AGREED TERMS
1. INTERPRETATION
1.1 The definitions and rules of interpretation in this condition apply in these terms and conditions (Conditions).

Business Day: means any day which is not a Saturday, Sunday or public or bank holiday in England on which the Banks in London are open for business.

Contract: the Customer’s purchase order and the Supplier’s acceptance of it, or the Customer’s acceptance of a quotation for Services by the Supplier under condition 2.2.

Customer: the person, firm or company, organisation or body who purchases Goods and/or Services from the Supplier or such third party as the parties have agreed in writing shall be the recipient of some, part or all of the Goods and Services.
Customer’s Equipment: any equipment, systems, cabling or facilities provided by the Customer and used directly or indirectly in the supply of the Services.

Data: all Customer data processed by the Supplier or its agents, subcontractors, consultants and employees as part of the Services together with any enhancements, modifications or derivative works made in respect of such data during the course of the Services.

Data Controller: shall have the same meaning as set out in the Data Protection Act 1998. In this agreement the Data Controller will be the Customer. Data Processor: shall have the same meaning as set out in the Data Protection Act 1998. In this agreement the Data Processor will be the Supplier.

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 electronic information, computer programs, data, reports and specifications (including drafts).

Document: includes, without limitation, 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: List of Remote Workers and their mobile phone numbers to be covered by the Services.
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.

Remote Workers: means the individual workers identified by the Customer to the Supplier as the users of the Services

Pre-existing Materials: all Documents, information and materials provided by the Supplier relating to the Services which existed prior to the commencement of the Contract including computer programs, data, reports and specifications.
Services: the services to be provided by the Supplier under the Contract as set out in Schedule 1.

Supplier: CairAlert Ltd

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

1.2 Headings in these conditions shall not affect the interpretation of the terms of this Agreement.

1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.4 The schedules form part of the Contract and any reference to the Contract includes the Schedules.
1.5 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 reenactment and includes any subordinate legislation for the time being in force made under it.

1.6 A reference to writing or written excludes faxes and e-mail.

1.7 Any obligation in the Contract on a person not to do something includes, without limitation, an obligation not to agree, allow, permit or acquiesce in that thing being done.

1.8 References to conditions and schedules are to the conditions and schedules of the Contract.

1.9 Words purporting to be singular only shall also include the plural, and vice versa, where the context so requires.

2. APPLICATION OF CONDITIONS

2.1 These Conditions shall:

(a) apply to and be incorporated into the Contract; and

(b) prevail over any inconsistent terms or conditions contained, or referred to, in the Customer’s purchase order, confirmation of order, acceptance of a quotation, or specification or other Document supplied by the Customer, or implied by law, trade custom, practice or course of dealing.

2.2 The Customer’s purchase order, or the Customer’s acceptance of a quotation for Services by the Supplier, constitutes an offer by the Customer to purchase the Services specified in it on these Conditions. No offer placed by the Customer shall be accepted by the Supplier other than:

(a) by a written acknowledgement issued and executed by the Supplier; or

(b) (if earlier) by the Supplier starting to provide the Services,
when a contract for the supply and purchase of the Services on these Conditions will be established. The Customer’s standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other Document shall not govern the Contract.

2.3 Quotations are given by the Supplier on the basis that no Contract shall come into existence except in accordance with condition.

2.2. Any quotation is valid for a period of 30 days from its date, provided that the Supplier has not previously withdrawn it.

3. COMMENCEMENT AND DURATION

3.1 The Services supplied pursuant to the Contract shall be provided by the Supplier to the Customer from the service commencement date as set out in Schedule 1.

3.2 Subject to condition 11, the Contract shall continue for the period set out in Schedule 1 (“the Initial Period”) and, after that, shall continue after the Initial Period unless the Contract is terminated in accordance with the terms of clause 15.

4. SUPPLIER’S OBLIGATIONS

4.1 The Supplier shall use reasonable endeavours to provide the Services to the Customer, in accordance in all material respects with Schedule 1. No warranty is given by the Supplier to the Customer in respect of the performance Goods or services incorporated in or forming part of the Services which are not within the Supplier’s exclusive control including but not limited to the wifi and 4g services provided by third parties.

4.2 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 shall not be of the essence for performance of the Services.
4.3 The Supplier shall use reasonable endeavours to observe all health and safety rules and regulations, and any other reasonable security requirements that apply at the Customer’s premises (if applicable) and that have been communicated to it under condition 5.1(e), provided that the Supplier shall not be liable under the Contract if, as a result of such observation, it is in breach of any of its obligations under the Contract.
5. CUSTOMER’S OBLIGATIONS

5.1 The Customer shall:

(a) co-operate with the Supplier in all matters relating to the Services;

(b) provide the Supplier, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, with access to the Customer’s premises, office accommodation, data and other facilities as reasonably required by the Supplier to provide the Services;

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

(d) be responsible (at its own cost) for preparing and maintaining the relevant premises and not for the supply of the Services;

(e) 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;

(f) 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 United Kingdom standards or requirements;

(g) obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services, the installation of the Supplier’s Equipment, the use of In-put Material and the use of the Customer’s Equipment in relation to the Supplier’s Equipment insofar as such licences, consents and legislation relate to the Customer’s business, premises, staff and equipment, in all cases before the date on which the Services are to start;

(h) ensure that its employees (including but not limited to the remote workers and their managers) are trained in the use of the Goods and Services including training managers to log on to the CairAlert system; and

(i) ensure that the Services form part and not the entirety of an adequate health and safety programme for the protection of remote workers.

