Our Terms and Conditions
THE FOUNDATION GROWTH CONSULTING LLP
STANDARD TERMS AND CONDITIONS
(these “T&Cs”)
1. Definitions
In these T&Cs:
1.1 the following terms shall have the following meanings unless the context otherwise requires:
“we”, “us”, or “our”: means The Foundation Growth Consulting LLP, further details of which are set out in the Statement of Work;
“Agreement”: these T&Cs together with the Statement of Work and any document referred to in these T&Cs or the Statement of Work;
“Assumption”: information, set out in the Statement of Work, which is assumed by both Parties to be a correct, true and relevant about our performance of the Services;
“Breach of Duty”: the breach of any: (i) obligation arising from the express or implied terms of a contract to take reasonable care or exercise reasonable skill in the performance of the contract; or (ii) common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty);
“Business Day”: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
“Cancellation Fees”: has the meaning given to it in clause 5.4, and generally would mean any Fees paid shall be forfeited, and/or the requirement to make additional costs and expenses which have been incurred by us, except where we have agreed otherwise in writing;
“Commencement Date”: except where otherwise provided in the Statement of Work, the date as provided in clause 2.5;
“Confidential Information”: any information in any form or medium obtained by or on behalf of either Party from or on behalf of the other Party in relation to the Agreement which is expressly marked as confidential or which a reasonable person would consider to be confidential, and which may concern the other Party’s business, plans, ideas, methodologies, specifications, data, financial condition or clients and whether any of the foregoing information is disclosed or obtained before, on or after the date of the Agreement, together with any reproductions of such information or any part of it;
“Controller”: has the meaning set out in the Data Protection Laws;
“Currency Fluctuation”: a change of more than 10% in the daily spot exchange rate of the currency set out in the Statement of Work against pounds sterling published by the Bank of England between the Commencement Date and the date of any invoice issued by us to you under the Agreement;
“Client”, “you” or “your”: the legal entity detailed as such in the Statement of Work;
“Client Materials”: any data, calculations, algorithms, methods, information and other materials created or supplied by you and made available to us by you;
“Data Protection Laws”: (a) the Data Protection Act 2018 and any other data protection and/or privacy legislation applicable in the United Kingdom from time to time; (b) the General Data Protection Regulation ((EU) 2016/679) (“GDPR”), read in conjunction with and the UK GDPR subject to any further applicable United Kingdom national legislation that provides for specifications or restrictions of the GDPR’s rules; and (c) any applicable law in the Parties’ jurisdiction from time to time (including applicable federal, state and local laws) regarding privacy, data protection, and/or the Processing of Personal Data to which the Parties are subject in respect of its obligations under the Agreement, each as amended, updated, replaced or re-enacted from time to time and including all subordinate legislation made from time to time under or giving effect to the same;
“Data Subject”: has the meaning set out in the Data Protection Laws;
“Deliverables”: all documents, products and materials developed by us or our agents, contractors and employees as part of or in relation to the Services, in any form or media, provided by us to you;
“Event of Force Majeure”: has the meaning given to it in clause 12.1;
“Fees”: the fees payable by you to us under the Agreement, these T&Cs and/or the Statement of Work;
“Intellectual Property Rights”: copyright and related rights, trade marks and service marks, trade names and domain names, rights under licences, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, patents, rights to inventions, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, 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;
“Liability”: liability in or for breach of contract, Breach of Duty, torts (including negligence and intentional torts), deliberate breach (including deliberate personal repudiatory breach), misrepresentation, restitution or any other cause of action whatsoever relating to or arising under or in connection with the Agreement, including liability expressly provided for under the Agreement or arising by reason of the invalidity or unenforceability of any term of the Agreement (and, for the purposes of this definition, all references to the Agreement shall be deemed to include any collateral contract);
“Parties”: us and you, and “Party” shall mean either us or you;
“Personal Data”: has the meaning set out in the Data Protection Laws;
“Personal Data Breach”: has the meaning set out in Data Protection Laws;
“Processing”: has the meaning set out in the Data Protection Laws and “Process” shall be interpreted accordingly;
“Processor”: has the meaning set out in the Data Protection Laws;
“Services”: our provision to you of certain consultancy services, in respect of: (a) experience assessment, (b) client strategy, (c) client vision, (d) strategic innovation, (e) experience design, (f) experience management, (g) frontline training, or, any other service as set out in the Statement of Work;
“Statement of Work” or “SOW”: the form we provide to you which once accepted by you signifies entry into the Agreement;
“Supervisory Authority”: means (a) an independent public authority which is established pursuant to Article 51 GDPR; and (b) any similar regulatory authority responsible for the enforcement of Data Protection Laws;
“Third Party Fees”: the fees, set out in the Statement of Work, payable by you to us in relation to any services that are to be provided by third parties under the Agreement such as the fees payable for the services provided by data processing/ analytics providers or third party viewing facilities; and
“Third Party Software”: any software program, cloud-based website or SaaS platform which is owned by a third party and to which we provide you with access under the Agreement;
1.2 reference to clauses shall be to clauses of the agreement;
1.3 clause headings shall not affect the interpretation of the Agreement;
1.4 in the event of conflict between any provision set out in these T&Cs and any provision set out in the Statement of Work, then the provision set out in the Statement of Work shall take precedence over any provision set out in these T&Cs;
1.5 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.6 unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular;
1.7 unless the context otherwise requires, a reference to one gender shall include a reference to the other genders;
1.8 a reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time;
1.9 a reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision;
1.10 a reference to writing or written includes e-mail; and
1.11 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 or following those terms and shall be deemed to be followed by the words without limitation unless the context requires otherwise.
