable jurisdiction, those government departments and regulatory, statutory and other entities, committees and bodies which, whether under statute, rules, regulations, codes or practice or otherwise are intitled to regulate, investigate or influence the matters dealt with in the Agreement or any other affairs of Us and “Regulatory Body” will be construed accordingly; |
| Relevant Requirements | has the meaning given in Condition 30.1.1; |
| Renewal Period | means the period described in Condition 2; |
| RPI
Software |
means the Retail Prices Index as maintained by the Office of National Statistics.
means the online software applications provided by Us as part of the Subscription Services as set out in the Order Form; |
| Support Policy | means Our standard software support policy in relation to the Subscription Services as made available at www.kappture.co.uk or such other website address as may be notified to You from time to time; |
| Support Fees
Support Services
Subscription Fees |
means the fees payable by You for the Support Services as specified in the Order;
means the support services as described in the Order Form; means the subscription fees payable by You to Us for the User Subscriptions, as set out in the Order Form; |
| Subscription Service | means the subscription services provided by Us to You under the Agreement via www.kappture.co.uk or any other website notified to You by Us from time to time; |
| Subscription Service Misuse | means:
(a) use of the Subscription Services contrary to Our instructions; or (b) modification or alteration of the Subscription Service by any party other than Us or Our Personnel; |
| Subscription Term | means the Initial Subscription Term together with any subsequent Renewal Periods; |
| Subscription Year | means in relation to:
(a) the first Subscription Year, the period of twelve (12) months from the Effective Date; and (b) each subsequent Subscription Year, each period of twelve (12) months thereafter; |
| the Equipment | means “the Hardware” and “the Software” together; |
| the Hardware | means all goods and other materials or support materials, other than “the Software” supplied in terms of the Order and any update thereof; |
| the Proposal | means the written offer from Us to You; |
| the Software | means the Kappture system, all integral operational software and all other software provided in terms of the Order whether as an update or otherwise; |
| Travel and Expenses Policy | means the travel and expenses policy that we will comply with when We incur travel and expenses, which are payable by You under or in connection with this Agreement and may be notified to You from time to time, available at www.kappture.co.uk or such other website address as may be notified by You from time to time; |
| Updates and Patches | means any new update to the software which adds or updates minor functionality or features, or otherwise corrects faults or fixes bugs in the Software, as determined by Us; |
| Upgrades and Releases | means any new release or upgrade to the Software which adds, updates or enhances functionality or features (excluding Updates and Patches), as determined by Us; |
| User Subscriptions | means the user subscriptions purchased by You pursuant to the Agreement which entitle Authorised Users to access and use the Subscription Service and Software in accordance with the Agreement; |
| Virus | means anything or device (including any software, code, file or programme) which may prevent, impair or otherwise adversely affect the operation of any computer software or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices; |
| Work-Around | means a change in operating procedures or a solution, in order to avoid or mitigate in so far as is reasonably practicable the effects of an incident with the aim of minimising inconvenience to You; |
| Your Data | means the data inputted by You, Authorised Users, or Us on Your behalf for the purpose of using the Subscription Services or Support Services or facilitating Your use of the Subscription Services or Support Services; |
| Your Personnel | means all employees, staff, officers, individual contractors, other workers, agents and consultants, of You; and |
| Your System | means the combination of hardware, software, computer and telecoms devices and equipment used by You for the receipt of the Subscription Services and/or Support Services (as the context requires) |
1.3 in the Agreement (unless the context requires otherwise):
1.3.1 the words “including”, “include”, “for example”, “in particular” and words of similar effect will be construed so that they do not limit the general effect of the words which proceed them, and so that any examples that are given are not to be exclusive or limiting examples of the matters in question;
1.3.2 references to the Agreement and any other document referred to in the Agreement, is a reference to it as validly varied supplemented and/or novated from time to time;
1.3.3 references to the singular include the plural and vice versa;
1.3.4 recitals and headings are all for reference only and will be ignored in construing the Agreement;
1.3.5 references to any other gender do not exclude other genders;
1.3.6 general references to a “person” will be understood to include (as applicable), a natural person, a company, a partnership and an unincorporated association (in each case whether or not having separate legal personality); and
1.3.7 reference to any legislative provision shall be deemed to include;
1.3.7.1 any statutory instrument, by-law, regulation, rule, subordinate or delegated legislation or order and any rules and regulations which are made under it; and
1.3.7.2 any subsequent re-enactment or amendment of the same, unless this imposes a substantial new liability upon, or significantly adversely affects the rights of, Us;
The Agreement will commence on the Effective Date and will continue for the Initial Subscription Term and, thereafter, will automatically renew for successive periods of twelve (12) months (each a “Renewal Period”), unless and until terminated in accordance with Condition 18.
3.1 We will provide the Subscription Services to You on and subject to the terms of the Agreement.
3.2 Upon Your acceptance of these Conditions, We agree:-
3.2.1 to sell or hire to You the Hardware; and
3.2.2 to furnish to You in relation to the Software, a non-exclusive, non-transferable licence to use the Software upon the terms herein contained;
3.2.3 to provide maintenance for the Equipment upon the terms and conditions specified herein.
3.3 Subject to the terms of the Agreement, We grant to You a non-exclusive and non-transferable right, to permit Authorised Users to access and use the Subscription Services during the Subscription Terms solely for Your internal business purposes in the UK and any other territories as agreed in writing by Us.
3.4 The rights provided under Condition 3 are granted to You only, and will not be granted to any other member of Your group or any other entity.
3.5 The Subscription Services will be Available for 99.9% uptime during a calendar month and such Availability shall be considered satisfactory, except for periods of Permitted Unavailability.
3.6 Subject to Condition 7, if the Subscription Services do not comply with Condition 3.5, We will at Our option and expense, use reasonable endeavours to correct any such non-compliance promptly or provide You with a Work-Around.
3.7 We will not be responsible for any noncompliance of the Subscription Services with Condition 5 as a result of Subscription Service misuse.
3.8 Your remedies in condition 6 constitute You sole and exclusive remedy for any breach of Condition 3.5.
3.9 You will be responsible for the acts and omissions of Your Authorised Users, and You will ensure that Authorised Users use the Subscription Services in accordance with the Agreement as if they were a party to the Agreement.
3.10 We may from time to time provide updates and patches at our discretion and We will usually implement Updates and Patches automatically but certain Updates and Patches may require implementation by You (in whole or in part). If Upgrades and Patches are not automatically implemented by Us, You are responsible for implementing any Upgrades and Patches within a reasonable time of being requested to do so.
