1.1 – In these Conditions:
Company means ITC Global Security Limited (Co No 3006157) whose principal office is at 10th Floor, 5 Churchill Place, London E14 5HU and any subsidiary or holding company of the Company, where “subsidiary” and “holding company” have the meanings given in the Companies Act 2006 s1159 (as amended from time to time);
Conditions means the standard terms and conditions set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Customer and the Company;
Confidential Information means any information, in whatever form, which is commercial in nature relating to either the Company or the Customer or any Goods or Services and which is obviously confidential or has been identified as such, or which may reasonably be considered by a business person to be commercially sensitive;
Contract means the agreement between the Company and the Customer for the supply of the Goods and/or Services incorporating these Conditions and the Order together with any Third Party Conditions;
Customer means the person or firm who purchases the Goods and/or Services from the Company on the terms of the Contract;
Controller has the meaning set out in the Data Protection Laws from time to time;
Data Protection Laws means the Data Protection Act 2018, the General Data Protection Regulation 2016/679 (‘GDPR’) or any equivalent provision or national legislation which may replace the GDPR following the formal political separation of the United Kingdom from the European Union;
Distributed Software means third party software products, including databases and operating systems;
Deliverables means any documents, products and materials created by the Company for the Customer in relation to the Services;
Documentation means manuals, handbooks, maintenance libraries, brochures and publications supplied with the Goods which have not been written by the Company;
Equipment means all or part of the hardware and/or software as listed in the Order;
Goods means the goods (including any instalment of the goods or any parts for them) which the Company is to supply in accordance with the Contract;
Incoterms 2010 means the 2010 version of the international trade terms of the International Chamber of Commerce;
Intellectual Property Rights means all patents, topography rights, design rights, trademarks, trade names, copyrights, rights in databases, rights in goodwill, rights in get-up, sui generis rights, rights to sue for passing off, domain names, trade secrets and other confidential information, know-how and all other intellectual property rights of a similar nature, whether registered or not, including any application to protect or register such rights, including all renewals and extension of such rights or applications, whether vested, contingent or future to which the relevant party may be entitled, in any part of the world existing;
Location means the address for delivery of the Goods and performance of the Services as set out in the Order or as otherwise agreed in writing between the parties;
Order means the Customer’s written order for the Goods and/or Services, on the basis of the Company’s written quotation or Proposal and which can be in the form of a Proposal signed by the Customer;
Personal Data has the meaning set out in the Data Protection Laws from time to time;
Proposal means the written document prepared by the Company detailing the services it proposes to supply to the Customer;
Proprietary Software means software which is not Distributed Software;
Services means the services set out in the Order or otherwise agreed by the parties in writing as services to be included in the Services and to be supplied by the Company to the Customer;
Specific Agreement means a contractual document relating to the specific subject matter of the Contract distinct from these Conditions which is agreed in writing between the parties and signed by a director of the Company;
Supported Software means software developed by a third party, for which the Company has agreed to provide support as detailed in the Order;
Third Party Conditions means the terms and conditions of any Third Party Supplier engaged by the Company in the provision of the Services;
Third Party Services means any part of the Services that are substantially provided by a third party and which is bought by the Company and resold to the Customer and as more fully set out in the Order; and
Third Party Supplier means relevant third party supplier or contractor engaged by the Company to provide the Third Party Services.
1.2 – References to statutory provisions shall be construed as a reference to that provision as amended, replaced, re-enacted or extended from time to time and includes any subordinate legislation for the time being in force made under it.
1.3 – The headings in these Conditions are for convenience only and shall not affect the interpretation and construction of the Conditions.
1.4 – Where the context so admits or requires, words denoting the singular include the plural and vice versa.
1.5 – A reference to one gender includes a reference to the other gender.
1.6 – References to “including” and “include(s)” shall be deemed to mean respectively “including without limitation” and “include(s) without limitation”.
1.7 – References to the Contract includes these Conditions, the Order and their respective schedules, appendices and annexes (if any).
1.8 – A reference to a party means either the Company or the Customer and includes that party’s personal representatives, successors and permitted assigns.