2. Agreement
2.1 The terms of the Agreement apply to the exclusion of any terms and conditions submitted, proposed or stipulated by you in whatever form and at whatever time. These T&Cs apply to the Services we provide to you under the Agreement.
2.2 Save as expressly provided in the Agreement, the Agreement shall operate to the entire exclusion of any other agreement, understanding or arrangement of any kind between the Parties preceding the date of the Agreement and in any way relating to the subject matter of the Agreement and to the exclusion of any representations not expressly stated in the Agreement except for any fraudulent misrepresentations or any misrepresentation as to a fundamental matter. Each Party acknowledges that it has not entered into the Agreement based on any representation that is not expressly incorporated into the Agreement.
2.3 The Agreement constitutes the whole agreement and understanding of the Parties as to the subject matter of the Agreement and there are no provisions, terms, conditions or obligations, whether oral or written, express or implied, other than those contained or referred to in the Agreement.
2.4 Our submission of the Statement of Work to you shall be deemed to be an offer by us to provide the Services (as specified in the Statement of Work) to you, subject to the provisions of the Agreement.
2.5 Subject to clause 2.6, the Agreement shall be legally formed and the Parties shall be legally bound upon the earlier of:
2.5.1 our receipt of the Statement of Work that has been signed by an authorised signatory of you and returned by you to us; or
2.5.2 our receipt of any correspondence from you in relation to the negotiation of the Statement of Work, following your receipt of the Statement of Work that has been signed by us pursuant to clause 2.4;
and such action shall be considered to be your acceptance of the offer made by us pursuant to clause 2.4.
2.6 Any offer made by us to provide Services to you (submitted pursuant to clause 2.4) shall be automatically revoked if it is not accepted by you (pursuant to clause 2.5) within 30 (thirty) days of your receipt of such an offer. We reserve the right to withdraw or amend any such offer at any time prior to it being accepted by you pursuant to clause 2.5.
3. Supply of Services
3.1 Following our acceptance of the Statement of Work, we shall, subject to your payment of the Fees (in whole or in part), provide the Services within a reasonable time or within any timescale agreed between the Parties in writing from time to time.
3.2 We shall ensure that:
3.2.1 we use our reasonable skill and care in providing the Services and the Deliverables;
3.2.2 subject to clause 3.5, the Services and any Deliverables shall materially conform to the Statement of Work;
3.2.3 our employees, agents and subcontractors have the necessary skill to provide any Services;
3.2.4 any Services will be provided in a professional, competent and workmanlike manner;
3.2.5 we have all necessary consents, rights and permission to enter into, and perform our obligations under, the Agreement;
3.2.6 we shall ensure that our employees, agents and subcontractors co-operate with, and make themselves available on the dates and times set out in the Statement of Work for, discussion and meetings with, you. You acknowledge and agree that if you require further assistance, and/or meetings and discussions to take place, in addition to what is set out in the Statement of Work we reserve the right to charge you at our time and material rates for such additional assistance and/or meetings/discussions;
3.2.7 we shall fully, frequently and promptly update you as to progress with the Services, including reporting on any concerns, issues, comments or queries that need to be addressed or resolved; and
3.2.8 we shall comply with all applicable laws, statutes, regulations and bye-laws in relation to the exercise of our rights and performance of our obligations under the Agreement.