3.11 Updates and Patches will be provided by Us without additional cost to You, unless Condition 12 applies.
3.12 If You are required to implement an Update or Patch (in whole or in part) but You require Us to implement the Update or Patch for You. We will be entitled to levy additional changes on a Man Day Rate basis.
3.13 Updates and Patches or Upgrades and Releases may cause bespoke development or customised software features unique to your software to change or cease operation, and no representations ae made as to their continued functionality. You may request further bespoke development or customisation which We will assess and advise You of Our decision and the cost to You of such work.
3.14 We do not provide Upgrades and Releases. If You require Upgrades and Releases, You will be required to contact Us.
3.15 We may from time to time contact You in relation to: Upgrades and Releases; and Updates and Patches that are required to comply with Applicable Law.
3.16 Where We supply to You Hardware for hire, the hire terms and conditions as set out in the Annex shall apply
4.1 If Installation is selected in the Order Form, We will, in consideration of the initial fee, provide the installation on and subject to the terms of the Agreement
4.2 We warrant that the Installation will be provided with reasonable skill and care.
4.3 If the Installation does not comply with Condition 4.2, We will at Our discretion and expense use reasonable endeavours to correct any such non-compliance promptly or provide You with a Work-Around.
4.4 The remedies in Condition 4.3 constitutes Your sole and exclusive remedy for any breach of Condition 4.2.
4.5 We will use reasonable endeavours to meet any performance dates You and Us agree for the Installation, but any such dates are approximate only, and the time of performance will not be of the essence.
4.6 We will not be responsible for any non-compliance of the Installation with the warranty in Condition 4.2 or any failure to provide the Installation, as a result of, a failure by You to provide adequate instructions in relation to the Installation, or a failure by You to provide all requisite materials, facilities, access to suitable working conditions to enable the Installation to be carried out safely and expeditiously.
4.7 We will use reasonable endeavours to meet any performance dates You and Us agree for the Installation, but any such dates are approximate only, and the time of performance will not be of the essence.
5.1 If Support Services are selected on the Order Form, We will provide the applicable Support Services on and subject to the terms of the Agreement.
5.2 We may from time to time provide the Support Services or respond to a call, incident, issue or ticket by remote access and/or remote diagnosis (where We deem it appropriate). You will provide all necessary dedicated direct dial telephone, VPN access, access to Your System, and other communication facilities, as We may require to enable such remote access and/or remote diagnosis.
5.3 We will, in consideration of the Support Fees, provide You with the Support Services. The Support Services will conform in all material with our service standards in effect at the time that the Support Services are provided.
5.4 The Support Services shall be provided to You as follows
5.4.1 We will make available, a telephone helpdesk facility, as set out in the Proposal, for the purposes of:
5.4.1.1 assisting You with the configuration of the Software where agreed in the Proposal;
5.4.1.2 determining the causes of errors and fixing errors in the Software.
5.4.2 All Hardware supplied by Us is maintained under a return to base policy subject to the following:
5.4.2.1 Return to base warranty warrants the Hardware to You, against defects in materials for the period set out in the Proposal.
5.4.2.2 Under the return to base warranty We are responsible for the cost of shipping the machine from site, and the packaging of the machine. You are required to retain all the packaging together with any additional enclosures, manuals, as this will assist in returning the product in the correct packaging.
5.4.2.3 The warranty covers the Hardware, and We will rectify the fault within a reasonable amount of time from the point it is agreed the machine has a hardware fault with Our Helpdesk team.
5.4.2.4 The Return to base warranty covers only those defects which arise as a result of normal use of product, and do not apply to any: Improper & inadequate maintenance or modification. Repairs carried out by non-authorised persons. Damage caused by lack of ESD protection. Software, interfacing, media, parts, or supplies not provided or supported by Us. Operation outside the product specifications. Physical damage, accidental damage, neglect, or user abuse. Normal wear and tear.
5.4.2.5 If there is no fault found or the problem has been caused by third party software, user error or physical damage and any of the reasons stated in section iv, a no fault found charge may be applied, You will be emailed and phoned to confirm this charge within 7 days of the item being tested, You will also be charged return carriage for return of Your goods.
5.4.3 We reserve the right to sub-contract in whole or in part Our maintenance obligations under this Agreement.
5.5 If the Support Services do not comply with Condition 3, We will at Our discretion and expense use reasonable endeavours to correct any such non-compliance promptly or provide You with a Work-Around.
6.1 If We are required to provide or You request that We provide Professional Services, We will, in consideration of the Professional Services Fee, provide the Professional Services on and subject to the terms of the Agreement.
6.2 We warrant that the Professional Services will be provided with reasonable skill and care.
6.3 If the Professional Services does not comply with Condition 2, We will at Our discretion and expense use reasonable endeavours to correct any such non-compliance promptly or provide You with a Work-Around.
6.4 The remedies in Condition 3 constitutes You sole and exclusive remedy for any breach of Condition 6.2.
6.5 We will use reasonable endeavours to meet any performance dates You and Us agree for the Professional Services, but any such dates are approximate only, and the time of performance will not be of the essence.
6.6 Any number of Man Days included as part of this agreement as estimated in good faith and no guarantee is made as to the specific outcomes to be achieved in any number of Man Days.
6.7 You will provide sufficient staffing resource from within Your organisation of appropriate skills and delegated authority to enable Your delivery obligations to be completed in alignment with the agreed project plan.
6.8 Your obligations will include responsibility for approval of specifications, ownership of data quality from incumbent systems and its transition to our Software and responsibility for user acceptance testing and timely sign off conforming acceptance.
6.9 We will not be responsible for any non-compliance of the Professional Services with the warranty in Condition 2 or any failure to provide the Professional Services, as a result of, a failure by You to comply with Conditions 6.7 or 6.8, failure to provide adequate instructions in relation to Professional Services (or subject matter thereof) or failure by You to provide all requisite materials, facilities, access to your premises or to suitable working conditions to enable the Professional Services to be carried out safely and expeditiously.
6.10 The Man Day Rates are the rates chargeable by Us in relation to a man day, being six (6) hour professional day (“Man Day”).
6.11 When performing Professional Services under the Man Day Rates, We will use reasonable endeavours to ensure that where practicable, We deploy the most appropriate resource available to the required task.
6.12 The amount charged will be reduced on a pro-rata basis if the relevant member of Our Personnel does not work the full six (6) hour professional day but will be subject to a minimum charge equal to half (½) a Man Day.