(j) nominate a person as a single point of contact for the Supplier who will have knowledge of the Services and the Customer’s own lone / remote working policy and procedures and the authority to make decisions in respect of the Services implementation and whose job description will include the day to day responsibility of the operation of the Services unless the Supplier agrees in writing in advance to waive the requirement pertaining to the job description..

(k) ensure that the Remote Workers have operational mobile telephones and that the Suppliers “PAYG Costs” (as defined in clause 6.2 below) are always adequately in credit.

(l) ensure anyone who is not an employee of the Customer only use the Goods and/or Services whilst carrying out duties for the Customer;

(m) ensure they understand the effect their configuration and use of the Services and Equipment has on the performance, functionality and durability of the Services, the Equipment and the batteries of the Equipment and that they should adhere to the instructions of the Supplier and manufacturer where given.

5.2 If the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees and/or any third party including but not limited to the telecom providers, the Supplier shall not be liable for any costs, charges or losses, claims, damages or fines sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.

5.3 The Customer shall be liable to pay to the Supplier, on demand, all reasonable costs, charges or losses sustained or incurred by the Supplier (including, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Customer’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to the Supplier confirming such costs, charges and losses to the Customer in writing.

5.4 The Customer shall not, without the prior written consent of the Supplier, at any time from the date of the Contract to the expiry of 12 months after the last date of supply of the Services, 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.

5.5 Any consent given by the Supplier in accordance with condition 5.4 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.

5.6 If the Supplier’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):

(a) the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;

(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 5.6; and

(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.

6. CHARGES AND PAYMENT

6.1 In consideration of the provision of the Goods and Services by the Supplier, the Customer shall pay the charges as set out in Schedule 3.

6.2 The total price for the Goods and Services shall be the amount set out in Schedule 3 (“the Fees”) together with the “pay monthly” option. The Fees shall be paid to the Supplier (without deduction or set-off) on the earlier of 7 days from the date of the Contract and the Commencement Date set out in Schedule 1 hereto. The Supplier shall invoice the Customer for the charges that are payable, together with an agreed sum in respect of the estimated monthly PAYG Costs. All additional PAYG Costs will be billed by the Supplier to the Customer in advance.

6.3 The Fees contained in Schedule 3 excludes:

(a) 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 together with PAYG Costs in excess of these initially billed pursuant to clause 10.2 above.

(b) VAT, which the Supplier may add to its invoices at the appropriate rate.

6.4 The parties agree that the Supplier may review and increase the charges for the Services set out in Schedule 3, provided that such charges (save for the PAYG Costs by the Supplier which shall be charged to the Customer at the prices set out in Schedule 3) cannot be increased more than once in any 12 month period. The Supplier will give the Customer written notice of any such increase 3 months before the proposed date of the increase. Where such
increase is above the retail price index (“RPI”) for services at the time of the notice and if such increase is not acceptable to the Customer,the Customer may, within 30 days of such notice being received or deemed to have been received in accordance with condition 20, terminate the Contract by giving 3 months written notice to the Supplier.

6.5 Subject to the provision of clause 10.2 above the Customer shall pay each invoice submitted to it by the Supplier, in full and in cleared funds, within 14 days of receipt to a bank account nominated in writing by the Supplier.

6.6 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:

(a) charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of Barclays Bank Plc, 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. The Supplier may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and

(b) suspend all Services until payment has been made in full.

6.7 Time for payment shall be of the essence of the Contract.

6.8 All sums payable to the Supplier under the Contract shall become due immediately on its termination, despite any other provision. This condition.

6.8 is without prejudice to any right to claim for interest under the law, or any such right under the Contract.

6.9 The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.

6.10 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.

6.11 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above National Westminster Bank plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.

7. INTELLECTUAL PROPERTY RIGHTS

7.1 As between the Customer and the Supplier, all Intellectual Property Rights and all other rights in the Deliverables and the Pre-existing Materials shall be owned by the Supplier. Subject to condition

7.2, the Supplier licenses all such rights to the Customer free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Deliverables and the Services. If the Contract terminates, this licence shall automatically terminate.7.2 The Customer acknowledges that, where the Supplier does not own any Pre-existing Materials, the Customer’s use of rights in Pre-existing Materials is conditional on the Supplier obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle the Supplier to license such rights to the Customer.