2. Basis of the sale and/or supply
2.1 – These Conditions apply to and form part of the Contract between the Company and the Customer. They supersede any previously issued terms and conditions of purchase or supply. No terms or conditions endorsed on, delivered with or contained in the Customer’s purchaser conditions, order, confirmation of order, specification or other document shall form part of the Contract except to the extent that the Company agrees in writing.
2.2 – Subject to the terms of any Specific Agreement, the Company shall sell and the Customer shall purchase the Goods and/or Services in accordance with any Order of the Customer. Each Order by the Customer to the Company shall be an offer to purchase the Goods and/or Services subject to these Conditions.
2.3 – No variation to these Conditions or to an Order or to the Contract, shall be binding unless agreed in writing between the authorised representatives of the Customer and the Company provided that in the event of conflict those expressed in the accepted associated Order prevail.
2.4 – Any typographical, clerical or other similar error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
2.5 – Any part of the Services provided by a Third Party Supplier shall be provided upon the basis of and to the standards set out in the relevant Third Party Conditions, and the Customer shall be entitled to any benefits arising from the terms of the Third Party Conditions as if the Customer were named in and bound by such terms in the place of the Company, and as if the Company were named in the place of the applicable Third Party Provider.
2.6 – Where any part of the Services are being provided by a Third Party Supplier, the parties agree that:
2.6.1 – in the event of any delay or failure in the provision of services by any Third Party Supplier which is related to services that the Company will be relying on the applicable Third Party Provider to provide, the Company shall inform the Customer of the delay and take all reasonable steps available to it under the Third Party Conditions to require the performance of such Third Party services as soon as is reasonably practicable;
2.6.2 – the Customer shall not be entitled to any type of level of contractual remedy from the Company in respect of any Third Party Supplier services to which the Company is not itself entitled to recover from the applicable Third Party Provider under the relevant Third Party Conditions and the Customer agrees that the limitations of liability which apply between the applicable Third Party Provider and the Company in respect of such Third Party Provider services under the relevant Third Party Conditions shall equally apply (on a back-to-back basis) between the Company and the Customer in respect of such Third Party Provider services;
2.6.3 – in the event of a conflict between the terms of these Conditions and the relevant Third Party Conditions in respect of the provision of any Third Party services the terms of this clause 2.6 and of the relevant Third Party Conditions shall prevail.
3. Orders and specifications
3.1 – An Order shall not be accepted and no binding obligation to supply any Goods and/or Services shall arise until the Order is confirmed as accepted in writing by the Company’s authorised representative.
3.2 – Subject to any Specific Agreement, the Customer shall be responsible to the Company for ensuring the accuracy of the terms of any Order (including any applicable specification) submitted by the Customer, and for giving the Company any necessary information within a sufficient time to enable the Company to perform the Contract in accordance with its terms.
3.3 – The Company may issue quotations to the Customer from time to time. Quotations or Proposals are invitations to treat only. They are not an offer to supply Goods and/or Services and are incapable of being accepted by the Customer.
3.4 – The quantity, quality and description of and any specification (as the case may be) for the Goods and/or Services shall be those set out in the Company’s quotation.
3.5 – The Company may accept or reject an Order at its discretion.
3.6 – Provided that the Customer agrees in writing, the Company may make changes in the specification of the Goods which are required to confirm with any applicable statutory requirements or which do not materially affect their quality or performance.
4. Price of the Goods and/or Services
The following provisions apply in relation to the price of the Goods and/or Services:
4.1 – The price of the Goods and/or Services shall be the Company’s quoted price or that on the accepted Order. All prices quoted are valid for 30 days only or until earlier acceptance by the Customer, after which time they may be altered by the Company without giving notice to the Customer.
4.2 – All prices quoted are exclusive of VAT.
5. Payment for Goods and/or Services
5.1 – Subject to any Specific Agreement between the Customer and the Company, the Company shall be entitled to invoice the Customer for the price of the Goods and/or Services at any time after delivery or performance (as the case may be) of the Goods and/or Services. If the Goods are to be collected by the Customer or the Customer wrongfully fails to take delivery of the Goods, the Company shall be entitled to invoice the Customer for the price of the Goods at any time after the Company has notified the Customer that the Goods are ready for collection or (as the case may be) the Company has tendered delivery of the Goods.
