Terms & Conditions

Terms & Conditions – general, relating to all commissions

All services provided by DCP UK Ltd to the client are subject to the following general terms and conditions.

 

Contents

1. Interpretation
2. Commencement and duration
3. Supplier’s obligations
4. Customer’s obligations
5. Change control
6. Charges and payment
7. Intellectual property rights
8. Confidentiality and the Supplier’s property
9. Limitation of liability – THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
10. Termination
11. Force majeure
12. Variation
13. Waiver 11
14. Cumulative remedies
15. Severance
16. Entire agreement
17. Assignment
18. No partnership or agency
19. Rights of third parties
20. Notices
21. Dispute resolution
22. Governing law and jurisdiction

 

 

THIS AGREEMENT

 

1. Interpretation

1.1           The definitions and rules of interpretation in this clause apply in this agreement.

“Customer’s Equipment”                 any equipment, systems, cabling or facilities provided by the Customer and used directly or indirectly in the supply of the Services;

“Customer’s Manager”   the Customer’s manager for the Services, appointed in accordance with clause 4.1;

“Deliverables”     all Documents, products and materials developed by the Supplier or its agents, subcontractors, consultants and employees in relation to the Services in any form, including artwork, reprographics, packaging and marketing and branding materials;

“Document”       includes, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form;

“In-put Material”                all Documents, information and materials provided by the Customer relating to the Services, including artwork, reprographics, packaging and marketing and branding materials;

“Intellectual Property Rights”       all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;

“Pre-existing Materials”  all Documents, information and materials provided by the Supplier relating to the Services which existed prior to the commencement of this agreement, including artwork, reprographics, packaging and marketing and branding materials;

“Services”              the services to be provided by the Supplier under this agreement as set out in Schedule 1, together with any other services which the Supplier provides or agrees to provide to the Customer;

“Supplier’s Equipment”   any equipment, including tools, systems, cabling or facilities, provided by the Supplier or its subcontractors and used directly or indirectly in the supply of the Services which are not the subject of a separate agreement between the parties under which title passes to the Customer;

“Supplier’s Manager”       the Supplier’s manager for the Services appointed under clause 3.3;

“VAT”     value added tax chargeable under English law for the time being and any similar additional tax.

 

1.2           Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.

1.3           A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors and permitted assigns.

1.4           The schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the schedules.

1.5           Words in the singular shall include the plural and vice versa.

1.6           A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.7           A reference to writing or written includes faxes but not e-mail.

1.8           Where the words include(s), including or in particular are used in this agreement, they are deemed to have the words without limitation following them. Where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them.

1.9           Any obligation in this agreement on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.

1.10        References to clauses and schedules are to the clauses and schedules of this agreement.

2. Commencement and duration

2.1           The Supplier shall provide the Services to the Customer on the terms and conditions of this agreement.

2.2           The Supplier shall provide the Services to the Customer from 01 December 2013

2.3           The Services supplied under this agreement shall continue to be supplied for a period of 24 months and, after that, shall continue to be supplied unless this agreement is terminated by one of the parties giving to the other not less than three months’ notice, such notice to expire on an anniversary of the date of this agreement, unless this agreement is terminated in accordance with clause 10.

3. Supplier’s obligations

3.1           The Supplier shall use reasonable endeavours to provide the Services, and to deliver the Deliverables to the Customer, in accordance with Schedule 1in all material respects.

3.2           The Supplier shall use reasonable endeavours to meet any performance dates specified in Schedule 1, but any such dates shall be estimates only and time for performance by the Supplier shall not be of the essence of this agreement.

3.3           The Supplier shall appoint the Supplier’s Manager who shall have authority contractually to bind the Supplier on all matters relating to the Services. The Supplier shall use reasonable endeavours to ensure that the same person acts as the Supplier’s Manager throughout the term of this agreement, but may replace him from time to time where reasonably necessary in the interests of the Supplier’s business.

3.4           The Supplier shall use reasonable endeavours to observe all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Customer’s premises and that have been communicated to it under clause 4.1.5, provided that it shall not be liable under this agreement if, as a result of such observation, it is in breach of any of its obligations under this agreement.

3.5           The Supplier shall not provide as part of the Services any data storage or data backup services of the Customer’s Documents or other information. The Supplier shall however comply with its data backup and security policy as set out in the Annex to this agreement.

