Background
a. The Supplier will provide the Services (as defined below).
b. The Customer wishes to use the Supplier's Services in its business operations.
c. The Supplier has agreed to provide, and the Customer has agreed to take and pay for, the Services, subject to the terms and conditions of this Agreement.
Agreed Terms
1. INTERPRETATION
1.1 The definitions and rules of interpretation in this Clause apply in this Agreement:
Acceptance Criteria: means the specific, measurable conditions agreed by the Parties (either in the Statement of Work or in writing thereafter) that the Deliverables must meet during Acceptance Testing to be deemed compliant with the specifications, of satisfactory quality, and eligible for acceptance and invoicing.
Acceptance Tests: means the acceptance tests as specified or referred to in the Statement of Work to be undertaken to determine whether the Deliverables meet the Acceptance Criteria.
Affiliate: means in relation to any entity, (a) that entity; (b) any subsidiary undertaking or parent undertaking of such entity or a subsidiary undertaking of any such parent undertaking from time to time (as defined by section 1162 of the Companies Act 2006); or (c) any entity controlling, controlled by, or under common control with, the relevant entity or any of the aforementioned parent undertakings or subsidiary undertakings.
Agreement: the terms and conditions in this agreement, including all Schedules and any Statement of Work(s) executed pursuant to it, as may be amended from time to time by written agreement of the Parties.
Applicable Laws: means all applicable laws, statutes, regulations from time to time in force which relate to the business of the applicable Party.
Background Materials: means all Intellectual Property Rights, know-how, information, methodologies, techniques, tools, schemata, diagrams, ways of doing business, trade secrets, instructions manuals and procedures (including, but not limited, to software, documentation, and data of whatever nature and in whatever media) owned, developed or controlled by the Supplier which may have been created outside the scope, or independently of, the Services and/or the Agreement, and including all updates, modifications, derivatives or future developments thereof.
Business Day: means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Commencement Date: means the date of the relevant Statement of Work.
Confidential Information: means all confidential information (however recorded or preserved) disclosed by a Party or its employees, officers, representatives, advisers or subcontractors involved in the provision or receipt of the Services (together, its “Representatives”) to the other Party and that Party's Representatives in connection with the Agreement which information is either labelled as such or should reasonably be considered as confidential because of its nature and the manner of its disclosure.
Customer: means the customer set out in the applicable Statement of Work.
Deliverable: means all Documents, products and materials developed by the Supplier or its agents, subcontractors, consultants and employees in relation to the Services in any form, including computer programs, data, reports and specifications (including drafts).
Document: means, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.
Fees: means the fees payable by the Customer to the Supplier, as described in the Statement of Work pursuant to the terms of this Agreement.
Force Majeure: means any cause preventing either Party from performing any or all of its obligations under this Agreement which arises from or is attributable to acts, events, omissions or accidents beyond the reasonable control of the Party so prevented including, without limitation, act of God, war, riot, computer viruses and malware, epidemics, pandemics, strike, lock out, civil commotion, compliance with any law or governmental order, rule, regulation or direction, fire, flood or storm, save that strike or lockout of the Party’s own staff shall not entitle them to claim that to be a force majeure event.
Good Industry Practice: means the standards of an experienced provider of business critical services similar or identical to the Services, having regard to factors such as the nature and size of the Parties the term, the pricing structure and any other relevant factors.
Intellectual Property Rights or IPR: means any and all intellectual property rights of any nature, whether registered, registerable or otherwise, including, patents, utility models, trademarks, registered designs and domain names, applications for any of the foregoing, trade or business names, goodwill, copyright and rights in the nature of copyright, design rights, rights in databases, moral rights, know-how and any other intellectual property rights that subsist in software, computer programs, websites, documents, information, techniques, business methods, drawings, logos, instruction manuals, lists and procedures and particulars, marketing methods and procedures and advertising literature, including the “look and feel” of any websites, and in each case all rights and forms of protection of a similar nature or having equivalent or similar effect to any of these that may subsist anywhere in the world, in each case for their full term, together with any future rights and renewals or extensions.
IPR Claim: means a claim arising from the infringement of IPR belonging to third parties.
Licence Agreement: means all licence agreements that may have to be entered into by the Supplier and/or the Customer in respect of Third-Party Services used.
Licence Fees: means all fees payable by the Customer to the Supplier in respect of any Third-Party Software licences procured by the Supplier on behalf of the Customer, as set out in the applicable Statement of Work. Licence Fees include all amounts due for the Customer’s right to use such Third-Party Software in conjunction with the Services for the duration of the applicable licence term.
Normal Business Hours: means 9.00 am to 5.30 pm local UK time on Business Days.
Out of Scope: means those out-of-scope services specified as such in the Statement of Work together with any other services which are not detailed in the Statement of Work.
Party/Parties: means a party or parties to the Agreement.
Project: means the specific engagement or initiative described in a Statement of Work, which may be amended by the Parties in writing from time to time.