6.13 The Man Day Rates for Professional Services are exclusive of expenses. If Professional Services are provided to You, We will be entitled to charge You for Expenses incurred by Us and Our Personnel engaged in connection with the Professional Services.
6.14 If You cancel any scheduled Man Day where this is due to circumstances outside of our control, or if We cancel a scheduled Man Day as a result of Your failure to comply with Condition 7 or 6.8, a cancellation fee shall be payable on a scale determined by the applicable notice period, as follows:
6.14.1 where cancellation is made less than five (5) clear Business Days before the scheduled Man Day, a charge of one hundred per cent (100%) of the prevailing Day Rate will be made; or
6.14.2 where cancellation is made more than five (5) clear Business Days before the scheduled Man Day, a charge of fifty per cent (50%) of the prevailing Man Day Rate will be made,
(each a “Cancellation Fee”), and where cancellation is made for than fifteen (15) clear Business Days before the scheduled Man Day, no Cancellation Fee with be payable by You to Us.
6.15 We may invoice You for any Cancellation Fees at any time.
6.16 You will pay each invoice submitted by Us in relation to Cancellation Fees in full and cleared funds to a bank account nominated in writing by Us, within thirty (30) days of the date of the invoice.
7.1 We will obtain and maintain all necessary licences, consents and permissions necessary for the performance of Our obligations under the Agreement.
7.2 You will obtain and maintain all necessary licences, consents and permission necessary for You to perform your obligations under the agreement and for You to receive the Subscription Services and Support Services.
8.1 Notwithstanding Condition 3 and 5, We:
8.1.1 do not warrant that Your use of the Subscription Services or Support Services will be uninterrupted or error free or that the Subscription Services or Support Services or the information obtained by You through them will meet Your requirements; and
8.1.2 are not responsible for any delays, delivery failures, or any other losses or damage resulting from the transfer of data over communications networks and facilities, including the internet and You acknowledge that the Subscription Services and Support Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
9.1 You will grant to Us, Our agents and representatives, and to any statutory or regulatory auditors of Us, the right of access to Your premises, Your System, and Your personnel as We may require during Normal Business Hours in providing reasonable advanced written notice and not more frequently than twice per Subscription year, In order to:
9.1.1 establish the name and password of each Authorised User;
9.1.2 verify that You are complying with the terms of the Agreement; and/or
9.1.3 fulfil any request by any Regulatory Body in the course of carrying out its regulatory functions,
an “Inspection”.
9.2 We will use reasonable endeavours to ensure that inspections are conducted in a manner as to not substantially interfere with the normal conduct of Your business. We will bear Our own costs in relation to any Inspection.
9.3 If any Inspection by or on behalf of Us demonstrates any:
9.3.1 under payment of Fees to Us, without prejudice to any of Our other rights and remedies, You will pay to Us an amount equal to the underpayment by reference to the Fees in the Order Form within five (5) Business Days of the Inspection;
9.3.2 non-compliance (other than under payment which is dealt with under Condition 3.1) by You of Your obligations pursuant to the Agreement, without prejudice to any of Our other rights and remedies, You will promptly remedy the cause of such non-compliance; and
9.3.3 fraud or material or persistent breaches are found, We may require that You promptly refund Us all reasonable costs and expenses relating to such Inspection (including the reasonable costs of third party advisers).
10.1 We acknowledge that Your Data is the property of You and that You reserve all intellectual property rights which may, at any time, subsist in Your Data.
10.2 You acknowledge that You have sole responsibility for the legality, reliability, integrity, accuracy and quality of Your Data.
10.3 If at any time Us or any of Our Personnel are deemed to be the first owner of any intellectual property right in or in relation to, Your Data, We will as soon as reasonably practicable assign or procure the assignment of, all such intellectual property rights to You, and will do such things, and will procure that any of Our Personnel assigns and does all such things as We consider reasonably necessary to give effect to this Condition.
10.4 We will only store, copy or use Your Data to the extent necessary to perform Our obligations under the Agreement.
10.5 We will follow archiving procedures for Your Data as set out in Our IT and Data Policy.
10.6 In the event that Your Data is corrupted or lost or degraded so as to be unusable, as a result of Us or Our Personnel, Your sole and exclusive remedy will be for Us to use reasonable endeavours to restore or procure the restoration of Your Data that is corrupted, lost or degraded so as to be useable as soon as reasonably practicable from the latest back-up of Your Data maintained by Us in accordance with the archiving procedure described in our IT and Data Policy.
10.7 We will not be responsible for any loss, corruption, damage, alteration or disclosure of Your Data caused by any third party (except Our Personnel that are engaged by Us to perform services related to Your Data).
10.8 We will in performing Our obligations under the Agreement, comply with Our IT and Data Policy.
10.9 In respect of any Personal Data We process on Your behalf when performing Our obligations under the Agreement, You and Us hereby agree that You will be the Data Controller and We will be the Data Processor and in any such case:
10.9.1 We will process the Personal Data solely on Your documented instructions (including as set out in the Agreement), for the purposes of providing the Subscription Services and the Support Services;
10.9.2 We will take all measures required by Article 32 of the GDPR to ensure the security of the Personal Data;
10.9.3 We will take reasonable steps to ensure the reliability of Our Personnel who may have access to the Personal Data and their treatment of the Personal Data as Confidential Information;
10.9.4 We will promptly, and in any case within five (5) Business Days, notify You of any communication from a data subject regarding the Processing of their Personal Data, or any other communication (including from a Regulatory Body) of which We are aware, relating to either party’s obligations under the Data Protection Laws in respect of the Personal Data;
10.9.5 We will notify You without undue delay upon becoming aware of any Personal Data Breach;
10.9.6 We will provide commercially reasonable assistance to You on request in relation to (i) any communication received under Condition 9.4; and (ii) any Personal Data Breach, including by implementing appropriate technical and organisational measures;
10.9.7 You acknowledge and agree that We are generally authorised to appoint third parties to Process the Personal Data (“Sub-Processor”), subject to notifying You about our Sub-Processors and otherwise meeting the conditions set out in Article 28 (2) and (4) of the GDPR.
10.9.8 You acknowledge and agree that the Personal Data may be transferred or stored outside of the European Economic Area or the country where You and the Authorised Users are located in order to carry out the Subscription Services and Our other obligations under the Agreement. We will take such steps as are necessary to ensure the Processing is in accordance with Data Protection Laws.
10.9.9 We will provide You, upon request, with all information reasonably required to demonstrate compliance with Our obligations under this Condition 9, including permitting You, on reasonable prior notice, and no more than on one occasion in twenty-four (24) month period (except in the event of a Personal Data Breach) to inspect and audit the facilities used by Us to Process the Personal Data.