5.2 – The Customer shall pay all undisputed invoices for Goods, in full without deduction or set-off in cleared funds within 15 days of the date of the Company’s invoice.
5.3 – The Customer shall pay all undisputed invoices for Services, in full without deduction or set-off in cleared funds within 30 days of the date of the Company’s invoice.
5.4 – The Customer shall pay any applicable VAT to the Company on receipt of a valid VAT invoice.
5.5 – The Customer reserves the right to withhold payment under disputed invoices until such time as the parties have resolved the dispute.
6. Consequences of non-payment
6.1 – Time of payment is of the essence. If the Customer fails to make any payment of any sum due to the Company (or to any company associated with the Company) by its due date then following 15 days due written notice, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to do all or any combination of the following, in any order:
6.1.1 – cancel the Contract, suspend any further deliveries of Goods or performance of Services to the Customer whether under the Contract or any other contract;
6.1.2 – charge the Customer interest (both before and after any judgment) on the amount, unpaid, at the rate of 3 per cent per annum above Barclays Bank plc base rate from time to time or at the statutory rate for the recovery of interest on late commercial debts, whichever is the higher accruing daily and compounding annually, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
7. Delivery of Goods
7.1 – The Goods will be delivered to the Location on a date agreed in writing by the parties. Goods may be delivered by the Company in advance of the quoted delivery date upon giving reasonable notice to the Customer. The Services will be performed by the Company at the Location on the dates specified in the Order or otherwise agreed in writing by the parties. The Services shall be deemed delivered by the Company only on completion of the performance of the Services at the Location.
7.2 – The Company may deliver the Goods or perform the Services in instalments. Any delay in performance or defect in an instalment shall not entitle the Customer to cancel any other instalment.
7.3 – Time is not of the essence in relation to the performance of the Services of delivery of the Goods. The Company shall use its reasonable endeavours to meet estimate dates for delivery and performance, but any such dates are approximate only.
7.4 – If the Company fails to deliver the Goods or perform the Services (or any instalment) for any reason other than any cause beyond the Company’s reasonable control or the Customer’s fault and the Company is accordingly liable to the Customer, the Company’s liability shall be limited to the excess (if any) of the cost to the Customer (in the cheapest available market) of similar goods (or services) to replace those not delivered (or not performed) over the price of the Goods (or Services).
7.5 – If the Customer fails to take delivery of the Goods or fails to give the Company adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Customer’s reasonable control or by reason of the Company’s fault) then, without prejudice to any other right or remedy available to the Company, the Company may (without being in any way obliged):
7.5.1 – store the Goods until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage; and/or (entirely at its discretion)
7.5.2 – sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the price under the Contract or charge the Customer for any shortfall below the price under the Contract.
8. Risk and property
8.1 – The Goods are at the risk of the Customer from the time of delivery.
8.2 – Ownership of the Goods shall not pass to the Customer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
8.2.1 – the Goods; and
8.2.2 – all other sums which are or which become due to the Company from the Customer on any account.
8.3 – Until ownership of the Goods has passed to the Customer, the Customer shall:
8.3.1 – hold the Goods on a fiduciary basis as the Company’s bailee;
8.3.2 – store the Goods (at no cost to the Company) separately from all other goods of the Customer or any third party in such a way that they remain readily identifiable as the Company’s property;
8.3.3 – affix a label to the Goods stating clearly that “This is the sole beneficial property of ITC Global Security Ltd Tel: 0207 5173900” and shall not destroy, deface or obscure any such label or other identifying mark or packaging on or relating to the Goods; and
8.3.4 – maintain the Goods in satisfactory condition and keep them insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Customer shall produce the policy of insurance to the Company and if the Customer is unable to provide such policy of insurance on demand the Company shall be entitled, but not required, to insure the Goods and the Customer hereby indemnifies and holds the Company indemnified in full for the cost of such policy including all premiums and other related costs.
