1. Definitions
“Acceptable Use” How the Customer uses the Services and their obligations.
“Business Day” any day other than Saturday, Sunday or a day which is a public holiday in England and Wales.
“Company” Means Transalis Limited registered in England and Wales with company number 04581648.
“Configuration Notice” Means the notification by the Company to the Customer that the installation and configuration of the Software is complete.
“Contract Year” Means each period of 12 months (or such shorter period if this Agreement is terminated earlier), commencing the date of this Agreement or each renewal.
“Customer” Means the person or firm who purchases Services from the Company.
“Effective Date” Means, subject to Clause 5.9, the date set out in the relevant Statement of Work;
“Fair Use Policy” Transmission of messages equal to the benchmarked average Customers day-to-day trading activity.
“Fees” Means the costs incurred by the Company in installing and configuring the Software as set out in the applicable Statement of Work or as otherwise agreed in writing from time to time between the parties, which shall be charged to the Customer on a time and materials basis.
“Force Majeure Event” Means any cause affecting, preventing or hindering the performance by the Company of its obligations under this Agreement arising from acts, events, omissions or non-events beyond its reasonable control, including, without limitation, acts of God, riots, war, acts of terrorism, fire, flood, storm or earthquake and any disaster, and third party failures arising from delays, omissions, breaches and/or other service failures in the Company’s supply chain.
“Intellectual Property” Means all copyrights, moral rights, related rights, patents, trademarks, trade names, service marks, design rights, database rights, semi-conductor rights, rights to domain names, and other similar intellectual property rights (whether registered or not) and applications for such rights as may exist anywhere in the world.
“Materials” Means all Software, manual and other documentation (where the context allows) developed or supplied pursuant to this Agreement in each case in machine and/or human readable form.
“Professional Services Bundle” Means a pre-purchased number of hours that can be used on an ad-hoc basis over the course of 12-months
“Statement of Work” Means the document agreed between the parties setting out the Services and Materials to be provided to the Customer by the Company and any agreed delivery dates.
“Services” Means the concept, design, build and delivery of work in accordance with any Statement of Work between the parties or as described on the Company’s website or any remittance advice provided by the Company (where applicable) or as otherwise agreed from time to time between the parties.
“Software” Means all software (including all HTML, JavaScript, VB, Java, XML and any other code or system) affecting the performance or use of the Services, whether or not written by the Company (and all preparatory design materials, modifications, updates and enhancements to it) required for the purposes of this Agreement.
“Subscriptions” Means the periodic charges for the provision of the Services as set out in the applicable Statement of Work or such other charges as are otherwise agreed in writing from time to time between the parties.
“Timetable” Means the timetable for the provision of Services and Materials set out as in the Statement of Work or as otherwise agreed from time to time between the parties.
“Virus” Means anything or device (including any software, code, file or programme) which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network;
1.1 Words denoting the masculine gender include the feminine and neuter and vice versa and words denoting the singular include the plural and vice versa.
1.2 The headings in this Agreement are for convenience only and shall not affect interpretation.
1.3 A reference to a statute, statutory provision or subordinate legislation is a reference to it as it is in force from time to time taking account of any amendment or re-enactment.
2. This Agreement and Ordering
2.1 This Agreement consists of these Terms and Conditions of Services and the Statement of Work. Any conflict or inconsistency between these documents, these Terms and Conditions of Services shall take precedence unless otherwise expressly agreed to the contrary within a Statement of Work.
2.2 The Customer may order services from Company in accordance with the following procedure(s):
2.2.1 In response to a request by the Customer for Services (submitted through the Company’s website or otherwise) Company shall prepare a Statement of Work and submit the Statement of Work to the Customer.
2.2.2 The Customer shall sign and submit the Statement of Work to Company. The Statement of Work shall constitute an offer by the Customer to enter into a legally binding contract with Company for the provision of the Services specified in the Statement of Work and such offer shall remain open to acceptance by Company for a period of fourteen (14) calendar days from the date that the Statement of Work is submitted to Company;
2.2.3 If Company declines to accept any Statement of Work submitted by the Customer, it shall notify the Customer of its decision after receiving the Statement of Work, as soon as reasonably practicable thereafter and in any event within fourteen (14) calendar days of receipt;
2.2.4 If Company agrees to accept the Statement of Work, Company shall send confirmation of acceptance to the Customer.
2.3 This Agreement shall take effect on the Effective Date and shall continue unless and until terminated in accordance with the provisions of this Agreement.