10.9.10 We will cease Processing the Personal Data upon termination or expiry of the Agreement and, upon You request, either return to You (in accordance with Condition 12) or securely delete the Personal Data.
10.9.11 You will ensure that You are entitled to transfer the relevant Personal Data to Us so We may use, Process and transfer the Personal Data in accordance with the Agreement and Applicable Law, on Your behalf; and
10.9.12 You will ensure that all relevant Data Subjects have been informed of, and, where required, have given their consent to such use, Processing, and transfer as required by all applicable Data Protection Legislation.
10.10 The following table describes the Personal Data Processing activities performed by Us on Your behalf:
| Subject matter of processing | Processing of Personal Data and the Subscription Services provided under this Agreement. |
| Duration of processing | For the duration of the Subscription Term and the Support Term, and as further instructed by You. |
| Nature of processing | Hosting, recording and consulting Personal Data. |
| Purpose of processing | Provision of software support and hosting of Personal Data for a cloud-based software installation. |
| Type of personal data |
Support Services: names and business contact details
Subscription Services: names, contact details, employee numbers, employee well-being details, details of work based time recording. |
| Categories of data subjects |
Support Services: Your employees, workers and contractors.
Subscription Services: Your employees, workers and contractors. |
10.11 You acknowledge and agree that We may from time to time monitor Your use of the Subscription Services and Support Services and capture Your Data in relation to Your use of Subscription Services and Support Services, including through the use of Google Analytics.
10.12 If on termination of the Agreement You require Us to return Your Data to You (including Your Data that resides on or within Our Software or Our systems), You will notify Us in writing and We will use reasonable commercial endeavours to deliver You, to the extent We are able, the then most recent back-up of Your Data that is in the possession of Us, subject to You having paid all Fees and charges outstanding at and resulting from termination (whether or not due at the date of termination) and You and Us agreeing the reimbursement of Our costs and reasonable expenses in relation to the retrieval) and return of Your Data.
11.1 You acknowledge that the Subscription Services may enable or assist You to access the website content of, correspond with, and purchase products and services from, third parties via third party websites and that You do so solely at Your own risk.
11.2 We make no representation, warranty or commitment and will have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any third-party website, or any transactions completed, and any contract entered into by You, with any such third party. Any contract entered into and any transaction completed via any third-party website is between You and the relevant third party, and not with Us. We recommend that You refer to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. We do not endorse or approve any third-party website nor the consent of any of the third-party website made available via Subscription Services or Support Services.
12.1 You will:
12.1.1 provide Us with all necessary:
12.1.1.1 co-operation requested by Us in relation to the Agreement; and
12.1.1.2 to information as may be required by Us in order to provide any Installation, the Subscription Services and/or Support Services, including but not limited to Your Data, security access information and configuration services;
12.1.1.3 comply with all Applicable Laws with respect to Your activities under the Agreement;
12.1.1.4 carry out all Your responsibilities set out in Agreement in a timely and efficient manner;
12.1.1.5 ensure that Your network and Your System comply with the relevant specifications provided by Us from time to time;
12.1.1.6 notify Us within one (1) Business Day if You suspect any breach of security or integrity of Your corporate information technology infrastructure has occurred; and
12.1.1.7 be solely responsible for procuring and maintaining Your network connections and telecommunication links from Your System to Our data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Your network connections or telecommunication links or caused by the internet.
12.1.1.8 All individuals engaged in providing services to you, whether directly or indirectly, must be treated with dignity, respect, and fairness at all times. Any form of harassment, discrimination, or mistreatment of these individuals by you or your representatives is strictly prohibited. You agree to ensure a safe and conducive working environment for all individuals involved in the provision of services.
12.2 Without prejudice to Our other rights and remedies, the non-performance or delay in performance of Our obligations under the Agreement will be excused if and to the extent that such non-performance or delay in performance results from Your failure to comply with Your obligations in Conditions 1.
13.1 The Subscription Fees, Support Fees, Professional Services Fees and any initial Fee payable by You to Us are described in the Order Form. The Man Day Rates for Professional Service are described in the Order Form.
13.2 You will pay undisputed initial fees, Subscription Fees, Support Fees and Professional Services Fees to Us within thirty (30) days of the date of the invoice unless stated otherwise in the Payment Terms.
13.3 Your initial Fee and Your Subscription Fees and Support Fees during the Initial Subscription Term, are fixed.
13.4 Your Subscription Fees and Support Fees during any Renewal Period may be increased in accordance with Condition 17 and/or if the extraordinary circumstances in Condition 13.16 apply.
13.5 Professional Service Fees are calculated by reference to the then current Man Day Rates in the Order Form (at the prevailing rate unless otherwise agreed between You and Us in writing) and any associated Expenses We may amend the Man Day Rate in Our discretion from time to time.
13.6 If at any time whilst using the Subscription Services You exceed the amount of disk storage space specified in Our IT and Data Policy, We may charge You, and You will pay, Our then current excess data storage fees (at the prevailing rate). Our excess data storage fees are set out in Our IT and Data Policy.
13.7 You may only withhold payment of bona fide disputed Fees (or elements of the Fees which are in bona fide dispute) where We have not performed Our obligations in relation to such Fees, in accordance with the terms of the Agreement, and You have notified Us of this within fourteen (14) days of the date of the relevant invoice. You will not be entitled to withhold payment after such date.
13.8 If You withhold any Fees, You must notify Us in accordance with Condition 7 and will give reasonable details to Us as to which elements of the Fees are disputed and the reason for such withholding.
13.9 If any portion of an invoice is disputed by You pursuant to Condition 8, then, We may (at Our sole election) either:
13.9.1 require You to pay the undisputed amount of the invoice in accordance with the applicable Payment Terms; or
13.9.2 Issue two (2) invoices, one (1) in respect to the disputed amount and the other in respect of the undisputed amount
and You will Pay the invoice for the undisputed amount in accordance with the applicable Payment Terms, and You and Us (each acting reasonably and in good faith) will seek to resolve the dispute in respect of the disputed amount as soon as reasonably practicable thereafter.
13.1o If We have not received payment of the undisputed Fees within thirty (30) days after the due date for payment (or data of resolution of any dispute in relation to Fees disputed pursuant to Condition 8), and without prejudice to any other rights or remedies of Us, We may:
13.10.1 disable Your password, account and access to all or part of the Subscription Services, without liability to You, and will be under no obligation to provide any Subscription Services while any invoice remains unpaid; and/or
13.10.2 suspend performance or all or part of an Installation and/or the Support Services without liability to You, and We will be under no obligation to provide any Installation or Support Services while any invoice remains unpaid; and
13.10.3 change interest on the late payment or any undisputed Fee properly invoices which will accrue daily from the due date to the date of actual payment on any overdue amounts under the Agreement (whether before or after judgement) at the rate of four per cent (4%) per annum above the base rate of NatWest Bank plc from the time being in force.