8.4 – The Customer’s right to possession of the Goods shall terminate immediately if:
8.4.1 – the Customer becomes subject to any of the events in clauses 13.1.2 – 13.1.6; ; or
8.4.2 – the Customer or fails to observe or perform any of his/its obligations under the Contract or any other contract between the Company and the Customer; or
8.4.3 – the Customer encumbers or in any way charges any of the Goods.
8.5 – The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
8.6 – The Customer hereby grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Customer’s right to possession has terminated, to recover them.
8.7 – On termination of the Contract, howsoever caused, the Company’s (but not the Customer’s) rights contained in this clause 9 shall remain in full force and effect.
9. Service Exclusions
9.1 – The provision of the Services is contingent upon the Customer’s proper use of all Equipment and does not cover Equipment which has been subjected to unusual physical or electrical stress.
9.2 – The Company shall be under obligation to provide a Service:
9.2.1 – where the Service includes Supported Software, if the licensor withdraws support for such Supported Software (in its entirety, or in the version licensed to the Customer);
9.2.2 – where the Service include remote support, prevention of communication with the Equipment or software caused by the failure of a third party telecommunications facility.
9.3 – The Customer agrees that the Company shall not be liable to the Customer for the consequences to the Customer of any delay in performing (or failure to perform) the ITC Services to the extent that the reason (or one of the reasons) for the delay (or failure to perform) is related to:
9.3.1 – services that the Company will be relying on third parties and their installed components and software to provide, including any Third Party Services, together with such other third parties upon whom ITC shall be relying for provision of services in connection with the Services as shall be notified to the Customer by the Company in writing from time to time, whether in connection with emergency or urgent maintenance, or more generally otherwise; or
9.3.2 – any act or omission of the Customer (including any failure to comply with its obligations under the Contract), its agents, subcontractors, consultants or employees.
10.1 – The Company does not warrant:
10.1.1 – that the performance of the Services and/or delivery of the Goods will cause the Customer’s Equipment (or other hardware / software) to operate without interruption or error or to be free of problems;
10.1.2 – that the Goods and/or Services will prevent all attacks to the Customer’s IT systems;
10.1.3 – that the use of the Proprietary Software, Support Software or Distributed Software shall be uninterrupted or error free; or
10.1.4 – the form or content of Distributed Software or Documentation, which is supplied ‘as is’. Distributed Software may be warranted directly to the Customer by the respective licensor as specified in the licence from the respective licensor provided with the Distributed Software.
10.2 – The Company warrants and represents that:-
10.2.1 – it will comply with all applicable regulations, laws and requirements of any legal authority in performing its obligations under the Contract; and
10.2.2 – the Goods and/or Services meet the specifications referred to in the Order as to quantity, quality and description, and that the Goods and/or Services comply with all statutory rules and regulations in force at the time of delivery; and
10.2.3 – the Services will be performed with reasonable care and skill within the meaning of the Supply of Goods and Services Act 1982, Part II, s 13; and
10.2.4 – the Goods and Services will be of satisfactory quality within the meaning of the Sale of Goods Act 1979.
10.3 – The Company will use its reasonable endeavours to assign to the Customer the benefit of all guarantees and warranties given by the manufacturer of the Goods to the Company. Where the Company is unable to validly assign the benefit of such guarantees and indemnities, the Company agrees to use reasonable endeavours to pursue all its rights and remedies under such guarantees and warranties on behalf of the Customer.
10.4 – Any claim by the Customer which is based on any defect in the quality or condition of the Goods or their failure to correspond with the terms of the Order shall (whether or not delivery is refused by the Customer) be notified to the Company within 7 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Customer does not notify the Company accordingly, the Customer shall not be entitled to reject the Goods and the Company shall have no liability for such defect or failure, and the Customer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract. Where any valid claim in respect of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Company in accordance with these Conditions, the Company shall be entitled to replace the Goods (or part in question) free of charge or, at the Company’s sole discretion, refund to the Customer the price of the Goods for a proportionate part of the price), but the Company shall have no further liability to the Customer.
10.5 – The Company shall, at its option, correct, remedy, re-perform or refund any of the Services that do not comply with clause 9.2 or fail to correspond with the terms of the Order provided that the Customer notifies the Company within 7 days from the date of performance (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure.