4. Customer’s obligations

4.1           The Customer shall:

4.1.1      co-operate with the Supplier in all matters relating to the Services and appoint the Customer’s Manager in relation to the Services who shall have the authority contractually to bind the Customer on matters relating to the Services;

4.1.2      provide, for the Supplier, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Customer’s premises, office accommodation, data and other facilities as required by the Supplier or any of them;

4.1.3      provide, in a timely manner, such In-put Material and other information as the Supplier may require, and ensure that it is accurate in all material respects;

4.1.4      be responsible (at its own cost) for preparing and maintaining the relevant premises for the supply of the Services, including identifying, monitoring, removing and disposing of any hazardous materials from any of its premises in accordance with all applicable laws, before and during the supply of the Services at those premises, and informing the Supplier of all of the Customer’s obligations and actions under this clause 4.1.4;

4.1.5      inform the Supplier of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Customer’s premises;

4.1.6      ensure that all Customer’s Equipment is in good working order and suitable for the purposes for which it is used in relation to the Services and conforms to all relevant Republic of Ireland standards or requirements;

4.1.7      obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services, the use of In-put Material and the use of the Customer’s Equipment in relation to the Supplier’s Equipment in all cases before the date on which the Services are to start; and

4.2           The Customer shall use reasonable endeavours to perform its obligations to the Supplier pursuant to Schedule 2.

4.3           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, the Supplier shall 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.

4.4           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 six months after the termination of this agreement, solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of the Supplier in the provision of the Services.

4.5           Any consent given by the Supplier in accordance with clause 4.4 shall be subject to the Customer paying to the Supplier a sum equivalent to 20% of the then current annual remuneration of the Supplier’s employee, consultant or subcontractor  or, if higher, 20% of the annual remuneration to be paid by the Customer to that employee, consultant or subcontractor.

5. Change control

5.1           if entering into a longer term agreement, the Customer’s Manager and the Supplier’s Manager shall meet at least once every 6 months (or at agreed intervals by both parties) to discuss matters relating to the Services. If either party wishes to change the scope or execution of the Services, it shall submit details of the requested change to the other in writing.

5.2           If either party requests a change to the scope or execution of the Services, the Supplier shall, within a reasonable time, provide a written estimate to the Customer of:

5.2.1      the likely time required to implement the change;

5.2.2      any necessary variations to the Supplier’s charges arising from the change; and

5.2.3      any other impact of the change on this agreement.

5.3           If the Customer wishes the Supplier to proceed with the change, the Supplier has no obligation to do so unless and until the parties have agreed the necessary variations to its charges, the Services and any other relevant terms of this agreement to take account of the change and this agreement has been varied in accordance with clause 12.

5.4           Notwithstanding clause 5.3, the Supplier may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services. The Supplier may, from time to time and subject to Customer’s prior written consent, which shall not be unreasonably withheld or delayed change the Services, provided that where practicable, it will give the Customer at least three months’ notice of any change.

5.5           The Supplier may charge for the time it spends assessing a request for change from the Customer on a time and materials basis in accordance with clause 6.

6. Charges and payment

6.1           In consideration of the provision of the Services by the Supplier, the Customer shall pay the charges as set out in Schedule 3, which shall specify whether they shall be on a time and materials basis, a fixed price basis or a combination of both. clause 6.2 shall apply if the Supplier provides Services on a time and materials basis and clause 6.3 shall apply if the Supplier provides Services for a fixed price. The remainder of this clause 6 shall apply in either case.

6.2           Where Services are provided on a time and materials basis:

6.2.1      the charges payable for the Services shall be calculated in accordance with the Supplier’s standard daily fee rates in accordance with clause 6.5;

6.2.2      the Supplier’s standard daily fee rates for each individual person are calculated on the basis of an eight-hour day, worked between 8.00 am and 6.00 pm on weekdays (excluding public holidays);

6.2.3      the Supplier shall be entitled to charge an overtime rate of 150% of the normal daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in clause 6.2.2;

 

6.2.4      all charges quoted to the Customer shall be exclusive of VAT, which the Supplier shall add to its invoices at the appropriate rate;

6.2.5      the Supplier shall ensure that every individual whom it engages on the Services completes time sheets recording time spent on the Services, and the Supplier shall use such time sheets to calculate the charges covered by each monthly invoice referred to in clause 6.2.6; and

6.2.6      the Supplier shall invoice the Customer monthly in arrears for its charges for time, expenses and materials (together with VAT where appropriate) for the month concerned, calculated as provided in this clause 6.2 and clause 6.4 or such other period as is agreed between the parties.