13.11 If We have not received payment of undisputed Fees within sixty (60) days after the due date for payment (or date of resolution of any dispute in relation to Fees disputed pursuant to Condition 8) and without prejudice to any other rights and remedies of Us, We may delete all data hosted by Us in relation to the Subscription Services. In respect of any Personal Data, and for the purposes of Condition 10.9.1, You confirm that Our right to do so is within the lawful scope of Your instruction to Us.
13.12 If We:
13.12.1 disable Your password, account and access to all or part of the Subscription Services; and/or
13.12.2 suspend performance of all or part of an Installation and/or Support Services;
Provided that such disabling or suspension is in accordance with this Agreement, You will remain responsible for all Fees and other charges You incur during the period of suspension
13.13 All amounts and Fees stated or referred to in the Agreement will be payable in UK pound sterling.
13.14 The Initial Fee, Subscription Fees, Support Fees and Professional Services Fees (if paid upfront) payable by You to Us are non-cancellable and non-refundable, save as expressly set out in the Agreement.
13.15 All Fees and amounts are exclusive of value added tax, which will be added to Our Invoice at the appropriate rate.
13.16 If there is an incident or occurrence which has the effect of materially reducing the benefit received by Us under the Agreement or increasing the burden by Us under the Agreement, We may increase the Subscription Fees, Support Fees and any other Fees on providing reasonable advanced written notice, whereupon the Agreement will be deemed to have been amended accordingly.
13.17 We may increase the Fees and the Support Fees at the start of each Renewal Period by the higher of the percentage increase in the RPI or by a five per cent (5%) increase than the Fees and Support Fees that were payable in the preceding year.
13.18 If Support Services are provided in circumstances where a reasonably skilled and competent operator would have judged Your requirement to have been unnecessary or You exceed Our Fair Use Policy, We will be entitled to levy additional charges on a Man Day Rate basis.
14.1 You acknowledge and agree that Us and Our licensors own all property rights in and to, the Software, Subscription Services and Support Services.
14.2 The Agreement does not grant You any rights to, under or in, any intellectual property rights (whether registered or unregistered) or any other rights or licences in respect of the Software, Subscription Services or Support Services, unless expressly set out in the Agreement.
14.3 We confirm that We have all the rights in relation to the Software, Subscription Services and the Support Services that are necessary to grant all the rights We purport to grant under, and in accordance with, the terms of the Agreement.
15.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Agreement. A party’s Confidential Information will not be deemed to include information that:
15.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
15.1.2 was in the other party’s lawful possession before the disclosure;
15.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
15.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence.
15.2 Subject to Condition 4, You and Us will hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the Implementation of the Agreement.
15.3 You and Us will take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
15.4 You and Us may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by Applicable Law, provided that, to the extent it is legally permitted to do so, You or Us (as the context requires) gives the other as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this Condition 4, takes into account the reasonable requests of the other in relation to the content of such disclosure.
15.5 Neither You or Us will be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
15.6 You acknowledge that details of the Subscription Services and Support Services, and the results of any performance of the same, constitute Our Confidential Information.
15.7 We acknowledge that Your Data is the Confidential Information of You.
15.8 You and Us will not make, or permit any person to make, any public announcement concerning the Agreement within the prior written consent of the other (such consent not to be unreasonably withheld or delayed), except as required by Applicable Law or any relevant securities exchange.
15.9 The above provisions of this Condition 15 will survive termination of the Agreement, however arising.
During the term of the Agreement, and for a period of two (2) years after its expiry, you shall not attempt to solicit any individual who is employed by us or work for us or on behalf of us and with whom you had contact with in connection with the Services.
17.1 You will indemnify Us against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with Your use of the Software, Subscription Services and Support Services which is not expressly permitted by the Agreement, provided that:
17.1.1 You are given prompt notice of any such claim;
17.1.2 We provide reasonable co-operation to You in the defence and settlement of such claim, at Your expense, and
17.1.3 You are given sole authority to defend or settle the claim.
17.2 We will defend You against any claim that the Software, Subscription Services or Support Services infringe any UK copyright from the Effective Date until expiry of this Agreement and We will indemnify You against amounts awarded against You in judgement or settlement of such claims, provided that:
17.2.1 We are given prompt notice of any such claim
17.2.2 You provide reasonable co-operation to You in the defence and settlement of such claim, at Our expense, and
17.2.3 We are given sole authority to defend or settle the claim.
In the defence or settlement of any claim, We may procure the right for You to continue using, replace or modify the Software, Subscription Service or Support Services (as the context requires) so that they become non-infringing or, if such remedies are not reasonably available, terminate the Agreement of five (5) Business Days’ notice to You without any additional liability or obligation to pay damages or other additional cost to You.
17.3 In no event will Us or Our Personnel be liable to You to the extent that the alleged infringement is based on:
17.3.1 a modification of the software, Subscription Services or Support Services by anyone other than Us; or
17.3.2 Your use of the Software, Subscription Services or Support Services in a manner contrary to the instructions given to You by Us; or
17.3.3 Your use of the Software, Subscription Services or Support Services after notice of the alleged or actual infringement from Us or any appropriate authority.
17.4 The foregoing and Condition 2 states Your sole and exclusive rights and remedies, and Our entire obligations and liability, for infringement of any intellectual property rights.
18.1 Nothing in the Agreement will exclude or limit either party’s liability:
18.1.1 for death or personal injury caused by negligence;
18.1.2 for fraud or fraudulent misrepresentation; or
18.1.3 that cannot, as a matter of law, be limited or excluded
18.2 We shall not be liable to You for any loss or damage whatsoever or howsoever caused arising in connection with this Agreement, the Equipment or its use, or otherwise, other than by the negligent act or omission of Us.
18.3 Notwithstanding the above, We hereby expressly exclude liability for all indirect or consequential loss or damage including but not limited to loss or damage to data or to other equipment or property, (whether or not the same may be in the Our care, custody or control) or for loss of profit, business, revenue, goodwill, anticipated savings or any other special loss.
18.4 In the event that any limitation or provision contained in this Agreement shall be held to be invalid for any reason or We become liable for loss or damage that would otherwise have been lawful to exclude, Our total liability shall be limited to amount as specified under clause 18.5.2.