3.3 In the event that, as part of our supply of the Deliverables, there are any errors, then we shall use reasonable endeavours to correct such error at our time and expense and provide you with corrected tabulations as soon as possible. You acknowledge and agree that this shall be your sole and exclusive remedy for any errors found in such Deliverables.
3.4 We are responsible for the people, equipment, deliverables or services that we expressly stipulate that we shall provide to you in the Agreement. You are responsible for any people, equipment, deliverables and services that:
3.4.1 we facilitate to be provided to you by a third party (such as any audio or visual equipment to be provided by a third party viewing facility); and/or
3.4.2 you need to obtain from someone other than us.
Except for any matter in relation to which we specifically agree in writing to advise or do, we shall not be responsible, or have any Liability (subject to clause 10.2) for advising on, or failing to advise on, or doing, or failing to do, anything else.
3.5 We shall use our reasonable endeavours to perform our obligations under the Agreement within any timescales set out in the Agreement (including the Statement of Work) or otherwise agreed between the Parties in writing from time to time. However, subject to clause 10, we shall not have any Liability for any delays or failures to accurately perform our obligations:
3.5.1 if we have used those endeavours;
3.5.2 if caused by any failure or delay on your part or on the part of your employees, agents or subcontractors, or by any breach by you of the Agreement or any other agreement; or
3.5.3 if we experience an Event of Force Majeure.
If there is any slippage in time, we shall use our reasonable endeavours to reschedule delayed tasks to a mutually convenient time.
3.6 If we are delayed or hindered in providing Services and/or any Deliverables as a result of any breach, delay or failure by you to perform any of your obligations under the Agreement or of any other agreement between us and you, we may charge you at our time and materials rates from time to time for:
3.6.1 any time reasonably incurred as a result of such hindrance or breach; and
3.6.2 any time that we were going to spend in providing the Services, in addition to the time we actually do spend in providing the Services.
3.7 Except for providing you with the Deliverables, or as otherwise specifically agreed in writing from time to time, we:
3.7.1 shall not be responsible for providing or achieving any particular results or outcomes or within a particular time; and
3.7.2 exclude all conditions, warranties, terms and obligations, whether express or implied by statute, common law or otherwise, to the fullest extent permitted by law in respect of the Services.
3.8 If in our opinion it is not reasonably practicable for any reason to perform any of the Services as agreed, we shall be entitled to refrain from performing such Services and will consult with you as to what if any Services can be undertaken. We shall, if requested by you in writing, provide a written explanation as to why it is not reasonably practicable for us to perform any of the Services.
3.9 If, as part of our provision of the Services we provide you with access to any Third-Party Software, your access to and use of such Third-Party Software may be subject to additional terms and conditions. You agree to comply with any terms and conditions relating to such Third-Party Software.
3.10 If you become aware of any information that may impact upon the Services or our ability to provide the Services, or any fault or failure in the provision of the Services, you must inform us of this immediately in writing and we shall use our reasonable endeavours to respond to you, and resolve and rectify the issues, as soon as reasonably practicable, using our reasonable skill and care. You acknowledge and agree that our ability to act upon such information shall be significantly impaired if you do not inform us of such information or fault within at least 3 (three) Business Days of you becoming aware of the same.
3.11 We have the right to make changes to the Services, Deliverables and/or the Statement of Work, which are necessary:
3.11.1 to comply with any applicable law or safety requirement; and/or
3.11.2 following either Party discovering that an Assumption is incorrect or false;
and we shall notify you in writing as soon as we become aware of any such event.
3.12 Notwithstanding clause 3.10, if you request that the Services (including details set out the Statement of Work) be amended during the term of the Agreement, you acknowledge and agree that such amendments may impact upon the Fees and/or any agreed timescales and that we shall be entitled to amend such Fees and timescales as we, acting reasonably, deem appropriate. We shall inform you of any such amendment to the Fees and/or timescales and only continue with the provision of the amended Services once your written consent to such amended Fees and/or timescales has been obtained in writing.
