1. Interpretation
1.1. The definitions and rules of interpretation in this clause apply in these General Terms and Conditions:
“Affiliate” means, in relation to a person, each and any subsidiary or holding company of that person, and each and any subsidiary of a holding company of that person (and references to “holding company” and “subsidiary” shall mean those terms as they are defined in section 1159 of the Companies Act 2006).
“Applicable Laws” means all applicable regional laws, regulations, rules, requirements and binding guidance, standards and directions, including those imposed by any governmental or regulatory or judicial authority, in each case which apply from time to time to the person or activity in the circumstances in question.
“Business Day” means any day other than Saturday or Sunday or a bank or public holiday in England.
“Confidential Information” means technical and commercial know-how, specifications, inventions, processes, initiatives and software code which is or are of a confidential nature together with any information concerning a party’s business, finances, customers, products and services and any other information specified by either party as being confidential in nature.
“Contract” has the meaning given in clause 2.2.
“Customer” means the contracting party who will be receiving the Products and/or Services as identified in the Proposal and Service Delivery document and a reference to “You” or “Your” shall be construed accordingly.
“Customer Data” means all data (including Customer Personal Data), information, documents, drawings and other materials which are embodied in any medium including all electrical, optical, magnetic or tangible media and which are supplied to Us by or on behalf of any Customer Group Member or which We are required to generate, collect, process, store or transmit in connection with the Contract.
“Customer Group” means You and Your Affiliates from time to time, and references to a “Customer Group Member” shall be construed accordingly.
“Customer Personal Data” means all Personal Data processed by Us on behalf of any Customer Group Member under or in connection with the Contract.
“Data Controller” and “Data Processor” have the meaning given to the term “controller” and “processor” (respectively) in Article 4 of the GDPR.
“Data Protection Laws” means any applicable laws and regulations in any relevant jurisdiction relating to the use or processing of personal data including: (i) EU Regulation 2016/679 (the “GDPR”); (ii) any laws or regulations ratifying, implementing, adopting, supplementing or replacing the GDPR (including, in the UK, the Data Protection Act 2018 (“DPA”)); (iii) any laws and regulations implementing or made pursuant to EU Directive 2002/58/EC (as amended by 2009/136/EC) (including, in the UK, the Privacy and Electronic Communications (EC Directive) Regulations 2003); and (iv) any guidance or codes of practice issued by a governmental or regulatory body or authority in relation to compliance with the foregoing; in each case, as updated, amended or replaced from time to time.
“Data Subject Request” means a request from a Data Subject to exercise its rights under the Data Protection Laws in respect of that Data Subject’s Personal Data.
“DP Regulator” means any governmental or regulatory body or authority with responsibility for monitoring or enforcing compliance with the Data Protection Laws.
“Delivery Location” has the meaning set out in clause 3.3.
“Employees” means those persons wholly or mainly employed by You in the provision of the Services immediately before the Go-Live Date and whose employment will transfer to Us pursuant to the Transfer Regulations as a result of this Agreement and who have been identified as transferring within information supplied by You prior to the Go-Live Date.
“Employment Liabilities” means all damages, losses, liabilities (including any redundancy payments or payments in lieu of notice), claims, actions, compensation, awards, costs, expenses (including the cost of legal or professional services on a full indemnity basis), proceedings, demands, penalties, fines including any liability to taxation and charges whether arising under statute, contract or at common law.
“Effective Date” has the meaning given to it in clause 2.3.
“Exit Period” has the meaning given in clause 18.1.
“Exit Plan” means the exit plan relating to the Services, as compiled in accordance with clause 19.
“Exit Services” the services to be provided by Us following expiry or termination of any applicable Services, as specified in clause 18 and an Exit Plan.
“Force Majeure Event” has the meaning given in clause 22.1.
“Go Live Date” means the day that the supply of Managed Services commenced.
“Good Industry Practice” means exercising that degree of skill, care and prudence which would be expected from a reasonably and suitably skilled, trained and experienced person undertaking the relevant services or activities.
“General Terms and Conditions” means the terms and conditions set out in this document.
“Initial Term” means the initial term of the Contract as specified in the Proposal or, if no such period is referred to in the proposal, the relevant period of time set out in the Schedule that relates to that Service and/or Product and charge clauses within the contract.
“Intellectual Property Rights” means patents, utility models, 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.
“Managed247” or “Us” or “Our” or “We” means Managed247 Limited, a company registered in England & Wales with company number 07019261 and whose registered office number is located at 100 Avebury Boulevard, Milton Keynes, Buckinghamshire, MK9 1LH.
“Managed Services” means Our service support calls services, onsite support services, data management services, cloud advice and management services, data and infrastructure security services, onsite repair services, service management services, Vendor Management Service, image holding services and any other managed services as applicable to the Customer and as are described and set out in more detail in our proposal.
“Monitoring Services” means Our service reporting, network monitoring and management, cloud monitoring and management, infrastructure monitoring and management, application monitoring, VoIP telephony monitoring, data monitoring and management, and any other monitoring services as applicable to the Customer and as are described and set out in our proposal.
“Our Personnel” means all personnel that We or a Subcontractor engage to perform the Services and/or provide the Deliverables or Products.
“Permitted Personnel” has the meaning given in clause 5.1.
“Pre-existing IPR” has the meaning given in clause 12.1.
“Pre-existing Materials” means all documents, information and materials provided by Us relating to the Service which existed prior to the Effective Date, including data, reports and specifications and any such pre-existing materials specified in the Proposal.
“Premises” means the premises specified in paragraph 3.2 that Permitted Personnel require access to for the purposes of the onsite support services, as may be updated from time to time by You.
“Priority” a category used to identify the relative importance of something.
“Process” a structured set of activities designed to accomplish a specific objective.
“Products” means the products supplied by Us to You as detailed in the Service Delivery document and, where applicable, as may be further set out in the relevant Schedule.
“Proposal” means Our document which sets out the commercial terms on which the Services and/or the Products will be provided to You, as will be appended to these General Terms and Conditions.
“Renewal Term” has the meaning given in clause 16.1.
“Relevant Transfer” means a relevant transfer for the purposes of the Transfer Regulations.
“Proposal response” means Our response and proposal document which sets out the commercial and service descriptions on which the Services and/or the Products will be provided to You.
“Schedule” means a Schedule which contains terms and conditions that apply specifically to the Products and/or Services to which that Schedule relates, as will be appended to these Terms and Conditions, as applicable.