6.3           Where Services are provided for a fixed price, the total price for the Services shall be the amount set out in Schedule 3 as amended from time to time in accordance with clause 6.5. The Customer shall pay the total price to the Supplier (without deduction or set-off) and the Supplier shall invoice the Customer for the charges that are then payable, together with expenses, the costs of materials and VAT, where appropriate, calculated as provided in clause 6.4 monthly in arrears or such other period as may be agreed between the parties.

6.4           Any fixed price and daily rate contained in the Schedule excludes:

6.4.1      the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services, the cost of any materials and the cost of services reasonably and properly provided by third parties and required by the Supplier for the supply of the Services. Such expenses, materials and third party services shall be invoiced by the Supplier at cost; and

6.4.2      VAT, which the Supplier shall add to its invoices at the appropriate rate.

6.5           The parties agree that the Supplier may review and increase the charges set out in Schedule 3, provided that such charges cannot be increased more than once in any twelve month period. The Supplier shall give the Customer written notice of any such increase three months before the proposed date of that increase.

6.6           The Customer shall pay each invoice submitted to it by the Supplier, in full and in cleared funds, within 60 days of receipt to a bank account nominated in writing by the Supplier.

6.7           Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier on the due date, the Supplier may:

6.7.1      charge interest on such sum from the due date for payment at the annual rate of 7% above the base rate from time to time of Bank of England, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Customer shall pay the interest immediately on demand; and

6.7.2      suspend all Services until payment has been made in full.

6.8           All sums payable to the Supplier under this agreement shall become due immediately on its termination, despite any other provision. This clause 6.8 is without prejudice to any right to claim for interest under the law, or any such right under this agreement.

6.9           Each party may, without limiting any other rights or remedies it may have, set off any amounts owed to it by the other party under this agreement against any amounts payable by it to the other party under this agreement.

7. Intellectual property rights

7.1           As between the Customer and the Supplier, all Intellectual Property Rights and all other rights in the In-put Material shall be owned by the Customer. Subject to clause 7.2, the Customer licenses all such rights to the Supplier free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Supplier to make reasonable use of the In-put Material and to supply the Services. Upon termination of this agreement under clause 10.1, this licence will automatically terminate.

 

7.2           The Supplier acknowledges that, where the Customer does not own any of the In-put Material, the Supplier’s use of rights in In-put Material is conditional on the Customer obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle the Customer to license such rights to the Supplier.

7.3           The Supplier assigns to the Customer:

7.3.1      with full title guarantee and free from all third party rights, the Intellectual Property Rights and all other rights in the products of the Services (including the Deliverables); and

7.3.2      any and all claims, remedies and rights of any infringement of the Intellectual Property Rights assigned to the Customer under this clause 7.3 including, without limitation, the right to institute proceedings in any court of competent jurisdiction and to recover damages, costs and any other form of compensation and to obtain injunctive or similar relief in respect of any such infringement, in each case to hold the same unto the Customer absolutely and, to the extend that any of the Intellectual Property Rights in the Deliverables are not yet in existence, with the intent that such rights, title and interest in any such Deliverables shall forthwith vest in the Customer upon the same coming into existence without further action being required and this provision operates as a present assignment of existing and future Intellectual Property Rights.

7.4           The Supplier shall, promptly at the Customer’s request, do or procure to be done all such further acts and things and the execution of all such other documents as the Customer may from time to time require for the purpose of securing for the Customer the full benefit of this agreement, including all right, title and interest in and to the Intellectual Property Rights and all other rights assigned to the Customer in accordance with clause 7.1.

7.5           The Supplier warrants and undertakes that the Supplier shall not assert against the Customer or any other party any moral rights (which are the rights conferred by Part 1 Chapter IV of the Copyright, Designs and Patents Act 1988 (or any statutory modification or enactment thereof) and all rights similar or corresponding thereto subsisting in any part of the world from time to time in or relating to the Deliverables and warrant and undertake that all such moral rights are irrevocably waived and extinguished.

