- In these Conditions:
Acceptance Criteria: any acceptance criteria set out in the Statement of Work;
Acceptance Testing: the testing process agreed by the parties in the Statement of Work in respect of Deliverables’ conformance with the relevant Acceptance Criteria;
Affiliate: in relation to either party, means each and any Subsidiary or Holding Company of that party and each and any Subsidiary of a Holding Company of that party or any business entity from time to time Controlling, Controlled by, or under common Control with, either party; undefined
Business Day: any day other than a Saturday, Sunday or public holiday in England; undefined
Charges: the charges for the Services as set out in the Statement of Work; undefined
Commencement Date: the commencement date set out in the Statement of Work; undefined
Conditions: these terms and conditions and any schedules or annexes; undefined
Contract: the contract between the Customer and the Developer for the supply of Services in accordance with these Conditions and the Statement of Work; undefined
Control: the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the management of the company and Controlled and Controlling shall be interpreted accordingly; undefined
Deliverable: any output of the Services delivered or to be delivered by the Developer, including working and tested Software, pursuant to the Statement of Work; undefined
Developer’s Background IPR: all Intellectual Property Rights that are owned by or licensed to the Developer and which are or have been developed independently of the Contract in each case either subsisting in the Deliverables or otherwise necessary or desirable to enable a Customer to receive and use the Deliverables. undefined
Holding Company: a holding company as defined by section 1159 of the Companies Act 2006 (CA 2006) or a parent undertaking as defined by section 1162 of the CA 2006; undefined
Intellectual Property Rights or IPR: patents, rights to inventions, copyright and related rights, moral rights, trade-marks and service marks, trade names and domain names, rights in get-up, rights to goodwill or to sue for passing off, rights in designs, rights in computer software, database 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 (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world; undefined
Open-Source Software: any software licensed under any form of open-source licence meeting the Open Source Initiative's Open Source Definition (see https://opensource.org/docs/definition.php) or any libraries or code licensed from time to time under the General Public Licence, or anything similar; undefined
Personnel: all directors, officers, employees, representatives, agents, consultants, advisors and subcontractors of a party; undefined
Services: the services to be performed by the Developer under the Statement of Work; undefined
Software: computer programs whether in source code or object code form; undefined
Statement of Work: a detailed plan describing the Services to be provided by the Developer, the timetable for their performance and any related matters; undefined
Subsidiary: as defined by section 1159 of CA 2006 (but the requirement of membership in s 1159(1)(b) and (c) if CA 2006 is to be ignored) or a subsidiary undertaking as defined by section 1162 of CA 2006; undefined
Term: as described in clause 14.1; undefined
Third-Party Software: the software programs proprietary to third parties which are to be provided to the Customer without modification; andundefined
VAT: United Kingdom value added tax and any other tax imposed in substitution for it. undefinedundefined
- any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
- a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time except to the extent that any such amendment, extension or re-enactment would increase or alter the liability of a party under the Contract; and
- a reference to writing or written includes email but not fax.
- STATEMENTS OF WORK
- Each Statement of Work shall form a separate contract between the Customer and the Developer for the supply of Services in accordance with these Conditions.
- In the event of a conflict between any term of the Statement of Work and a term in these Conditions, the Statement of Work shall prevail.
- THE SERVICES
The Developer shall perform the Services in accordance with the Statement of Work and the Developer’s quality management procedures and practices and with reasonable care and skill.
- DEVELOPMENT OF DELIVERABLES
- The Customer shall:
- co-operate with the Developer in all matters relating to the Servicers, including but not limited to supporting the development of Deliverables by the Developer; and
- provide, in a timely manner, such information as the Developer may reasonably require, and ensure that it is accurate and complete in all material respects.
- If the Developer’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 then, without prejudice to any other right or remedy it may have, the Developer shall at its election:
- be allowed an extension of time to perform its obligations equal to the delay caused by the Customer; or
- suspend the provision of Services under the impacted Statement of Work until the delay caused by the Customer is remedied.
- The Developer shall ensure that Software in source code form conforms to any coding standards document specified in the Statement of Work and is in a clear and readable form such that, in the Developer’s reasonable opinion, a reasonably competent third party developer would be able to understand, adapt, maintain and update the code.