3. Services
3.1 The Company will deliver the Services as set out in the Statement of Work with reasonable skill and care and provide to the Customer any other services agreed in writing from time to time between the parties.
3.2 Company’s ability to perform its obligations under this Agreement may be dependent on the Customer fulfilling its obligations. To the extent that the Customer does not fulfil its obligations under this Agreement, then (without prejudice to Company’s other rights and remedies) Company will be relieved of its obligations under this Agreement and Company shall not be liable for any costs, charges or losses sustained by the Customer arising directly from any failure of the Customer to fulfil its obligations under this Agreement. Without prejudice to the foregoing Company shall also be entitled to recover any costs directly incurred by it arising from the Customer not fulfilling its obligations and, for the avoidance of doubt, Clause 5.11 shall apply.
3.3 Time is not of the essence and shall not be made so by the service of any notice.
4. Customer Obligations
4.1 It is a condition of this Agreement that the Customer shall at all times use the Services in accordance with the provisions of this Clause 4 (“Acceptable Use”) and the Customer acknowledges that Company shall be entitled to monitor and audit the Customer’s use of the Services to ascertain the Customer’s compliance with the terms of this Clause and the Agreement.
4.2 The Customer shall not access, store, distribute or transmit any Viruses, or any materials during the course of its use of the Services that:
4.2.1 Is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
4.2.2 Facilitates illegal activity;
4.2.3 Depicts sexually explicit images,
4.2.4 Promotes unlawful violence;
4.2.5 Is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
4.2.6 In a manner that is otherwise illegal or causes damage or injury to any person or property.
4.3 The Customer shall not:
4.3.1 Except as may be permitted by applicable law, attempt to copy, modify, duplicate, download, display or distribute all or any portion of the Software or attempt to reverse compile, disassemble, reverse engineer all or any part of the Software; or
4.3.2 Use the Services and/or Materials to provide service to third parties; or
4.3.3 Attempt to obtain, or assist third parties in obtaining access to the Services or Materials otherwise than as permitted under this Agreement.
4.4 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or Materials and in the event of any such unauthorised access or use, promptly notify the Company.
4.5 The Customer shall:
4.5.1 co-operate with the Company in all matters relating to the Services;
4.5.2 provide the Company, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Company;
4.5.3 comply, as soon as reasonably practicable, with all the Company’s reasonable requests for information or assistance in relation to the installation, configuration and use of the Services and Software;
4.5.4 provide the Company with such equipment, information and materials as the Company may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
4.5.5 obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
4.5.6 not, without the prior written consent of the Company, do, or permit to be done, any act or omission that would or might cause any delay to the Timetable; and
4.5.7 as soon as reasonably practicable following the Company issuing a Configuration Notice (in any event within the timeframe set out in the Statement of Work or, where no timeframe is set out in the Statement of Work, within the timeframe required by the Company), complete (or, where relevant, procure that it’s clients and customers complete) any further configuration and testing of the Software that the Customer (or, where relevant, its clients and customers) is required to complete in accordance with a Statement of Work or as otherwise agreed between the parties.
4.5.8 Where the Company is providing a Service that requires integration with a Customer’s application, either Customer’s own application or provided by a 3rd-party, whether self-hosted, or in the Cloud, the Customer is liable for all costs incurred for providing the Company with the access to a test environment for all works, including configuration and testing. The Customer is liable for all costs for completing their own testing, configuration, and process of migrating to the Customers live environment.
5. Fees & Subscriptions
5.1 The Customer shall pay the Company the Fees & Subscriptions. All Fees and Subscriptions are stated exclusive of Value Added Tax, which shall be paid by the Customer at the rate prevailing from time to time.
5.2 Without exception all sums due shall be paid within 30 days of invoice (on condition that, where applicable, a valid VAT invoice has been delivered).