Relief Events: means the following events:
a) any negligence, act, omission, default of the Customer, or failure by the Customer to comply with its obligations under the Agreement;
b) any error or malfunction in the information technology and communication systems, including networks, hardware, software and interfaces owned by, or licensed to, the Customer or any of its agents or contractors or any other software, hardware or systems for which the Supplier is not responsible or any failure by the Customer, its agents or contractors (including any existing service provider) to obtain sufficient support and maintenance, as required, for any software, hardware or systems for which the Supplier is not responsible;
c) any failure by the Customer or its agents or contractors (including any existing service provider) to provide any information, co-operation or instructions or failure to provide accurate, correct and complete information, co-operation or instructions, to the Supplier which is reasonably required by the Supplier for the proper performance of its obligations under the Agreement; and/or
d) any of the causes or events set out in Clause 9.
Services: means consulting, advisory, integration or technical services performed by the Supplier under a Statement of Work or otherwise agreed in writing between the Parties.
Statement of Work: means a document, signed by both Parties, setting out the agreed target cost and the Services to be performed by the Supplier for the Customer in relation to a Project. Each Statement of Work constitutes an independently terminable contractual obligation entered into under this Agreement.
Supplier: means Advancing Analytics Limited a company registered in England and Wales (No. 11635293) and whose registered office is 25 Newman Street Fitzrovia, London, England, W1T 1PN.
Third-Party Services: means any services, goods, code or software programs written or provided by other third parties which are used by the Customer during the provision of the Services.
Third-Party Software: means any code or software programs written or provided by Microsoft or other third parties which are used or to be used by the Customer in connection with its use of Services provided under any Statement of Work.
1.2 Unless the context otherwise requires, words in the singular shall include the plural and the plural shall include the singular.
1.3 Clause, Schedule, and paragraph headings shall not affect the interpretation of this Agreement.
1.4 References to Clauses and Schedules are to the Clauses and Schedules of this Agreement. References to paragraphs are to paragraphs of the relevant Schedule.
1.5 The Schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Schedules.
1.6 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision includes any subordinate legislation made from time to time under that statute or statutory provision.
1.7 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.8 A reference to writing or written includes email.
1.9 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.10 A reference to a person includes any natural person, body corporate, unincorporated association, partnership or trust.
1.11 A reference to this Agreement or to any other agreement or document referred to in this Agreement is a reference to this Agreement or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of this Agreement) from time to time.
1.12 In the event of any conflict or inconsistency between the Clauses of this Agreement, the Statement of Work (including any changes to the Statement of Work) and any Schedules to this Agreement, the following order of precedence shall apply (in decreasing order) to the extent of such conflict or inconsistency:
a) Statement of Work;
b) the Schedules (including any future schedules); and
c) the Clauses in this Agreement.
2. PROVISION OF SERVICES
2.1 This Agreement sets out the terms and conditions under which the Supplier shall provide the Services to the Customer.
2.2 The Supplier shall not be under any obligation to perform, and the Customer shall not be under any obligation to accept any Services unless and until a Statement of Work has been executed.
3. RESPONSIBILITIES OF SUPPLIER
3.1 The Supplier shall:
a) provide the Services in accordance with the terms of this Agreement and the Statement of Work;
b) use its commercially reasonable endeavours to complete any Deliverables within any timescales set out in any Statement of Work;
c) commit sufficient resources to the provision of the Services to enable their delivery in accordance with this Agreement;
d) provide the Services with due care, skill and ability in accordance with Good Industry Practice;
e) utilise suitably skilled, qualified, experienced, supervised and vetted employees, agents, representatives and authorised sub-contractors who will exercise all reasonable skill and care; and
f) notify the Customer without undue delay if the Supplier is unable to comply with any of the terms of this Agreement.
3.2 The Customer confirms that the Supplier may employ sub-contractors without seeking the prior consent of the Customer. Notwithstanding the foregoing, the Supplier shall at all times be responsible for and liable in respect of the performance of all obligations under the Agreement, whether such obligations are performed by the Supplier itself, any Supplier Affiliates or any sub-contractor engaged by the Supplier. For the avoidance of doubt, the Supplier shall only be held liable to the extent permitted under the respective Licence Agreements for the actions or omissions of any third parties, and shall not be held liable for the actions and/or omissions of any third parties that are not its sub-contractors, including but not limited to Microsoft.