18.5 Subject to Condition 1 and Condition 17.6:
18.5.1 We will not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for:
18.5.1.1 any Excluded Losses, in each case whether direct or indirect (and regardless of whether We have been advised of the possibility of such losses or damages); or
18.5.1.2 any indirect or consequential loss, costs, damages, charges or expenses however arising under the Agreement; and
18.5.2 Our total aggregate liability in contract (including in respect of the indemnity at Condition 2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of the Agreement will be limited to the greater of:
18.5.2.1 ten thousand pounds sterling (£10,000); and
18.5.2.2 one hundred and twenty five per cent (125%) of the total Subscription Fees and Support Fees paid during the twelve (12) months immediately preceding the date on which the claim arose.
18.6 Except as expressly and specifically provided in the Agreement:
18.6.1 You assume sole responsibility for results obtained from the use of the Subscription Services and Support Services by You, and for conclusions drawn from such use. We will have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Us by You in connection with the Subscription Services and Support Services, or any actions taken by Us at Your direction;
18.6.2 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 the Agreement; and
18.6.3 the Subscription Services and Support Services are provided to You on a “as is” basis
19.1 You and Us may terminate the Agreement on providing not less than sixty (60) days’ prior written notice before the later of the end of the Initial Subscription Term or any Renewal Period, in which case the Agreement will terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period, whichever is the later date
19.2 Without affecting aby other rights or remedy available to You or Us, You or Us may terminate the Agreement with immediate effect by giving written notice to the other if:
19.2.1 the other party commits a material breach of any term of the Agreement which is incapable of remedy;
19.2.2 the other party commits a material breach of any term of the Agreement which is capable of remedy and fails to remedy that Breach within a period of thirty (30) days after being notified in writing to do so; or
19.2.3 the other party suffers an Insolvency Event.
19.3 Without affecting any other right or remedy available to Us, We may terminate the Agreement with immediate effect by giving notice to You if:
19.3.1 You fail to pay any amount due under the Agreement on the due date for payment and such amount remains in default not less than thirty (30) days after being notified by Us in writing to make such payment; or
19.3.2 You are subject to a Change Control.
19.4 For the avoidance of doubt and in accordance with the above Condition 3.1, failure to pay any amount due under the Agreement within sixty (60) days after the due date will trigger Our right to delete all data hosted by Us in relation to the Subscription Services pursuant to Condition 13.11.
20.1 On termination of the Agreement for any reason:
20.1.1 all licences granted under the Agreement will immediately terminate and You will immediately cease all use of the Software, Subscription Services and the Support Services;
20.1.2 You and Us will return and make no further use of any equipment, property, documentation and other items (and all copies of them) belonging to the other; and
20.1.3 any rights, remedies, obligations or liabilities of You and Us that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination will not be affected or prejudiced.
20.2 If the Agreement is terminated by:
20.2.1 Us pursuant to Condition 2 or 18.3, You will be liable to Us for and will pay to Us, the Committed Fees. You will pay an amount equal to all Committed Fees due and payable by You to Us within ten (10) Business Days of the date of termination of the Agreement; and
20.2.2 You pursuant to Condition 1 or 18.2 or Us pursuant to Condition 18.1, You will pay an amount equal to all fees due and payable by You to Us as at the date of termination of the Agreement within ten (10) Business Days of the date of termination of the Agreement.
21.1 We will have no liability to You under the Agreement if We are prevented from or delayed in performing Our obligations under the Agreement, or from carrying on Our business, by acts, events, omissions or accidents beyond Our reasonable control, including, strikes, lock-outs or other industrial disputes (whether involving the workforce of Us or any other party), failure of a utility service or transport or telecommunications network, act of god, pandemics, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant machinery, fire, flood, storm of default of suppliers of sub-contractors, provided that We notify You of such an event and its expected duration (“Force Majeure Event”).
21.2 We shall notify You as soon as practicable after the Force Majeure Event ceases or no longer causes Us to be unable to comply with Our obligations under this Agreement. Following such notification, this Agreement shall continue to be performed on the terms existing immediately prior to the occurrence of the Force Majeure Event unless stated otherwise by Us.
If there is an inconsistency between any of the provisions these Conditions and the Order, these Conditions will prevail.
No variation of the Agreement will be valid unless it is in writing and signed by an authorised representative of You and Us.
24.1 The rights and remedies of You and Us under, or in connection with, the Agreement may be waived only by express written notice to the other. Any waiver will apply only in the instance, and for the purpose for which it is given.
24.2 No right or remedy under, or in connection with, the Agreement will be precluded, waived or impaired by:
24.2.1 any failure to exercise or delay in extending it;
24.2.2 any single or partial exercise of it;
24.2.3 any earlier waiver of it (whether in whole or in part); or
24.2.4 any of the above in relation to any other right or remedy (be it of similar or different character).
24.3 The rights and remedies arising under, or in connection with, the Agreement are cumulative and, except where otherwise expressly provided in the Agreement, do not exclude any rights or remedies provided by Applicable Law or otherwise.
24.4 Any termination of the Agreement and/or parts thereof does not affect any accrued rights or liabilities of You or Us and nor does it affect the coming into force or the continuation in force of any provision of the Agreement that is expressly or by implication intended to come into or continue in force on or after such termination.
25.1 If any provision of the Agreement is or becomes illegal, invalid or unenforceable, in any respect:
25.1.1 it will not affect or impair the legality, validity or enforceability, in any respect
25.1.2 the parties will use reasonable endeavours to negotiate in good faith with a view to replacing it with a valid and enforceable provision which achieves to the greatest extent possible the same effect as would have been achieved by the illegal, invalid or unenforceable provision but differing from the replaced provision as little as possible.
25.2 If any illegal, invalid or unenforceable provision would be legal, valid or enforceable if some part of it were deleted, such provision will apply with the minimum modifications necessary to make it legal, valid or enforceable.
26.1 The Agreement constitutes the entire agreement and understanding between You and Us in respect of its subject matter and supersedes any previous agreement, warranty, statement, representation, understanding or undertaking (in each case whether written or oral) given or made before the date of the Agreement by or on behalf of the parties and relating to its subject matter.
26.2 You and Us confirm that it has not relied upon, and will have no remedy in respect of, any agreement, warranty, statement, representation, understanding or undertaking made by any party (whether or not a party to the Agreement) unless that warranty, statement, representation, understanding or undertaking is expressly set out in the Agreement.
