1. Definitions and interpretation

1.1. Terms defined in the Contract Details shall have the same meanings in these Terms and Conditions. The following additional definitions shall apply to these Terms and Conditions:

Applicable Laws: means all applicable laws, statutes, regulations and codes from time to time in force.

Charges: means the sums payable for the Services, as set out in the Contract Details.

Contract Details: means the relevant contract details agreed between Customer and the Supplier which incorporate these Terms and Conditions.

Customer Materials: means all documents, information, items, systems and materials in any form, whether owned by the Customer or a third party, which are provided by the Customer to the Supplier to use in connection with the Services, including the items provided pursuant to clause 3.1.2.

Data Protection Legislation: to the extent applicable to a party, the UK Data Protection Legislation, the EU GDPR and any other legislation and regulatory requirements relating to the use of personal data (including, without limitation, the privacy of electronic communications) which are in force from time to time in any relevant jurisdiction, and shall include any applicable laws, rules, regulations or guidance relating to cross-border transfers of personal data, including the UK International Data Transfer Agreement (IDTA) and/or the UK Addendum to the EU Standard Contractual Clauses (SCCs).

Deliverables: means all documents, products and materials developed by the Supplier or its agents, subcontractors and personnel as part of or in relation to the Services in any form, including without limitation computer programs, data, reports and specifications (including drafts) and the Deliverables set out in the Contract Details.

EU GDPR: the General Data Protection Regulation ((EU) 2016/679).

Services: means the services, including without limitation any Deliverables, described in the Contract Details to be provided by the Supplier to the Customer.

Supplier IPRs: means all intellectual property rights owned by the Supplier and/or its licensors prior to entering into this Agreement or which are developed by the Supplier and/or its licensors outside of the performance of the Services.

UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the Data Protection Act 2018, the UK GDPR and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.

UK GDPR: has the meaning given to it in the Data Protection Act 2018.

2. Commencement and Term

2.1. The Supplier shall provide the Services to Customer from the Services Start Date in accordance with the terms of this Agreement, until such time as this Agreement is terminated in accordance with its terms.

3. Customer’s obligations

3.1. The Customer shall:

3.1.1. co-operate with the Supplier in all matters relating to the Services;

3.1.2. provide to the Supplier in a timely manner all documents, information, items and materials in any form (whether owned by the Customer or third party) required under the Contract Details or otherwise reasonably required by the Supplier in connection with the Services and ensure that they are accurate and complete in all material respects; and

3.1.3. obtain and maintain all necessary licenses and consents and comply with all relevant legislation as required to enable the Supplier to provide the Services, including in relation to the use of all Customer Materials, in all cases before the date on which the Services are to start.

3.2. If the Supplier’s performance of its obligations under this agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, then, without prejudice to any other right or remedy it may have, the Supplier shall:

3.2.1. not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay;

3.2.2. be entitled to payment of the Charges despite any such prevention or delay;

3.2.3. be entitled to recover any additional costs, charges or losses the Supplier sustains or incurs that arise directly or indirectly from such prevention or delay; and

3.2.4. be allowed an extension of time, if appropriate, to perform its obligations equal to the delay caused by the Customer.

4. Charges and Payment

4.1. In consideration of the provision of the Services by the Supplier, the Customer shall pay the Supplier the Charges in accordance with the Contract Details and this clause 4.

4.2. Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier any sum due under this Agreement on the due date:

4.2.1. the Supplier may suspend all or part of the Services until payment has been made in full;

4.2.2. the Customer shall pay interest on the overdue amount at the rate of five percent (5%) per annum above Barclays Bank’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount; and

4.2.3. the Supplier reserves the right to be paid on an indemnity basis by the Customer any costs incurred in recovering any money due under this agreement (and the costs of recovering such costs) including the Supplier’s administrative costs and any costs incurred with lawyers or debt collection agencies. The Supplier’s administrative costs may include the cost of employing the staff concerned and the overheads attributable to them for the time spent.

4.3. All sums payable by the Customer to the Supplier under this Agreement:

4.3.1. are exclusive of VAT, and the Customer shall, in addition, pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and

4.3.2. 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).

5. Intellectual Property Rights

5.1. The Customer and its licensors shall retain ownership of all intellectual property rights in the Customer Materials. The Customer grants the Supplier a fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable licence to use, copy and modify the Customer Materials for the term of this Agreement for the purpose of providing the Services to the Customer in accordance with this Agreement.

5.2. The Supplier and its licensors shall retain ownership of all Supplier IPRs. The Supplier hereby assigns all intellectual property rights in the Deliverables, excluding any Supplier IPRs, to Customer. The Supplier grants the Customer a fully paid-up, worldwide, non-exclusive, royalty-free, perpetual and irrevocable licence to use, copy and modify the Supplier IPRs contained in any Deliverables as necessary for the purposes of receiving and using the Deliverables in its business.