8. CONFIDENTIALITY AND THE SUPPLIER’S PROPERTY

8.1 The Customer 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 Customer by the Supplier, its employees, agents, consultants or subcontractors and any other confidential information concerning the Supplier’s business or its products which the Customer may obtain.

8.2 The Customer may disclose such information:

(a) to its employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out the Customer’s obligations under the Contract provided always that they are bound by confidentiality provisions at least as onerous as those set out in 8.1 above; and

(b) as may be required by law, court order or any governmental or regulatory authority.

8.3 The Customer shall ensure that its employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such information comply with this condition 12.

8.4 The Customer shall not use any such information for any purpose other than to perform its obligations under the Contract.

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 The Customer acknowledges that, in respect of any third party Intellectual Property Rights in the Services, the Customer’s use of any such Intellectual Property Rights is conditional on the Customer obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.

9. LIMITATION OF LIABILITY:

The Customer’s attention is particularly drawn to this clause
9.1 This condition 9 sets out the entire liability of the Supplier (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the Customer or in respect of:

(a) any breach of the Contract;

(b) any use made by the Customer of the Goods and/or Services, the Deliverables or any part of them; and

(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.

9.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract. For the avoidance of doubt the Supplier shall have no liability for the failure or delay of the interface between the remote worker and the Services caused by any third party telecom providers.

9.3 Nothing in these Conditions limits or excludes the liability of the Supplier:

(a) for death or personal injury resulting from negligence; or

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

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

(d) breach of the term implied by section 12 of the Sale of Goods Act 1979.

9.4 Subject to condition 5.5, 9.2 and condition 9.3 (a) the Supplier shall not be liable for:

(i) loss of profits; or
(ii) loss of business; or
(iii) depletion of goodwill and/or similar losses; or
(iv) loss of anticipated savings; or
(v) loss of goods; or
(vi) loss of contract; or
(vii) loss of use; or
(viii) loss of corruption of data or information; or
(ix) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses. (b) 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 the Contract shall be limited to the price paid for the Services.

9.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.


10. DATA PROTECTION

10.1 Each party will comply with the requirements of the Data Protection Act 2018, the Privacy and Electronic Communications (EC Directive) Regulations 2003, any equivalent, amending or associated legislation and all other applicable data protection rules, regulations, codes of practice and guidance (“Data Protection Legislation”) in relation to the provision or use of the Services, including maintaining all necessary notifications or registrations that may be required under Data Protection Legislation, and will not knowingly do anything or permit anything to be done which might lead to a breach by the other party of the Data Protection Legislation.

10.2 The Supplier shall:

a. maintain a record of any processing of Data carried out on behalf of the Customer;

b. store and process Data only as reasonably required in connection with the provision of the Services and in any event, strictly in compliance with the terms of this Agreement and the Suppliers Policy, Practice and Plans Document;

c. deal with enquiries from the Customer relating to processing of the Data within reasonable timescales;

d. not acquire or claim any right or interests in Data;

e. co-operate with the UK Information Commissioner in the course of all of its enquiries and abide by the advice and/or any other regulatory requirements of the UK Information Commissioner with regard to the processing of the Data;

f. not transfer any Data to any country or territory outside the European Economic Area unless specifically authorised in writing by the Customer (for the avoidance of doubt this excludes Data in transit as would be the case for Data sent by electronic means which includes but is not limited to email and file transfer);

g. inform the Customer within five (5) Business Days of any request from an individual for access to their Data and (unless the Customer has explicitly authorised that action or a competent authority has declared that the Customer is unable to respond to requests from those individuals) inform the individual that it is not authorised to respond;

h. inform the Customer within five (5) Business Days about any request for disclosure of the Data from a public body that could eventually force it to disclose the Data, unless such notification is forbidden by law;

i. inform the Customer within five (5) Business Days of any disclosure or accidental or unauthorised access made by an employee, subcontractor or any other identified person as well as the known facts as regards the above mentioned disclosure or use;

j. not disclose Data to any third parties other than to employees, subcontractors or agents to whom disclosure is reasonably necessary in order for the Supplier to carry out the Services; k. maintain throughout the term of this Agreement, appropriate technical and organisational measures against accidental or unauthorised destruction, loss, alteration or disclosure of the Data and;

l. on termination of this Agreement for whatever reason, or upon written request from the Customer at any time, the Supplier shall cease to use or process any Data, and shall within five (5) Business Days return or delete, at the Customer’s discretion, those Data to the Customer and certify to the Customer in writing that the Supplier has done so. In the event that the Customer requests the Data from the Supplier other than on termination of this Agreement then the Customer shall pay the Supplier all sums due to the Supplier as if this Agreement had continued for the duration of its term not withstanding the fact that both Parties accept that the Supplier will not be able to supply the Services and further the Supplier shall have no liability for any breach of contract arising as a result of the Customer’s withdrawal of its Data.

10.3 The Supplier shall:
a) indemnify and keep indemnified and defend at its own expense the Customer against all claims, costs, damages or expenses incurred by the Customer or for which the Customer may become liable due to any failure by the Supplier or its employees, subcontractors or agents to comply with Data Protection Legislation and/or any of its obligations under this Agreement; and


10.4 The Customer is entitled, on giving at least five (5) Business Days’ notice to the Supplier, to inspect, test or audit, or appoint representatives who shall be bound by the same duties of confidentiality as the Customer would owe to the Supplier, to inspect, test and audit, all facilities, equipment, documents and electronic data relating to the processing of Data by the Supplier.

10.5 The Customer shall ensure that all personal data contained in the Data are accurate and up to date and otherwise compliant with Data Protection Legislation at all times.

10.6 The Customer warrants that it has and will maintain for the duration of the Agreement

a) appropriate data protection registrations which include the processing or sub processing (as appropriate) of Data by Supplier and its sub contractors;

b) an adequate system in place for updating Data and will make any necessary suppressions from such Data in accordance with the Data Protection Legislation and accepted industry standards;

c) all requisite authority and has obtained and will maintain (including by way of incorporating into all materials and processes through which the Data are captured) all necessary consents or other conditions required under the Data Protection Legislation including any which are necessary for the processing or sub processing (as appropriate) of Data by the Supplier and its sub-contractors, and

d) fully complied with all of its other obligations under the Data Protection Legislation. The Customer will immediately notify the Supplier if any of the consents, conditions or its registrations are revoked or changed in any way which impacts on the Supplier’s rights or obligations under or in connection with this Agreement.