4. RESPONSIBILITIES OF THE CUSTOMER
4.1 The Customer shall:
a) co-operate with the Supplier in all matters relating to the Services as reasonably requested by the Supplier;
b) ensure it has the correct permissions, consent and licences in place for any Third-Party Software required (which is not issued or procured by the Supplier) to allow the Supplier and its sub-contractors full use for the provision of Services;
c) use the Services only for lawful purposes and in accordance with this Agreement, and comply with all Applicable Laws with respect to its activities under this Agreement;
d) where applicable, provide access to such premises, equipment, information, software, systems and platforms as may reasonably be requested by the Supplier for the provision of the Services, and inform the Supplier in writing of all health and safety rules and regulations and any other applicable security requirements;
e) where applicable, allow the Supplier or its designated sub-contractors and third parties, global admin access to the Customer’s relevant servers and networking systems for the duration of the Agreement;
f) in respect of any Microsoft funded services, sign and deliver the Microsoft Proof of Execution (“POE”) on the last day of scheduled work. In the event that the Customer does not return the POE on time, the Supplier may be entitled to charge the Customer the amounts directly and the Customer shall follow the payment terms in this Agreement;
g) where a Microsoft Cloud service is deployed / utilised within the Project, the Customer shall assign the Supplier as the Claiming Partner of Record (“CPOR”) and/or Digital Partner of Record (“DPOR”) and/or Transacting Partner of Record (“TPOR”) and/or Partner Admin Link (“PAL”) and Admin on Behalf of (“AOBO”) for that particular Service for the duration of the Agreement and for a minimum period of 12 months after the Project completion date;
h) use the Third-Party Software in accordance with its operating instructions and notify Supplier promptly of any problems with the Third-Party Software;
i) follow the reasonable instructions of the Supplier support personnel with respect to the resolution of defects;
j) gather all relevant information prior to requesting assistance in respect of any defects including detailed defect description, and procedures required to replicate a problem if possible;
k) carry out Customer responsibilities in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance, the Supplier may adjust any timetable or delivery schedule as reasonably necessary;
l) keep and maintain in good condition all materials, equipment, documents and other property of or provided by the Supplier which are for the time being at the Customer’s premises in safe custody until returned to the Supplier and not dispose of or use them otherwise than in accordance with the Supplier’s written instructions or authorisation;
m) agree that if, in the course of performing the Services, it is reasonably necessary for the Supplier’s performance of its obligations under a Statement of Work for the Supplier to access or use any equipment, software or data of the Customer (or which is in the possession of the Customer) then it shall where it is able to do so grant to the Supplier a non-exclusive, royalty free, terminable licence to use the same solely for the purpose of delivering the Services only for as long as is strictly necessary to deliver such Services
n) agree that any change to the Customer’s key points of contact set out in the Statement of Work (whether employees or sub-contractors) may impact the Supplier’s ability to perform the Services or complete the Deliverables in accordance with the agreed Project timeline and scope; as such the Customer shall seek prior written consent of the Supplier and the Supplier may require any such change to be subject to a Change Request.
4.2 The Customer shall adhere to the dates scheduled for provision of Services as stated in the applicable Statement of Work or otherwise agreed between the Parties in writing. In the event the Customer wishes to reschedule or cancel the dates for the provision of Services, cancellation charges (“Cancellation Charges”) will become payable by the Customer to the Supplier on the following basis:
4.3 If dates are changed or cancelled at the Customer’s request more than 14 days before the scheduled start date, no Cancellation Charges are payable;
4.4 If dates are changed or cancelled between 7 days and 14 days before the scheduled start date, Cancellation Charges equivalent to 50% of the Fees for the Services to be provided at that time will be payable;
4.5 If dates are changed or cancelled less than 7 days before the scheduled start date, Cancellation Charges equivalent to 100% of the Fees for the Services to be provided at that time will be payable.
4.6 It is acknowledged that certain sub-contractors for the Services may have specific cancellation charges applicable to the Services provided, in which case the Supplier will inform the Customer of such cancellation charges in the applicable Statement of Work or otherwise in writing from time to time.
5. PROJECT ORGANISATION
5.1 The Supplier shall appoint a supplier representative (with contact details) in each Statement of Work as the contact throughout the relevant Services (“Supplier Representative”).
5.2 The Customer shall appoint a customer representative (with contact details) in each Statement of Work, who shall have authority to commit the Customer on all matters relating to the relevant Project and throughout the relevant Services (“Customer Representative”).
5.3 The Customer Representative and the Supplier Representative shall be available at all reasonable times in order to co-ordinate all activities which are to be carried out by the relevant Party under any Statement of Work and shall supervise the fulfilment of the duties ascribed to that Party in the Statement of Work, responding to questions, providing necessary support and information. Both Parties agree to keep each other informed if the named representative changes.
6. PRICE AND PAYMENT
6.1 The Customer shall pay the Fees (and all Third-Party Services, Licence Fees, or Third-Party Software fees where applicable) for the Services in accordance with the Statement of Work. If no Fee is quoted, the Fee shall be calculated in accordance with the Supplier’s daily fee rates set out in the Statement of Work as amended from time to time in accordance with this Agreement.
6.2 Where a Fee has been quoted, this is a best estimate based on the information given to the Supplier by the Customer and/or which is available at that time and may be based on a number of assumptions set out in the Statement of Work (“Assumptions”). If it materialises that in the Supplier’s reasonable opinion, the information provided and/or Assumptions made are incorrect, inaccurate or have changed and/or that the proposed scope of Services is not feasible, the Supplier shall be entitled to charge (at the Supplier’s current rate card as set out in the applicable Statement of Work) the Customer for any Out of Scope Services or other additional Services provided to those detailed in the Statement of Work together with all related costs and expenses incurred by the Supplier.
6.3 Where the Services are provided on a time-and-materials basis:
a) the Supplier’s standard hourly or daily rates are calculated as set out in the applicable Statement of Work;
b) the Supplier shall be entitled to charge an overtime rate for time worked outside the agreed standard hourly or daily rates as set out in the Statement of Work; and
c) the Supplier shall complete the relevant time recording systems to calculate the Fees for each invoice charged on a time and materials basis.
6.4 The Supplier shall invoice the Fees in accordance with the payment intervals stated in the Statement of Work.
6.5 The Fees exclude: (a) the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the Supplier or its subcontractors in providing the Services; (b) the cost of any materials; and (c) the cost of third-party services reasonably and properly required by the Customer for the Services (together, the “Expenses”), unless otherwise specified in the applicable Statement of work. The applicable rates for Expenses are set out here, as updated from time to time. The Supplier shall obtain the Customer’s prior written approval before incurring any Expenses.