“Security Breach” means any actual loss, unauthorised or unlawful processing, destruction, damage, or alteration, or unauthorised disclosure of, or access to the Customer Personal Data.
“Services” means the services, including (where relevant) the Deliverables, supplied by Us to You as detailed in the Service Delivery Document and as further set out in the relevant Schedule.
“Service Credits” means the sums payable in respect of any failure to meet or comply with a Service Level, as specified in respect of the corresponding Service Level and set out in the relevant Schedule appended at Schedule 1.
“Service Failure” means any failure, error or defect in the provision of the Services by Us (including any failure to meet or comply with a Service Level) but excluding:
(a) any failure, error or defect to the extent caused by Your acts or omissions in breach of the Contract; or
(b) any failure, error or defect arising as a result of a Force Majeure Event.
“Service Levels” means the service levels in respect of the applicable Services, as detailed in the relevant Schedule appended at Schedule 1.
“Standard Contractual Clauses” means the standard contractual clauses set out in the European Commission’s Decision 2010/87/EU of 5 February 2010 for the transfer of Personal Data to processors established in third countries.
“Subcontractor” means a third party other than Us to whom We subcontract the performance of any of Our obligations under the Contract, in accordance with clause 24.
“System” means Your information technology system including hardware, software, operating systems and interfaces (if any) (but excluding any such systems and equipment provided to You by Us under the Contract).
“Term” has the meaning given to it in clause 16.1 unless a specific Schedule applies to the Services in which case it shall have the meaning given to it in that Schedule, if different (and the definition in the Schedule shall prevail over the definition in these General Terms and Conditions).
“Transfer Regulations” means the Transfer of Undertakings (Protection of Employment) Regulations 2006 and as amended from time to time or as replaced by any other legislation or regulation.
“VAT” means Value Added Tax chargeable under English law for the time being and any similar additional tax.
“Virus” means anything or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, crypto locker viruses and other viruses and other similar things or devices.
“Your Equipment” means any equipment, systems, cabling or facilities provided by You and used directly or indirectly in the supply of the Services.
“You”, “Your” meaning Our Client as defined within, or by, a Proposal, Quotation or Agreement for the supply of goods and services.
1.2. In these General Terms and Conditions, the terms “Data Subject”, “Personal Data”, “process”, “processing”, “transfer” (in the context of transfers of Personal Data) and “technical and organisational measures” shall have the meanings set out in and otherwise be interpreted in accordance with the GDPR.
1.3. A “person” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns.
1.4. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular and a reference to one gender shall include a reference to the other genders.
1.5. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.6. Any words following the terms “including”, “include”, “in particular” 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. Contract Terms
2.1. These General Terms and Conditions set out the basis on which We and You will do business.
2.2. Following agreement between the parties and execution of a Proposal and/or Service Delivery Document in accordance with clause 2.3, such Proposal will create a separate contract (referred to as the “Contract”) between You and Us with regard to its subject matter and will incorporate these General Terms and Conditions.
2.3. From time to time, You may request Services from Us or provide a purchase order for the purchase of Products (or any document of equivalent nature). We will prepare and send a draft of the relevant Proposal to You. Both parties shall discuss and agree the content of the Proposal and, following such agreement, We shall provide You with a final draft of the agreed Proposal for Your signature. The Contract shall be formed between You and Us upon Our countersignature of the applicable Proposal as signed by You and shall incorporate the terms as prescribed in clause 2.2 to the exclusion of all other terms. The date of Our countersignature shall be the “Effective Date” which is the date that the Contract is formed.
2.4. Any terms that You seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing, shall be excluded from the Contract.
2.5. You shall be responsible for providing Us with all such relevant information requested by Us concerning the Services and/or Products so as to assist Us in producing the Proposal.
2.6. If there is a conflict or inconsistency between some or all of the documents which make up the Contract, the order of priority for interpretation shall be as set out in clause 2.2, save that where a document with a lower order of precedence expressly amends the terms of a document with a higher order, effect shall be given to that amendment.
2.7. The General Terms and Conditions, Schedules and/or the Proposal on their own create no obligation or right on behalf of either party, except where expressly stated otherwise. For a Contract to exist, a Proposal and Service Delivery Document must be provided incorporating the relevant terms in accordance with clause 2.2 and executed by the parties in accordance with clause 2.3.
3. Services & Products
3.1. The Products are as described in the Proposal and Service Delivery document. We shall provide the Products in accordance with the terms of the Contract and shall ensure that the Products and any Deliverables shall be fit for any purpose expressly made known to Us by You. You shall comply with any manufacturer’s recommendations regarding the Products and Deliverables that We provide to You.
3.2. We (or Our nominated third-party supplier) shall ensure that delivery of the Products is accompanied by a delivery note which shows all relevant Customer and Managed247 reference numbers, the type and quantity of the Products and special storage instructions (if any).
3.3. We (or Our nominated third-party supplier) shall deliver the Products to the location set out in the Proposal or such other location as the parties may agree in writing (“Delivery Location”).
3.4. Delivery of the Products shall be made on the applicable delivery date specified for the Products in the Proposal or as agreed between the parties in writing and delivery shall be completed on the Products’ undamaged arrival at the Delivery Location. We shall not be liable for any delay in delivery of the Products that is caused by a Force Majeure Event or Your failure to provide Us with adequate delivery instructions or any other instructions that are relevant to the delivery of the Products to the Delivery Location.
3.5. Unless otherwise agreed or elsewhere explicitly stated, our product delivery charge is £20 per individual shipment for direct-to-You UK mainland deliveries. In exceptional circumstances, and where our delivery costs exceed either this or any other agreed amount, we reserve the right to recover all delivery charges and/or freight and import levies.
3.6. If You fail to accept or take delivery of the Products on the delivery date specified for the Products in the Proposal (or as agreed between the parties in writing), then, except where such failure or delay is caused by a Force Majeure Event or by Our failure to comply with Our obligations under the Contract in respect of the Products, We shall be entitled to:
3.6.1. re-deliver the Products to the Delivery Location at such reasonable time as We shall set and notify to You; and/or
3.6.2. store the Products until delivery takes place and charge You for all reasonable related costs and expenses (including insurance), provided that We use all reasonable efforts to rearrange delivery of the Products on such date as is as soon as reasonably practicable thereafter.
