1. Interpretation
1.1 The following definitions and rules of interpretation apply in these Terms:
Applicable Data Protection Laws: means:
(a) To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data.
(b) To the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the Company is subject, which relates to the protection of personal data.
Applicable Laws:
all applicable laws, statutes, regulation and codes from time to time in force.
Business Day:
a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Change Order:
has the meaning given in clause 6.1.
Charges:
the charges payable by the Client for the supply of the Services in accordance with clause 7.
Client:
the person or firm that buys the Services from the Company.
Client Default:
has the meaning set out in clause 4.2.
Client Materials:
all documents, information, items and materials in any form, whether owned by the Client or a Third Party, which are provided by the Client to the Company in connection with the Services, including the items provided pursuant to clause 4.1(e).
Client Personal Data:
any personal data which the Company processes in connection with these Terms, in the capacity of a processor on behalf of the Client.
Commencement Date:
has the meaning given in clause 2.3
Company:
ShoutoutUK Ltd. Registered in England and Wales with registration number 09717655.
Company Personal Data:
any personal data that the Company processes in connection with these Terms, in the capacity of a controller.
Confidential Information:
has the meaning given in clause 11.1.
Contract:
the contract between the Company and the Client for the supply of Services in accordance with these Terms.
Control:
has the meaning given in section 1124 of the Corporation Tax Act 2010 and controls, controlled and the expression change of control shall be construed accordingly.
Deliverables:
all documents, products and materials developed by the Company 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).
EU GDPR:
means the General Data Protection Regulation ((EU) 2016/679), as it has effect in EU law.
Intellectual Property Rights:
patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service 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.
Milestone:
a date by which a part of the Services is to be completed, as set out in the Specification.
Order:
the Client’s order for the Services as set out in the Client’s purchase order form, the Client’s written acceptance of a Quotation or overleaf, as the case may be.
Quotation:
a quotation for the provision of the Services prepared by the Company for the Client.
Services:
the services, including without limitation any Deliverables, to be provided by the Company pursuant to these Terms, as described in the Specification.
Specification:
the description of specification of the Services provided in writing by the Company to the Client.
Terms:
these Terms of Trade as amended from time to time in accordance with clause 18.
Third Party:
any third party entity on behalf of which the Client is procuring the Services.
UK GDPR:
has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
VAT:
value added tax chargeable in the UK.
1.2 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.3 This agreement shall be binding on, and enure to the benefit of, the parties to the Contract and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.
1.4 A reference to legislation or a legislative provision:
(a) is a reference to it as amended, extended or re-enacted from time to time; and
(b) shall include all subordinate legislation made from time to time under that legislation or legislative provision.
1.5 A reference to writing or written excludes fax but not email.
1.6 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
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.
2. Commencement and duration
2.1 The Order constitutes an offer by the Client to purchase Services in accordance with these Terms.
2.2 The Client may purchase Services for its own account or on behalf of any Third Party.
2.3 The Order shall only be deemed to be accepted when the Company issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
2.4 Any descriptive matter or advertising issued by the Company are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.6 Any Quotation shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
3. Company’s responsibilities
3.1 The Company shall use reasonable endeavours to provide the Services, and deliver the Deliverables to the Client in accordance with the Specification in all material respects.
3.2 The Company shall use reasonable endeavours to meet any performance dates specified in the Specification but any such dates shall be estimates only and time for performance by the Company shall not be of the essence of these Terms.
3.3 The Company shall appoint a programme coordinator in respect of the Services, such person as identified in the Specification. That person shall have authority to contractually bind the Company on all matters relating to the Services (including by signing Change Orders).
3.4 The Company reserves the right to amend the Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Company shall notify the Client in any such event.
3.5 The Company warrants to the Client that the Services will be provided using reasonable care and skill.
3.6 If required to attend the Client’s premises in connection with the Contract, the Company shall use reasonable endeavours to observe all health and safety and security requirements that apply and that have been communicated to it under clause 4.1(f), provided that it shall not be liable if, as a result of such observation, it is in breach of any of its obligations under these Terms.