6.6 The Customer shall pay all undisputed amounts of any invoice for Fees and Expenses in full, in cleared funds, and without deduction or set-off, within 30 days from the date of the invoice, unless otherwise agreed in writing by the Supplier. If the Customer disputes any portion of an invoice, it shall notify the Supplier within 7 days of the invoice date. Any undisputed portion of the invoice shall remain payable in accordance with this Clause 6.
6.7 All payments by the Customer hereunder shall be in United Kingdom pound sterling unless otherwise agreed or set out in the Statement of Work and shall be paid to the Supplier's bank account as advised by the Supplier to the Customer in writing. All amounts stated are gross amounts but exclusive of VAT or other sales tax which shall be paid by the Customer, if applicable, at the then prevailing rate subject to receipt of a valid VAT invoice or other sales tax invoice.
6.8 Should the Customer be required by any law or regulation to make any deduction on account of tax including but not limited to withholding tax or otherwise on any sum payable under the Agreement the Fees payable shall be increased by the amount of such tax to ensure that the Supplier receives a sum equal to the amount to be paid under the applicable Statement of Work.
6.9 Without prejudice to any other rights or remedy available to the Supplier, if any Fees (or any part thereof) remain unpaid after the due date, and provided the Customer has not notified the Supplier in writing of a bona fide dispute within 10 days of receipt of the relevant invoice, the Supplier shall be entitled to charge interest on the overdue amount at a rate of 4% per annum above the prevailing base rate of HSBC Bank. Such interest shall accrue daily from the due date until the date of actual payment, whether before or after judgment. The Customer shall pay such interest together with the overdue amount in full and in cleared funds.
6.10 The Customer shall not be able to dispute any amounts which have been paid by the Customer after a period of 3 months has elapsed from the date of invoice.
6.11 If the Customer has not complied with its payment obligations under the Agreement, the Supplier may suspend the Services, but should the Supplier choose to continue to provide the Services, this shall not in any way be construed as a waiver of the Supplier’s rights or remedies. The Supplier is not responsible or liable if the Services do not to comply with the Agreement / Statement of Works as a direct result of the Customer being in breach of its obligations under this Agreement.
6.12 The Supplier reserves the right, on giving the Customer 30 days’ notice, to increase the Fees for Services provided under any applicable Statement of Work, on an annual basis with effect from each anniversary of the Agreement. If the Customer does not agree with this increase under this Clause 12, then the Customer may terminate this Agreement upon 30 days written notice and before such price increase takes effect. If the Supplier does not receive written notice within thirty (30) days, the Customer is deemed to have agreed to the amendment to the Fees.
6.13 In addition to the increases set out at Clause 12 and Clause 6.14, the Fees relating to the provision of Services shall increase on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index in the preceding 12-month period.
6.14 In addition to the increases set out at Clause 12 and Clause 6.13, any time the Supplier may on written notice to the Customer increase any fees related to Third-Party Services in line with any increases imposed upon the Supplier by the applicable third-party supplier(s) and in line with the terms of the applicable Licence Agreement and/or third-party services agreement.
7. WARRANTIES
7.1 The Customer warrants that:
a) it has the full capacity and authority to enter into and perform the Agreement and that the Agreement is executed by a duly authorised representative of the Customer;
b) it owns or has obtained valid licences, consents, permissions and rights to use, and where necessary to license to the Supplier and any of its subcontractors, any Third-Party Software or any rights or materials reasonably necessary for the Supplier’s provision of the Services and the fulfilment of all its obligations under this Agreement;
c) any third-party materials supplied by the Customer (including any hardware or software supplied by the Customer to Supplier for such use) shall not cause the Supplier to infringe the rights, including any Intellectual Property Rights of any third party;
d) it has not been induced to enter into the Agreement by any prior representations, nor has it relied on any oral representation made by the Supplier or upon any descriptions, illustrations or specifications contained in any catalogues and publicity material produced by the Supplier.
7.2 The Supplier warrants that:
a) it has the full capacity and authority to enter into and perform the Agreement and that the Agreement is or shall be (in relation to any future documentation which shall form part of the Agreement) executed by a duly authorised representative of the Supplier;
b) it will comply with Applicable Laws relevant to the performance of its obligations under the Agreement; and
c) all licences, permissions and consents required for carrying on its business have been obtained and are in full force and effect.
7.3 Except for any warranties expressly set forth in this Agreement, the Services are provided on an “as is” basis, and Customer’s use of the Services is at its own risk. The Supplier does not make, and hereby disclaims, any and all other express and/or implied warranties, statutory or otherwise, including, but not limited to, warranties of merchantability, fitness for a particular purpose and any warranties arising from a course of dealing, usage, or trade practice.
7.4 Save only as may be provided for otherwise under any Statement of Work, the Supplier makes no warranty or representation of any data backup with the Services. The Customer is responsible for all database and/or system back-ups (including Customer Data) as required at all before any change is carried out.
7.5 Notwithstanding the foregoing, the Supplier does not warrant that the Customer's use of the Services will be uninterrupted or error-free.
8. ACCEPTANCE
8.1 The relevant Statement of Work shall specify the Deliverables that are to be subject to Acceptance Testing and provide a framework for the nature of the testing that will be required and the Acceptance Criteria.