If You fail to take delivery of the Products within 10 Business Days after the delivery date agreed between the parties (in the Proposal or otherwise as agreed in writing), We may resell or otherwise dispose of part or all of the Products. If You have paid for the Products in advance, We shall refund You the charges in respect of such affected Products, provided that We can deduct any reasonable transportation and storage costs incurred.
3.7. We (or Our nominated third-party supplier) may deliver the Products by instalments, which shall be invoiced and paid for in line with the terms of the original Proposal.
3.8. Each Product shall be supplied subject to the manufacturer’s published specification and shall only be subject to amendment if the parties have agreed to such amendment in the Proposal. We (or Our suppliers or Product manufacturers) reserve the right to make changes to the Products where necessary to comply with any legal requirements and which do not materially affect quality or performance.
3.9. The risk in the Products and/or Deliverables shall pass to You on completion of delivery at the Delivery Location.
3.10. Title to the Products and/or Deliverables shall not pass to You until We receive payment in full (in cash or cleared funds) for the Products and/or Deliverables.
3.11. Until title has passed to You, You shall:
3.11.1. hold the Products and/or Deliverables on a fiduciary basis as Our bailee;
3.11.2. not remove, deface or obscure any identifying mark or packaging on or relating to the Products and/or Deliverables and take all reasonable steps to store the Products and/or Deliverables safely and in such a way that they can be identified
3.11.3. maintain the Products and/or Deliverables in satisfactory condition, not mix them with other products and keep them insured against all risks for their full price from the date of delivery;
3.11.4. notify Us promptly if You become subject to any of the events listed in clause 16.3; and
3.11.5. give Us such information relating to the Products and/or Deliverables as We may reasonably require from time to time.
3.12. If You become subject to an event described in clause 16.3 then We may at Our absolute discretion recover the Products and/or Deliverables from You and You grant Us permission to enter Your premises or any premises where the Products and/or Deliverables are located solely for the purpose of and to the extent necessary for recovering such Products and/or Deliverables.
3.13. Unless otherwise agreed or elsewhere explicitly stated, we shall review consumption of services and devices on a quarterly basis and average your consumption across that period. Any excess usage or consumption shall be recharged to you at the prevailing price plus 20% uplift.
4. Your Obligations
4.1. You shall:
4.1.1. obtain and maintain all necessary licences, permissions and consents which may be required for Your receipt of the Services before the date on which the Services are to start;
4.1.2. where necessary, comply with any reasonable and lawful instructions from Us which relates to Your use of the Services;
4.1.3. co-operate with Us as necessary to enable us to provide the Services in accordance with the Contract, which may include providing reasonable security access and access to Your System, data and configuration services (as will be agreed in advance between the parties);
4.1.4. make sure that Your System meets the minimum technical specifications for compatibility with the Services as set out in the relevant Proposal;
4.1.5. comply with all Applicable Laws with respect to Your activities under the Contract; and
4.1.6. perform any of the obligations and observe any restrictions imposed on You in any applicable Schedule.
4.2. You agree that You will not use the Services in a way which You are or should reasonably be aware would:
4.2.1. materially adversely compromise the security of any aspects of the Products or the Services; or
4.2.2. do anything which does or could cause a material degradation of service to any of Our other customers.
4.3. You shall not:
4.3.1. access, store, distribute or transmit any data or materials if their transmission using the Service would constitute a breach of the Contract;
4.3.2. access all or any part of the Services in order to build a product or service which competes with the Services; or
4.3.3. sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party (other than as permitted to other Customer Group Members under the Contract).
4.4. Where You are or become aware of any matters which You know constitute a material threat to the security of the Services, You will promptly notify Us of such matters in writing.
4.5. You shall not access, store, distribute or transmit any material during the course of Your use of the Services that:
4.5.1. are unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
4.5.2. facilitate illegal activity;
4.5.3. depict sexually explicit images;
4.5.4. promote unlawful violence;
4.5.5. are discriminatory based on race, gender, colour, religious belief, sexual orientation or disability; or
4.5.6. are otherwise illegal or cause damage or injury to any person or property;
4.5.7. and We reserve the right, without liability or prejudice to Our other rights to You, to disable Your access to any material that breaches the provisions of this clause.
5. Personnel
5.1. In respect of any of Our Personnel, We shall:
5.1.1. in respect of any of Our Personnel that may require access to any Customer Group Member’s premises (the “Permitted Personnel”), notify You in writing of such Permitted Personnel from time to time in sufficient time in advance of such Permitted Personnel requiring access to the Customer Group Member’s premises so as to allow for any security, on-boarding or such other processes as may be required to be completed by the relevant Customer Group Member;
5.1.2. provide You with such information in respect of Our Personnel as You may reasonably request from time to time, including details of employment history, training, experience and qualifications;
5.1.3. before each member of Our Personnel commences performance of any Services, have carried out pre-employment and screening checks as are necessary to ensure compliance with, as a minimum, Good Industry Practice and Applicable Laws. Where it has not been possible to conduct such checks or the relevant member of Our Personnel has not passed the checks, We shall only be able to engage such of Our Personnel with Your prior written consent (which shall be at Your discretion); and
5.1.4. take all reasonable steps to maintain continuity in relation to Our Personnel and to ensure the timely replacement (on a temporary or permanent basis) of any of Our Personnel no longer able to perform the Services for whatever reason (including due to Your action pursuant to clause 5.2) with a suitably qualified and competent replacement.
5.2. You may:
5.2.1. require that any of Our Personnel is not (or ceases to be) engaged or employed in the provision of the Services in any capacity; and/or
5.2.2. refuse admission to any of Your premises to any of Our Personnel, if You consider that You have reasonable grounds for such decision. We shall comply (and shall ensure that all of Our Personnel comply) with any such decision by You as soon as reasonably practicable.
We may:
5.2.3. require that any of Your Personnel is not (or ceases to be) connected with, or has involvement with, the provision of the Services in any capacity;
5.2.4. failure to comply with this requirement within seven (7) days will result in service suspension. Should the matter not be resolved within thirty (30) days, we reserve the right to terminate the contact without providing further notice. Clause 17 will then apply.
5.3. We shall indemnify You for any losses, claims, costs, damages, fines and expenses (including reasonable legal costs) suffered by You, directly or indirectly as a result of any claim which may be brought by any of Our Personnel against You in connection with the Contract, or the termination of the same.
5.4. The parties agree that We shall each comply with all aspects of the Transfer Regulations throughout the term of this Agreement including but not limited to Our obligations to inform and consult on commencement and termination, in whole or in part.