- The Deliverables supplied by the Developer shall be subjected to Acceptance Testing.
- If the Acceptance Testing identifies that any Deliverable fails to meet its Acceptance Criteria for any reason, the Developer shall use its reasonable endeavours to rectify the cause of the failure as soon as is reasonable possible and thereafter shall re-submit the Deliverable to the Customer for Acceptance Testing.
- The acceptance of any Deliverable shall be deemed to have occurred on whichever is the earliest of:
- the Customer providing confirmation that Acceptance Criteria have been met following Acceptance Testing; or
- the Customer’s use of the Feature in a live environment.
- The Developer shall invoice to the Customer the Charges as follows:
- 50% of the total Charges at the Commencement Date, payable immediately; and
- 50% upon delivery by the Developer of the agreed Deliverables passing the Acceptance Testing as described in clause 5.3, payable within 30 days.
- Reasonable out-of-pocket expenses and disbursements, including travel and subsistence expenses, agreed by the parties in writing in advance, may be charged by the Developer on production of reasonable evidence of expenditure to the Customer. The Developer may invoice the Customer separately in respect of such expenses and disbursements at the end of each calendar month during the Term of the Contract, such invoices to be payable by the Customer within 30 days of receipt.
- The Charges and other sums payable under the Contract are exclusive of VAT, unless specified otherwise, and shall be paid free and clear of all deductions and withholdings whatsoever.
- If the Customer fails to pay any amount payable by it under the Contract by the date it is due, the Developer may:
- charge the Customer interest on the overdue amount, from the date it was due up to the date of actual payment, at the rate of 4% per annum above the base rate for the time being of the Bank of England; and
- suspend provision of Services under any Contract until payment has been made in full.
- Each party undertakes that it shall not at any time during the Contract, and for a period of 5 years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or any of its Affiliates, except as permitted by this clause 7.
- Each party may disclose the other party’s confidential information:
- to its Personnel who need to know such information in order to exercise the disclosing party's rights or perform its obligations under the Contract provided that the disclosing party shall ensure that each of its Personnel to whom confidential information is disclosed complies with this clause 7; and
- as may be required by law, any court, any governmental, regulatory or supervisory authority or any other authority of competent jurisdiction.
- Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
- To the extent any confidential information of the Customer is Protected Data as defined in clause 8 such confidential information may be disclosed or used only to the extent such disclosure or use does not conflict with clause 8.
- DATA PROTECTION
- this clause 8:
Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical measures have the meanings given to them in applicable Data Protection Laws from time to time;
Data Protection Laws means any applicable law relating to the processing, privacy and/or use of Personal Data, as applicable to either party or the Services, including: (a) the GDPR; (b) the Data Protection Act 2018; (c) any laws which implement any such laws; (d) any laws that replace, extend, re-enact, consolidate or amend any of the foregoing.
GDPR means the General Data Protection Regulation, Regulation (EU) 2016/679;
International Organisation has the meaning given in applicable Data Protection Laws from time to time;
Protected Data means Personal Data received from or on behalf of the Customer, or otherwise obtained in connection with the performance of the Developer’s obligations under the Contract; and
Sub-Processor means any agent, subcontractor or other third party engaged by the Developer (or by any other Sub-Processor) for carrying out any processing activities in respect of the Protected Data.
- The parties agree that the Customer is a Controller and that the Developer is a Processor for the purposes of processing Protected Data pursuant to the Contract. The Developer shall, and shall ensure its Sub-Processors shall, at all times comply with all Data Protection Laws in connection with the processing of Protected Data and the provision of the Services. The Customer shall ensure all instructions given by it to the Developer in respect of Protected Data (including the terms of the Contract) shall at all times be in accordance with Data Protection Laws. Nothing in the Contract relieves the Developer of any responsibilities or liabilities under Data Protection Laws.
- The Developer shall only process (and shall ensure Developer Personnel only process) the Protected Data in accordance with Schedule 1, the Contract and the Customer’s written instructions from time to time (including when making any transfer to which clause 8.13 relates) except where otherwise required by applicable law (and in such a case shall inform the Customer of that legal requirement before processing, unless applicable law prevents it doing so on important grounds of public interest). If the Developer believes that any instruction received by it from the Customer is likely to infringe Data Protection Law it shall be entitled to cease to provide the relevant Services until the parties have agreed appropriate amended instructions which are not infringing.