26.3 Subject to Condition 4, You and Us will not be entitled to the remedies of rescission or damages for misrepresentation arising out of, or in connection with, any agreement, warranty, statement, representation, understanding or undertaking whether or not it is set out in the Agreement.
26.4 Nothing in the Agreement will restrict or exclude any liability for (or remedy in respect of) fraud or fraudulent misrepresentation.
27.1 You will not, without the prior written consent of Us, assign transfer, charge, sub-contract or deal in any other manner with all or any of Your rights or obligations under the Agreement.
27.2 We may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of Our rights or obligations under the Agreement.
Nothing in the Agreement is intended to create a partnership or joint venture or legal relationship of any kind between You and Us that would impose liability upon You or Us for the act or failure to act of the other, or to authorise you or us to act as agent for the other. Save where expressly stated in the Agreement, neither You or Us will have authority to make representations, act in the name or on behalf of, or otherwise to bind, the other.
The Agreement will not prevent Us from entering into similar agreements with third parties, or from independently developing, using, selling or licencing documentation, products and/or services which are similar or identical to the Subscription Service and/or Support Services provided under the Agreement.
30.1 Except as provided in the remainder of this Condition 29, a person who is not a party to the Agreement will have no right under the Contracts (Rights of Third Parties) Act 1999 (the “CRTPA) to enforce any term of the Agreement. This Condition 30 does not affect any right or remedy of any person which exists, or is available, other than under CRTPA.
30.2 We may enforce any term of the Agreement on behalf of a member of Our Group. Without prejudice to the foregoing, any member of Our Group (other than Us) may enforce any terms of the Agreement which is expressly or implicitly intended to benefit it. Any Regulatory Body may enforce the terms of Condition 10.1
31.1 You and Us will:
31.1.1 comply with all Applicable Laws relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (“Relevant Requirements”);
31.1.2 not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
31.1.3 have and will maintain in place throughout the term of the Agreement its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements, and will enforce them where appropriate; and
31.1.4 promptly report to the other party and request or demand for any undue financial or other advantage of any kind received by the party making the report in connection with the performance of the Agreement.
31.2 For the purpose of this Condition 30, the meaning of adequate procedures and foreign public official and whether a person is associated with another person will be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issues under section 9 of that Act), sections 6(5) and 6(6) of that Act and section 8 of that Act respectively.
32.1 Neither You or Us will engage in any practice that amounts to:
32.1.1 slavery or servitude (each as construed in accordance with Article 4 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 19590, as amended);
32.1.2 forced or compulsory labour (as defined by the International Labour Organisation’s Forced Labour Convention 1930 (No. 29) and Protocol);
32.1.3 human trafficking; or
32.1.4 arranging or facilitating the travel of another person with a view to that person being exploited.
32.2 You and Us will and will procure that its officers, employees, agents, sub-contractors and any other persons who perform services for or on behalf of it in connection with the Agreement will:
32.2.1 comply with all applicable laws relating to slavery, servitude, forced or compulsory labour or human trafficking (“Anti-Slavery Laws”);
32.2.2 not do or omit to do any act or thing which constitutes or may constitute an offence under any Anti-Slavery Law;
32.2.3 not knowingly employ or engage in any practices which constitute or may constitute an offence under any Anti-Slavery Law and not knowingly appoint or contract with any person who has been convicted of or prosecuted in a jurisdiction in relation to an offence or alleged offence under any Anti-Slavery Law; and
32.2.4 no commit any act or omission which causes or could cause the other party to breach, or commit and offence under, any Anti-Slavery Law.
32.3 You and Us will provide the other with such assistance and information as it reasonably requires from time to time to:
32.3.1 perform and activity required by any government, regulatory entity or agency in any relevant jurisdiction for the purpose of compliance with any applicable Anti-Slavery laws;
32.3.2 prepare a slavery and human trafficking statement as required by section 54 of the Modern Slavery Act and to include the matters referred to in section 54(5) of that Act; and
32.3.3 to conduct due diligence and to measure the effectiveness of the steps it is taking or wishes to ensure that modern slavery practices are not taking place in its supply chain.
32.4 You and Us will promptly notify the other party or any breach of Condition 1 to 31.3 (inclusive).
All amounts due from You to Us under or in connection with the Agreement will be paid in full without any set-off, counter-claim, deduction or withholding (other than any admitted credit or overpayment or any deduction or withholding of taxes required by Applicable Law).
34.1 Any notice required to be given under the Agreement will be in writing and will be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in the Agreement front sheet, or such other address as may have been notified by that party for such purposes.
34.2 A notice delivered by hand will be deemed to have been received when delivered (or if delivery is not in Normal Business Hours, at 9:00 am (UK time) on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post will be deemed to have been received at the time at which it would have been delivered in the normal course of post.
The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) will be governed by and construed in accordance with the law of England and Wales.
You and Us irrevocably agree that the courts of England and Wales will have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).
1.1 The following definitions and rules of interpretation apply to these Hardware hire terms and conditions:.
1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.
2.1 We shall hire the Hardware to You for use at the Site subject to the terms and conditions of this agreement.
2.2 We shall not, other than in the exercise of its rights under these hire terms or applicable law, interfere with Your quiet possession of the Hardware.
The Rental Period starts on the date specified on the Order Form and shall continue for the Rental Period unless and until this agreement is terminated earlier in accordance with its terms.
4.1 You shall pay the Initial Fee and the Hire Fees to Us in accordance with the Order Form. The Hire Fees shall be paid in sterling and shall be made in cleared funds to the bank account nominated by Us.
4.2 The Hire Fees are exclusive of VAT and any other applicable taxes and duties or similar charges which shall be payable by You at the rate and in the manner from time to time prescribed by law.
4.3 All amounts due under this agreement 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).
4.4 If You fail to make a payment due to Us under these hire terms by the due date, then, without limiting the Our remedies under clause 9, You shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the NatWest Bank’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
4.5 The Deposit is a deposit against default by You of payment of any Hire Fees or any loss of or damage caused to the Hardware. You shall, on the Effective Date pay a deposit of an amount specified in the Order Form to Us. If You fail to make any Hire Fees in accordance with the Order Form, or cause any loss or damage to the Hardware (in whole or in part), We shall be entitled to apply the Deposit against such default, loss or damage. You shall pay to Us any sums deducted from the Deposit within ten Business Days of a demand for the same. The Deposit (or balance of the Deposit) shall be refundable within ten Business Days of the end of the Rental Period.