5.5. You shall, where necessary, invite the Employees to elect employee representatives and shall ensure that the requirements of the Transfer Regulations in respect of such elections are satisfied.
5.6. You shall give Us reasonable access to the appropriate representatives (as defined within the Transfer Regulations) and ensure that the appropriate representatives have access to the Employees, are provided with reasonable paid time off and protection from detriment and are provided with appropriate accommodation and facilities.
5.7. The parties agree that the provision of the Services from the Go-Live Date will constitute a Relevant Transfer for the purposes of the Transfer Regulations and that therefore the contracts of any Employees together with any collective agreements relating to the Employees, may transfer to Us with effect from the Go-Live Date which shall be the time of transfer under the Transfer Regulations.
5.8. You shall indemnify and keep Us fully indemnified from and against any and all Employment Liabilities incurred or suffered by Us arising out of or in connection with:
5.8.1. any claim or other legal recourse by all or any or on behalf of all or any of the Employees in respect of any fact or matter concerning or arising from their employment prior to the commencement of this Agreement;
5.8.2. any claim or claims by or on behalf of any Employees or any former employees or workers of Yours in respect of an underpayment of holiday pay by You in respect of the period prior to the Go-Live Date;
5.8.3. the termination by You of the employment of any Employee;
5.8.4. anything done or omitted to be done by You in respect of any Employee which is deemed to have been done by Us;
5.8.5. any claim or other legal recourse by any trade union, works council, information and consultation forum or staff association recognised by You or appropriate employee representatives in respect of all or any of the Employees arising from or connected with any failure by You to comply with your legal obligations to such trade union, works council, information and consultation for staff association or employee representatives;
5.8.6. any failure to provide full and accurate information regarding the Employees and in particular any failure to comply with Regulation 11 of the Transfer Regulations being in any material respect inaccurate or incomplete; and
5.8.7. any compensation for which We may become liable as a result of any breach of the duty by You to inform and consult with the Employees in accordance with the Transfer Regulations howsoever arising.
5.9. You warrant that in respect of all Employees you have carried out the correct checks to provide You and Us with a statutory defence/excuse to any future liability for employing an illegal migrant under the Asylum and Immigration Act 1996 and/or the Immigration, Asylum and Nationality Act 2006 and all Employees who require authorisation to work in the UK have obtained such authorisation covering the entire period of their employment with You. You also warrant and undertake that You have maintained adequate records in respect of the Employees and will make these available to Us on the Go-Live Date.
5.10. Where applicable, the Service Delivery Document or Proposal shall set out any members of Our Personnel to be considered “Key Personnel” for the purposes of certain Services. In respect of any one of the Key Personnel, We shall:
5.10.1. ensure that such Key Personnel devotes a sufficient amount of time and effort to the performance of the applicable Services for the duration of such Services;
5.10.2. retain the services of that Key Personnel for the duration of the provision of the applicable Services and shall not remove or change that Key Personnel unless:
(i) such Key Personnel ceases to be employed by the Us or is on long-term sick leave, paternity/maternity or adoption leave (or any other leave to which they are legally or contractually entitled); or
(ii) You have provided prior written approval to such removal or change; and
5.10.3. in circumstances where We have been entitled to remove or change the Key Personnel in question, ensure that the role of the Key Personnel is not vacant for longer than is reasonably practicable and shall provide a suitably qualified, experienced and competent replacement for such Key Personnel.
6. Governance & Reporting
6.1. Both parties shall operate on the basis of open lines of communication between peers in both organisations, through appropriate forms of communication and through attending appropriate governance meetings, as reasonably required by You. Each party shall ensure that any such meetings are attended by representatives suitably qualified and experienced in relation to the subject matter of the applicable meeting.
6.2. We shall provide You with regular reports in respect of Our progress in relation to Our performance of the obligations set out in the Contract (and, in any event, such reporting shall be carried out by Us on at least a monthly basis). Such reports shall be presented in the format and layout reasonably requested by You from time to time. We shall provide You with any assistance reasonably requested by You to assist You in interpreting and understanding the reports.
6.3. If We become aware, or reasonably believe, that Our obligations under the Contract are not going to be met within any agreed timescale (including in respect of any Service Level or delivery date for Products), We shall advise You of this as soon as reasonably practicable.
6.4. In such circumstances, We shall (at Our own cost):
6.4.1. implement a plan of action to prevent, or mitigate the impact of, any failure or delay, including by committing such additional resources as may reasonably be required or implementing appropriate workarounds; and
6.4.2. investigate, assemble and preserve information with respect to the causes of the failure, delay or issue; and
6.4.3. remedy or prevent the causes of the failure, delay or issue as promptly as possible.
6.5. If the disruption to the Services has not been brought to an end within the timeframe agreed by the parties (and where any undue delay is caused by you or third-party dependencies or by any external factors) or if they have not been able to agree such a timeframe, you may do one or more of the following:
6.5.1. where You consider it necessary to do so, suspend our right and obligation to provide some or all the Services to the extent specified by You;
6.5.2. engage other service providers to take such steps to resolve the issue;
6.5.3. locate one or more members of your appointed Personnel to work with our personnel and to oversee the provision of the Services;
6.5.4. itself provide any Services or engage other service providers to provide part or all the Services.
6.6. Any of the above steps will require Director level approval for both You and Us and is limited to the specific services that triggered the failure.
6.7. Other than in respect of any failure by Us to meet or comply with a Service Level, where We have notified You of events that will result in, or have already resulted in, Us not being able to meet Our obligations under the Contract within any agreed timescales, You may, at Your sole discretion and without prejudice to any other rights or remedies You may have in respect of such failure or delay:
6.7.1. agree to an extension of time in respect of the relevant timescales, and the parties shall act reasonably in agreeing a reasonable reduction in the corresponding charges to be paid in recognition of the delayed performance (provided that, if the parties are unable to come to agreement on the appropriate reduction in the applicable charges, We shall be entitled to make an election under clause 6.7.2); or
6.7.2. in circumstances where You reasonably consider that an extension of time will not be possible in light of the Services and/or Products, notify Us that no extension will be possible, in which case, You shall be entitled to elect to:
6.7.2.1. obtain substitute Services (including any Deliverables) and/or Products from a third-party provider and reclaim any additional costs incurred in doing so from Us;
6.7.2.2. obtain a refund of all sums already paid by You to Us in respect of the affected Services and/or Products; or
6.7.2.3. terminate the Contract under clause 16.3.1 (for a material breach which is not remediable).