7.6           The Customer warrants that all In-put Material provided to the Supplier for the purpose of providing the Services will not infringe the Intellectual Property Rights of any third party and the Customer shall indemnify the Supplier against any loss, damages, costs, expenses or other claims arising from such infringement.

7.7           The Supplier warrants that:

7.7.1      it owns the Intellectual Property Rights in and to the Deliverables and has the right to assign such Intellectual Property Rights without requiring the consent of any other person;

7.7.2      it has not granted any rights in or to the Deliverables to any person;

7.7.3      the Deliverables will not infringe the Intellectual Property Rights of any third party in any part of the world; and

7.7.4      it will use reasonable skill and care in the provision of the Services, such skill and care to be provided at a standard not less than the best industry practice in the packaging design industry.

7.8           Subject to the Intellectual Property Rights of the other party and to clause 8 of this agreement, nothing in this agreement shall be taken to prevent the Supplier from using any expertise acquired or developed during the performance of the Services and retained in the unaided memories of the Supplier’s employees in the provision of services to its other customers on its own behalf.

8. Confidentiality and the Supplier’s property

8.1           Each party shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the other party, its employees, agents, consultants or subcontractors and any other confidential information concerning such party’s business or its products which that party may obtain.

8.2           Each party may disclose such information:

8.2.1      to its employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out it’s obligations under this agreement; and

8.2.2      as may be required by law, court order or any governmental or regulatory authority.

8.3           Each party shall ensure that its employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such information comply with this clause 8.

8.4           Each party shall not use any such information for any purpose other than to perform its obligations under this agreement.

8.5           All materials, equipment and tools, drawings, specifications and data supplied by the Supplier to the Customer (including Pre-existing Materials and the Supplier’s Equipment) shall, at all times, be and remain as between the Supplier and the Customer the exclusive property of the Supplier, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to the Supplier, and shall not be disposed of or used other than in accordance with the Supplier’s written instructions or authorisation.

8.6           Notwithstanding the provisions of this clause 8, the Supplier shall have the right to publicise its involvement in this agreement with the Customer’s prior written consent.

8.7           The Customer shall provide a reasonable number of examples of all its products covered by this agreement to the Supplier free of charge and the Supplier may use them for publicity, if permission for such publicity is granted in accordance with clause 8.6.

9. Limitation of liability – THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE

9.1           This clause 9 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents, consultants and subcontractors) to the Customer in respect of:

9.1.1      any breach of this agreement;

9.1.2      any use made by the Customer of the Services, the Deliverables or any part of them; and

9.1.3      any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.

9.2           All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this agreement.

9.3           Nothing in this agreement limits or excludes the liability of the Supplier:

9.3.1      for death or personal injury resulting from negligence; or

9.3.2      for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by the Supplier; or

9.3.3      for any liability incurred by the Customer as a result of any breach by the Supplier of the clause as to title or the warranty as to quiet possession implied by section 2 of the Supply of Goods and Services Act 1982.

9.4           Subject to clause 9.2 and clause 9.3:

9.4.1      the Supplier shall not be liable for:

(a)             loss of profits; or

(b)            loss of business; or

(c)             depletion of goodwill and/or similar losses; or

(d)            loss of anticipated savings; or

(e)             loss of goods; or

(f)              loss of contract; or

(g)             loss of use; or

(h)            loss of corruption of data or information; or

(i)              any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; and

9.4.2      the Supplier’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of this agreement shall be limited to the price paid for the Services.

10. Termination

10.1        Without prejudice to any other rights or remedies which the parties may have, either party may terminate this agreement without liability to the other on giving the other not less than three months’ written notice expiring on an anniversary of the date of this agreement or immediately on giving notice to the other if:

10.1.1   the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than ninety (30) days after being notified in writing to make such payment; or

10.1.2   the other party commits a material breach of any of the material terms of this agreement and (if such a breach is remediable) fails to remedy that breach within ninety (30) days of that party being notified in writing of the breach; or

10.1.3   the other party suspends, or threatens to suspend, payment of its debts, is unable to pay its debts as they fall due, admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; or

10.1.4   the other party commences negotiations with all, or any class of, its creditors with a view to rescheduling any of its debts, or makes a proposal for, or enters into any compromise or arrangement with, its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies, or the solvent reconstruction of that other party; or

10.1.5   a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies, or the solvent reconstruction of that other party; or

10.1.6   an application is made to court, or an order is made, for the appointment of an administrator, a notice of intention to appoint an administrator is given, or an administrator is appointed over the other party; or

10.1.7   a floating charge holder over the assets of that other party has become entitled to appoint, or has appointed, an administrative receiver; or

10.1.8   a person becomes entitled to appoint a receiver over the assets of the other party, or a receiver is appointed over the assets of the other party; or

10.1.9   a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or

10.1.10                  any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 10.1.3 to clause 10.1.9 (inclusive); or

10.1.11                  the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or

10.1.12                  there is a change of control of the other party (as defined in section 574 of the Capital Allowances Act 2001).

10.2        On termination of this agreement for any reason:

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

10.2.2   the Customer shall, within a reasonable time, return all of the Supplier’s Equipment, Pre-existing Materials and Deliverables. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned or repossessed, the Customer shall be solely responsible for their safe keeping;

10.2.3   the accrued rights, remedies, obligations and liabilities of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination; and

 

10.2.4   clauses which expressly or by implication have effect after termination shall continue in full force and effect, including the following clauses: clause 7 (Intellectual property rights), clause 8 (Confidentiality and the Supplier’s property), clause 9 (Limitation of liability), clause 10.2, clause 20 (Notices), clause 21 (Dispute resolution) and clause 22 (Governing law and jurisdiction).

11. Force majeure

11.1        A party, provided that it has complied with the provisions of clause 11.2, shall not be in breach of this agreement, nor liable for any failure or delay in performance of any obligations under this agreement (and, subject to clause 11.3, the time for performance of the obligations shall be extended accordingly) arising from or attributable to acts, events, omissions or accidents beyond its reasonable control (“Force Majeure Event”), including but not limited to any of the following:

11.1.1   acts of God, including but not limited to fire, flood, earthquake, windstorm or other natural disaster;

11.1.2   war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions;

11.1.3   terrorist attack, civil war, civil commotion or riots;

11.1.4   nuclear, chemical or biological contamination or sonic boom;

11.1.5   voluntary or mandatory compliance with any law;

11.1.6   fire, explosion or accidental damage;

11.1.7   loss at sea;

11.1.8   extreme adverse weather conditions;

11.1.9   collapse of building structures, failure of plant machinery, machinery, computers or vehicles;

11.1.10                  any labour dispute, including but not limited to strikes, industrial action or lockouts;

11.1.11                  non-performance by suppliers or subcontractors (other than by companies in the same group as the party seeking to rely on this clause); and

11.1.12                  interruption or failure of utility service, including but not limited to electric power, gas or water.

11.2        Any party that is subject to a Force Majeure Event shall not be in breach of this agreement provided that:

11.2.1   it promptly notifies the other party in writing of the nature and extent of the Force Majeure Event causing its failure or delay in performance;

11.2.2   it could not have avoided the effect of the Force Majeure Event by taking precautions which, having regard to all the matters known to it before the Force Majeure Event, it ought reasonably to have taken, but did not; and

11.2.3   it has used all reasonable endeavours to mitigate the effect of the Force Majeure Event, to carry out its obligations under this agreement in any way that is reasonably practicable and to resume the performance of its obligations as soon as reasonably possible.

11.3        If the Force Majeure Event prevails for a continuous period of more than six (6) months, either party may terminate this agreement by giving thirty (30) days’ written notice to all the other party. On the expiry of this notice period, this agreement will terminate. Such termination shall be without prejudice to the rights of the parties in respect of any breach of this agreement occurring prior to such termination.

12. Variation

Subject to clause 5, no variation of this agreement shall be valid unless it is in writing and signed by or on behalf of each of the parties.

13. Waiver

13.1        A waiver of any right or remedy under this agreement is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. 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 preclude or restrict any further exercise of that or any other right or remedy.

13.2        No single or partial exercise of any right or remedy provided under this agreement or by law shall preclude or restrict the further exercise of any such right or remedy.

14. Cumulative remedies

Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.