10.6 – The Company shall not be liable for a breach of the warranty if:
10.6.1 – the provisions of clause 9 above apply;
the Customer makes any further use of such Goods after giving such notice:
10.6.2 – the defect arises because the Customer failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice); or
10.6.3 – the Customer alters or repairs such Goods without the written consent of the Company; or
10.6.4 – the defect in the Goods arises from any drawing, design or specification supplied by the Customer; or
10.6.5 – the defect arises from fair wear and tear, wilful damage, negligence, abnormal working conditions; or
10.6.6 – the total price for the Goods has not been paid by the due date for payment.
10.7 – Where the Customer is a consumer as defined in the Consumer Rights Act 2015, any statutory rights of the Customer shall not be affected by these Conditions.
10.8 – These Conditions shall apply to any Goods or Services that are repaired, remedied, replaced or re-performed with effect from delivery or performance of those Goods and/or Services.
11. Limitation of Liability
11.1 – The following provisions set out the Company’s entire liability (including any liability for the acts and omissions of its employees, agents or sub contractors) to the Customer under the Contract, including in respect of:
11.1.1 – any breach of its contractual obligations arising under the Contract in respect of the Goods or the Services; and
11.1.2 – any representation, statement, or tortious act or omission including negligence, arising under or in connection with the Contract, or in respect of the Goods or the Services.
11.2 – Any act or omission on the part of the Company or its employees agents or sub contractors falling within clause 11.1 above shall for the purposes of this clause 11 be known as an ‘Event of Default’.
11.3 – The Company does not exclude or limit liability to the Customer for death or personal injury caused by negligence or for fraud or fraudulent misrepresentation or where liability cannot be excluded or limited as a matter of law (including breach of any obligations implied by Section 12 of the Sale of Goods Act 1979 (as amended) or Section 2 of the Supply of Goods and Services Act 1982).
11.4 – Subject to the provisions of clause11.3 and clause 10 above, all representations, warranties, and conditions whether implied by statute or otherwise are excluded from the Contract. In the case of representations, warranties, conditions implied by statute these are excluded to the fullest extent permitted by law.
THE CUSTOMER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF THIS CLAUSE 11.5:
11.5 – Subject to the provisions of Clauses 11.3, and 11.6, the Company’s entire liability in respect of any Event of Default shall not exceed:
11.5.1 – £1,000,000 in the case of an Event of Default in respect of sudden and unforeseen damage to the physical property of the Customer resulting from the negligence of the Company or its employees agents or sub contractors ;
11.5.2 – in the case of any Event of Default in respect of the Services which is caused by the failure, fault or error of any third party software, the maximum amount which the Company is actually able to recover from the Third Party Supplier;
11.5.3 – in the case of any other Event of Default in respect of which the Company is indemnified against any loss or damage suffered by it under the terms of any insurance policy which for the time being it has in force, the amount that the Company is actually able to recover under such policy of insurance in respect of the loss or damage suffered by the Customer in respect of such Event of Default up to a maximum of £1 million;
11.5.3 – in the case of any other Event of Default, £1million.
11.6 – Subject to clause 11.3 above, the Company shall not be liable to the Customer in respect of any Event of Default for any:
11.6.1 – loss of profits (whether direct or indirect);
11.6.2 – loss of business;
11.6.3 – loss of goodwill;
11.6.4 – loss or corruption of data;
11.6.5 – loss of anticipated savings;
11.6.6 – any type of special, indirect or consequential loss (including loss or damage suffered by the Customer as a result of an action brought by a third party) even if such loss was reasonably foreseeable or the Company had been advised of the possibility of the Customer incurring the same.
11.7 – If a number of Events of Default give rise substantially to the same loss then they shall be regarded as giving rise to only one claim under the Contract.
11.8 – The Customer hereby agrees to give the Company not less than 28 days in which to remedy any Event of Default hereunder, and where remedied within such period, such event shall be deemed not to have been an Event of Default.
11.9 – The Company shall not be liable for any loss or corruption of data, as the Customer agrees that it is its own responsibility to back up all data and material on relevant storage media on a regular basis in accordance with good industry practice, and it is a condition of the Company providing the Services that the Customer complies with the terms of this clause 11.9.