4.6 We shall be entitled to charge You the Collection Fee at the end of the Rental Period.
5.1 Delivery shall be made by Us. We shall use all reasonable endeavours to effect Delivery by the Delivery Date. Risk shall transfer in accordance with clause 2 of these hire terms.
5.2 You shall procure that a duly authorised representative of Yours shall be present at the Delivery of the Hardware. Acceptance of Delivery by such representative shall constitute conclusive evidence that You have examined the Hardware and have found it to be in good condition, complete and fit in every way for the purpose for which it is intended (save as regards any latent defects not reasonably apparent on inspection). If required by Us, Your duly authorised representative shall sign a receipt confirming such acceptance.
5.3 If You fail to accept delivery of the Hardware on the Delivery Date, then, except where such failure is caused by Our failure to comply with our obligations under these hire terms:
6.1 The Hardware shall at all times remain Our property, and You shall have no right, title or interest in or to the Hardware (save the right to possession and use of the Hardware subject to these hire terms and conditions).
6.2 The risk of loss, theft, damage or destruction of the Hardware shall pass to You on Delivery. The Hardware shall remain at Your sole risk during the Rental Period and any further term during which the Hardware is in Your possession, custody or control of the (Risk Period) until such time as the Hardware is redelivered to Us or collected by Us. During the Rental Period and the Risk Period, You shall, at your own expense, obtain and maintain the following insurances:
6.3 All insurance policies procured by You shall be endorsed to provide Us with at least 10 Business Days’ prior written notice of cancellation or material change (including any reduction in coverage or policy amount) and shall on Our request name Us on the policies as a loss payee in relation to any claim relating to the Hardware. You shall be responsible for paying any deductibles due on any claims under such insurance policies.
6.4 If You fail to effect or maintain any of the insurances required under these hire terms, We shall be entitled to effect and maintain the same, pay such premiums as may be necessary for that purpose and recover the same as a debt due from You.
6.5 You shall, on demand, supply copies of the relevant insurance policies or other insurance confirmation acceptable to Us and proof of premium payment to Us to confirm the insurance arrangements.
6.6 You shall give immediate written notice to Us in the event of any loss, accident or damage to the Hardware arising out of or in connection with the Your possession or use of the Hardware.
7.1 You shall during the term Rental Period:
7.2 You acknowledge that We shall not be responsible for any loss of or damage to the Hardware arising out of or in connection with any negligence, misuse, mishandling of the Hardware or otherwise caused by You or Your officers, employees, agents and contractors, and You shall indemnify Us 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 Us arising out of, or in connection with any failure by You to comply with Your obligations in this clause 7.
8.1 We warrants that the Hardware shall substantially conform to its specification (as made available by Us), be of satisfactory quality and fit for any purpose held out by Us. We shall use all reasonable endeavours to remedy, free of charge, any material defect in the Hardware which manifests itself within twelve months from Delivery, provided that:
8.2 Insofar as the Hardware comprises or contains equipment or components which were not manufactured or produced by Us, You shall be entitled only to such warranty or other benefit as We have received from the manufacturer.
8.3 If We fail to remedy any material defect in the Hardware in accordance with clause 1, We shall, at the Your request, accept the return of part or all of the Hardware and make an appropriate reduction to the Hire Fees payable during the remaining term of the Rental Period and, if relevant, return any Deposit (or any part of it).
9.1 Without affecting any other right or remedy available to it, the We may terminate this Agreement with immediate effect by giving written notice to You if:
(a) You fail to pay any amount due under this Agreement on the due date for payment and remains in default not less than 20 days after being notified in writing to make such payment;
(b) You commit a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 20 days after being notified in writing to do so;
(c) You repeatedly breach any of the terms of this Agreement in such a manner as to reasonably justify the opinion that Your conduct is inconsistent with having the intention or ability to give effect to the terms of this Agreement;
(d) You suspend, or threaten to suspend, payment of Your debts or are unable to pay Your debts as they fall due or You admit inability to pay Your debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 1986;
(e) You commence negotiations with all or any class of Your creditors with a view to rescheduling any of Your debts, or make a proposal for or You enter into any compromise or arrangement with Your creditors;
(f) You apply to court for, or obtain, a moratorium under Part A1 of the IA 1986;
(g) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of Your (being a company, limited liability partnership or partnership);
(h) 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 You (being a company);
(i) the holder of a qualifying floating charge over Your assets (being a company) has become entitled to appoint or has appointed an administrative receiver;
(j) a person becomes entitled to appoint a receiver over all or any Your assets or a receiver is appointed over all or any of Your assets;
(k) a creditor or encumbrancer of Yours 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 Your assets and such attachment or process is not discharged within 14 days;
(l) any event occurs, or proceeding is taken, with respect to You in any jurisdiction to which You are subject that has an effect equivalent or similar to any of the events mentioned in clause 1(d) to clause 9.1(k) (inclusive);
(m) Your financial position deteriorates so far as to reasonably justify the opinion that Your ability to give effect to the terms of this Agreement is in jeopardy; or
(n) You suspend or cease, or threaten to suspend or cease, carrying on all or a substantial part of Your business; or
(o) there is a change of control of You (within the meaning of section 1124 of the Corporation Tax Act 2010)].
9.2 For the purposes of clause 1(b), a material breach means:
(a) a breach of any of the obligations set out in clauses 4,6 and 7; or
(b) a breach that has a serious effect on the benefit that We would otherwise derive from this Agreement.
9.3 This Agreement (so far as it relates to the hire of Hardware) shall automatically terminate if a Total Loss occurs in relation to the Hardware.
10.1 On expiry or termination of this Agreement (so far as it relates to the hire of Hardware), however caused:
(a) Our consent to Your possession of the Hardware shall terminate;
(b) We may, by Our authorised representatives, without notice and at Your expense, retake possession of the Hardware and for this purpose may enter the Site or any premises at which the Hardware is located;
(c) You shall ensure the safe and proper storage of the Hardware until it has been collected by Us; and
(d) without prejudice to any of Your other rights or remedies, You shall pay to the Us on demand:
10.2 On termination of this Agreement pursuant to clause 1, any other repudiation of this Agreement by You which is accepted by Us or pursuant to clause 9.3, without prejudice to any other rights or remedies of Ours, You shall pay to the Us on demand a sum equal to the whole of the Hire Fees that would (but for the termination) have been payable if the agreement had continued from the date of such demand to the end of the Rental Period.
10.3 The sums payable pursuant to clause 2 shall be agreed compensation for Our loss and shall be payable in addition to the sums payable pursuant to clause 10.1(d). Such sums may be partly or wholly recovered from any Deposit.
10.4 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.
10.5 Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