4. Your obligations
4.1 You shall:
4.1.1 ensure that the instructions or directions that you provide to us in respect of the Services (including the Client Materials) are complete and accurate;
4.1.2 inform us in writing a reasonable time prior to our provision of the Services, of any regulations, codes and/or practices relevant to us when attending your premises (if applicable);
4.1.3 be present and available to enable us to perform our obligations at the times we reasonably require under the Agreement;
4.1.4 ensure that the Client Materials and or any instructions you provide to us do not and shall not infringe the Intellectual Property Rights of any third party;
4.1.5 ensure that the Client Materials do not contain any viruses or other cybersecurity threats;
4.1.6 ensure that your employees, agents and subcontractors fully co-operate with, and make themselves available at all reasonable times for discussion and meetings with, us and our employees, agents and subcontractors and to enable us to promptly perform our obligations under the Agreement;
4.1.7 promptly provide to us such data, information and assistance (including the Client Materials) that will enable us to carry out fully, accurately and promptly our obligations under the Agreement to the best of our ability;
4.1.8 not use the Services and/or the Deliverables to provide services to any third party and you acknowledge and agree that the Services and/or Deliverables are to be used for your internal business purposes only;
4.1.9 only use the Deliverables for the purposes that we expressly or impliedly make you aware of from time to time;
4.1.10 promptly comply with all of our reasonable requests in connection with the Agreement; and
4.1.11 comply with all applicable laws, statutes, regulations and bye-laws in relation to the exercise of your rights and performance of your obligations under the Agreement.
4.2 You are responsible for ensuring that you provide us with the information required to enable us to properly provide the Services, including the Client Materials. We shall not be responsible or, subject to clause 10.2, have any Liability for any failure to provide the Services to the extent caused by your failure to properly ensure the provision of such relevant information.
4.3 You shall be responsible for the risk in the Client Materials, we shall not be responsible or, subject to clause 10.2, have any Liability for any accidental loss or damage to Client Materials caused by our provision of the Services.
4.4 It is your responsibility to ensure that any decision or implementation made by you and/or your employees, agents and other contractors as a result of any Services or Deliverables provided by us, or any other advice, recommendation or course of action proposed by us in the provision of the Services, is made in your best interests and you shall be responsible (and, subject to clause 10.2, we shall not have any Liability) for such decision and/or implementation and the consequences of any such decision and/or implementation.
5. Fees and payment
5.1 In consideration of our supply of the Services, you agree to pay the Fees to us.
5.2 We may charge you for our reasonable expenses incurred in the course of performing our obligations in providing the Services including for the reasonable accommodation, travel, telephone, food, subsistence, out-of-pocket, any other expenses, and any materials agreed in writing between the Parties that we will incur/purchase on your behalf. Such expenses shall not be considered to be included in any estimates or quotations we provide to you at any time, and shall be incurred and charged to you on an ad hoc basis, provided that we have obtained your prior written consent to any such expenses being incurred.
5.3 Subject to clause 5.4, we shall issue you with invoices periodically and you shall pay each invoice within 30 days of each invoice’s date.
5.4 Unless otherwise stipulated in the Statement of Work, or agreed between the Parties in writing, you shall be required to pay 50% (fifty percent) of the total Fees as well as 100% (one hundred percent) of any expenses that we require advance payment of and which you have authorised us to incur on your behalf pursuant to clause 5.2 in advance of our commencement of the Services when it is the first occasion upon which we are providing Services directly to you under a legally binding agreement OR where you are a legal entity that is registered outside of the United Kingdom. When it is not the first occasion upon which we are providing Services directly to you under a legally binding agreement and you are a legal entity registered within the United Kingdom, unless otherwise stipulated in the Statement of Work or agreed between the Parties in writing, you shall be required to pay 50% (fifty percent) of the total Fees in accordance with the payment terms outlined at clause 5.3 as well as 100% (one hundred percent) of any expenses that we require advance payment of and which you have authorised us to incur on your behalf pursuant to clause 5.2.
5.5 Payment of sums due under the Agreement, unless otherwise stated in the Statement of Work, shall be in pounds sterling. Where the Statement of Work stipulates all or a part of the Services will be carried out outside of the United Kingdom, the Fees will be calculated based on an indicative exchange rate. If there is a Currency Fluctuation between the date of quotation and date of project commencement or invoicing, we reserve the right to provide updated costs during the term of the Agreement and you shall either:
5.5.1 bear the impact of such Currency Fluctuation so as that the updated amount of pounds sterling is received by us despite the occurrence of such a Currency Fluctuation; or
5.5.2 have a right to terminate the Agreement upon written notice within 7 (seven) days of being notified by us of any relevant Currency Fluctuation and amended costs
5.6 We reserve the right to charge you for any additional costs incurred by us as a result of:
5.6.1 any change to any applicable statutory amendments to rates of pay; or
5.6.2 any other Event of Force Majeure.