15. Severance

15.1        If any provision of this agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the agreement, and the validity and enforceability of the other provisions of the agreement shall not be affected.

15.2        If a provision of this agreement (or part of any provision) is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

16. Entire agreement

16.1        This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous drafts, arrangements, understandings or agreements between them, whether written or oral, relating to the subject matter of this agreement.

16.2        Each party acknowledges that, in entering into this agreement, it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that its only liability in respect of those representations and warranties that are set out in this agreement (whether made innocently or negligently) shall be for breach of contract.

16.3        Nothing in this clause shall limit or exclude any liability for fraud.

17. Assignment

17.1        The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.

17.2        The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.

17.3        Each party that has rights under this agreement is acting on its own behalf and not for the benefit of another person.

18. No partnership or agency

Nothing in this agreement is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

19. Rights of third parties

A person who is not a party to this agreement shall not have any rights under or in connection with it.

20. Notices

20.1        A notice or other communication given to a party under or in connection with this agreement:

20.1.1   shall be in writing in English (or accompanied by a properly prepared translation into English);

20.1.2   shall be signed by or on behalf of the party giving it;

20.1.3   shall be sent for the attention of the person, at the address or fax number specified in this clause (or to such other address, fax number or person as that party may notify to the other, in accordance with the provisions of this clause); and

20.1.4   shall be:

(a)             delivered personally; or

(b)            sent by commercial courier; or

(c)             sent by fax; or

(d)            sent by pre-paid first-class post or recorded delivery; or

(e)             sent by airmail requiring signature on delivery.

20.2        The addresses for service of a notice or other communication are as follows:

20.2.1   Supplier:

(a)             address: Carpenter Court, Maple Road, Stockport, Cheshire, SK7 2DH

(b)            for the attention of: Hetal Pandit

20.2.2   Customer:

20.3        If a notice or other communication has been properly sent or delivered in accordance with this clause, it will be deemed to have been received as follows:

20.3.1   if delivered personally, at the time of delivery; or

20.3.2   if delivered by commercial courier, at the time of signature of the courier’s receipt; or

20.3.3   if sent by fax, at the time of transmission; or

20.3.4   if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second day after posting; or

20.3.5   if sent by airmail, five days from the date of posting.

20.4        For the purposes of this clause:

20.4.1   all times are to be read as local time in the place of deemed receipt; and

20.4.2   if deemed receipt under this clause is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is not a public holiday in the place of receipt), the notice or other communication is deemed to have been received when business next starts in the place of receipt.

20.5        To prove delivery, it is sufficient to prove that:

20.5.1   if sent by fax, the notice or other communication was transmitted by fax to the fax number of the party; or

20.5.2   if sent by pre-paid first class post, the envelope containing the notice or other communication was properly addressed and posted.

20.6        The provisions of this clause 20 shall not apply to the service of any process in any legal action or proceedings.

20.7        A notice or other communication required to be given under or in connection with this agreement shall not be validly served if sent by e-mail.

21. Dispute resolution

21.1        If any dispute arises in connection with this agreement, the Supplier’s Manager and the Customer’s Manager shall, within thirty (30) days of a written request from one party to the other, meet in a good faith effort to resolve the dispute.

21.2        If the dispute is not resolved at that meeting, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator will be nominated by CEDR. To initiate the mediation, a party must give notice in writing (“ADR notice”) to the other party requesting a mediation. A copy of the request should be sent to CEDR Solve. The mediation will start not later than ninety (90) days after the date of the ADR notice.

21.3        No party may commence any court proceedings in relation to any dispute arising out of this agreement until it has attempted to settle the dispute by mediation and either the mediation has terminated or the other party has failed to participate in the mediation, provided that the right to issue proceedings is not prejudiced by a delay.

22. Governing law and jurisdiction

22.1        This agreement 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.

22.2        The parties irrevocably agree that the courts of England shall have non-exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).

 

 

Annex : Backup Policy

Computerised Records

Computer records and data files are identified by suitable file name and/or folder and are backed up on a daily basis and back-ups are taken off site and are regularly tested.

All computerised records are held in robust SQL databases which are also backed up daily and taken off site daily.

Software systems are maintained internally with the assistance of an external supplier under a Service Level Agreement (SLA). Operating systems are backed up on a weekly basis and also taken of site.