8.2 In relation to any Acceptance Testing:
a) the Customer shall have a reasonable period of time, up to five Business Days unless otherwise specified in the Statement of Work, from the Supplier’s delivery of each Deliverable under the relevant Statement of Work (the “Acceptance Periods”) to confirm that such Deliverable conforms to the Acceptance Criteria as agreed between the Parties. If the Customer determines that a Deliverable does not conform to the Acceptance Criteria, the Customer shall by the last day of the Acceptance Period provide to the Supplier an issues list of the non-conformities to the Acceptance Criteria.
b) the Customer shall use best efforts to correctly and efficiently ensure appropriate Acceptance Testing in relation to any Deliverable which is subject to Acceptance Tests and shall notify the Supplier within the Acceptance Period if any of the Deliverables do not conform to the Acceptance Criteria. In the event that Customer has undertaken the Acceptance Testing within the Acceptance Period and fails to reject any Deliverable within the relevant Acceptance Period, for all purposes under this Agreement such Deliverable, shall be deemed accepted as if the Customer had issued a written acceptance thereof. Once the Deliverable has been accepted by the Customer and payment has been settled in accordance with Clause 6, the Deliverable shall become the property of the Customer.
c) If there are any non-conformities within any Deliverable, which have been highlighted by Customer or the Supplier during the Acceptance Period and whereby the Deliverable has not been accepted by the Customer for this reason and such non-conformity is a directly attributable act or omission on the part of the Supplier (and not subject to a change request or attributable to the Customer’s acts or omissions including inadequate Acceptance Testing) the Supplier shall (without prejudice to the Customer’s other rights and remedies) carry out all necessary remedial work without additional charge as part of the next Deliverable which shall accordingly be modified; and
d) If any non-conformity cannot be remedied by the Supplier due to an error, defect or fault which the Supplier is able to demonstrate to the reasonable satisfaction of the Customer to be outside the Supplier’s control and which has disabled the Supplier’s ability to remedy such non-conformity, then the Supplier reserves the right to terminate work on that specific Deliverable. Supplier agrees not to charge Customer, any amounts paid or payable by Customer to Supplier which specifically relate to the non-conforming Deliverable which cannot be remedied.
9. DATA PROTECTION
9.1 The Parties’ rights and obligations in relation to the processing of any personal data under this Agreement and the scope, nature and purpose of processing by the Supplier, the duration of the processing and the types of personal data and categories of data subject are set out here.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 Subject to Clause 2 below, where the Supplier agrees in the applicable Statement of Work that it will create bespoke materials or code pursuant to the Services (“Bespoke IPR”) the Intellectual Property Rights in the Bespoke IPR will vest automatically in the Customer once the Supplier has received payment in full. The Supplier hereby assigns to the Customer its present and future rights and full title and interest in such Bespoke IPR. The Customer hereby provides an irrevocable, worldwide, royalty-free licence to the Supplier for the duration of the Agreement to use such Bespoke IPR strictly for the purposes of providing the Services.
10.2 The Customer acknowledges and agrees that unless otherwise expressly set out in Statement of Work, the Supplier and/or its licensors own all Intellectual Property Rights in its (i) Background Materials; (ii) the Services and Deliverables; and (iii) ideas, concepts, techniques and know-how discovered, created or developed by the Supplier during the performance of the Services that are of general application and that are not based on or derived from the Customer’s business or Confidential Information (together the “Supplier Intellectual Property”). Except as expressly stated herein, this Agreement does not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Supplier Intellectual Property or any related documentation. The Customer grants to the Supplier a non-exclusive, irrevocable, worldwide, royalty-free and non-transferable licence to use the Customer’s IPR insofar as necessary for the provision of the Services.
10.3 The Supplier confirms that it has all the rights in relation to the Supplier Intellectual Property that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
10.4 The Customer may not, at any time including after termination of this Agreement, share any Supplier Intellectual Property with any third party without the Supplier’s prior written consent. The Supplier may treat the Customer's breach of this Clause 10 as a breach of the Agreement.
10.5 Subject to Clause 4, the Customer shall pay and indemnify the Supplier, from and against all actions, claims, liabilities, demands, proceedings, costs suffered or incurred by the Supplier, arising by reason of claims that (i) the Supplier’s possession of or use of the Customer’s Intellectual Property Rights in connection with the provision of the Services infringes the Intellectual Property Rights of a third party; (ii) the Customer or any of its customers, modify, alter, replace, combine with any other data, code, documents or other software, which alters the Supplier’s Intellectual Property and such alterations infringe the Intellectual Property Rights of a third party. This indemnity applies whether or not legal proceedings are instituted and, if such proceedings are instituted, irrespective of the means, manner or nature of any settlement, compromise or determination.
10.6 Subject to Clause 4, the Supplier shall pay and indemnify the Customer, from and against all actions, claims, liabilities, demands, proceedings, costs suffered or incurred by the Customer, arising from (i) the Customer’s possession of or use of the Supplier’s Intellectual Property in connection with the provision of the Services infringes the Intellectual Property Rights of a third party; (ii) the Supplier, modifies, alters, replaces combines with any other data, code, documents or other software, which alters the Customer’s Intellectual Property Rights and such alterations infringe the Intellectual Property Rights of a third party. This indemnity applies whether or not legal proceedings are instituted and, if such proceedings are instituted, irrespective of the means, manner or nature of any settlement, compromise or determination.