If any such additional costs shall result in the Fees being increased by more than 10%, you shall be entitled to terminate the Agreement upon written notice within 7 (seven) days of us notifying you of any such relevant increase in the Fees.
5.7 In the event you exercise your right to terminate the Agreement under clause 6, you shall be required to pay to us (i) any applicable Cancellation Fees, (ii) any other fees that relate to Services provided by us to you prior to such termination, and (ii) any non-cancellable third-party costs (including the Third Party Fees) incurred and/or committed to by us prior to such termination, less, if applicable, any advanced fees and third party costs that you have paid to us pursuant to clause 5.4.
5.8 All sums due under the Agreement are exclusive of VAT or other sales, import or export duties or taxes (if applicable) which shall be payable in addition at the same time as payment of any sums due.
5.9 You shall pay us all sums due under the Agreement by any payment method that we may stipulate from time to time and no payment shall be considered paid until we have received it in cleared funds in full.
5.10 All amounts due under the Agreement shall be paid by you to us in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
5.11 If you are late in paying any part of any monies due to us under the Agreement and such payment remains outstanding for 7 (seven) days following us providing notice to you of such outstanding payment, we may (without prejudice to any other right or remedy available to us whether under the Agreement or by any statute, regulation or bye-law) do any or all of the following:
5.11.1 charge interest on the overdue amount due but unpaid at the annual rate of interest set under Section 6 of the Late Payment of Commercial Debts (Interest) Act 1998 from time to time from the due date until payment (after as well as before judgment), such interest to run from day to day and to be compounded monthly;
5.11.2 recover our costs and expenses and charges (including legal and debt collection fees and costs) in collecting the late payment;
5.11.3 delay the commencement of, or suspend the performance of, the Services until payment in full has been made; and/or
5.11.4 terminate the Agreement.
6. Commencement and term
6.1 The Agreement shall commence on the Commencement Date and shall continue in accordance with the term provisions set out in the Statement of Work.
6.2 If the Statement of Work stipulates that the Services are to be provided on a limited basis then following completion of the Services, the Agreement shall terminate automatically. You acknowledge and accept that if you terminate the Agreement on written notice prior to the completion of the Services then you shall be required to pay to us (i) any applicable Cancellation Fees, (ii) any other fees that relate to Services provided by us to you prior to such termination, and (ii) any non-cancellable third-party costs (including the Third Party Fees) incurred and/or committed to by us prior to such termination.
6.3 If the Statement of Work stipulates the Services are to be provided on a continuous basis then the Agreement shall continue until either Party gives 60 (sixty) days’ prior written notice to terminate the Agreement which shall take effect no earlier than the date 6 (six) months after the Commencement Date. You acknowledge and accept that if you terminate the Agreement on written notice then you shall be required to pay to us (i) any applicable Cancellation Fees, (ii) any other fees that relate to Services provided by us to you prior to such termination, and (ii) any non-cancellable third-party costs (including the Third Party Fees) incurred and/or committed to by us prior to such termination.
6.4 Without affecting any other right or remedy available to it, either Party may terminate the Agreement with immediate effect by giving written notice to the other Party if:
6.4.1 the other Party is in material breach of any of its obligations under the Agreement, or any other agreement between the Parties, which is incapable of remedy;
6.4.2 the other Party fails to remedy, where capable of remedy, any material breach of any of its obligations under the Agreement, or any other agreement between the Parties, after having been required in writing to do so within a period of no less than 10 (ten) Business Days;
6.4.3 the other Party is in persistent breach of any of its obligations under the Agreement or any other agreement between the Parties;
6.4.4 the other Party gives notice to any of its creditors that it has suspended is about to suspend payment or if such Party shall be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or an order is made or a resolution is passed for its winding-up or an administration order is made or an administrator is appointed to manage its affairs, business and property or a receiver and/or manager or administrative receiver is appointed in respect of all or any of its assets or undertaking or circumstances arise which entitle the court or a creditor to appoint a receiver and/or manager or administrative receiver or administrator or which entitle the court to make a winding-up or bankruptcy order or it takes or suffers any similar or analogous action in consequence of debt in any jurisdiction; or
6.4.5 the other Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
6.5 On termination of the Agreement:
6.5.1 any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination, shall not be affected;
6.5.2 any and all outstanding unpaid invoices rendered by us shall become immediately payable by you; and
6.5.3 any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination of the Agreement shall remain in full force and effect.