5.3. Nothing in this Agreement shall restrict the Supplier from using any skills, experience and/or know-how gained in performing the Services, provided always that such use does not breach clause 6 or 11 of these Terms and Conditions.

5.4. The Customer hereby permits the Supplier to use its name and branding to publicise the fact that the Customer is a client of the Supplier in its marketing and promotional materials.

6. Data Protection

6.1. Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 6 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.

6.2. The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller and the Supplier is the processor of the personal data set out in this clause 6.

6.3. The scope of the processing by the Supplier is the Supplier’s provision of the Services to Customer.

6.4. The nature and purpose of processing by the Supplier is any processing required for the purposes of providing the Services to Customer in accordance with this Agreement.

6.5. The duration of the processing is the term of this Agreement until deletion of all personal data by the Supplier in accordance with this Agreement.

6.6. The types of personal data processed by the Supplier are:

First Name, Last Name, Job Title, Company Name, Company Location, Email Address, LinkedIn profile url and any other categories of personal data that may be requested from time to time by Customer in writing.

6.7. The categories of data subject whose personal data will be processed by the Supplier are: employees, directors and other personnel of Customer’s sales prospects.

6.8. Without prejudice to the generality of clause 6.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Supplier or the lawful collection of the same by the Supplier for the duration and purposes of this Agreement.

6.9. Without prejudice to the generality of clause 6.1, the Supplier shall, in relation to any personal data processed in connection with the performance by the Supplier of its obligations under this Agreement:

6.9.1. process that personal data only on the documented written instructions of the Customer which shall be to process the personal data for the purposes set out in clause 6.4 above, unless the Supplier is required by Applicable Laws to otherwise process that personal data. Where the Supplier is relying on Applicable Laws as the basis for processing personal data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Customer;

6.9.2. 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, having regard to the state of technological development and the cost of implementing any measures;

6.9.3. ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential;

6.9.4. not transfer any personal data outside of the UK unless the Supplier has ensured that such transfers are effected in accordance with Data Protection Legislation. For these purposes, the Customer shall promptly comply with any reasonable request of the Supplier, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the Information Commission from time to time (where the UK GDPR applies to the transfer);

6.9.5. assist the Customer, at the Customer’s cost, insofar as this is possible (taking into account the nature of the processing and the information available to the Supplier) in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

6.9.6. notify the Customer without undue delay on becoming aware of a personal data breach involving the Customer’s personal data;

6.9.7. at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of this Agreement unless required by Applicable Law to store the personal data. For the purposes of this clause 6.9.7 personal data shall be considered deleted when it is put beyond further use by the Supplier;

6.9.8. maintain complete and accurate records and information to demonstrate its compliance with this clause 6 and allow the Customer and its auditors (provided such auditors are subject to confidentiality obligations reasonably acceptable to the Supplier), at the Customer’s own cost and expense and upon reasonable prior written notice not more than once in any 12 month period (unless required more frequently by any regulatory authority), to conduct audits or inspections during the term and for 12 months thereafter, in connection with the processing of any such personal data to ensure any processing by the Supplier is in accordance with Data Protection Legislation; and

6.9.9. promptly inform the Customer if, in the opinion of the Supplier, an instruction infringes the Data Protection Legislation. If, after the Supplier has informed the Customer that in the opinion of the Supplier an instruction infringes the Data Protection Legislation the Customer confirms the instruction, The Customer shall indemnify the Supplier in full against any costs, losses or expense (including, but not limited to any third party claim, fine or award) incurred by Supplier as a result of Supplier following Customer’s instruction.

6.9.10. Where personal data is transferred outside the UK or EEA to a country without an adequacy decision, the Supplier shall ensure that such transfer is governed by: (a) the UK International Data Transfer Agreement (IDTA) or UK Addendum to the EU Standard Contractual Clauses (SCCs) as applicable; or (b) any replacement standard contractual clauses approved under the UK GDPR or EU GDPR, as relevant; or (c) any other international data transfer mechanism approved by the Information Commissioner's Office from time to time.

6.10. The Customer hereby provides its prior, general authorisation for the Supplier to appoint sub-processors to process the Customer’s personal data, provided that the Supplier:

6.10.1. shall ensure that the terms on which it appoints such sub-processors comply with Data Protection Legislation and are consistent with the obligations imposed on the Supplier in this clause 6;

6.10.2. shall remain responsible for the acts and omission of any such sub-processor as if they were the acts and omissions of the Supplier; and

6.10.3. shall inform the Customer of any intended changes concerning the addition or replacement of the sub-processors, thereby giving the Customer the opportunity to object to such changes provided that any such objection is based on an actual or likely breach of Data Protection Legislation. In the event the Customer objects to a new sub-processor, the parties shall discuss in good faith a resolution to the objection. Such discussions shall not affect the Supplier’s rights to use the new sub-processor.

6.11. For the purposes of this clause 6 the terms “controller“, “personal data“, “personal data breach”, “process”, “processor” and “processing” shall have the meanings set out in the UK Data Protection Legislation and “sub-processor” means any third party appointed by or on behalf of Supplier to process the Customer’s personal data in connection with this Agreement.

7. Limitation of Liability

7.1. Nothing in this Agreement shall limit or exclude the Supplier’s liability for:

7.1.1. death or personal injury caused by its negligence;

7.1.2. fraud or fraudulent misrepresentation; or

7.1.3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or

7.1.4. any other liability which cannot be limited or excluded by applicable law.

7.2. The terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this Agreement.

7.3. The Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement for:

• loss of profits;
• loss of sales or business;
• loss of agreements or contracts;
• loss of anticipated savings;
• loss of or damage to goodwill;
• loss of use or corruption of software, data or information; and
• any indirect or consequential loss.

7.4. Each party’s total liability to the other party, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement shall be limited:

7.4.1. in the case of any breach of clause 6 to £100,000 in the aggregate; and

7.4.2. for all other liabilities to the fees paid by the Customer to the Supplier in the 12 months preceding the date of the claim and if in the first 12 months, the fees paid or payable.

8. Termination

8.1. Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:

8.1.1. the other party commits a material breach of any term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of ten (10) days after being notified in writing to do so. For the avoidance of doubt late payment of any Charges shall constitute a material breach of this Agreement; or

8.1.2. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;

8.2. Where this Agreement is terminated by the Supplier due to the Customer’s breach, the Customer shall pay early termination charges to the Supplier equivalent to 2 months’ Charges for the Services.

8.3. On termination or expiry of this Agreement:

8.3.1. the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt;

8.3.2. the following clauses shall continue in force: section 2 of the Contract Details and clauses 1, 4, 5, 6, 7, 8.3, 11, 12 and 13 of these Terms and Conditions; and

8.3.3. termination of this Agreement shall not affect 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 this Agreement which existed at or before the date of termination.

9. Force Majeure

9.1. Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control (“Force Majeure Event”). The time for the performance of such obligations shall be extended accordingly.

10. Assignment and Other Dealings

10.1. This Agreement is personal to the Customer and the Customer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement.

10.2. The Supplier may at any time assign, mortgage, charge, subcontract declare a trust over or deal in any other manner with any or all of its rights and/or obligations under this Agreement. Where the Supplier subcontracts any of its obligations under this Agreement it shall remain liable for the performance of this Agreement and the acts and/or omissions of the Supplier’s subcontractors shall be deemed to be the acts and/or omissions of the Supplier.

11. Confidentiality

11.1. Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 11.2.

11.2. Each Party may disclose the other party’s confidential information:

11.2.1. to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this Agreement. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 11; and

11.2.2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

11.3. Neither party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement.

12. Non-Solicitation

12.1. The Customer shall not, without the prior written consent of the Supplier, at any time from the date of this Agreement to the expiry of twelve (12) months after the termination or expiry of this Agreement solicit or entice away from the Supplier or employ or attempt to employ directly or indirectly (for example through taking up services of another company or through a consulting arrangement) any person who is, or has been, engaged as an employee, consultant or subcontractor of the Supplier in the provision of the Services in the preceding twelve (12) months.

12.2. If the Customer breaches clause 12.1, the Customer shall pay to the Supplier a sum equivalent to 40% of the annual remuneration to be paid by the Customer to that employee, consultant or subcontractor plus recruitment costs incurred by the Supplier in replacing such person. The parties confirm that these liquidated damages are reasonable and proportionate to protect the legitimate interests of the Supplier.

13. General

13.1. This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements between them, whether written or oral, relating to its subject matter.

13.2. Each party acknowledges that in entering into this Agreement it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Agreement.

13.3. The Supplier may vary these Terms and Conditions at any time by giving written notice to the Customer at least thirty (30) days in advance. Other than as stated in this clause 13.3, no variation of this Agreement shall be effective unless it is in writing and signed by the parties.

13.4. A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.

13.5. A failure or delay by a party to exercise any right or remedy provided under this 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.

13.6. Any notice given to a party under or in connection with this Agreement shall be sent via email to the corporate email address of the other party provided in the Contract Details or such other email address as may be notified by the parties from time to time. Any notice given by either party shall be deemed to have been received at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a bank or public holiday in the place of receipt.

13.7. This Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.

13.8. This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

13.9. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.