12. Force Majeure
The Company reserves the right to defer the date of delivery of the Goods or performance of the Services or to cancel the Contract, or reduce the volume of the Goods ordered by the Customer (without liability to the Company) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including: acts of God; governmental actions; war or national emergency; acts of terrorism; protests; riot; civil commotion; fire; explosion; flood; epidemic; lock-outs; strikes or other labour disputes (not relating to either party’s workforce); restraints or delays affecting carriers; or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 10 (ten) days, the Customer shall be entitled to give notice in writing to the Company to terminate the Contract.
13.1 – Either party may terminate the Contract with immediate effect by giving notice in writing to the other party if the other party:
13.1.1 – commits a material breach of any term of the Contract and (if such breach is remediable) fails to remedy that breach within 14 days of being notified to do so in writing;
13.1.2 – 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, is unable to pay its debts either within in the meaning of section 123 of the Insolvency Act 1986 or the other party reasonably believes that to be the case or if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;; or
13.1.3 – suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
13.1.4 – an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of either party;
13.1.5 – suffers or allows any execution, whether legal or equitable, to be levied on its property or obtained against it; or
13.1.6 – either party reasonably apprehends that any of the events mentioned above is about to occur in relation to either party and notifies either party accordingly.
13.2 – If this clause applies then, without prejudice to any other right or remedy available to the parties , the non defaulting party shall be entitled to cancel the Contract or suspend any further deliveries (and/or performance) under the Contract without any liability to the defaulting party, and if the Goods have been delivered or the Services performed but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
14. Export terms
14.1 – Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 14 (subject to any Specific Agreement) shall apply notwithstanding any other provision of these Conditions.
14.2 – Subject to any Specific Agreement, the Goods shall be delivered Ex Works ( as defined in Incoterms 2010) subject to the following variation:
14.2.1 – the Company may arrange for carriage of the Goods but the Customer shall be responsible for any costs relating to such carriage and for the arrangement of any insurance.
14.3 – The Company reserves the right to insist that payment of all amounts due to the Company shall be made by irrevocable letters of credit opened by the Customer in favour of the Company and confirmed by a bank acceptable to the Company.
15. Obligations of the Customer
15.1 – The Customer warrants that it is the owner of the premises at which any Goods are to be installed or Services are to be performed or otherwise has the authority of all persons necessary for the installation of the Goods and/or performance of the Services.
15.2 – The Customer shall be responsible for providing a safe working environment for the Company’s employees, agents and subcontractors and appropriate and safe access to all parts of the premises at which the Goods are to be installed or the Services performed and provide free, safe and sufficient access to the Customer’s facilities, ample working space, electricity, high speed internet access and a local telephone line;
15.3 – Without prejudice to the above provisions the Customer shall co-operate generally and provide such assistance as is reasonably required to enable the Company to install the Goods and provide the Services.
15.4 – The Customer will:
15.4.1 – provide the Company with all such remote access to the Equipment as is required by the Company to provide the Services;
15.4.2 – provide the Company with all such information and materials as the Company may reasonably require in order to supply the Services and ensure that such information is accurate in all material respects;
15.4.3 – be solely responsible for ensuring it keeps adequate back-up copies of operating system software, application software and data files for the purpose of on-site software rebuilding;
16. Proprietary Rights
16.1 – The Customer acknowledges and agrees that the Company and/or its licensors own all Intellectual Property Rights in the Proprietary Software and, save as otherwise expressly set out in the Contract, all Intellectual Property Rights relating to or arising from the Services including the Deliverables. The Customer expressly acknowledges and agrees that it shall gain no rights in the Proprietary Software, nor in any coding resulting from any configuration services, nor in any trade marks relating to the Proprietary Software, nor in any Intellectual Property Rights relating to or arising from the Proprietary Software or the Services or Deliverbles, all of which shall at all times remain in the full ownership of the Company or of its licensors, as applicable.