7. Charges & Payment
7.1. Specific terms regarding invoicing, payment and charges for the Services and/or Products are set out in the relevant Proposal or Agreement.
7.2. In the absence of any agreed specific invoicing terms between the parties, our default invoicing terms are always to be invoice on order receipt with payment terms to be no more than 30 days from date of invoice issuance.
7.3. Payment for Managed247 Services are to be quarterly in advance of service.
7.4. The terms set out in this clause 7 are applicable to all Services and/or Products unless varied by Schedules which relate to the Services and/or Products supplied. Where such charges are on a time and materials basis in respect of Services:
7.4.1. the charges shall be calculated in accordance with Our standard daily or hourly fee rates, as set out in the Proposal and Service Delivery Document, if no specification is given in, as available from Our sales representatives;
7.4.2. Our standard daily fee rates for each individual person are calculated on the basis of a 7-hour working day from 9.00 am to 5.00 pm with a 1-hour lunch break worked on Business Days; and
7.4.3. We shall only be entitled to charge You for any expenses reasonably incurred by the individuals whom We engage in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and as required by Us for the performance of the Services, where these have been notified by us, in advance, in writing, to You.
7.5. You must pay all invoices no later than the due date for each invoice, which, subject to the agreement of credit terms, will be no later 30 days from the date of receipt by You of the applicable invoice.
7.6. The charges for the Services and/or Products are set out in the Proposal and/or Agreement. We will raise an invoice for the Products on delivery of the Products to You by Us or the manufacturer or supplier in accordance with the applicable provisions of clause 3. In respect of Services, the invoicing terms set out in the relevant Proposal shall apply.
7.7. If We have not received Your payment of Our charges by the due date in respect of any properly submitted and undisputed invoice (or part of an invoice):
7.7.1. We may suspend the supply of Services in this Contract until the applicable outstanding invoice is paid, provided that:
7.7.1.1. We provided You with written notice that such charges were overdue and unpaid; and
7.7.2. such overdue charges remained unpaid for a period in excess of 15 days following receipt by You of the notification specified in clause 7.7.1.1 above; and
7.7.3. We may charge interest which shall accrue on such undisputed amounts from the date it became overdue, until payment, at an annual rate of 8% above the base rate of the Bank of England from time to time.
7.7.4. We may collect any overdue monies through any direct debit mandate that you may have previously issued to Us.
7.8. All charges, amounts and fees are exclusive of VAT which shall be added to Our invoices at the current rate.
7.9. If at any time You dispute the validity of any invoice, You shall notify Us in writing of the amount in dispute and the nature of the dispute. You shall be entitled to withhold payment of the amounts in dispute, provided that You shall pay any undisputed amounts of the applicable invoice in accordance with the payment terms set out in clause 7.5. The parties will work together, both acting reasonably and in good faith, to resolve the dispute in accordance with the procedure set out in clause 25.
7.10. Where We provide Services or Products to You which are exposed to fluctuations in the exchange rates, We reserve the right to revisit Our charges where there is a fluctuation affecting the currency in which We sell or buy the Services or Products by more than one (1) per-cent during any month prior to the Effective Date. Where this occurs and we intend to amend the charges agreed with You for the Services and/or Products within a Proposal, We will notify you in writing of the same as soon as reasonably practicable, and the parties will discuss and agree any amendment to be made to such charges for the Services and/or Products and the date from which any such amended charges will apply. Following agreement by the parties, the amendment to the applicable charges and the date from which such will apply shall be recorded in writing by the parties.
7.10.1. Unless otherwise agreed in the Proposal or relevant Agreement, We may review and increase Our charges for the Services and/or Products, provided that (i) such right shall not apply until the first anniversary of the Effective Date, (ii) any increase to Your charges shall only apply from the anniversary of the Effective Date, and, in turn, each applicable anniversary thereafter, (iii) We will provide you with at least one (1) months’ prior written notice of Our intention to increase Your charges, including details as to the updated charges, (iv) Our charges shall not exceed the percentage increase (if any) of the United Kingdom rate of the retail prices index as published by the Office for National Statistics from time to time plus 2.5% and (v) the updated charges shall be advised, recorded and agreed by both parties.
7.11. Clause 7.10.1 shall not apply to third party costs over which We have no Control. Any agreed third-party provision or license agreements which are subject to party cost increase during the term of the contract shall be passed on promptly by Us.
7.12. Our charges will be determined on the basis of our Proposal or relevant Agreement. If You require Us to exceed this, then We reserve the right to request an increase to Our charge to reflect the extra work required should You exceed the stated amount of service incidents as detailed in the Service Delivery Document and Proposal documentation over a period of three (3) months.
7.13. Overuse charges will be charged the following month of use in arrears at the rate same rate detailed in the proposal uplifted by no less than 15%, subject to events described in clause 7.12. All service use including but not limited to incidents, requests and changes will be reported the following month to indicate trends and any excess use.
7.14. All amounts due under the Contract 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).
7.15. Customer acknowledges and agrees that it is solely responsible for the following:
7.15.1. Customer use of products or services delivered by Managed247 under this Agreement;
7.15.2. Compliance with terms and conditions of this Agreement, any Proposals existing under this Agreement, and all other agreements applicable to Customer use of products or services delivered by Managed247 under this Agreement;
7.15.3. Monitoring consumption of Azure and other products and services subject to metered billing and enabling consumption warnings and governance of all metered products and services. Customer acknowledges and agrees that Managed247 is not responsible for costs incurred by Customer from metered products and services, including Microsoft Azure;
7.15.4. Validating Azure Reserved Instance types prior to provisioning. Any problems or other issues with such Reserved Instances must be disclosed to Managed247 no later than five (5) business days of provisioning.
7.15.5. Where the Customer remains in contract and monthly invoicing for any service falls below a de minimis level of £100 per calendar month, We reserve the right to charge an administration fee of up to £250 per month for oversight of the aforementioned service.
7.15.6. Payment of all amounts billed to Customer accounts by Microsoft or other vendors for products or services delivered by Managed247 in accordance with this Agreement;
7.15.7. All other Client responsibilities specifically identified in a Proposal.
8. Indemnities
8.1. You shall indemnify Us against all damages, losses and expenses (including reasonable legal costs) arising as a result of any action or claim that the Customer Data or the content of any Customer Data:
8.1.1. infringes the Intellectual Property Rights of a third party; or
8.1.2. is libellous or defamatory, or otherwise results in injury or damage to any third party.