5.3 The Company reserves the right to charge the Customer by way of an increase in the Fees and/or the Subscriptions for any additional work undertaken that is not set out in the Statement of Work between the Company and the Customer.
5.4 If the Customer cancels this agreement at any time before completion of the Services the Customer shall pay (a) any Fees and Subscriptions that would have been charged by the Company to that date and (b) any payments the Company has made or has contracted to make or liabilities incurred to any third parties in relation to the Services or the Customer.
5.5 Company may alter the amount of, or payment terms relating to, the Fees and Subscriptions at any time during the term of this Agreement for the following reasons:
5.5.1 to take account of any increase in the costs incurred by Company in the implementation or delivery of the Services (including any increase in the costs or charges of any third party supplier or licensor to Company; or
5.5.2 to pass on any increase in charges imposed by any telecommunications supplier to Company at any time.
5.6 Company shall notify the Customer through the Company website of any such increase in accordance with clause 5.5 and shall endeavour to give the Customer not less than 30 days’ prior notice of such charges.
5.7 Fees and Subscriptions may be increased by Company (giving the Customer notice, once, at any time in each twelve-month period) at the rate of increase in the Retail Prices Index during the preceding 12-month period or a price deemed appropriate by the Company.
5.8 If payment of any Fees and/or Subscriptions is not made in full by the Customer by the due date for payment under the terms of this Agreement, Company may at its discretion, without prejudice to its other rights and remedies (including to charge interest at 4% plus prevailing Bank of England base rate): a) suspend the provision of the Services to the Customer until such time as all overdue amounts (including any interest due) are paid in full; and/or b) set-off such sums against any sums due to the Customer. In the event payment is not made within thirty (30) days of the due date for payment, Company reserves the right to terminate the relevant Services. Failure to raise an invoice in respect of interest shall not be deemed to constitute a waiver of our rights to recover interest.
5.9 Except where Clause 5.10 and/or Clause 5.12.2 applies, unless otherwise stated in the associated Statement of Work the Company shall be entitled to charge and invoice the Customer for:
5.9.1 the Fees immediately following the Effective Date as set out in the Statement of Work; and
5.9.2 the Subscriptions immediately upon the earlier of:
5.9.2.1 the date on which the Company issues the Configuration Notice; or
5.9.2.2 the date falling two (2) months after the Effective Date as set out in the associated Statement of Work,
(such date being known as the “Subscription Start Date”).
Where this Clause 5.9 applies, for the purposes of Clause 15.1 the Effective Date shall be deemed to be the Subscription Start Date rather than the date set out in the associated Statement of Work.
5.10 Where a Statement of Work provides that the Fees and Subscriptions are combined into one periodic licence fee payable by the Customer, the Company will be entitled to charge and invoice the Customer for the Fees and Subscriptions (as a combined periodic licence fee) immediately from the Effective Date as set out in the Statement of Work.
5.11 Any delay in the provision of the Services by the Company that is caused directly or indirectly by any act or omission of the Customer (including, without limitation, any breach by the Customer of its obligations contained in Clause 4) shall in no way restrict the Company’s right to charge and invoice the Customer for the Fees and Subscriptions in accordance with this Clause 5.
5.12 Payment by debit card or credit card or other electronic payment method. Without prejudice to the preceding provisions in this Clause 5:
5.12.1 the Customer may elect to pay the Fees and Subscriptions using a debit card or credit card or any other electronic payment method expressly made available on the Company’s website. Where the Customer elects to pay the Fees and/or Subscriptions using a debit card or credit card, the Company shall direct the Customer to make payment in accordance with the payment process managed by the Company’s third party payment provider (“Payment Provider”). The Payment Provider may change from time to time. The Company accepts the following cards:
5.12.1.1 Visa;
5.12.1.2 MasterCard; and
5.12.1.3 Maestro.
5.12.2 certain Services that are ordered through the Company’s website (as detailed on the Company’s website and/or the Statement of Work) require payment of the associated Fees and/or Subscriptions to be made online using a debit card or credit card or other electronic payment method (“Online Services”). The Customer shall pay the Fees and/or Subscriptions in respect of such Online Services in accordance with the online payment process managed by the Payment Provider that the Customer is directed to via the Company’s website;
5.12.3 where the Customer pays the Fees and/or Subscriptions in accordance with the payment process managed by the Payment Provider, the Payment Provider shall issue the Customer with a payment confirmation following receipt of payment and for the avoidance of doubt:
5.12.3.1 subject to Clause 17.3, the Company shall not be liable to the Customer for any losses suffered by the Customer as a result of any acts or omissions of the Payment Provider; and
5.12.3.2 any delay, default and/or failure by the Payment Provider shall not affect the Customer’s obligation to pay the Fees and Subscriptions in accordance with this Clause 5; and
5.12.4 if the Customer pays the Fees and/or Subscriptions using a debit card or credit card in accordance with this Clause 5.12 and any subsequent Subscriptions become payable by the Customer and/or any additional sums become due by the Customer in accordance with Clause 5.3 and/or Clause 5.4, the Customer acknowledges and agrees that the Company shall be entitled to charge the Customer’s debit card or credit card for any such subsequent Subscriptions and/or any such additional sums that become due and the Company shall notify the Customer that it has charged, or that it intends to charge, the Customer’s debt card or credit card in such circumstances.
6. Confidentiality
6.1 Each Party agrees: to keep all information about the other’s business (“Confidential Information”) strictly confidential; not to use or copy Confidential Information save as agreed in writing with the other party; and to procure that all persons to whom it discloses Confidential Information are bound by terms of confidentiality equivalent to this.
6.2 This clause shall not apply to either party in relation to information that (other than by breach of any duty of confidence) has come into the public domain; is obtained from a third party or was already known to that party before this Agreement; or is required to be disclosed by order of a court of competent jurisdiction.
7. Intellectual Property
7.1 All right, title and interest to and all Intellectual Property Rights in the Materials and any product of the Services shall remain vested in Company or Company’s suppliers and licensors as applicable. The Customer shall not do, or omit to do anything which may jeopardise, limit or interfere in any manner with Company’s rights (or the rights of its supplier and/or licensors) in the Materials and other products of the Services.
7.2 Where Company proprietary Software is provided to Customer as part of the Services, the Company hereby grants a personal, non-transferable, non-exclusive licence to the Customer during the term of such Services to use such Software solely for the purposes of the receipt and use of the Services under this Agreement. The Customer agrees to comply with any terms and conditions governing the use of such Software provided to it by Company from time-to time.
7.3 With the Customer’s permission on a case-by-case basis, the Customer may allow the Company to use images or extracts from the Services for promotional purposes to include but not limited to press releases, case studies, Customer reference for the Company together with a link to the Customer’s website.
8. Third Party Hosting
8.1 If the Services provided to the Customer by the Company are hosted by the Customer or a third party nominated by the Customer the Company cannot be held responsible in any way whatsoever for any delays, omissions, breaches or service failures of any kind by the third party that are beyond the Company’s control.
8.2 Third party hosting will be by way of a separate third party hosting agreement.
9. Electronic Mailboxes
9.1 The Company will provide the Customer with electronic mailboxes for use with the specified trading partners set out in the Statement of Work for the agreed sum. Should the Customer inform the Company mailboxes are no longer required, with specified trading partners, disconnection fees will apply.
10. Continuity of Service & Disaster Recovery
10.1 The Company will use reasonable endeavours to provide the Customer with the agreed level of Continuity of Service (COS) & Disaster Recovery (DR) set out in the Statement of Work for the agreed sum. Extended COS & DR required by the Customer will be charged at the current day rate or as otherwise agreed from time to time between the parties. Up-time is approx. 99% including scheduled times for maintenance and upgrades outside of normal business hours. The Company cannot be held responsible for down-time that is outside of its control, which shall include but not be limited to down-time resulting from delay, failures, breaches and/or omissions in the Company’s supply chain. Customer acknowledges that down-time outside of the control of the Company shall not constitute a breach of this Agreement or give rise to a right to terminate under clause 15.
10.2 Servers and networks are hosted in facilities located in the UK and US. Servers are subject to reasonable monitoring, online and offline archiving and backup of data is performed on a regular basis.