16.2 – Except as expressly stated herein, these Conditions do not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade-marks (whether registered or unregistered), or any other rights or licences in respect of the Proprietary Software, the Services or any related documentation, including but not limited to the design, format and layout of all reports produced as part of the Services.
16.3 – The Company grants to the Customer, or shall procure the direct grant to the Customer of a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to use the Proprietary Software and any materials produced by the Supplier for the purpose of the Services, for the purpose of receiving and using the Services.
16.4 – The Company grants to the Customer a fully paid up, worldwide, non-exclusive, royalty-free licence to copy and modify the Deliverables for the purpose of receiving and using the Services and Deliverables
16.5 – The Customer shall not sub-license, assign or otherwise transfer the rights granted in clause 16.3.
16.6 – The Company confirms that it has all the rights in relation to the Proprietary Software that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of the Contract.
16.7 – Nothing in this Contract shall prevent or restrict the Company from licensing the Proprietary Software or providing the Services to any third party.
16.8 – Subject to their entering into appropriate confidentiality undertakings, the Customer may sub-license the rights granted in clause 16.4 to third parties for the purpose of the customers receipt of services similar to the Services.
17. Data Protection and Data Processing
17.1 – Each party agrees that, in the performance of its respective obligations under this Contract:
17.1.1 – it shall comply, and procure that any employee, agent and/or sub-processors (as applicable) of it shall comply, with all applicable Data Protection Laws; and
17.1.2 – it shall not by any act or omission cause the other Party (or any other person) to be in breach of any requirements of the Data Protection Laws.
17.2 – The parties agree that the Customer is the Controller in respect of any personal data of the Customer that the Company processes in the course of providing the Services to the Customer (other than business contact data processed by the Company to allow it to manage the Customer’s account).
17.3 – The Company agrees that where, in the course of providing the Services, it processes such personal data on behalf of the Customer it shall:
17.3.1 – only carry out processing of personal data in respect of which the Customer is the data controller on the Customer’s instructions from time to time, such instructions at the date of the Contract being to process the personal data in order to provide the Services to the Customer in accordance with the Contract (however if any applicable law, order or regulation requires the Company to process personal data other than in accordance with the Customer’s instructions the Company shall notify the Customer of any such requirement before processing such personal data, unless the applicable law, order or regulation prohibits such notification on important grounds of public interest);
17.3.2 – in respect of the processing of personal data, implement and maintain appropriate technical and organisational measures to protect personal data against unauthorised or unlawful processing and accidental destruction or loss, so as to protect applicable data subjects’ rights in accordance with, and assist the Customer to comply with its obligations under, applicable Data Protection Laws;
17.3.3 – where personal data is lost, damaged, destroyed or subject to unauthorised access, immediately notify the Customer in writing and take all steps required by Data Protection Laws with respect to notification and remediation;
17.3.4 – ensure that person authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
17.3.5 – include in any contract with any subcontractors who shall process such personal data directly or indirectly on the Customer’s behalf provisions which are at least equivalent to those in this clause 17.3, and the Customer hereby consents to the Contractor’s use of such subcontractors in accordance with this clause 17.3;
17.3.6 – as soon as reasonably practicable refer to the Customer any requests, notices or other communication from data subjects, the Information Commissioner or any other law enforcement authority, for the Customer to resolve;
17.3.7 – make available to the Customer such information as is reasonably required to demonstrate the parties’ compliance with their respective obligations under the Data Protection Laws and / or this clause 17.3, and allow for, permit and contribute to audits, including inspections, by the Customer (or another auditor mandated by the Customer) for this purpose at the Customer’s request from time to time.
17.4 – The Customer acknowledges and agrees that the Company may be required to transfer personal data which it processes on the Customer’s behalf to countries outside the European Economic Area (which shall be deemed to include the United Kingdom regardless of any formal separation of the United Kingdom from the rest of the European Union) or to an International Organisation (as defined in the GDPR). Subject to the Company ensuring that any such transfer will be undertaken in accordance with the applicable Data Protection Laws, the Customer hereby consents to the Customer transferring such personal data outside the European Economic Area and/or to an International Organisation (as applicable).