8.2. We shall indemnify You against all damages, losses and expenses (including reasonable legal costs) arising as a result of any action or claim that the Services infringe any Intellectual Property Rights in the United Kingdom.
8.3. The indemnities in clauses 8.1 and 8.2 are subject to the following conditions:
8.3.1. the indemnified party promptly notifies the indemnifying party in writing of the claim;
8.3.2. the indemnified party makes no admissions or settlements without the indemnifying party’s prior written consent;
8.3.3. the indemnified party gives the indemnifying party all information and assistance that the indemnifying party may reasonably require; and
8.3.4. the indemnified party allows the indemnifying party complete control over the litigation and settlement of any action or claim.
8.4. The indemnities in clauses 8.1 and 8.2 shall not apply to the extent that the relevant claim arises from:
8.4.1. the indemnified party’s breach of the Contract;
8.4.2. use of the Services other than in accordance with the Contract;
8.4.3. modifications or alterations of the Services by the indemnified party or by any third party without the prior written consent of the indemnifying party; or
8.4.4. compliance with the indemnified party’s specifications or instructions.
9. Liability
9.1. Nothing in the Contract shall exclude or limit either party’s liability for:
9.1.1. death or personal injury caused by negligence;
9.1.2. fraud or fraudulent misrepresentation; or
9.1.3. any other liability which cannot be excluded or limited by law.
9.2. Subject to clause 9.1, We shall not be liable to You for any:
9.2.1. loss of profits;
9.2.2. loss of business;
9.2.3. depletion of goodwill and/or similar losses;
9.2.4. loss or corruption of data or information;
9.2.5. loss of anticipated savings;
9.2.6. loss of goods;
9.2.7. loss of contract;
9.2.8. loss of use; or
9.2.9. any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
9.3. Subject to clause 9.1, Our total aggregate liability under or in connection with the Contract, whether in contract, tort (including negligence) or otherwise, shall be limited to the total charges paid by You for the Services in the 12 months immediately preceding the event giving rise to the claim.
9.4. The parties expressly agree that if any limitation or provision contained or expressly referred to in this clause 9 is held to be invalid under any Applicable Law, it shall be deemed omitted to that extent, and if any party becomes liable for loss or damage which would otherwise have been excluded, such liability shall be subject to the other limitations and provisions set out in this clause 9.
9.5. We shall not be liable for:
9.5.1. any delays in provision of the Services caused by any third-party supplier or carrier; or
9.5.2. any failure or delay in performing Our obligations under the Contract to the extent that such failure or delay is caused by Your acts or omissions.
10. Confidentiality
10.1. Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any Confidential Information, except as permitted by clause 10.2.
10.2. Each party may disclose the other party’s Confidential Information:
10.2.1. to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s Confidential Information comply with this clause 10; and
10.2.2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
10.3. No party shall use any other party’s Confidential Information for any purpose other than to perform its obligations under the Contract.
10.3.1. The provisions of this clause 10 shall not apply to any Confidential Information which:
10.3.1.1. is or becomes generally available to the public (other than as a result of disclosure in breach of this clause 10);
10.3.1.2. was available to the receiving party on a non-confidential basis prior to disclosure by the disclosing party;
10.3.1.3. was, is, or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party’s knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information; or
10.3.1.4. the parties agree in writing is not confidential or may be disclosed.
11. Personal Data
11.1. Both parties shall comply with all applicable requirements of the Data Protection Laws. This clause 11 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Laws.
11.2. The parties acknowledge that for the purposes of the Data Protection Laws, You are the Data Controller and We are the Data Processor.
11.3. We shall, in relation to any Customer Personal Data processed in connection with the performance by Us of Our obligations under the Contract:
11.3.1. process that Customer Personal Data only on Your written instructions unless We are required by Applicable Laws to otherwise process that Customer Personal Data. Where We are relying on Applicable Laws as the basis for processing Customer Personal Data, We shall promptly notify You of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Us from so notifying You;
11.3.2. ensure that We have in place appropriate technical and organisational measures, reviewed and approved by You, to protect against unauthorised or unlawful processing of Customer Personal Data and against accidental loss or destruction of, or damage to, Customer Personal Data;
11.3.3. ensure that all Our Personnel who have access to and/or process Customer Personal Data are obliged to keep the Customer Personal Data confidential; and
11.3.4. not transfer any Customer Personal Data outside of the European Economic Area unless Your prior written consent has been obtained and the following conditions are fulfilled:
11.3.4.1. You or We have provided appropriate safeguards in relation to the transfer;
11.3.4.2. the Data Subject has enforceable rights and effective legal remedies;
11.3.4.3. We comply with Our obligations under the Data Protection Laws by providing an adequate level of protection to any Customer Personal Data that is transferred; and
11.3.4.4. We comply with reasonable instructions notified to Us in advance by You with respect to the processing of the Customer Personal Data.
11.4. You consent to Us appointing Subcontractors as third-party processors of Customer Personal Data under the Contract. We confirm that We have entered, or (as the case may be) will enter with the third-party processor into a written agreement substantially on that third party’s standard terms of business or incorporating terms which are substantially similar to those set out in this clause 11. As between You and Us, We shall remain fully liable for all acts or omissions of any third-party processor appointed by Us pursuant to this clause 11.
11.5. We shall assist You, at Your cost, in responding to any request from a Data Subject and in ensuring compliance with Your obligations under the Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators.
11.6. We shall notify You without undue delay on becoming aware of a Personal Data breach.
11.7. At Your written direction, We shall delete or return Customer Personal Data and copies thereof to You on termination of the Contract unless required by Applicable Law to store the Customer Personal Data.
11.8. We shall maintain complete and accurate records and information to demonstrate Our compliance with this clause 11 and allow for audits by You or Your designated auditor.
11.9. Each party shall ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, 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.
11.10. Each party shall ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential.
11.11. Neither party shall transfer any Personal Data outside of the European Economic Area unless the following conditions are fulfilled:
11.11.1. the other party or We have provided appropriate safeguards in relation to the transfer;
11.11.2. the Data Subject has enforceable rights and effective legal remedies;
11.11.3. the transferring party complies with its obligations under the Data Protection Laws by providing an adequate level of protection to any Personal Data that is transferred; and
11.11.4. the transferring party complies with reasonable instructions notified to it in advance by the other party with respect to the processing of the Personal Data.
11.12. Each party shall assist the other, at the other’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators.
11.13. Each party shall notify the other without undue delay on becoming aware of a Personal Data breach.
11.14. Each party shall at the written direction of the other delete or return Personal Data and copies thereof to the other on termination of the Contract unless required by Applicable Law to store the Personal Data.
11.15. Each party shall maintain complete and accurate records and information to demonstrate its compliance with this clause 11.
11.16. Each party shall indemnify the other against all costs, claims, damages or expenses incurred by the other due to any failure by it to comply with its obligations under this clause 11.
11.17. The parties agree to enter into the Standard Contractual Clauses (controller to processor transfers) for the transfer of Personal Data to processors established in third countries, as set out in the European Commission’s Decision 2010/87/EU of 5 February 2010, as may be amended from time to time.
11.18. This clause 11 shall survive termination of the Contract.
12. Security, Business Continuity & Disaster Recovery
12.1. We shall ensure that at all times during the Term, We have and maintain appropriate technical and organisational security measures to safeguard Customer Data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access and against all other unlawful forms of processing.
12.2. We shall implement and maintain appropriate business continuity and disaster recovery policies and procedures.
12.3. We shall test such business continuity and disaster recovery arrangements at least annually and shall provide You with a copy of the results of such test following completion.
12.4. We shall notify You without undue delay upon becoming aware of any security incident affecting Customer Data.
12.5. You acknowledge and agree that You are solely responsible for taking appropriate measures to ensure the security of Your Systems and data when accessing and using the Services.
12.6. We shall not be responsible for any failure or delay in the performance of Our obligations under the Contract to the extent such failure or delay is caused by Your acts or omissions.
12.7. You shall take all reasonable precautions to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify Us.
12.8. This clause 12 shall survive termination of the Contract.
13. Intellectual Property Rights
13.1. All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by You) shall be owned by Us.
13.2. You acknowledge and agree that We and/or Our licensors own all Intellectual Property Rights in the Services. Except as expressly stated herein, the Contract does not grant You any rights to, under, or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services.
13.3. We grant to You a fully paid-up, worldwide, non-exclusive, royalty-free licence during the Term of the Contract to copy and use the Deliverables for the purpose of receiving and using the Services.
13.4. You shall not sub-license, assign or otherwise transfer the rights granted in clause 13.3.
13.5. You shall not remove or obscure Our name or Our licensors’ proprietary rights notices from the Deliverables or Services.
13.6. You shall not attempt to decompile, disassemble or reverse engineer the Deliverables or Services, except to the extent permitted by law.
13.7. We shall indemnify You against all damages, losses and expenses (including reasonable legal costs) arising as a result of any action or claim that the Deliverables infringe any Intellectual Property Rights in the United Kingdom.
13.8. The indemnity in clause 13.7 shall not apply to the extent that the relevant claim arises from:
13.8.1. use of the Deliverables otherwise than in accordance with the Contract;
13.8.2. modifications or alterations of the Deliverables by You or by any third party without Our prior written consent; or
13.8.3. compliance with Your specifications or instructions.
13.9. This clause 13 shall survive termination of the Contract.
14. Suspension of Services &/or Products
14.1. We may suspend the Services and/or Products if You fail to pay any amount due under the Contract on the due date for payment and remain in default not less than 15 days after being notified in writing to make such payment.
14.2. We may suspend the Services and/or Products if You commit a material breach of any term of the Contract which is irremediable or (if such breach is remediable) You fail to remedy that breach within a period of 30 days after being notified in writing to do so.
14.3. We may suspend the Services and/or Products if required by Applicable Laws or by any governmental or regulatory authority.
15. Warranties
15.1. We warrant that the Services will be performed with reasonable skill and care and in accordance with Good Industry Practice.
15.2. We warrant that the Products will conform in all material respects with their description and be free from material defects in design, material and workmanship at the time of delivery.
15.3. We do not warrant that the Services or Deliverables will be free from errors or that they will meet Your particular requirements.
15.4. We do not warrant that the Products will be fit for any particular purpose, whether or not such purpose has been notified to Us.
15.5. Except as expressly provided in the Contract, all warranties, conditions and other terms implied by statute, common law or otherwise are, to the fullest extent permitted by law, excluded from the Contract.
15.6. This clause 15 shall survive termination of the Contract.
16. Term & Termination
16.1. The Contract shall commence on the Effective Date and shall continue for the Initial Term and, thereafter, shall automatically extend for successive periods of 12 months (each a “Renewal Term”) unless either party gives written notice to the other party, not later than 90 days before the end of the Initial Term or the relevant Renewal Term, to terminate the Contract at the end of the Initial Term or the relevant Renewal Term, as applicable (the Initial Term together with any Renewal Terms being the “Term”).
16.2. 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:
16.2.1. the other party commits a material breach of any term of the Contract which is irremediable or (if such breach is remediable) fails to remedy that breach within 30 days after being notified in writing to do so;
16.2.2. the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
16.2.3. the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on, all or a substantial part of its business; or
16.2.4. the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
16.3. Without affecting any other right or remedy available to it, We may terminate the Contract with immediate effect by giving written notice to You if:
16.3.1. You fail to pay any amount due under the Contract on the due date for payment and remain in default not less than 15 days after being notified in writing to make such payment; or
16.3.2. You are subject to a change of Control without Our prior written consent.
16.4. For the purposes of clause 16.3.2 “Control” shall mean, in relation to a person, the power to direct or cause the direction of the management and policies of that person, whether directly or indirectly, and whether through the ownership of voting securities, by contract or otherwise, and includes the ownership directly or indirectly of more than fifty per cent (50%) of the voting securities of a person.
16.5. Without affecting any other right or remedy available to it, either party may terminate the Contract at any time by giving not less than 30 days’ written notice to the other party.
16.6. Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination.
16.7. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
16.8. On termination of the Contract, You shall immediately pay to Us all outstanding unpaid invoices and interest.
17. Effect of Termination
17.1. On termination of the Contract for any reason:
17.1.1. all licences granted under the Contract shall immediately terminate;
17.1.2. each party shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other party; and
17.1.3. subject to clause 11, each party shall promptly return or destroy (as directed by the other party) all Confidential Information.
17.2. Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination.
18. Exit Assistance
18.1. In the event of termination or expiry of the Contract (the “Exit Period”), We shall provide such reasonable assistance as You may require to transfer the Services to You or to a replacement supplier.