10.3 Server infrastructure provides multiple points of data recovery, Uninterruptible Power Supply (UPS), redundant power feeders and generators, redundant halon fire detection and suppression systems, and multiple communications entry points.
11. Technical Support
11.1 The Company will provide the Customer with the agreed level of technical support set out in the Statement of Work for the agreed sum. Additional technical support required by the Customer will be charged at the current day rate or as otherwise agreed from time to time between the parties.
12. Content Support
12.1 The Company will provide the Customer with the agreed level of content support set out in the Statement of Work for the agreed sum. Additional content support required by the Customer will be charged at the current day rate or as otherwise agreed from time to time between the parties. The Company cannot be held responsible for non-receipt, non-transmission or rejection of data files with invalid content for reasons outside of its control.
13. Data Retention
13.1 The Company will provide the Customer with the agreed level of data retention set out in the Statement of Work for the agreed sum. Additional data retention required by the Customer will be charged at the rates specified in the Statement of Work. The Company cannot be held responsible for loss of data that is outside its control.
14. VAN Transaction Costs
14.1 VAN Transaction costs will be charge as per the Statement of Work.
15. Term and Termination
15.1 The Agreement is for an initial period of 12 months from the Effective Date where after it will automatically renew for successive periods of twelve (12) months unless and until either party gives no less than one (1) months’ written notice to the other party to terminate, such notice to expire on the anniversary date of the Effective Date or of the relevant renewal date. The version of these Terms and Conditions in force at the time of renewal shall apply to such renewal of this Agreement under this clause 15.1.
15.2 Professional Services bundles automatically renew annually based on the date of purchase, unless the balance is depleted prior to renewal date, in which case a new Professional Services bundle can be purchased.
15.3 The Company may suspend, disconnect or terminate the Services to the Customer should the Customer fail to make payment(s) of the Fees & Subscriptions as set out in Clause 5.8. In this event reconnection administration fees will apply.
15.4 Either party may terminate this Agreement immediately on written notice if the other is in breach of a material term or condition and, in the case of a remediable breach, fails to remedy a remediable breach within 30 days of receipt of a written notice to do so specifying the nature of the breach.
15.5 Either party may terminate this Agreement immediately on written notice in the event that the other convenes a meeting of its creditors (or if a proposal is made for any composition, scheme or arrangement for the benefit of creditors); becomes unable to pay its debts as and when they fall due determined; commits an act of bankruptcy or if a trustee, receiver or administrative receiver is appointed in respect of all or part of its business or assets; or has a petition presented against it for the purpose of considering a resolution or other steps are taken for the winding up of the other party (other than for the purposes of solvent amalgamation or reconstruction).
15.6 The Customer may terminate this Agreement in accordance with the provisions of clause 21.2.
15.7 The rights and obligations of the Company and the Customer contained in clauses 6, 7, 16 and 19.5 shall survive any termination of this Agreement.
15.8 Termination of this Agreement shall be without prejudice to any rights, which have accrued to either party prior to termination.
15.9 On termination of this Agreement or any of the Services:
15.9.1 The Customer shall immediately stop using the affected Services and the Customer’s right to use the affected Services shall immediately cease;
15.9.2 Any licences granted by Company under this Agreement in respect of the affected Services shall terminate; and
15.9.3 The Customer shall remain liable for all outstanding Fees and Subscriptions for Services duly performed including any termination or cancellation fees referred to in this Agreement.
15.9.4 Should the Customer wish to migrate archive data and Service to a new provider/location of it’s’ choice. The Company will assist in the process and charge the Customer on a Time and Materials basis to complete this task.
16. Warranties
16.1 Each party warrants that is has full capacity and authority, and all necessary licences, permits and consents to enter into and perform its obligations under this Agreement.
16.2 Company warrants that:
16.2.1 It shall provide the Services using reasonable care and skill in accordance with the standards prevailing in the industry for similar services to the Services. And
16.2.2 The Services shall be provided in compliance with applicable laws and regulations.
16.3 Company does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Services and/or the information obtained by the Customer through the Services will meet the Customer’s requirements.