10.7 If either Party (“Indemnifying Party”) is required to indemnify the other Party (“Indemnified Party”) under this Clause 10, the Indemnified Party shall:
a) notify the Indemnifying Party in writing of any IPR Claim against it in respect of which it wishes to rely on the indemnity;
b) allow the Indemnifying Party, at its own cost, to conduct all negotiations and proceedings and to settle the IPRs Claim, always provided that the Indemnifying Party shall obtain the Indemnified Party's prior approval of any settlement terms, such approval not to be unreasonably withheld;
c) provide the Indemnifying Party with such reasonable assistance regarding the IPRs Claim as is required by the Indemnifying Party, subject to reimbursement by the Indemnifying Party of the Indemnified Party's costs so incurred; and
d) not, without prior consultation with the Indemnifying Party, make any admission relating to the IPRs Claim or attempt to settle it, provided that the Indemnifying Party considers and defends any IPRs Claim diligently, using competent counsel and in such a way as not to bring the reputation of the Indemnified Party into disrepute.
10.8 If an IPR Claim is brought or in the reasonable opinion of the Supplier is likely to be made or brought, Supplier may at its own expense ensure that the Customer is still able to use the Deliverables by either:
a) modifying any and all of the provisions of the Deliverables without reducing the performance and functionality for any or all of the provision of the Deliverables, so as to avoid the infringement or the alleged infringement, provided that the terms herein shall apply mutatis mutandis to such modified or substituted services and such modified or substituted services shall be acceptable to the Customer, such acceptance not to be unreasonably withheld; or
b) procuring a license or permission to use the Deliverables on terms which are acceptable to the Customer, such acceptance not to be unreasonably withheld.
10.9 The Supplier shall have no obligation or liability for any IPR Claim to the extent such IPR Claim arises from:
a) any use by or on behalf of the Customer of the combination with any item not supplied or recommended by the Supplier where such use of the Services directly gives rise to the claim, demand or action; or
b) any modification carried out on behalf of the Customer to any item supplied by the Supplier under this Agreement if such modification is not authorised by the Supplier in writing where such modification directly gives rise to a claim, demands or action.
11 LICENCE OF SOFTWARE AND THIRD-PARTY SOFTWARE
11.1 If required and set out in the Statement of Work, the Supplier shall procure any Third-Party Software required by the Customer for the provision of the Services and shall procure the licence rights for the Customer to use the Third-Party Software in conjunction with the Services. Except as expressly set out in the relevant Licence Agreement, the Supplier expressly excludes any warranty to the Customer that the Third-Party Software supplied or licensed under this Agreement will operate substantially in accordance with, and perform, the material functions and features as set out in the marketing, sales or other associated documentations. The Customer shall remain liable for any Licence Fees until the end of the respective licence terms for such Third-Party Services.
11.2 It is a condition of this Agreement that the Customer shall enter into such direct Licence Agreements issued by the third party where the Customer must directly contract with that third party as so prescribed by the relevant software owners of each Third-Party Services identified within this Agreement and/or in the applicable Statement of Work. In the event the Customer does not accept the terms of such Licence Agreements (whether directly contracted with the Supplier or the relevant third party), the Supplier reserves the right to suspend the provision of the Services until such time as the Customer enters into such Licence Agreement. For the avoidance of any doubt, the Customer shall not do any actions and/or omissions which will cause the Supplier to be in breach of any of its third-party terms.
11.3 The Customer acknowledges that it is responsible for ensuring that the Customer’s hardware, and operating software for such hardware is compatible with the Third-Party Services and the Supplier gives no warranty in relation thereto unless agreed otherwise in writing between the Parties in the Statement of Work.
12 EXCLUSIONS AND LIMITATIONS OF LIABILITY
12.1 This Clause 12 sets out the entire financial liability of each Party (including any liability for the acts or omissions of its employees, agents and subcontractors) in respect of:
a) any breach of the Agreement; and
b) any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with the Agreement.
12.2 Nothing in the Agreement excludes or limits:
a) either Party’s liability for death or personal injury caused by negligence recklessness, dishonesty or gross misconduct;
b) either Party’s liability for fraud or fraudulent misrepresentation;
c) any other liability which cannot lawfully be excluded or limited; or
d) the Customer’s payment obligations in respect of the Services.
12.3 Subject to Clause 1 and Clause 12.2, the Parties’ total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement shall be limited to one hundred and twenty five percent (125%) of the price paid for the Services during the twelve (12) months preceding the date on which the claim arose.
12.4 Any breach of the Party’s responsibilities for its indemnification obligations under Clauses 5 and 10.6 shall be limited to £500,000 in the aggregate.
12.5 Except as expressly and specifically provided in this Agreement and subject to Clause 2, neither Party shall have any liability for any losses or damages which may be suffered by the other Party (or any person claiming under or through that Party), which fall within any of the following categories:
a) loss of profits;
b) loss of actual or anticipated savings;
c) loss of business opportunity;
d) loss of goodwill or reputation;
e) loss of damage to or corruption of data; and/or
f) Indirect or consequential loss.