10.7 The Customer will indemnify and keep the Supplier indemnified against all losses, damages, costs or expenses and other liabilities (including legal fees and penalties) incurred by, awarded against or agreed to be paid by the Supplier arising from any breach of the Customer’s obligations under this Paragraph 14.
11. TERMINATION
11.1 Without limiting its other rights or remedies either party may terminate the Contract by giving the other party not less than 12 months’ written notice not to expire before the first anniversary of the date of the Contract.
11.2 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other immediately on giving notice to the other if: (a) the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 21 days after being notified in writing to make such payment; or (b) the other party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or (c) the other party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract; or (d) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or (e) 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 (f) 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; (g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party; or (h) a floating charge holder over the assets of that other party has become entitled to appoint or has appointed an administrative receiver; or
(i) 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 (j) 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 (k) 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 condition 11.2(d) to condition 11.2(j) (inclusive); or (l) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or (m) the Customer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
11.3 The parties acknowledge and agree that any breach of conditions 5, 6, 8, 9 and 10 shall constitute a material breach for the purposes of this condition 11.
11.4 On termination of the Contract for any reason: (a) 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;
11.5 On termination of the Contract (however arising), the following conditions shall survive and continue in full force and effect: (a) condition 4.2; (b) condition 5.5; (c) condition 7; (d) condition 8; (e) condition 9; (f) condition 11; and (g) condition 21.
12. FORCE MAJEURE
The Supplier shall have no liability to the Customer under the Contract if it is prevented from, or delayed in performing, its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or telecommunications or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors. In the event the force majeure continues for 12 weeks the party which is not subject to the force majeure may cancel this contract on giving not less than 30 days written notice to the affected party.
13. VARIATION
13.1 The Supplier may, from time to time and without notice, change the Goods and/or 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. If the Supplier requests a change to the scope of the Goods and/or Services for any other reason, the Customer shall not unreasonably withhold or delay consent to it.
13.2 Subject to condition 13.1, no variation of the Contract or these Conditions or of any of the documents referred to in them shall be valid unless it is in writing and signed by or on behalf of each of the parties.
14. WAIVER
14.1 A waiver of any right under the Contract is only effective if it is in writing signed by both parties and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy.
14.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
15. SEVERANCE
15.1 If any provision of the Contract (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 Contract, and the validity and enforceability of the other provisions of the Contract shall not be affected.
15.2 If a provision of the Contract (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 The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
16.2 Each party acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) (other than for breach of contract), except as expressly provided in the Contract.
17. ASSIGNMENT
17.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights or obligations under the Contract.
17.2 The Supplier may at any time assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
17.3 Each party that has rights under the Contract is acting on its own behalf and not for the benefit of another person.
18. NO PARTNERSHIP OR AGENCY
Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
19. RIGHTS OF THIRD PARTIES
A person who is not a party to the Contract shall not have any rights under or in connection with it.
20. NOTICES
20.1 Any notice or other communication required to be given under the Contract shall be in writing and shall be delivered personally, or sent by pre-paid first-class post, recorded delivery or by commercial courier to the other party and for the attention of the person specified in Schedule 2, or as otherwise specified by the relevant party by notice in writing to the other party.
20.2 Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address and for the contact referred to in Schedule 2 or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.
20.3 This condition 20 shall not apply to the service of any in any proceedings or other documents in any legal action.
20.4 A notice or other communication required to be given under or in connection with the Contract shall not be validly served if sent by e-mail.
21. GOVERNING LAW AND JURISDICTION
21.1 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, the law of England and Wales.
21.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the Contract or its subject matter or formation (including non-contractual disputes or claims). : the Customer’s purchase order and the Supplier’s acceptance of it, or the Customer’s acceptance of a quotation for Services by the Supplier under condition 2.2.
Customer: the person, firm or company, organisation or body who purchases Goods and/or Services from the Supplier or such third party as the parties have agreed in writing shall be the recipient of some, part or all of the Goods and Services.
Customer’s Equipment: any equipment, systems, cabling or facilities provided by the Customer and used directly or indirectly in the supply of the Services.
Data: all Customer data processed by the Supplier or its agents, subcontractors, consultants and employees as part of the Services together with any enhancements, modifications or derivative works made in respect of such data during the course of the Services.
Data Controller: shall have the same meaning as set out in the Data Protection Act 1998. In this agreement the Data Controller will be the Customer. Data Processor: shall have the same meaning as set out in the Data Protection Act 1998. In this agreement the Data Processor will be the Supplier.
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 electronic information, computer programs, data, reports and specifications (including drafts).
Document: includes, without limitation, 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: List of Remote Workers and their mobile phone numbers to be covered by the Services.
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.
Remote Workers: means the individual workers identified by the Customer to the Supplier as the users of the Services
Pre-existing Materials: all Documents, information and materials provided by the Supplier relating to the Services which existed prior to the commencement of the Contract including computer programs, data, reports and specifications.
Services: the services to be provided by the Supplier under the Contract as set out in Schedule 1.
Supplier: CairAlert Ltd
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.
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
1.2 Headings in these conditions shall not affect the interpretation of the terms of this Agreement. 1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 The schedules form part of the Contract and any reference to the Contract includes the Schedules.
1.5 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 reenactment and includes any subordinate legislation for the time being in force made under it. 1.6 A reference to writing or written excludes faxes and e-mail. 1.7 Any obligation in the Contract on a person not to do something includes, without limitation, an obligation not to agree, allow, permit or acquiesce in that thing being done.
1.8 References to conditions and schedules are to the conditions and schedules of the Contract.
1.9 Words purporting to be singular only shall also include the plural, and vice versa, where the context so requires.
2. APPLICATION OF CONDITIONS
2.1 These Conditions shall: (a) apply to and be incorporated into the Contract; and (b) prevail over any inconsistent terms or conditions contained, or referred to, in the Customer’s purchase order, confirmation of order, acceptance of a quotation, or specification or other Document supplied by the Customer, or implied by law, trade custom, practice or course of dealing.
2.2 The Customer’s purchase order, or the Customer’s acceptance of a quotation for Services by the Supplier, constitutes an offer by the Customer to purchase the Services specified in it on these Conditions. No offer placed by the Customer shall be accepted by the Supplier other than: (a) by a written acknowledgement issued and executed by the Supplier; or
(b) (if earlier) by the Supplier starting to provide the Services,
when a contract for the supply and purchase of the Services on these Conditions will be established. The Customer’s standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other Document shall not govern the Contract.
2.3 Quotations are given by the Supplier on the basis that no Contract shall come into existence except in accordance with condition 2.2. Any quotation is valid for a period of 30 days from its date, provided that the Supplier has not previously withdrawn it.
3. COMMENCEMENT AND DURATION
3.1 The Services supplied pursuant to the Contract shall be provided by the Supplier to the Customer from the service commencement date as set out in Schedule 1.
3.2 Subject to condition 11, the Contract shall continue for the period set out in Schedule 1 (“the Initial Period”) and, after that, shall continue after the Initial Period unless the Contract is terminated in accordance with the terms of clause 15.
4. SUPPLIER’S OBLIGATIONS
4.1 The Supplier shall use reasonable endeavours to provide the Services to the Customer, in accordance in all material respects with Schedule 1. No warranty is given by the Supplier to the Customer in respect of the performance Goods or services incorporated in or forming part of the Services which are not within the Supplier’s exclusive control including but not limited to the wifi and 4g services provided by third parties.
4.2 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 shall not be of the essence for performance of the Services.
4.3 The Supplier shall use reasonable endeavours to observe all health and safety rules and regulations, and any other reasonable security requirements that apply at the Customer’s premises (if applicable) and that have been communicated to it under condition 5.1(e), provided that the Supplier shall not be liable under the Contract if, as a result of such observation, it is in breach of any of its obligations under the Contract.
5. CUSTOMER’S OBLIGATIONS
5.1 The Customer shall: (a) co-operate with the Supplier in all matters relating to the Services; (b) provide the Supplier, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, with access to the Customer’s premises, office accommodation, data and other facilities as reasonably required by the Supplier to provide the Services;
(c) provide to the Supplier, in a timely manner, such In-put Material and other information as the Supplier may reasonably require and ensure that it is accurate in all material respects; (d) be responsible (at its own cost) for preparing and maintaining the relevant premises and not for the supply of the Services; (e) 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; (f) 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 United Kingdom standards or requirements; (g) obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services, the installation of the Supplier’s Equipment, the use of In-put Material and the use of the Customer’s Equipment in relation to the Supplier’s Equipment insofar as such licences, consents and legislation relate to the Customer’s business, premises, staff and equipment, in all cases before the date on which the Services are to start; (h) ensure that its employees (including but not limited to the remote workers and their managers) are trained in the use of the Goods and Services including training managers to log on to the CairAlert system; and (i) ensure that the Services form part and not the entirety of an adequate health and safety programme for the protection of remote workers. (j) nominate a person as a single point of contact for the Supplier who will have knowledge of the Services and the Customer’s own lone / remote working policy and procedures and the authority to make decisions in respect of the Services implementation and whose job description will include the day to day responsibility of the operation of the Services unless the Supplier agrees in writing in advance to waive the requirement pertaining to the job description.. (k) ensure that the Remote Workers have operational mobile telephones and that the Suppliers “PAYG Costs” (as defined in clause 6.2 below) are always adequately in credit. (l) ensure anyone who is not an employee of the Customer only use the Goods and/or Services whilst carrying out duties for the Customer; (m) ensure they understand the effect their configuration and use of the Services and Equipment has on the performance, functionality and durability of the Services, the Equipment and the batteries of the Equipment and that they should adhere to the instructions of the Supplier and manufacturer where given.
5.2 If the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees and/or any third party including but not limited to the telecom providers, the Supplier shall not be liable for any costs, charges or losses, claims, damages or fines sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.
5.3 The Customer shall be liable to pay to the Supplier, on demand, all reasonable costs, charges or losses sustained or incurred by the Supplier (including, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Customer’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to the Supplier confirming such costs, charges and losses to the Customer in writing.
5.4 The Customer shall not, without the prior written consent of the Supplier, at any time from the date of the Contract to the expiry of 12 months after the last date of supply of the Services, 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.
5.5 Any consent given by the Supplier in accordance with condition 5.4 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.
5.6 If the Supplier’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default): (a) the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations; (b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 5.6; and (c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
6. CHARGES AND PAYMENT
6.1 In consideration of the provision of the Goods and Services by the Supplier, the Customer shall pay the charges as set out in Schedule 3.
6.2 The total price for the Goods and Services shall be the amount set out in Schedule 3 (“the Fees”) together with the “pay monthly” option. The Fees shall be paid to the Supplier (without deduction or set-off) on the earlier of 7 days from the date of the Contract and the Commencement Date set out in Schedule 1 hereto. The Supplier shall invoice the Customer for the charges that are payable, together with an agreed sum in respect of the estimated monthly PAYG Costs. All additional PAYG Costs will be billed by the Supplier to the Customer in advance.
6.3 The Fees contained in Schedule 3 excludes: (a) 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 together with PAYG Costs in excess of these initially billed pursuant to clause 10.2 above. (b) VAT, which the Supplier may add to its invoices at the appropriate rate.
6.4 The parties agree that the Supplier may review and increase the charges for the Services set out in Schedule 3, provided that such charges (save for the PAYG Costs by the Supplier which shall be charged to the Customer at the prices set out in Schedule 3) cannot be increased more than once in any 12 month period. The Supplier will give the Customer written notice of any such increase 3 months before the proposed date of the increase. Where such
increase is above the retail price index (“RPI”) for services at the time of the notice and if such increase is not acceptable to the Customer,the Customer may, within 30 days of such notice being received or deemed to have been received in accordance with condition 20, terminate the Contract by giving 3 months written notice to the Supplier.
6.5 Subject to the provision of clause 10.2 above the Customer shall pay each invoice submitted to it by the Supplier, in full and in cleared funds, within 14 days of receipt to a bank account nominated in writing by the Supplier.
6.6 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: (a) charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of Barclays Bank Plc, 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. The Supplier may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and (b) suspend all Services until payment has been made in full.
6.7 Time for payment shall be of the essence of the Contract.
6.8 All sums payable to the Supplier under the Contract shall become due immediately on its termination, despite any other provision. This condition 6.8 is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
6.9 The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.
6.10 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
6.11 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above National Westminster Bank plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 As between the Customer and the Supplier, all Intellectual Property Rights and all other rights in the Deliverables and the Pre-existing Materials shall be owned by the Supplier. Subject to condition 7.2, the Supplier licenses all such rights to the Customer free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Deliverables and the Services. If the Contract terminates, this licence shall automatically terminate.
7.2 The Customer acknowledges that, where the Supplier does not own any Pre-existing Materials, the Customer’s use of rights in Pre-existing Materials is conditional on the Supplier obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle the Supplier to license such rights to the Customer.
8. CONFIDENTIALITY AND THE SUPPLIER’S PROPERTY
8.1 The Customer 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 Customer by the Supplier, its employees, agents, consultants or subcontractors and any other confidential information concerning the Supplier’s business or its products which the Customer may obtain.
8.2 The Customer may disclose such information: (a) to its employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out the Customer’s obligations under the Contract provided always that they are bound by confidentiality provisions at least as onerous as those set out in 8.1 above; and
(b) as may be required by law, court order or any governmental or regulatory authority.
8.3 The Customer shall ensure that its employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such information comply with this condition 12.
8.4 The Customer shall not use any such information for any purpose other than to perform its obligations under the Contract.
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 The Customer acknowledges that, in respect of any third party Intellectual Property Rights in the Services, the Customer’s use of any such Intellectual Property Rights is conditional on the Customer obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.
9. LIMITATION OF LIABILITY: The Customer’s attention is particularly drawn to this clause
9.1 This condition 9 sets out the entire liability of the Supplier (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the Customer or in respect of: (a) any breach of the Contract;
(b) any use made by the Customer of the Goods and/or Services, the Deliverables or any part of them; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
9.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract. For the avoidance of doubt the Supplier shall have no liability for the failure or delay of the interface between the remote worker and the Services caused by any third party telecom providers.
9.3 Nothing in these Conditions limits or excludes the liability of the Supplier: (a) for death or personal injury resulting from negligence; or
(b) for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by the Supplier; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); and
(d) breach of the term implied by section 12 of the Sale of Goods Act 1979.
9.4 Subject to condition 5.5, 9.2 and condition 9.3 (a) the Supplier shall not be liable for:

(i) loss of profits; or

(ii) loss of business; or
(iii) depletion of goodwill and/or similar losses; or
(iv) loss of anticipated savings; or
(v) loss of goods; or
(vi) loss of contract; or
(vii) loss of use; or
(viii) loss of corruption of data or information; or
(ix) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.

(b) 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 the Contract shall be limited to the price paid for the Services.

9.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

10. DATA PROTECTION
10.1 Each party will comply with the requirements of the Data Protection Act 2018, the Privacy and Electronic Communications (EC Directive) Regulations 2003, any equivalent, amending or associated legislation and all other applicable data protection rules, regulations, codes of practice and guidance (“Data Protection Legislation”) in relation to the provision or use of the Services, including maintaining all necessary notifications or registrations that may be required under Data Protection Legislation, and will not knowingly do anything or permit anything to be done which might lead to a breach by the other party of the Data Protection Legislation.

10.2 The Supplier shall:

a. maintain a record of any processing of Data carried out on behalf of the Customer;

b. store and process Data only as reasonably required in connection with the provision of the Services and in any event, strictly in compliance with the terms of this Agreement and the Suppliers Policy, Practice and Plans Document;

c. deal with enquiries from the Customer relating to processing of the Data within reasonable timescales;

d. not acquire or claim any right or interests in Data;

e. co-operate with the UK Information Commissioner in the course of all of its enquiries and abide by the advice and/or any other regulatory requirements of the UK Information Commissioner with regard to the processing of the Data;

f. not transfer any Data to any country or territory outside the European Economic Area unless specifically authorised in writing by the Customer (for the avoidance of doubt this excludes Data in transit as would be the case for Data sent by electronic means which includes but is not limited to email and file transfer);

g. inform the Customer within five (5) Business Days of any request from an individual for access to their Data and (unless the Customer has explicitly authorised that action or a competent authority has declared that the Customer is unable to respond to requests from those individuals) inform the individual that it is not authorised to respond;

h. inform the Customer within five (5) Business Days about any request for disclosure of the Data from a public body that could eventually force it to disclose the Data, unless such notification is forbidden by law;

i. inform the Customer within five (5) Business Days of any disclosure or accidental or unauthorised access made by an employee, subcontractor or any other identified person as well as the known facts as regards the above mentioned disclosure or use;

j. not disclose Data to any third parties other than to employees, subcontractors or agents to whom disclosure is reasonably necessary in order for the Supplier to carry out the Services; k. maintain throughout the term of this Agreement, appropriate technical and organisational measures against accidental or unauthorised destruction, loss, alteration or disclosure of the Data and;

l. on termination of this Agreement for whatever reason, or upon written request from the Customer at any time, the Supplier shall cease to use or process any Data, and shall within five (5) Business Days return or delete, at the Customer’s discretion, those Data to the Customer and certify to the Customer in writing that the Supplier has done so. In the event that the Customer requests the Data from the Supplier other than on termination of this Agreement then the Customer shall pay the Supplier all sums due to the Supplier as if this Agreement had continued for the duration of its term not withstanding the fact that both Parties accept that the Supplier will not be able to supply the Services and further the Supplier shall have no liability for any breach of contract arising as a result of the Customer’s withdrawal of its Data.