16.4 Save as expressly set out in this Agreement, all conditions, warranties and representations, express or implied, statutory or otherwise (including the fitness of the Services for a particular purpose) are hereby excluded to the fullest extent permissible by law.
17. Liability
17.1 The Customer hereby irrevocably and unconditionally indemnifies and shall hold fully indemnified the Company from and against any and all actions, proceedings, losses, damages, liabilities, obligations, costs, claims, charges and expenses suffered by the Company of whatsoever nature arising out of or in connection with the Customer’s breach of the Acceptable Use terms set out above and its use otherwise than as permitted under this Agreement of any materials supplied to it by the Company in the course of its performance of its obligations relating to the Services.
17.2 In relation to the indemnity under Clause 17.1, Company shall:
17.2.1 Notify the Customer in writing of any claim or potential claim brought by a third party falling within the scope of the indemnity (a “Claim”);
17.2.2 Make no admission of liability or settlement in respect of the Claim without the Customer’s prior written consent, such consent not to be unreasonably withheld or delayed;
17.2.3 Provide the Customer with all information and assistance that the Customer may reasonably require in relation to the Claim (at the Customer’s sole expense); and
17.2.4 Allow the Customer control over the litigation and settlement of the Claim. Provided that the Customer keeps Company fully and regularly informed as to the progress of the Claim and that the Customer conducts such Claim with all due attention and skill. In the event that Company is not satisfied with the Customer’s conduct of the Claim at any time, Company may take over the conduct of the Claim and may settle or defend any such Claim as it thinks fit without requiring the consent of the Customer.
17.3 Nothing in this Agreement shall exclude or limit either party’s liability for:
17.3.1 Death or personal injury resulting from its negligence or that of its employees, agents or subcontractors;
17.3.2 Fraud or fraudulent misrepresentation;
17.3.3 Wilful or deliberate default; or
17.3.4 Any other matter for which liability cannot be excluded or limited as a matter of law.
17.4 Subject to Clause 17.3, neither party shall be liable in contract, tort (including negligence) howsoever arising out of or in connection with this Agreement (including any collateral contract) for any:-
17.4.1 Indirect, special or consequential loss of damage; or
17.4.2 Loss of profits, business opportunities, revenue, anticipated savings; wasted expenditure, goodwill or for any loss or corruption or destruction of data.
17.5 Subject to 17.3 and 17.4 the Company’s total aggregate liability to the Customer for any Claim in contract, tort, negligence or otherwise arising out of or in connection with the provision of the Services or this Agreement shall be limited to the total Fees and Subscriptions paid by the Customer in respect of the Services in the Contract Year in which the Claim arises, and provided that the Company is notified of any such claim within a reasonable period and is first given the opportunity to rectify the relevant matters.
18. Data Protection
18.1 For the purpose of this clause 18:
18.1.1 “controller”, “processor”, “processing”, “data protection officer” and “personal data” shall have the same meaning as defined in Data Protection Legislation;
18.1.2 “Data Protection Legislation” means the Data Protection Act 2018, the GDPR, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and all applicable laws and regulations relating to the processing of personal data and privacy, including where applicable, any guidance notes and codes of practice issued by the European Commission and applicable national Regulators including the UK Information Commissioner;
18.1.3 “GDPR” means the EC Regulation 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data;
18.1.4 “Regulator” means any regulatory body with responsibility for ensuring compliance with Data Protection Legislation; and
18.1.5 “Security Breach” means accidental or deliberate, unauthorised or unlawful acquisition, destruction, loss, alteration, corruption, access, use or disclosure of personal data processed under to this Agreement or breach of the Company’s security obligations under this Agreement (including clause 18.4.3).
18.2 The parties acknowledge and agree that in order to provide the Services, the Company may process personal data. The relevant Statement of Work sets out the subject matter and duration of processing, the nature and purpose of processing, the type of personal data being processed and the categories of data subject.
18.3 The parties agree that in respect of any personal data processed in connection with this Agreement that the Customer shall be the “controller” and the Company or Sub processor shall be the “processor”.
18.4 Each party acknowledges and agrees that each party has respective rights and obligations under applicable Data Protection Legislation. The Company shall, without prejudice to its other rights or obligations, in respect of its processing of such personal data:
18.4.1 process the data only to the extent, and in such a manner, as is necessary for the purposes of this Agreement and in accordance with the Customer’s lawful written instructions from time to time. If the Company is unsure as to the parameters of the instructions issued by the Customer and/or believes that the Customer’s instructions may conflict with the requirements of Data Protection Legislation, the Company may notify the Customer for clarification;
18.4.2 ensure that any person authorised to process data in connection with this Agreement is subject to a duty of confidentiality;
18.4.3 at the Customer’s cost, take such measures as may be required in line with Article 32 of the GDPR (Security);
18.4.4 at the Customer’s cost, assist the Customer by using appropriate technical and organisational measures in responding to, and complying with, data subject requests;
18.4.5 at the Customer’s cost, provide the Customer with reasonable co-operation and assistance in relation to the Customer’s obligations and rights under Data Protection Legislation, taking into account the nature of the processing and the information available to the processor, including providing the Customer and relevant Regulators (as applicable) with all information and assistance reasonably necessary to investigate Security Breaches and where relevant notify the relevant Regulator and/or affected data subject of the relevant Security Breach, carry out privacy impact assessments or otherwise to demonstrate compliance by the parties with Data Protection Legislation;
18.4.6 keep a written record of any processing of the data carried out in the course of the Services (“Records”);
18.4.7 provide the Customer, its third-party representatives (who are not competitors of the Company) or a Regulator, a copy of the Company’s most recent audit results to demonstrate the Company’s compliance with its obligations under this clause 18;
18.4.8 may engage a sub processor to process data (or otherwise sub-contract or outsource the processing of any data to a third party) (a “Sub processor”), provided that it:
18.4.8.1 notifies the Customer of any new or replacement Sub processors. If the Customer objects to the appointment of a new or replacement Sub processor, it shall notify the Company within five Business Days. The Customer shall be deemed to have accepted the Sub processor if the Company does not receive an objection with five Business Days. If the objection cannot be resolved by the parties within five Business Days of receipt by the Company of the written objection, the Company shall not be in breach of this Agreement to the extent it cannot provide its services or otherwise comply with its obligations as a result and the Company may on immediate written notice terminate this Agreement without liability;
18.4.8.2 enters into a written contract with the Sub processor that:
18.4.8.2.1 provides protections or guarantees that Sub processor considers necessary to implement appropriate technical and organisation measures in compliance with the Data Protection Legislation; and
18.4.8.2.2 terminates automatically on termination or expiry of this Agreement for any reason; and
18.4.8.3 remains liable for all acts or omissions of the Sub processors as if they were acts or omissions of the Company (except to the extent caused or exacerbated by the Customer). As at the date of this Agreement, the Company uses the Sub-processors set out in the relevant Statement of Work for the activities set out in the relevant Statement of Work in connection with the provision of the Services;
18.4.9 at the Customer’s cost return or destroy (as directed in writing by the Customer) all personal data it has in its possession and delete existing copies unless applicable law requires storage of the personal data;
18.4.10 the Customer acknowledges and agrees that personal data may be transferred to those locations set out in the Statement of Work in accordance with the transfer mechanisms set out in the Statement of Work (“Transfer Mechanism”). The parties agree that if the relevant Transfer Mechanism ceases to exist or is no longer considered to be a lawful method of transferring personal data outside of the European Economic Area (“EEA”), the parties shall have a good faith discussion and agree an alternative lawful transfer mechanism and the Company may cease or procure that the relevant third party ceases the processing of personal data until the parties have agreed an alternative transfer mechanism to enable the personal data to be transferred outside of the EEA in a compliant manner. The Company shall not be in breach of this Agreement to the extent that the parties do promptly reach any such agreement.
18.5 The Customer agrees to comply with its obligations under applicable Data Protection Legislation in respect of the processing of personal data, including prevention of personal data being distributed as an image such as screenshots, under or in connection with this Agreement and shall in particular ensure that, as a condition of this Agreement, the Company is lawfully permitted to process personal data on its behalf. The Customer shall indemnify the Company on demand against all claims, liabilities, costs, expenses, damages and losses (including all interest, penalties and legal costs and all other professional costs and expenses) suffered or incurred by the Company arising out of the Customer’s breach of this clause 18.5 (“Claims”). Each party acknowledges that Claims include any claim or action brought by a data subject arising from the Customer’s breach of its obligations in this clause 18.5.
19. Force Majeure
19.1 The Company shall in no circumstances be liable to the Customer for any delay or non-performance of its obligations under this Agreement to the extent that such delay or non-performance is due to a Force Majeure Event.
19.2 If the Company is delayed or prevented from or hindered in performing its obligations under this Agreement by a Force Majeure Event, subject to its right of immediate termination under clause 19.6, it shall:
give notice in writing of such delay or prevention to the Customer as soon as reasonably possible, stating the commencement date and extent of such delay or prevention, the cause thereof and its estimated duration;
use reasonable endeavours to mitigate the effects of such delay or prevention on the performance of its obligations under this Agreement; and
resume performance of its obligations as soon as reasonably possible after the removal of the cause of the delay or prevention.
19.3 The Company cannot claim relief if the Force Majeure Event is attributable to the Company’s wilful act, neglect, or failure to take reasonable precautions against the relevant Force Majeure Event.
19.4 As soon as practicable following the Company’s notification under clause 19.2, the parties shall consult with each other in good faith and use reasonable endeavours to agree appropriate terms to mitigate the effects of the Force Majeure Event and to facilitate the continued performance of this Agreement.
19.5 Should the Company issue a notification under clause 19.2, it shall notify the Customer as soon as practicable after the Force Majeure Event ceases or no longer causes the Company to be unable to comply with its obligations under this Agreement. Following such notification, this Agreement shall continue to be performed on the terms existing immediately prior to the occurrence of the Force Majeure Event unless agreed otherwise by the parties.
20. General
20.1 If any provision of the Agreement is held invalid, illegal or unenforceable for any reason, such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if this Agreement had been executed with the invalid provision eliminated. In the event of there being any invalidity so fundamental as to prevent the accomplishment of the purpose of this Agreement, the parties shall immediately commence good faith negotiation to remedy such invalidity.
20.2 The registration or obtaining of a domain name for the Customer shall be subject always to the relevant terms and conditions of the relevant registrar and shall be subject to any third party claims there may be in respect of trademark, copyright, and/or passing off and the Customer acknowledges and warrants that it has made all investigations and considered any competing claim there may be to or in respect of the name by third parties whether in the UK or elsewhere.
20.3 The Customer undertakes that it will not during the term of this agreement and for 12 months after completion of the Services or earlier termination of this agreement in accordance with clause 6 hereof (whichever is the later) either alone or in conjunction with or on behalf of any other person, directly or indirectly seek to entice away, solicit or engage any person who was during the term of this agreement an employee or consultant of the Company or was otherwise engaged by the Company and was involved in any way in the provision of the Services. Whilst both the Customer and the Company agree that this restriction is reasonable in all the circumstances it is agreed that if a court of competent jurisdiction considers that the restriction is invalid but would have been valid if either the period or its scope were reduced then the restriction will continue to apply with such limitation or limitations necessary to enable its validity.
20.4 The failure by either party to enforce at any time or for any period any one or more of the terms and conditions of this Agreement shall not be a waiver of them or of the right at any time subsequently to enforce all terms and conditions of this Agreement.
20.5 This Agreement is subject to English law and the parties hereby submit to the exclusive jurisdiction of the English courts in respect of any dispute arising under or in connection with this Agreement.
21. Variation
21.1 The Company shall be entitled to vary these Terms and Conditions at any time for any reason and such variation shall be effective upon the expiry of 45 days’ written notice given by the Company to the Customer.
21.2 If, in the reasonable opinion of the Customer, a variation of these Terms and Conditions under clause 21.1 has a material detrimental effect on the Customer, the Customer shall be entitled to terminate this Agreement on giving to the Company written notice of termination within a period of 15 days following the Company’s notice of variation, failing which the Customer shall be deemed to have accepted such variation.
21.3 Subject to clauses 21.1 and 21.2, the terms of this Agreement may only be varied with the written agreement of the parties.
Version: TC231013