13 CHANGE REQUESTS
13.1 No changes or additions to the Agreement shall be valid or binding unless agreed in writing by all Parties. Any such agreed changes shall be documented in a written change request or variation, which will set out the nature of the change, the impact on scope, fees, timelines, and any other relevant terms. Until such time as a change request is agreed and signed by all Parties, the Parties shall continue to perform their respective obligations under the existing terms of this Agreement.
14 CONFIDENTIALITY
14.1 Each Party agrees and undertakes that it will treat and keep all Confidential Information disclosed to it by the other Party in connection with the Services as strictly confidential for the duration of this Agreement and for a period of 5 years thereafter, and shall use it solely for the purpose intended by the Services and shall not, without the prior consent of the other Party, publish or otherwise disclose to any third party any such Confidential Information except for the purposes intended by the relevant Statement of Work.
14.2 To the extent necessary to implement the provisions of any Services, each Party may disclose Confidential Information to its employees, agents, sub-contractors and professional advisers, in each case under the same conditions of confidentiality as set out in Clause 1.
14.3 The obligations of confidentiality set out in this Clause 14 shall not apply to any information or matter which: (i) is in the public domain other than as a result of a breach of the Agreement; (ii) was in the possession of the receiving Party prior to the date of receipt from the disclosing Party or was rightfully acquired by the receiving Party from sources other than the disclosing Party; (iii) is required to be disclosed by law, or by a competent court, tribunal, securities exchange or regulatory or governmental body having jurisdiction over it wherever situated; or (iv) was independently developed by the receiving Party without use of or reference to the Confidential Information.
15 TERM AND TERMINATION
15.1 This Agreement (excluding any Statement of Work) shall commence on the Commencement Date and shall remain in full force unless and until terminated in accordance with this Agreement (the “Term”). The term of each Statement of Work shall commence on the date specified in the applicable Statement of Work unless earlier terminated in accordance with the terms of this Agreement.
15.2 Without prejudice to any rights that the Parties have accrued under the Agreement or any of their respective remedies, obligations or liabilities, either Party may terminate the Agreement with immediate effect by giving written notice to the other Party if:
a) the other Party commits a material breach of any material term of the Agreement (including any payment obligations) and (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified to do so; or
b) the other Party breaches any of the terms of Clause 6, Clause 14 or Clause 19;
c) the other Party suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or
d) the other Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
15.3 If for any reason a contract between a third party and the Supplier relating to the Supplier’s right to use, install or support Third-Party Software which is the subject of the Agreement is terminated, then the Agreement or applicable Statement of Work (as the case may be) shall automatically terminate, save that where the Agreement relates to other Deliverables other than that Third-Party Software, termination of the Agreement shall operate only in so far as it relates to such Third-Party Software.
15.4 Termination of the Agreement, for any reason, shall not affect the accrued rights, remedies, obligations or liabilities of the Parties existing at termination.
15.5 On termination of the Agreement for any reason:
a) the Supplier shall immediately cease provision of the Services;
b) all amounts payable (including without limitation to all Fees and Expenses in providing the Services under that Statement of Work up to and including the termination date) by the Customer to the Supplier under the Agreement shall become due immediately despite any other provision of the Agreement; and
c) each Party shall use reasonable endeavours to return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other Party.
15.6 Save as provided in this Clause 15 or elsewhere in the Agreement, or by mutual consent and on agreed terms, or due to a Force Majeure event, neither Party shall be entitled to terminate a Statement of Work.
15.7 Termination of any Statement of Work shall be without prejudice to any other rights which any party may have under any other Statement of Work.
15.8 The provisions of Clauses 6 (Price and Payment), 10 (Intellectual Property Rights), 11 (Licence of Software and Third-Party Software), 12 (Exclusions and Limitations of Liability), 14 (Confidentiality), 16 (Staff Transfer and Non-Solicitation), 19 (Anti-Bribery and Modern Slavery) and 30 (Governing Law and Jurisdiction) shall survive termination of any Statement of Work or this Agreement.
16 STAFF TRANSFER AND NON-SOLICITATION
16.1 It is not intended that any staff be transferred from the Supplier to the Customer or from the Customer to the Supplier pursuant to the Agreement or that any ‘relevant transfer’ occur for the purposes of the Transfer of Undertakings (Protection of Employment) Regulations 2006.
16.2 Neither Party shall solicit the other Party’s staff or contractors who have been employed or engaged in the Services or the performance of the Agreement during the lifetime of the Agreement and for a period of nine (9) months thereafter. For the purposes of this Clause ‘solicit’ means the soliciting of such person with a view to engaging such person as an employee, director, sub-contractor or independent contractor.
16.3 In the event that either Party is in breach of Clause 2 above then the Party in breach shall pay to the other by way of liquidated damages an amount equal to fifty percent (50%) per cent of the gross annual budgeted fee income (as at the time of the breach or when such person was last in the service of the relevant Party) of the person so employed or engaged. This provision shall be without prejudice to either Party’s ability to seek injunctive relief.
16.4 The Parties hereby acknowledge and agree that the formula specified in Clause 3 above is a reasonable estimate of the loss which would be incurred by the loss of the person so employed or engaged.
17 RELIEF EVENTS
17.1 Subject to Clause 2, and notwithstanding any other provision of the Agreement, the Supplier shall have no liability for failure to perform the Services or its other obligations under the Agreement if it is prevented, hindered or delayed in doing so as a result of any Relief Event.
18 FORCE MAJEURE
18.1 Neither Party to this Agreement shall be deemed to be in breach of the Agreement, or otherwise liable to the other Party in any manner whatsoever for any failure or delay in performing its obligations (except in respect of payment obligations) under this Agreement or any Statement of Work due to a Force Majeure event.
18.2 A Party shall only be entitled to rely on Clause 1 if it:
a) informs the other Party as soon as reasonably possible that an event of Force Majeure has occurred; and
b)uses commercially reasonable endeavours to recommence the performance of its obligations in accordance with this Agreement and any affected Statement of Work
c)as soon as possible and keeps the other Party informed as to progress and the estimated dates on which that Party will be able to recommence full performance of its obligations.
18.3 For so long as the Supplier is unable to provide and/or is delayed in providing any Services in accordance with the requirements of this Agreement and any relevant Statement of Work due to an event of Force Majeure, the Fees payable under each affected Statement of Work shall be subject to a pro-rata reduction so that the Customer is not required to pay for any Services which are not performed, incorrectly performed and/or delayed due to that event of Force Majeure.
19 ANTI-BRIBERY AND MODERN SLAVERY
19.1 Both Parties will comply with all Applicable Laws, regulations, and sanctions relating to anti-bribery and anti-corruption (including the Bribery Act 2010), and to anti-slavery and human trafficking (including the Modern Slavery Act 2015).
20 WAIVER
20.1 No failure or delay by a Party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
21 SEVERANCE
21.1 If any court or competent authority finds that any provision of the Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Agreement shall not be affected.
21.2 If any invalid, unenforceable or illegal provision of the Agreement would be valid, enforceable and legal if some part of it were deleted, the Parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the Parties' original commercial intention.
22 ENTIRE AGREEMENT AND AMENDMENT
22.1 This Agreement constitutes the entire agreement between the Parties and supersedes all previous discussions, correspondence, negotiations, arrangements, understandings and agreements (both oral and written) between them relating to its subject matter.
22.2 Each Party acknowledges that in entering into the Agreement it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in the Agreement.
22.3 Each Party agrees that its only liability in respect of those representations and warranties that are set out in the Agreement (whether made innocently or negligently) shall be for breach of contract.
22.4 No addition to, variation of or other amendment or purported amendment to the Agreement in whole or in part shall be binding on the Parties unless expressly stated as such, made in writing and signed by a duly authorised representative of both Parties.
23 ASSIGNMENT
23.1 The Customer shall not without the prior written consent of the Supplier (such consent not to be unreasonably withheld or delayed) assign, transfer, charge or deal in any other manner with either the benefit or the burden of this Agreement or any of its rights or obligations under it, or purport to do any of the same, nor sub-contract any or all of its obligations under this Agreement.
23.2 The Supplier may assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Agreement to any of its Affiliates without the prior written consent of the Customer.
24 NO PARTNERSHIP OR AGENCY
24.1 Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties, constitute any Party the agent of another Party, nor authorise any Party to make or enter into any commitments for or on behalf of any other Party.
25 THIRD-PARTY RIGHTS
25.1 This Agreement is made for the benefit of the Parties to it and (where applicable) their successors and permitted assigns and is not intended to benefit or be enforceable by anyone else.
26 DISPUTE RESOLUTION
26.1 Any dispute arising out of or relating to this Agreement shall be resolved by a party notifying the other party promptly of any dispute in writing (“Dispute Notice”), prior to proceeding with a legal action. Within ten (10) days of receipt, an authorised representative of each party will meet in good faith to resolve the dispute. Such dispute, and any consequent informal negotiations, mediation or arbitration, shall be subject to the confidentiality provisions under this Agreement. In the event the dispute is not resolved within 30 days from the date of the Dispute Notice then the parties reserve their right to proceed with any other available remedy.
26.2 Notwithstanding any other provision of this Agreement, a Party may seek interim or other equitable relief necessary (including an injunction) where damages would be an inadequate remedy.
27 COSTS
27.1 Each of the Parties shall bear and pay its own costs and expenses incurred in connection with the negotiation, preparation and execution of this Agreement or any Statement of Work.
28 MARKETING
28.1 Both parties agree to reasonably cooperate in connection with the creation of mutually beneficial marketing communications, which shall include, at a minimum, a press release, case study and a reference to Customer on Supplier’s website.
28.2 Each Party grants to the other Party a non-exclusive, personal, revocable, royalty-free licence during the applicable Project duration to use its name, trademarks or other proprietary identifying symbols of the other Party in relation to a Project to the extent necessary for the other Party to carry out its obligations in relation to that Project.
29 NOTICES
29.1 Any notice or other communication required to be given to a Party under or in connection with the Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first class post or other next Business Day delivery service, at its registered office (if a company) or (in any other case) its principal place of business, or sent by email to the email addresses as notified in writing to the other Party from time to time.
29.2 Any notice or communication shall be deemed to have been received if delivered by hand, on signature of a delivery receipt, or if sent by email, at the time of transmission, if this time falls outside Normal Business Hours in the place of receipt, when Normal Business Hours resume.
29.3 This Clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
30 GOVERNING LAW AND JURISDICTION
30.1 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) shall be exclusively governed by and construed in accordance with the law of England.
30.2 The Parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).