Terms and Conditions of Supply
Commencement and Term
The Contract shall commence on the Services Start Date and shall continue unless terminated earlier in accordance with its terms until either party gives to the other not less than 3 months’ written notice to terminate.
Supply of Services
Party B shall supply the Services to Party A in accordance with the Contract.
In performing the Services Party B shall meet, and time is of the essence as to, any agreed performance dates.
In supplying the Services, the Party B shall:
perform the Services with the highest level of care, skill and diligence in accordance with best practice in the Party B’s industry, profession or trade;
cooperate with the Party A in all matters relating to the Services, and comply with all instructions of the Party A;
appoint or, at the request of the Party A, replace without delay a representative, who shall have authority to contractually bind the Party B on all matters relating to the Services;
only use personnel who are suitably skilled and experienced to perform the tasks assigned to them, and in sufficient number to ensure that the Party B’s obligations are fulfilled;
ensure that it obtains, and maintains all consents, licences and permissions (statutory, regulatory, contractual or otherwise) it may require and which are necessary to enable it to comply with its obligations in the Contract;
ensure that the Services and Deliverables shall conform in all respects with the description under the Contract and that the Deliverables shall be fit for any purpose that Party A expressly or impliedly makes known to Party B;
provide all equipment, tools, vehicles and other items required to provide the Services;
comply with all applicable laws, statutes, regulations from time to time in force, and any policies as communicated by Party A from time to time;
observe all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Party A’s premises from time to time and are notified to Party B;
indemify Party A from and against all claims, damages, losses, liabilites, costs , expenses or judgement suffered by Party B resulting from this Order.
Party A’s Obligations
Party A shall: provide such necessary information for the provision of the Services as Party B may reasonably request.
Deliverables and Party A’s Materials
Title to any Deliverables that are goods or in any physical media on which Deliverables are stored and title to any goods or materials transferred to Party A as part of the Services shall pass to Party A on the earlier of their delivery to Party A or payment of the Charges for them. Party B transfers the Deliverables and all such goods and materials to Party A free from all liens, charges and encumbrances.
All Party A Materials are the exclusive property of Party A.
Intellectual Property
Party B and its licensors shall retain ownership of all Supplier Proprietary Materials. Party A and its licensors shall retain ownership of all Intellectual Property Rights in Party A Materials.
Party B grants Party A, or shall procure the direct grant to Party A of, a fully paid-up, worldwide, perpetual, non-exclusive, royalty-free, sub-licensable licence to copy and modify Party B Proprietary Materials for the purpose of receiving and using the Services.
Party B hereby assigns (and in the case of copyright, by way of a present assignment of future copyright) all of the Intellectual Property Rights subsisting in the Services and the Deliverables (excluding any Supplier Proprietary Materials and any Party A Materials), which are capable of being assigned together with the right to sue for past infringement of such materials.
Party B shall indemnify Party A against all liabilities, costs, expenses, damages and losses and all other reasonable professional costs and expenses suffered or incurred by Party A arising out of or in connection with any claim brought against Party A for actual or alleged infringement of a third party’s Intellectual Property Rights and other rights arising out of, or in connection with, the receipt, use or onward supply of the Services and the Deliverables by Party A.
Charges and Payments
In consideration for the provision of the Services, Party A shall pay the Party B the Charges in accordance with this Clause 6.
All amounts payable by Party A exclude amounts in respect of value added tax (VAT) which Party A shall additionally be liable to pay to the Party B at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.
Party B shall submit invoices for the Charges plus VAT if applicable to Party A. Each invoice shall include all supporting information reasonably required by Party A.
Party A shall pay each invoice which is properly due and submitted to it by Party B, within 30 days of receipt, to a bank account nominated in writing by Party B.
If Party A fails to make any payment due to Party B under the Contract by the due date for payment, then, without limiting the Party B’s remedies under Clause 9 (Termination), Party B shall be entitled to charge interest on the overdue sum at the rate of 5% above the base rate of the Bank of England, from the due date until payment of the overdue sum, whether before or after judgment.
Party A may set off any liability of Party B to Party A against any liability of Party A to Party B, whether or not either liability arises under the Contract or elsewhere. Exercising the Party A’s rights under this clause shall not limit or affect any other rights or remedies available to it under the Contract or otherwise.
Limitation of Liability
Nothing in the Contract shall limit the Party B’s liability under any indemnity provided under the Contract.
Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for death or personal injury caused by negligence, and fraud or fraudulent misrepresentation.
Party A’s maximum liability under the Contract shall be limited to the Charges payable by it.
Subject to clause 7.2, in no event will either party be liable under or in connection with this Agreement for:
loss of actual or anticipated income or profits;
loss of goodwill or reputation;
loss of anticipated savings; or
any indirect or consequential loss or damage of any kind whatsoever arising and whether caused by tort (including negligence), breach of contract or otherwise, whether or not such loss or damage is foreseeable, foreseen or known.
6.5 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
6.6 The rights of Party A under the Contract are in addition to, and not exclusive of, any rights or remedies provided by common law.
Termination
Termination
Without affecting any other right or remedy available to it, Party A may terminate the Contract with immediate effect by giving written notice to Party B if:
there is a change of control of Party B; or
Party B’s financial position deteriorates to such an extent that in Party A’s reasonable opinion Party B’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
the other party commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or
the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
Termination or expiry of the Contract shall not affect any of the 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 Contract which existed at or before the date of termination or expiry.
Exit Arrangements
On termination of the Contract for whatever reason:
Party B shall immediately deliver to Party A all Deliverables whether or not then complete, and return all Party A Materials. If Party B fails to do so, then Party A may enter Party B’s premises and take possession of them. Until they have been delivered or returned, Party B shall be solely responsible for their safekeeping and will not use them for any purpose not connected with the Contract; and
Party B shall, if so requested by Party A, provide all assistance reasonably required by Party A to facilitate the smooth transition of the Services to Party A or any replacement supplier appointed by it.
Confidentiality
Each party undertakes that it shall not at any time during the Contract, and for a period of 3 years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, Party A, clients or Party B of the other party, except as permitted by clause 11.2 below.
Each party may disclose the other party’s confidential information:
to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause; and
as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
General
Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. If the period of delay or non-performance continues for 4 weeks, the party not affected may terminate the Contract by giving written notice to the affected party.
Subcontracting. Party B may not subcontract any or all of its rights or obligations under the Contract without the prior written consent of Party A. If Party A consents to any subcontracting by Party B, Party B shall remain responsible for all acts and omissions of its subcontractors as if they were its own.
Entire agreement. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties or their authorised representatives.
Waiver.
(a) A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
(b) A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
Notices. Any notice or other communication given to a party under or in connection with the Contract shall be in writing. E-mail is an acceptable form of notice or communication.
Third party rights. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with, the law of England and Wales.
Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
Defined Terms
Capitalised terms not otherwise defined in the Contract Order Form or throughout the Terms and Conditions have the following meaning:
Charges: the charges payable by the Party A for the supply of the Services by the Party B, as set out in the Contract Order Form.
Contract: the contract between the Party A and the Party B for the supply of the Services in accordance with the Contract Order Form, these Conditions and any Schedules.
Deliverables: all documents, products and materials developed by Party B or its agents, subcontractors and personnel as part of or in relation to the Services in any form, including without limitation computer programs, data, reports and specifications (including drafts), and the Key Deliverables set out in the Contract Order Form.
Group: in relation to a company, that company, any subsidiary or holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Services: the services, including without limitation any Deliverables, to be provided by the Party B pursuant to the Contract, as described in the Contract Order Form.