17.5 – The Company shall notify the Customer immediately in writing if it becomes aware or has reason to believe that it, or any of its officers, employees, agents or subcontractors have breached or potentially breached any of the Company’s obligations under applicable Data Protection Laws. Such notice shall set out full details of the circumstances concerning such breach or potential breach.
17.6 – For the avoidance of doubt, nothing in this Contract relieves either Party of any responsibilities or liabilities under Data Protection Laws.
18.1 – For the purposes of this clause 18 the expressions adequate procedures and associated with shall be construed in accordance with the Bribery Act 2010 and legislation or guidance published under it.
18.2 – Each party shall comply with applicable Bribery Laws including ensuring that it has in place adequate procedures to prevent bribery ad ensure that:
18.2.1 – all of that party’s personnel;
18.2.2 – all others associated with that party;
18.2.3 – all of that party’s subcontractors;
involved in performing the Contract so comply.
18.3 – Without limitation to clause 18.2, neither party shall make or receive any bribe (as defined in the Bribery Act 2010) or other improper payment, or allow any such to be made or received on its behalf, either in the United Kingdom or elsewhere, and shall implement and maintain adequate procedures to ensure that such bribes or payments are not made or received directly or indirectly on its behalf.
18.4 – Each party shall immediately notify the other as soon as it becomes aware of a breach of any of the requirements in this clause 18.
19.1 – The Customer undertakes, warrants and represents that:
19.1.1 – neither the Customer nor any of its officers, employees, agents or subcontractors has:
(a) committed an offence under the Modern Slavery Act 2015 (an MSA Offence);
(b) been notified that it is subject to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015;
(c) is aware of any circumstances within its supply chain that could give rise to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015
19.1.2 – it shall comply with the Modern Slavery Act 2015;
19.1.3 – it shall notify the Company immediately in writing if it becomes aware or has reason to believe that it, or any of its officers, employees, agents or subcontractors have breached any of the Customer’s obligations under clause 19.1.
20.1 – The Company may perform any of its obligations or exercise any of its rights hereunder by itself or through any other member of its group or through any associated company, provided that any act or omission of any such other member shall be deemed to be the act or omission of the Company.
20.2 – Any notice request instruction or other documents to be given under these Conditions shall be delivered or sent by first class recorded post to the address of the other party to the Contract (or such other address as may have been notified) and such notice or other document shall be deemed to have been served (if delivered) on the second business day after posting. Email and fax notices shall not be valid.
20.3 – The waiver by the Company of any breach of the Contract by the Customer shall not be considered as a waiver of any subsequent breach of the same or any other provisions nor shall any delay or omission on the part of the Company to exercise or avail itself of any right power or privilege that it has or may have under these Conditions operate as a waiver of any breach or default by the Customer.
20.4 – The Customer shall not be entitled to assign the Contract or otherwise deal with any of its rights or obligations under the Contract or any part of it without the prior written consent of the Company.
If any wording in any provision of these Conditions shall be found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall, to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness, be deemed severable and the remaining provisions of these Conditions, and the remaining wording of such provision, shall continue in full force and effect.
22. Third Parties Contracts Act
No person who is not a party to the Contract (or to these Conditions) is entitled to enforce any of its terms, whether under the Contracts (Rights of Third Parties) Act 1999 but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
23.1 – A party (“Receiving Party”) will keep confidential all Confidential Information of the other party (“Disclosing Party”) and shall only use the same as required to perform the Contract. The provisions of this clause shall not apply to:
23.1.1 – any information which was in the public domain at the date of the Contract;
23.1.2 – any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract or any related agreement;
23.1.3 – any information which is independently developed by the Receiving Party without using information supplied by the Disclosing Party; and
23.1.4 – any disclosure required by law or a regulatory authority or otherwise by the provisions of the Contract.
The Company may not refer to the Customer in the Company’s publicity material without the Customer’s prior written permission or publicise the Company’s work under this Contract. The Customer undertakes not to publicise work undertaken by the Company through the use of Customer’s name without the prior written consent of the Company.
25. Governing Law and Jurisdiction
The Contract shall be governed by the laws of England and Wales, and the Customer agrees to submit to the exclusive jurisdiction of the courts of England and Wales.