10.3 The Supplier shall:

a) indemnify and keep indemnified and defend at its own expense the Customer against all claims, costs, damages or expenses incurred by the Customer or for which the Customer may become liable due to any failure by the Supplier or its employees, subcontractors or agents to comply with Data Protection Legislation and/or any of its obligations under this Agreement; and

10.4 The Customer is entitled, on giving at least five (5) Business Days’ notice to the Supplier, to inspect, test or audit, or appoint representatives who shall be bound by the same duties of confidentiality as the Customer would owe to the Supplier, to inspect, test and audit, all facilities, equipment, documents and electronic data relating to the processing of Data by the Supplier.

10.5 The Customer shall ensure that all personal data contained in the Data are accurate and up to date and otherwise compliant with Data Protection Legislation at all times.

10.6 The Customer warrants that it has and will maintain for the duration of the Agreement

a) appropriate data protection registrations which include the processing or sub processing (as appropriate) of Data by Supplier and its sub contractors;

b) an adequate system in place for updating Data and will make any necessary suppressions from such Data in accordance with the Data Protection Legislation and accepted industry standards;

c) all requisite authority and has obtained and will maintain (including by way of incorporating into all materials and processes through which the Data are captured) all necessary consents or other conditions required under the Data Protection Legislation including any which are necessary for the processing or sub processing (as appropriate) of Data by the Supplier and its sub-contractors, and
d) fully complied with all of its other obligations under the Data Protection Legislation. The Customer will immediately notify the Supplier if any of the consents, conditions or its registrations are revoked or changed in any way which impacts on the Supplier’s rights or obligations under or in connection with this Agreement.

10.7 The Customer will indemnify and keep the Supplier indemnified against all losses, damages, costs or expenses and other liabilities (including legal fees and penalties) incurred by, awarded against or agreed to be paid by the Supplier arising from any breach of the Customer’s obligations under this Paragraph 14.

11. TERMINATION
11.1 Without limiting its other rights or remedies either party may terminate the Contract by giving the other party not less than 12 months’ written notice not to expire before the first anniversary of the date of the Contract.

11.2 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other immediately on giving notice to the other if:

(a) the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 21 days after being notified in writing to make such payment; or

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

(c) the other party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract; or

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

(e) 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

(f) 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;

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

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

(i) 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

(j) 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

(k) 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 condition 11.2(d) to condition 11.2(j) (inclusive); or

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

(m) the Customer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

11.3 The parties acknowledge and agree that any breach of conditions 5, 6, 8, 9 and 10 shall constitute a material breach for the purposes of this condition 11.

11.4 On termination of the Contract for any reason: (a) 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;

11.5 On termination of the Contract (however arising), the following conditions shall survive and continue in full force and effect:

(a) condition 4.2;

(b) condition 5.5;

(c) condition 7;

(d) condition 8;

(e) condition 9;

(f) condition 11; and

(g) condition 21.

12. FORCE MAJEURE
The Supplier shall have no liability to the Customer under the Contract if it is prevented from, or delayed in performing, its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or telecommunications or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors. In the event the force majeure continues for 12 weeks the party which is not subject to the force majeure may cancel this contract on giving not less than 30 days written notice to the affected party.

13. VARIATION

13.1 The Supplier may, from time to time and without notice, change the Goods and/or 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. If the Supplier requests a change to the scope of the Goods and/or Services for any other reason, the Customer shall not unreasonably withhold or delay consent to it.

13.2 Subject to condition.

13.1, no variation of the Contract or these Conditions or of any of the documents referred to in them shall be valid unless it is in writing and signed by or on behalf of each of the parties.

14. WAIVER

14.1 A waiver of any right under the Contract is only effective if it is in writing signed by both parties and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy.

14.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.

15. SEVERANCE

15.1 If any provision of the Contract (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 Contract, and the validity and enforceability of the other provisions of the Contract shall not be affected.

15.2 If a provision of the Contract (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 The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.

16.2 Each party acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) (other than for breach of contract), except as expressly provided in the Contract.

17. ASSIGNMENT

17.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights or obligations under the Contract.

17.2 The Supplier may at any time assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.

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

18. NO PARTNERSHIP OR AGENCY

Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.

19. RIGHTS OF THIRD PARTIES

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

20. NOTICES

20.1 Any notice or other communication required to be given under the Contract shall be in writing and shall be delivered personally, or sent by pre-paid first-class post, recorded delivery or by commercial courier to the other party and for the attention of the person specified in Schedule 2, or as otherwise specified by the relevant party by notice in writing to the other party.

20.2 Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address and for the contact referred to in Schedule 2 or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.

20.3 This condition 20 shall not apply to the service of any in any proceedings or other documents in any legal action.

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

21. GOVERNING LAW AND JURISDICTION

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

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

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