7. Intellectual Property Rights
7.1 In relation to the Deliverables:
7.1.1 we and our licensors shall retain ownership of all Intellectual Property Rights in the Deliverables;
7.1.2 we grant you, or shall procure a direct grant to you of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual licence to copy (but not modify) the Deliverables for the purpose of receiving and using the Services and the Deliverables for your internal business purposes only; and
7.1.3 you shall not sub-license, assign or otherwise transfer the rights granted in clause 7.1.2 without our prior written consent (not to be unreasonably withheld or delayed).
7.2 In relation to the Client Materials, you:
7.2.1 and your licensors shall retain ownership of all Intellectual Property Rights in the Client Materials; and
7.2.2 grant us a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Client Materials for the term of the Agreement for the purpose of providing the Services to you.
7.3 We:
7.3.1 warrant that your receipt, and use of the Services and the Deliverables shall not infringe the Intellectual Property Rights of any third party;
7.3.2 shall not be in breach of the warranty at clause 7.3.1 to the extent the infringement arises from:
(a) the use of the Client Materials in the development of, or the inclusion of the Client Materials in any Deliverable;
(b) any modification of the Deliverables or Services, other than by us or on our behalf; and
(c) compliance with your specifications or instructions, where infringement could not have been avoided while complying with such specifications or instructions and provided that we shall notify you if we know or suspect that compliance with such specification or instruction may result in infringement.
7.4 You:
7.4.1 warrant that the receipt and use of the Client Materials in the performance of the Agreement by us, our agents, subcontractors or consultants shall not infringe the rights, including any Intellectual Property Rights, of any third party; and
7.4.2 shall indemnify us in full against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by us as a result of any claim brought against us, our 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 the Agreement of the Client Materials.
8. Personal Data
8.1 The Parties acknowledge that, for the purposes of Data Protection Laws, you are the Controller, and we are the Processor of any Personal Data.
8.2 Details of the scope, nature and purpose of Processing by us, the duration of the Processing, the types of Personal Data that we are to Process, the categories of Data Subject and the sub-processors that we have appointed are as set out in the Statement of Work.
8.3 Each Party confirms that it holds, and during the term of the Agreement will maintain, all registrations and notifications required in terms of the Data Protection Laws which are appropriate to the performance of its obligations under the Agreement.
8.4 Each Party confirms that, in the performance of the Agreement, it will comply with the Data Protection Laws.
8.5 We will:
8.5.1 Process Personal Data only on documented instructions from you, unless required to do so by Data Protection Laws or any other applicable law to which we are subject; in such a case, we shall inform you of that legal requirement before Processing, unless that law prohibits us to so inform you;
8.5.2 ensure that persons authorised to Process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
8.5.3 take all measures required pursuant to Article 32 of the GDPR in respect of security of Processing;
8.5.4 notify you as soon as reasonably practicable before appointing any subcontractor in respect of Processing of Personal Data, and ensure that any such subcontractor complies with the provisions of this clause 8 as if it was a Party; if you (acting reasonably) disagree with the appointment of the subcontractor for reasons relating to the Processing of Personal Data, you shall have the right to terminate the Agreement on no less than 30 (thirty) days’ written notice; for the avoidance of doubt, any appointment of subcontractors in the same corporate group or banner as an existing subcontractor (for example, a subsidiary in the United Kingdom, in a different country within the European Economic Area or otherwise any adequate jurisdictions for data processing purposes) shall not require further approval from you;
8.5.5 taking into account the nature of the Processing, assist you by putting in place appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of your obligation to respond to requests for exercising the Data Subject’s rights laid down in Data Protection Laws, to the extent that such requests relate to the Agreement and our obligations under it;
8.5.6 assist you in ensuring compliance with your obligations pursuant to Articles 32 to 36 of the GDPR taking into account the nature of Processing and the information available to us;
8.5.7 at your option, delete (to the extent practicable) or return all the Personal Data to you after termination of the Agreement or otherwise on your request, and delete existing copies (to the extent practicable) unless applicable law requires our ongoing storage of the Personal Data;
8.5.8 make available to you all information necessary to demonstrate our compliance with this clause 8, and allow for and reasonably contribute to audits, including inspections, conducted by you or another auditor mandated by you; and
8.5.9 inform you immediately if, in our opinion, an instruction from you infringes (or, if acted upon, might cause an infringement of) Data Protection Laws.
8.6 Each Party will notify the other Party as soon as is reasonably practicable if it becomes aware of a Personal Data Breach relating to either Party’s obligations under the Agreement.