4. Client’s obligations
4.1 The Client shall:
(a) ensure that the terms of the Order are complete and accurate;
(b) cooperate with the Company, and shall procure that any relevant Third Party shall also cooperate with the Company, in all matters relating to the Services;
(c) appoint a point of contact in respect of the Services, such person as identified in the Specification. That person shall have authority to contractually bind the Client on all matters relating to the relevant Services (including by signing Change Orders);
(d) provide, for the Company, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Client’s or any relevant Third Party’s premises, office accommodation, data and other facilities as reasonably required by the Company including any such access as is specified in a Statement of Work;
(e) provide to the Company in a timely manner all documents, information, items and materials in any form (whether owned by the Client or a third party) required by the Company in connection with the Services and ensure that they are accurate and complete in all material respects;
(f) inform the Company of all health and safety and security requirements that apply at any of the Client’s or a Third Party’s premises;
(g) obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable the Company to provide the Services, including in relation to the use of all Client Materials before the date on which the Services are to start;
(h) comply with any additional responsibilities of the Client as set out in the Specification.
4.2 If the Company’s performance of its obligations under these Terms is prevented or delayed by any act or omission of the Client, a Third Party, its agents, subcontractors, consultants or employees (Client Default) then, without prejudice to any other right or remedy it may have:
(a) without limiting or affecting any other right or remedy available to it, the Company shall have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays the Company’s performance of any of its obligations;
(b) the Company shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Company’s failure or delay to perform any of its obligations as set out in this clause 4.2; and
(c) the Client shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Client Default.
5. Non-solicitation and employment
5.1 The Client shall not, without the prior written consent of the Company, at any time from the date on which any Services commence to the expiry of 12 months after the completion of such Services, solicit or entice away from the Company or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of the Company in the provision of such Services.
5.2 Any consent given by the Company in accordance with clause 5.1 shall be subject to the Client paying to the Company a sum equivalent to 20% of the then current annual remuneration of the Company’s employee, consultant or subcontractor or, if higher, 20% of the annual remuneration to be paid by the Client to that employee, consultant or subcontractor.
6. Change control
6.1 Either party may propose changes to the scope or execution of the Services but no proposed changes shall come into effect until a relevant Change Order has been signed by both parties. A Change Order shall be a document setting out the proposed changes and the effect that those changes will have on:
(a) the Services;
(b) the Charges;
(c) the timetable for the Services; and
(d) any of the other terms of these Terms.
6.2 If the Company wishes to make a change to the Services it shall provide a draft Change Order to the Client.
6.3 If the Client wishes to make a change to the Services:
(a) it shall notify the Company and provide as much detail as the Company reasonably requires of the proposed changes, including the timing of the proposed change; and
(b) the Company shall, as soon as reasonably practicable after receiving the information at clause 6.3(a), provide a draft Change Order to the Client.
6.4 If the parties:
(a) agree to a Change Order, they shall sign it and that Change Order shall amend the Specification and/or these Terms; or
(b) are unable to agree a Change Order, either party may require the disagreement to be dealt with in accordance with the dispute resolution procedure in clause 25 (Multi-tiered dispute resolution procedure).
6.5 The Company may charge for the time it spends on preparing and negotiating Change Orders which implement changes proposed by the Client pursuant to clause 6.3 on a time and materials basis at the Company’s then current daily rates.
7. Charges and payment
7.1 In consideration of the provision of the Services by the Company, the Client shall pay the Charges.
7.2 Subject to clause 7.3, the Company shall invoice the Client for the Charges on the achievement of the Milestones. If no Milestones are agreed, the Company shall invoice the Client at the end of each month for Services performed during that month.
7.3 If the Contract specifies that the Company can draw down payment for the Services from the Client’s payment system then the Company shall draw down payment of the Charges at the intervals specified, or on the achievement of the milestones indicated, in the Specification. If no intervals are so specified, the Company shall draw down payment of the Charges at the end of each month for Services performed during that month.
7. 4 The Client shall pay each invoice submitted to it by the Company in the currency specified in the invoice within 30 days of receipt to a bank account nominated in writing by the Company from time to time and time for payment shall be of the essence of the Contract.
7. 5 Without prejudice to any other right or remedy that it may have, if the Client fails to pay the Company any sum due under these Terms on the due date:
(a) the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgement. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%; and
(b) the Company may suspend part or all of the Services until payment has been made in full.
7.6 All sums payable to the Company under these Terms:
(a) are exclusive of VAT, and the Client shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and
(b) shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
8. Intellectual property rights
8.1 In relation to the Deliverables:
(a) the Company and its licensors shall retain ownership of all IPRs in the Deliverables, excluding the Client Materials;
(b) the Company grants the Client, or shall procure the direct grant to the Client of, a fully paid-up, worldwide, non-exclusive, royalty-free [perpetual and irrevocable licence OR licence during the term of these Terms] to copy and modify the Deliverables (excluding the Client Materials) for the purpose of receiving and using the Services and the Deliverables in its business; and
(c) the Client shall not sub-license, assign or otherwise transfer the rights granted in clause 8.1(b).
8.2 In relation to the Client Materials, the Client:
(a) and its licensors shall retain ownership of all IPRs in the Client Materials; and
(b) grants to the Company a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Client Materials for the term of these Terms for the purpose of providing the Services to the Client.
8.3 The Company:
(a) warrants that the receipt, use of the Services and the Deliverables by the Client shall not infringe the rights, including any Intellectual Property Rights, of any third party;
(b) shall, subject to clause 12.4, indemnify the customer against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all other reasonable professional costs and expenses) suffered or incurred or paid by the Client arising out of or in connection with any claim brought against the Client for actual or alleged infringement of a third parties Intellectual Property Rights arising out of, or in connection with, the receipt, use of the Services and Deliverables.
(c) shall not be in breach of the warranty at clause 8.3(a), and the Client shall have no claim under the indemnity at clause 8.3(b) to the extent the infringement arises from:
(i) the use of Client Materials in the development of, or the inclusion of the Client Materials in, the Services or any Deliverable;
(ii) any modification of the Services or any Deliverable, other than by or on behalf of the Company; and
(iii) compliance with the Client’s specifications or instructions.
8.4 The Client:
(a) warrants that the receipt and use in the performance of these Terms by the Company, its agents, subcontractors or consultants of the Client Materials shall not infringe the rights, including any Intellectual Property Rights, of any third party; and
(b) shall indemnify the Company against all liabilities, costs, expenses, damages and losses (including but not limited to 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 [reasonable] professional costs and expenses) suffered or incurred or paid by the Company arising out of or in connection with any claim brought against the Company, its agents, subcontractors or consultants for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the receipt or use in the performance of these Terms of the Client Materials.
8.5 If either party (Indemnifying Party) is required to indemnify the other party (Indemnified Party) under this clause 8, the Indemnified Party shall:
(a) notify the Indemnifying Party in writing of any claim against it in respect of which it wishes to rely on the indemnity at clause 8.3(b) or clause 8.4(b) (as applicable) (IPRs Claim);
(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.
9. Compliance with laws and policies
9.1 In performing its obligations under these Terms, the Company shall comply with the Applicable Laws.
9.2 Changes to the Services required as a result of changes to the Applicable Laws shall be agreed via the change control procedure set out in clause 6(Change control).
10. Data protection
10.1 For the purposes of this clause 10, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the UK GDPR.
10.2 Both parties will comply with all applicable requirements of Applicable Data Protection Laws. This clause 10 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under Applicable Data Protection Laws.
10.3 The parties have determined that, for the purposes of Applicable Data Protection Laws:
(a) the Company shall process the personal data as set out in paragraph 1.1 of Schedule 1 as processor on behalf of the Client; and
(b) the Company shall act as controller of the personal data set out in paragraph 1.2 of Schedule 1
10.4 Should the determination in clause 10.3 change, the parties shall use all reasonable endeavours to make any changes that are necessary to this clause 10 and Schedule 1.
10.5 Without prejudice to the generality of clause 10.2, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Company Personal Data and Client Personal Data to the Company and lawful collection of the same by the Company for the duration and purposes of these Terms.
10.6 In relation to the Client Personal Data, Schedule 1 sets out the scope, nature and purpose of processing by the Company, the duration of the processing and the types of personal data and categories of data subject.
10.7 Without prejudice to the generality of clause 10.2, the Company shall, in relation to Client Personal Data:
(a) process that Client Personal Data only on the documented instructions of the Client, which shall be to process the Client Personal Data for the purposes set out in Schedule 1 (Processing, personal data and data subjects) unless the Company is required by Applicable Laws to otherwise process that Client Personal Data (Purpose). Where the Company is relying on Applicable Laws as the basis for processing Client Processor Data, the Company shall notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Provider from so notifying the Client on important grounds of public interest. The Company shall inform the Client if, in the opinion of the Company, the instructions of the Client infringe Applicable Data Protection Laws;
(b) implement technical and organisational measures to protect against unauthorised or unlawful processing of Client Personal Data and against accidental loss or destruction of, or damage to, Client Personal Data, which the Client has reviewed and confirms are appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
(c) ensure that any personnel engaged and authorised by the Company to process Client Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
(d) assist the Client insofar as this is possible (taking into account the nature of the processing and the information available to the Company), and at the Client’s cost and written request, in responding to any request from a data subject and in ensuring the Client’s compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(e) notify the Client without undue delay on becoming aware of a personal data breach involving the Client Personal Data;
(f) at the written direction of the Client, delete or return Client Personal Data and copies thereof to the Client on termination of the agreement unless the Company is required by Applicable Law to continue to process that Client Personal Data. For the purposes of this clause 10.7(f) Client Personal Data shall be considered deleted where it is put beyond further use by the Company; and
(g) maintain records to demonstrate its compliance with this clause 10.
10.8 The Client provides its prior, general authorisation for the Company to:
(a) appoint processors to process the Client Personal Data, provided that the Company:
(i) shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on the Company in this clause 10;
(ii) shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of the Company; and
(iii) shall inform the Client of any intended changes concerning the addition or replacement of the processors, thereby giving the Client the opportunity to object to such changes provided that if the Client objects to the changes and cannot demonstrate, to the Company’s reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, the Client shall indemnify the Company for any losses, damages, costs (including legal fees) and expenses suffered by the Company in accommodating the objection.
(b) transfer Client Personal Data outside of the UK as required for the Purpose, provided that the Company shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Client shall promptly comply with any reasonable request of the Company, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the Commissioner from time to time (where the UK GDPR applies to the transfer).
10.9 Either party may, at any time on not less than 30 days’ notice, revise this clause 10 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to these Terms).
11. Confidentiality
11.1 Each party undertakes that it shall not at any time during these Terms, and for a period of two years after termination or expiry of these Terms, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or any Third Party (Confidential Information) except as permitted by clause 11.2(a).
11.2 Each party may disclose the other party’s Confidential Information:
(a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with these Terms. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s Confidential Information comply with this clause 11; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
11.3 No party shall use the other party’s Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with these Terms.
12. Limitation of liability
12.1 References to liability in this clause 12 (Limitation of liability) include every kind of liability arising under or in connection with these Terms including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
12.2 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default. Nothing in this clause 12 shall limit the Client’s payment obligations under these Terms.
12.3 Nothing in these Terms limits any liability which cannot legally be limited, including but not limited to liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
12.4 Subject to clause 12.2 (no limitations in respect of deliberate default) and clause 12.3 (liabilities which cannot legally be limited), the Company’s total liability to the Client for all loss or damage shall not exceed the total amount of Charges paid by the Client under these Terms.
12.5 Subject to clause 12.2 (No limitations in respect of deliberate default), clause 12.2 (No limitation on the customer’s payment obligations), and clause 12.3 (Liabilities which cannot legally be limited), this clause 12.5 specifies the types of losses that are excluded:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) indirect or consequential loss.
12.6 The Company has given commitments as to compliance of the Services with relevant specifications in clause 3.1 (Company’s responsibilities). In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from these Terms.
12.7 Unless the Client notifies the Company that it intends to make a claim in respect of an event within the notice period, the Company shall have no liability for that event. The notice period for an event shall start on the day on which the Client became, or ought reasonably to have become, aware of its having grounds to make a claim in respect of the event and shall expire 12 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
13. Cancellation of Services
13.1 If the Client or, where the Client is acting on behalf of a Third Party, that Third Party cancels the delivery of the whole or any part of the Services in circumstances where clause 14.1 does not apply, the Company shall be entitled to be paid all Charges accrued by the Company in relation to the Services agreed to be supplied up to the point of cancellation which shall include all preparatory work and irrecoverable costs. The provisions of clause 7 shall apply.
14. Termination
14.1 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:
(a) the other party commits a material breach of any term of these Terms and (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
(b) the other party repeatedly breaches any of the terms of these Terms in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of these Terms;
(c) 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), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, 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;
(d) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
(e) the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of these Terms is in jeopardy.
14.2 Without affecting any other right or remedy available to it, the Company may terminate these Terms with immediate effect by giving written notice to the Client if:
(a) the Client fails to pay any amount due under these Terms on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment; or
(b) there is a change of Control of the Client.
15. Obligations on termination and survival
15.1 Obligations on termination or expiry
On termination or expiry of these Terms:
(a) the Client shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, the Company may submit an invoice, which shall be payable immediately on receipt;
(b) the Company shall on request return any of the Client Materials not used up in the provision of the Services.
15.2 Survival
(a) On termination or expiry of these Terms, all existing Statements at Work shall terminate automatically.
(b) Any provision of these Terms that expressly or by implication is intended to come into or continue in force on or after termination or expiry of these Terms shall remain in full force and effect.
(c) Termination or expiry of these Terms 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.
16. Force majeure
16.1 Force Majeure Event means any circumstance not within a party’s reasonable control including, without limitation:
(a) acts of God, flood, drought, earthquake or other natural disaster;
(b) epidemic or pandemic;
(c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
(d) nuclear, chemical or biological contamination or sonic boom;
(e) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
(f) collapse of buildings, fire, explosion or accident;
(g) any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause, or companies in the same group as that party);
(h) non-performance by suppliers or subcontractors (other than by companies in the same group as the party seeking to rely on this clause); and
(i) interruption or failure of utility service.
16.2 Provided it has complied with clause 16.3, if a party is prevented, hindered or delayed in or from performing any of its obligations under these Terms by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of these Terms or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
16.3 The Affected Party shall:
(a) as soon as reasonably practicable after the start of the Force Majeure Event notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the agreement; and
(b) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
16.4 If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than [12 weeks], the party not affected by the Force Majeure Event may terminate these Terms by giving [14 days’’] written notice to the Affected Party.
17. Assignment and other dealings
17.1 The Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under these Terms.
17.2 The Company may at any time assign, mortgage, charge, delegate, declare a trust over or deal in any other manner with any or all of its rights under these Terms.
18. Variation
18.1 Subject to clause 6 (Change control), no variation of these Terms shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
19. Waiver
19.1 A waiver of any right or remedy under these Terms or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
19.2 A failure or delay by a party to exercise any right or remedy provided under these Terms 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 these Terms or by law shall prevent or restrict the further exercise of that or any other right or remedy.
20. Severance
20.1 If any provision or part-provision of these Terms is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of these Terms.
20.2 If any provision or part-provision of these Terms is deemed deleted under clause 20.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
21. Entire agreement
21.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
21.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Terms.
22. No partnership or agency
22.1 Nothing in these Terms 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, or authorise any party to make or enter into any commitments for or on behalf of any other party.
22.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
23. Third party rights
23.1 This agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Terms.
23.2 The rights of the parties to rescind or vary these Terms are not subject to the consent of any other person.
24. Notices
24.1 Any notice or other communication given to a party under or in connection with these Terms shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next Business Day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(b) sent by email to the address set out in the Specification.
24.2 Any notice or communication shall be deemed to have been received:
(a) if delivered by hand, at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class post or other next Business Day delivery services, at 9.00 am on the second Business Day after posting; or
(c) if sent if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 24.2(c), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
24.3 This clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
25. Multi-tiered dispute resolution procedure
25.1 If a dispute arises out of or in connection with these Terms or the performance, validity or enforceability of the Contract (Dispute) then the parties shall follow the procedure set out in this clause:
(a) either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, the project coordinator appointed by the Company and the point of contact appointed by the Client shall attempt in good faith to resolve the Dispute;
(b) if the project coordinator and the point of contact are for any reason unable to resolve the Dispute within 30 days of service of the Dispute Notice, the Dispute shall be referred to the senior leadership of the Client and senior leadership of the Company who shall attempt in good faith to resolve it; and
(c) if the senior leadership of the Client and senior leadership of the Company are for any reason unable to resolve the Dispute within 30 days of it being referred to them, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator shall be nominated by CEDR. To initiate the mediation, a party must serve notice in writing (ADR notice) to the other party to the Dispute, requesting a mediation. A copy of the ADR notice should be sent to CEDR. The mediation will start not later than 30 days after the date of the ADR notice.
25.2 No party may commence any court proceedings under clause 27 in relation to the whole or part of the Dispute until 60 days after service of the ADR notice, provided that the right to issue proceedings is not prejudiced by a delay.
25.3 If the Dispute is not resolved within 60 days after service of the ADR notice, or either party fails to participate or to continue to participate in the mediation before the expiration of the said period of 60 days, or the mediation terminates before the expiration of the said period of 60 days, the Dispute shall be finally resolved by the courts of England and Wales in accordance with clause 27.
26. Governing law
This agreement 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.
27. 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 these Terms or its subject matter or formation.
Schedule 1 – Processing, personal data and data subjects
COMPANY’S ROLES
1.1 Processor
| Scope | Processing of personal data to carry out the services required on behalf of the Client: Training workshops Building reports Building campaigns |
| Purpose and Nature | Administering the services. |
| Duration | For the duration of these Terms of Trade. |
| Types of personal data | Names, addresses. |
| Categories of data subject | Client, Individual, Attendee, Participant. |
1.2 Controller
| Scope | Processing personal data for the services as a controller. |
| Purpose and Nature | Administering the services. |
| Duration | For the duration of these Terms of Trade. |
| Types of personal data | Names, addresses, payment details, invoicing |
| Categories of data subject | Client |