- Taking into account the state of technical development and the nature of processing, the Developer shall implement and maintain appropriate technical and organisational measures to protect Protected Data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure or access. Such technical and organisational measures shall be at least equivalent to the technical and organisational measures set out in Schedule 1 and shall reflect the nature of the Protected Data.
- The Developer shall not permit any processing of Protected Data by any agent, subcontractor or other third party (except its own employees that are subject to an enforceable obligation of confidence with regards to the Protected Data) without the prior specific written authorisation of that Sub-Processor by the Customer.
- The Developer shall ensure that access to Protected Data is limited to the authorised persons who need access to it to supply the Services.
- The Developer shall prior to the relevant Sub-Processor carrying out any processing activities in respect of the Protected Data, appoint each Sub-Processor under a binding written contract containing the same obligations as under this clause 8 in respect of Protected Data that (without prejudice to, or limitation of, the above) is enforceable by the Developer and ensure each such Sub-Processor complies with all such obligations.
- The Developer shall remain fully liable to the Customer under the Contract for all the acts and omissions of each Sub-Processor as if they were its own.
- The Developer shall ensure that all persons authorised by the Developer or any Sub-Processor to process Protected Data are subject to a binding and enforceable written contractual obligation to keep the Protected Data confidential.
- The Developer shall (at the Customer’s cost) assist the Customer in ensuring compliance with the Customer’s obligations pursuant to Articles 32 to 36 of the GDPR (and any similar obligations under applicable Data Protection Laws) taking into account the nature of the processing and the information available to the Developer.
- The Developer shall (at the Customer’s cost) and taking into account the nature of the processing, assist the Customer (by appropriate technical and organisational measures), insofar as this is possible, for the fulfilment of the Customer’s obligations to respond to requests for exercising the Data Subjects’ rights under Chapter III of the GDPR (and any similar obligations under applicable Data Protection Laws) in respect of any Protected Data.
- The Developer shall (at the Customer’s cost and expense) record and refer all requests and communications received from Data Subjects or any Data Protection Supervisory Authority to the Customer which relate (or which may relate) to any Protected Data promptly (and in any event within three days of receipt) and shall not respond to any without the Customer’s express written approval and strictly in accordance with the Customer’s instructions unless and to the extent required by law.
- The Developer shall not process and/or transfer, or otherwise directly or indirectly disclose, any Protected Data in or to countries outside the United Kingdom or to any International Organisation without the prior written consent of the Customer.
- The Developer shall, in accordance with Data Protection Laws, make available to the Customer such information that is in its possession or control as is necessary to demonstrate the Developer’s compliance with the obligations placed on it under this clause 8 and to demonstrate compliance with the obligations on each party imposed by Article 28 of the GDPR (and under any equivalent Data Protection Laws equivalent to that Article 28 of the GDPR), and allow for and contribute to audits, including inspections, by the Customer (or another auditor mandated by the Customer) for this purpose (subject to a maximum of one audit request in any 12 month period under this clause 8.14).
- The Developer shall notify the Customer without undue delay and in writing on becoming aware of any Personal Data Breach in respect of any Protected Data.
- On the end of the provision of the Services relating to the processing of Protected Data, at the Customer’s cost and the Customer’s option, the Developer shall either return all of the Protected Data to the Customer or securely dispose of the Protected Data (and thereafter promptly delete all existing copies of it) except to the extent that any applicable law requires the Developer to store such Protected Data.
- This clause 8 shall survive termination or expiry of the Contract for any reason.
- Each party warrants, represents and undertakes that it has full capacity to enter into the Contract and it is executed by a duly authorised representative of that party.
- The Developer warrants, represents and undertakes that:
- for the duration of the Contract, it has and will continue to have all necessary rights in and to the Intellectual Property Rights necessary to perform its obligations under the Contract;
- the Deliverables will be supplied free of material defects and will remain free of such defects for a period of at least 3 months from successful Acceptance Testing; and
- it has all necessary rights, insofar as required, to incorporate Third-Party Software into the Deliverables.
- The Customer acknowledges that the only warranties in relation to the Third-Party Software, or the supply thereof, are those contained in the licence from the third-party supplier(s) of the same which shall be provided to the Customer prior to incorporation of the Third-Party Software into any Deliverable, and that to the extent that any of such warranties are given to the Developer, it will pass on the benefit of such warranties to the Customer to the extent possible.
- Any Open-Source Software provided by the Developer is provided “as is” and may be used according to the terms and conditions of the specific licence under which the relevant Open-Source Software is distributed.
- Except as expressly stated in these Conditions, all other warranties and conditions whether express or implied by statute, common law or otherwise are hereby excluded to the fullest extent permitted by law.
- Except as otherwise expressly provided in these Conditions, neither party shall receive any right, title or interest in or to the Intellectual Property Rights of the other.
- Subject to clause 10.1, the parties acknowledge and agree that any Intellectual Property Rights developed in the course of developing the Deliverables shall be owned by the Customer. Where either party acquires, by operation of law, title to any Intellectual Property Right that is inconsistent with the allocation of title set out in clause 10.1 or this clause 10.2, it shall promptly assign in writing any acquired Intellectual Property Rights to the other party and shall provide such assistance as the other party may reasonably require to give effect to this clause. To the extent that any Affiliate or sub-contractor acquires Intellectual Property Rights in the Deliverable, the Developer shall use reasonable endeavours to procure that such Affiliate or sub-contractor promptly takes all action required to give effect to this clause.
- The Developer agrees to grant (or procure the grant on standard terms of) such licence to use the Developer’s Background IPR to the extent required for the Customer, or any third party to whom the Customer wishes to grant rights, to use any Deliverable, on terms to be agreed and specified in the Statement of Work.
- The Customer grants (or shall procure the grant) to the Developer of a royalty-free, non-exclusive, non-transferable licence during the Term to use the Customer’s Intellectual Property Rights solely to the extent necessary for performing the Services in accordance with these Conditions.
- Neither party shall have any right to use any of the other party’s names, logos or trade marks on any of its products or services or marketing/advertising materials without the other party’s prior written consent.
LIMITATION OF LIABILITY
- The extent of the Developer’s liability under or in connection with the Contract (whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause.
- Subject to clause 11.4, the Developer’s total liability to the Customer shall not exceed the greater of:
- the Charges paid or payable under the Contract; or
- Neither party shall be liable for consequential, indirect or special losses.
- Notwithstanding any other provision of these Conditions, the liability of the parties shall not be limited in any way in respect of the following:
- death or personal injury caused by negligence;
- fraud or fraudulent misrepresentation;
any other losses which cannot be excluded or limited by applicable law.
- any other losses which cannot be excluded or limited by applicable law.
The Developer shall take out and maintain (a) public liability insurance in an amount of no less than GBP 10,000,000 per claim and (b) professional indemnity insurance in an amount of no less than GBP 1,000,000 per claim with a reputable insurer to cover its liabilities arising under or in connection with the Contract.
- COMPLIANCE WITH LAWS
The Developer shall, in providing the Services, and shall procure that any Affiliate, supplier or sub-contractor involved in providing the Services shall, comply with all applicable laws or regulations.
TERM AND TERMINATION
- The Contract shall start on the Commencement Date and shall continue until completion of the Statement of Work.
- Either party may terminate the Contract (without prejudice to its other rights and remedies) by giving written notice to the other party (Defaulting Party) if:
- the Defaulting Party fails to pay any amount by the date it is due and remains in default for 20 Business Days after being notified in writing to make such payment;
- the Defaulting Party commits a material breach of any other Condition which, if not irremediable, is not remedied to the reasonable satisfaction of the injured party within 20 Business Days of notice to remedy the breach; or
- the Defaulting Party takes, or is about to take, any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction.
- Termination of the Contract for any reason shall not affect the accrued rights, remedies, obligations or liabilities of the parties.
- Following termination, each party shall destroy or, at the request of the other party, return all information and materials belonging to the other party then in its custody or control, including all confidential information of the other party. This clause is without prejudice to any additional obligations under Schedule 1.
- The provisions of clauses 6, 7, 8, 10.3, 11, 16.7, 16.8, 16.11 and 16.12, together with any clauses whose survival is necessary for the interpretation or enforcement of the Contract, shall survive the termination or expiry of the Contract.
Neither party shall have any liability under or be deemed to be in breach of these Conditions for any delays or failures in performance of the Contract which result from any event which was not reasonably foreseeable at the Commencement Date and which is beyond the reasonable control of that party. The party affected by such an event shall promptly notify the other party in writing when such an event causes a delay or failure in performance and when it ceases to do so. If such an event continues for a continuous period of more than 20 Business Days, either party may terminate the Contract by written notice to the other party.
- Entire agreement: The parties agree that the Contract and any documents entered into pursuant to it constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter. Each party acknowledges that it has not entered into the Contract or any documents entered into pursuant to it in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Contract or any documents entered into pursuant to it except in the case of fraudulent misrepresentation. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Contract.
- Notices: This clause 16.2 does not apply to notices given in legal proceedings or arbitration. Notices under the Contract shall be in writing and sent to a party's registered office or email address as set out on in the Statement of Work. Notices may be given, and shall be deemed received:
- by first-class post: 2 Business Days after posting;
- by hand: on delivery; and
- by email: on receipt of a delivery return email.
- Variation: No variation of the Contract, including any Statement of Work shall be valid or effective unless it is in writing, refers to the Contract and is duly signed or executed by, or on behalf of, each party.
- Assignment: Save as set out in this clause 16.4, no party may assign, subcontract or encumber any right or obligation under the Contract, in whole or in part, without the other's prior written consent (such consent not to be unreasonably withheld or delayed). Subject to Schedule 1, a party may perform any of its obligations and exercise any of its rights granted under the Contract through any Affiliate, provided that it gives the other party prior written notice including the identity of the relevant Affiliate. Each party acknowledges and agrees that any act or omission of its Affiliate in relation to that party's rights or obligations under the Contract shall be deemed to be an act or omission of that party itself.
- Set off: Except as expressly set out in these Conditions, each party shall pay all sums that it owes to the other party under the Contract without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
- No partnership or agency: Nothing in the Contract constitutes, or shall be deemed to constitute, a partnership between the parties nor make a party the agent of the other.
- Severance: If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Contract shall not be affected.
- Waiver: No failure, delay or omission by either party in exercising any right, power or remedy provided by law or under the Contract shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right or remedy. No single or partial exercise of any right, power or remedy provided by law or under the Contract shall prevent any future exercise of it or the exercise of any other right, power or remedy.
- Third party rights: Except as expressly provided for in these Conditions, a person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract.
- Non-solicitation: Neither party shall directly or indirectly solicit or entice away from the employment of the other party any person employed or engaged by the other party during the Term or for a period of 12 months after the expiry or termination of the Contract other than as the result of a national advertising campaign open to anyone and not specifically targeted at the staff of the other party.
- Governing law: The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
- Jurisdiction: The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims).
Data processing and security details
Processing of the Protected Data by the Developer under the Contract shall be for the subject-matter, duration, nature and purposes and involve the types of Personal Data and categories of Data Subjects set out in this Schedule 1.
1 SUBJECT-MATTER OF PROCESSING:
The subject-matter of the Processing is data selected by the Customer and provided to the Developer for the provision of Services to the Customer, specifically in respect of Acceptance Testing, under the Contract. The subject-matter of the data and the extent to which it contains Personal Data depends on the nature of the Customer’s business.
2 DURATION OF THE PROCESSING:
The duration of Processing shall be during Acceptance Testing carried out during the Term of the Contract.
3 NATURE AND PURPOSE OF THE PROCESSING:
The nature and purpose of the Processing is to collect, adapt and use Personal Data to conduct Acceptance Testing as described in the Contract.
4 TYPE OF PERSONAL DATA:
The types of Personal Data processed shall be determined by the Customer, e.g. those required to conduct Acceptance Testing as described in the Contract.
5 CATEGORIES OF DATA SUBJECTS:
As required to conduct Acceptance Testing.