8.7 You shall undertake appropriate data protection impact assessments to ensure that Processing of Personal Data complies with Data Protection Laws. We will provide you with reasonable assistance, where necessary and upon your request, in carrying out any data protection impact assessment and undertaking any necessary prior consultation of the Supervisory Authority.
8.8 It is your responsibility to ensure that Personal Data is dealt with in a way that is compliant with Article 5(1) of the GDPR.
8.9 It is your responsibility to ensure that:
8.9.1 you are able to justify the Processing of Personal Data in accordance Data Protection Laws, and that you have recorded or documented this in accordance with the record keeping requirements of the GDPR; and
8.9.2 you have all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to us for the duration and purposes of the Agreement.
8.10 You agree to indemnify us, keep us indemnified and defend us at your own expense, against all costs, claims, damages or expenses incurred by us or for which we may become liable, arising from or in connection with a breach by you of your obligations under this clause 8.
9. Confidentiality
9.1 Notwithstanding the restrictions placed on you under clause 7.1, the Party’s acknowledge and agree that the Deliverables provided by us to you under the Agreement shall not be considered the Confidential Information of either Party.
9.2 Each Party shall keep the other Party’s Confidential Information confidential and shall not:
9.2.1 use such Confidential Information except for the purpose of exercising or performing its rights and obligations under the Agreement; or
9.2.2 disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by the Agreement.
Each Party shall use adequate procedures and security measures to protect the other Party’s Confidential Information from inadvertent disclosure or release to unauthorised persons.
9.3 A Party may disclose the other Party’s Confidential Information to those employees, agents and sub-contractors who need to know such Confidential Information provided that:
9.3.1 it informs such employees, agents and sub-contractors of the confidential nature of the Confidential Information before disclosure; and
9.3.2 it does so subject to obligations equivalent to those set out in this clause 9.
9.4 A Party may disclose the Confidential Information of the other Party to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other Party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 9.4, it takes into account the reasonable requests of the other Party in relation to the content of such disclosure.
9.5 The obligations of confidentiality in the Agreement shall not extend to any matter which either Party can show:
9.5.1 is in, or has become part of, the public domain other than as a result of a breach of the confidentiality obligations of the Agreement;
9.5.2 was independently developed by it;
9.5.3 was independently disclosed to it by a third party entitled to disclose the same; or
9.5.4 was in its written records prior to receipt.
9.6 Each Party reserves all rights in its Confidential Information. No rights or obligations in respect of a Party’s Confidential Information other than those expressly stated in the Agreement or are granted to the other Party, or to be implied from the Agreement.
9.7 On termination of the Agreement, each Party shall:
9.7.1 return to the other Party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other Party’s Confidential Information;
9.7.2 erase all the other Party’s Confidential Information from its computer systems (to the extent possible); and
9.7.3 at the request of the other Party, certify in writing to the other Party that it has complied with the requirements of this clause 9.7.3, provided that a recipient Party may retain documents and materials containing, reflecting, incorporating or based on the other Party’s Confidential Information to the extent required by law or any applicable governmental or regulatory authority.
9.8 This clause 9 shall continue to apply to any such documents and materials retained by a recipient Party following termination of the Agreement for any reason.
10. Limitation of Liability
10.1 This clause 10 prevails over all of the Agreement and sets forth our entire Liability, and your sole and exclusive remedies, in respect of:
10.1.1 our performance, non-performance, purported performance, delay in performance or mis-performance of the Agreement or any goods, services or deliverables in connection with the Agreement; or
10.1.2 otherwise in relation to the Agreement or entering into the Agreement.
10.2 We do not exclude or limit our Liability for:
10.2.1 our fraud or fraudulent misrepresentation;
10.2.2 death or personal injury caused by our negligence; or
10.2.3 any other liability which cannot be excluded or limited by applicable law.
10.3 Subject to clause 10.2, we shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any:
10.3.1 loss of actual or anticipated profits;
10.3.2 loss of revenue;
10.3.3 loss of business;
10.3.4 loss of contracts;
10.3.5 loss of opportunity;
10.3.6 loss of goodwill;
10.3.7 loss of, damage to, or corruption of, data; or
10.3.8 indirect or consequential losses, damages, costs or expenses,
whether or not such losses were reasonably foreseeable or we or our agents or contractors had been advised of the possibility of such losses being incurred.