18.2. The scope of Exit Services shall be set out in an Exit Plan to be agreed between the parties.
18.3. We shall continue to provide the Services during the Exit Period to the extent reasonably required by You.
18.4. We shall use reasonable endeavours to ensure that the Exit Services are provided with the aim of achieving an orderly transition of the Services with minimal disruption.
18.5. Unless otherwise agreed, the Exit Period shall not exceed six months from termination or expiry.
18.6. The charges for the Exit Services shall be at Our standard rates unless otherwise agreed in writing.
19. Change Control
19.1. Either party may propose changes to the Services.
19.2. Any proposed change shall be discussed by the parties and, if agreed, recorded in writing and signed by authorised representatives of both parties.
19.3. No change shall take effect until it has been agreed in accordance with clause 19.2.
19.4. Where a change is required by Applicable Laws, We shall implement such change as soon as reasonably practicable and the parties shall discuss and agree any impact on the Services and charges.
20. Audit
20.1. You may, on giving reasonable notice, audit Our compliance with the Contract.
20.2. We shall provide reasonable access to relevant records, systems and personnel.
20.3. Audits shall be conducted during normal business hours and in a manner that does not unreasonably interfere with Our business.
20.4. If an audit identifies a material non-compliance, We shall promptly remedy it at Our own cost.
20.5. Each party shall bear its own costs of an audit, unless the audit identifies a material breach by Us, in which case We shall reimburse Your reasonable costs.
21. Non-Solicitation of Employees
21.1. During the Term of the Contract and for a period of 12 months following its termination, neither party shall, without the prior written consent of the other, directly or indirectly solicit, entice or employ (or attempt to solicit, entice or employ) any person who is, or has been, employed or engaged by the other party in connection with the Contract.
21.2. Nothing in clause 21.1 shall prevent either party from employing any person who has responded to a bona fide recruitment campaign initiated through a public advertisement or by an employment agency not specifically targeting any of the staff of the other party.
21.3. If either party breaches clause 21.1, the breaching party shall, on demand, pay to the other party a sum equal to 30% of the then current annual remuneration of the employee or contractor, or, if higher, 30% of the annual remuneration to be paid by the breaching party to that employee or contractor.
22. Force Majeure
22.1. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure results from events, circumstances or causes beyond its reasonable control (a “Force Majeure Event”).
22.2. The affected party shall notify the other party as soon as reasonably practicable of the occurrence of a Force Majeure Event.
22.3. The time for performance of such obligations shall be extended accordingly.
22.4. If the period of delay or non-performance continues for four weeks, the party not affected may terminate the Contract by giving seven days’ written notice to the affected party.
22.5. Termination under this clause 22 shall not affect any rights or obligations accrued prior to termination.
23. Additional Terms
23.1. The Contract constitutes the entire agreement between the parties and supersedes all previous agreements and understandings between them.
23.2. Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty not expressly set out in the Contract.
23.3. No variation of the Contract shall be effective unless it is in writing and signed by authorised representatives of both parties.
23.4. If any provision of the Contract is found to be invalid or unenforceable, it shall be deemed deleted, but the rest of the Contract shall continue in full force.
23.5. No failure or delay by a party to exercise any right or remedy provided under the Contract shall constitute a waiver of that right or remedy.
23.6. Except as expressly provided in the Contract, a person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
23.7. The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under the Contract are not subject to the consent of any other person.
23.8. Nothing in the Contract is intended to or shall operate to create a partnership or joint venture between the parties.
23.9. Each party is an independent contractor and no party shall have authority to act as agent for, or bind, the other party.
23.10. Each party shall, at its own cost, do and execute, or arrange for the doing and executing of, any further acts, documents and things as may reasonably be required to give full effect to the Contract.
23.11. The Contract may be executed in counterparts, each of which shall constitute a duplicate original, but all counterparts together shall constitute the one agreement.
23.12. Where You are a public authority subject to the Freedom of Information Act 2000 (FOIA) or the Environmental Information Regulations 2004 (EIR):
23.12.1. You shall be responsible for determining whether any information must be disclosed in response to a request for information under FOIA or EIR;
23.12.2. We shall provide all necessary assistance and cooperation as reasonably requested by You to enable You to comply with Your obligations under FOIA or EIR;
23.12.3. We acknowledge that You may be obliged under FOIA or EIR to disclose information without consulting or obtaining consent from Us; and
23.12.4. notwithstanding anything to the contrary in the Contract, We shall not be in breach of the Contract if We disclose information in accordance with FOIA or EIR.
24. Notices
24.1. Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
24.1.1. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office; or
24.1.2. sent by email to the address specified in the Proposal or otherwise agreed by the parties.
24.2. Any notice shall be deemed to have been received:
24.2.1. if delivered by hand, on signature of a delivery receipt;
24.2.2. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
24.2.3. if sent by email, at the time of transmission, or, if this time falls outside business hours, at 9.00 am on the next Business Day.
24.3. This clause does not apply to the service of any proceedings or other documents in any legal action.
25. Dispute Resolution
25.1. If a dispute arises out of or in connection with the Contract, the parties shall first attempt to resolve it through good faith discussions between senior managers.
25.2. If the dispute is not resolved within 14 days, either party may escalate it to the directors of the parties, who shall meet and attempt to resolve it.
25.3. If the dispute is not resolved within 28 days of escalation to directors:
25.3.1. the parties will attempt to settle it by mediation in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure; and
25.3.2. if the dispute is not resolved within 60 days of the start of mediation, either party may commence court proceedings.
26. Regulatory Compliance
26.1. Each party shall comply with all Applicable Laws and regulatory requirements in the performance of the Contract.
26.2. Each party shall promptly notify the other if it becomes aware of any actual or potential breach of Applicable Laws or regulatory requirements in relation to the Contract.
27. Anti-Bribery
27.1. Each party shall:
27.1.1. comply with all Applicable Laws relating to anti-bribery and anti-corruption;
27.1.2. not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010;
27.1.3. have and maintain in place throughout the Term its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance;
27.1.4. promptly report to the other party any request or demand for any undue financial or other advantage of any kind received by it in connection with the performance of the Contract;
27.1.5. immediately notify the other party if a foreign public official becomes an officer or employee of it, or acquires a direct or indirect interest in it; and
27.1.6. ensure that all persons associated with it comply with this clause 27.
28. Governing Law & Jurisdiction
28.1. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by and construed in accordance with the law of England and Wales.
28.2. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract.