10.4 Subject to clause 10.2, our total aggregate Liability arising out of or in connection with all claims in aggregate (including warranty claims and losses relating to the breach of warranty) shall be limited to the greater of:
10.4.1 100% (one hundred) per cent of all amounts paid and total other sums payable, in aggregate, by you to us under the Agreement in the 12 (twelve) months prior to the date on which the claim first arose; or
10.4.2 £10,000.
10.5 The limitation of Liability under clause 10.4 has effect in relation both to any liability expressly provided for under the Agreement and to any liability arising by reason of the invalidity or unenforceability of any term of the Agreement.
11. Force majeure
11.1 Subject to clause 10.2, neither Party shall have any Liability for any breach, hindrance or delay in performance of its obligations under the Agreement which is caused by an Event of Force Majeure, regardless of whether the circumstances in question could have been foreseen. An Event of Force Majeure means any cause outside of the Party’s reasonable control, including act of God, actions or omissions of third parties (including hackers, subcontractors, suppliers, couriers, governments, quasi-governmental, supra-national or local authorities), insurrection, riot, civil war, civil commotion, war, hostilities, threat of war, warlike operations, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions, national emergencies, terrorism, nuclear, chemical or biological contamination or sonic boom, piracy, arrests, restraints or detainments of any competent authority, blockade, strikes or combinations or lock-out of workmen, epidemic, pandemic, fire, explosion, storm, flood, drought, adverse weather conditions, loss at sea, earthquake, natural disaster, accident, collapse of building structures, failure of plant machinery or machinery or third party computers or third party hardware or vehicles, failure or problems with public utility supplies (including general: electrical, telecoms, water, gas, postal, courier, communications or Internet disruption or failure), shortage of or delay in or inability to obtain supplies, stocks, storage, materials, equipment or transportation.
11.2 Each Party agrees to inform the other upon becoming aware of an Event of Force Majeure, such information to contain details of the circumstances giving rise to the Event of Force Majeure.
11.3 The performance of each Party’s obligations shall be suspended during the period that the circumstances persist and such Party shall be granted an extension of time for performance equal to the period of the delay.
11.4 Each Party shall bear its own costs incurred by the Event of Force Majeure.
11.5 If the performance of any obligations under the Agreement are delayed under clause 11.1, each Party shall nevertheless accept performance as and when the other shall be able to perform.
11.6 If the breach, hindrance or delay caused by an Event of Force Majeure continues without a break for more than one month, either Party may terminate the Agreement immediately by written notice to the other, in which event neither Party shall have any Liability (subject to clause10.2) to the other Party by reason of such termination.
11.7 If we have contracted to provide identical or similar services to more than one client and we are prevented from fully meeting our obligations to you due to an Event of Force Majeure, we may decide at our absolute discretion which contracts we will perform and to what extent.
12. Waiver
12.1 A waiver of any right or remedy under the Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
12.2 A failure or delay by a Party to exercise any right or remedy provided under the Agreement 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 Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
13. Variation
No variation of the Agreement shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).
14. Rights and remedies
Except as expressly provided in the Agreement, the rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
15. Severance
15.1 If any provision or part-provision of this 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 15 shall not affect the validity and enforceability of the rest of the Agreement.
15.2 If any provision or part-provision of the Agreement is invalid, illegal or unenforceable (including any part of the Statement of Work rendered as such as a result of a false and/or incorrect Assumption), the Parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
16. No partnership or agency
16.1 Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the Parties, constitute either Party the agent of the other Party, or authorise either Party to make or enter into any commitments for or on behalf of the other Party.
16.2 Each Party confirms it is acting on its own behalf and not for the benefit of any other person.
17. Third party rights
A person who is not a Party shall not have any rights to enforce any term of the Agreement under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
18. Notices
18.1 Any notice given to either Party under or in connection with the Agreement shall be in writing, addressed to the relevant Party at its registered office or such other address as that Party may have specified to the other Party in writing, and shall be delivered personally, sent by pre-paid first-class post, recorded delivery, commercial courier or email.
18.2 A notice shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 18.1; if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by email, at the time of transmission.
18.3 The provisions of clauses 18.1 and 18.2 shall not apply to the service of any proceedings or other documents in any legal action.
19. Assignment
You may not assign, transfer, charge or otherwise encumber, create any trust over, or deal in any manner with, the Agreement or any right, benefit or interest under it, nor transfer, novate or sub-contract any of its obligations under it, without our prior written consent (such consent not to be unreasonably withheld or delayed).
20. Governing law and jurisdiction
20.1 The Agreement, and any dispute or claim arising out of or in connection with it or them or its or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England.
20.2 Each Party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation.