Supplier Standard Terms and Conditions
1. Background
1.1 These Terms and Conditions cover the provision of the Services from the Supplier to the Client.
1.2 Where these Terms and Conditions are attached to a term sheet, the Terms and Conditions and the term sheet shall together form the Agreement. Where there is a conflict between the term sheet and these Terms and Conditions, the term sheet shall prevail.
1.3 In the event that the parties commence the Services without a signed written agreement, the provision of such Services shall be subject to these Terms and Conditions and the proposal which refers to them and the proposal and these Terms and Conditions together shall be deemed to constitute the Agreement. Where there is a conflict between the proposal and these Terms and Conditions, these Terms and Conditions shall prevail.
2. Definitions and Interpretation
Schedule 1 sets out the meaning of specific words and expressions when used in these Terms and Conditions. These Terms and Conditions shall be interpreted in accordance with Schedule 1.
3. The Supplier's obligations
3.1 The Supplier shall:
(a) perform the Services in accordance with the Agreement; and
(b) ensure that Supplier Personnel engaged in the provision of the Services have the skills and experience necessary to perform the tasks and responsibilities allocated to them.
3.2 Except to the extent expressly provided otherwise in the Agreement the Supplier is solely responsible for the selection of all Personnel, subcontractors, procedures, assets, features, systems, methodologies, software, delivery locations and facilities that it may require to perform and deliver the Services and comply with its obligations under the Agreement and may make such changes that it considers necessary or appropriate without the Client's consent.
4. Client co-operation
4.1 The Client shall provide the Supplier with such information and assistance as the Supplier reasonably requires to enable the Supplier to perform the Services and meet its obligations under the Agreement.
4.2 The Client acknowledges that any act or omission; a failure to perform any of its obligations in the Agreement, (including a failure to meet any Dependency); or where an Assumption is found to be incorrect, may prevent or delay the Supplier's ability to perform the Services (the "Relief Event"). The Supplier shall not be liable and shall be excused for any breach of the Agreement to the extent the breach is a direct or indirect result of such Relief Event. The Supplier shall not be under any obligation to incur additional cost or expense to mitigate the impact of any of any Relief Event, and the Supplier may claim additional Fees as a result of such a Relief Event.
4.3 The Parties agree at all times to comply with and act in accordance with all applicable laws in the field of data protection and any re-enactment and/or ancillary legislation enacted from time to time.
4.4. In connection with the Services provided under this Agreement, and assuming that the Client has collected all consents required by the applicable laws, Supplier may have access to, and otherwise process or transmit, certain Personal Data (as defined under applicable law) of members of the staff of the Client. Should Supplier manage any Personal Data, it shall only process such Personal Data: (i) maintaining Personal Data as Confidential Information; (ii) for the purpose of providing the Services to the Client or as otherwise expressly authorized by the Client. Also that Supplier may process Personal Data of members of Client’s staff, the Client itself undertakes to provide to all said members Deltatre’s privacy notice below to be found at https://www.deltatre.com/local-privacy-notices.
4.5. If at any time during the Term, Supplier is asked by Client to process any Personal Data on behalf of the Client, the Parties will enter into a data processing agreement which will be included as integral part of this Agreement, aiming to reflect the Parties understanding with regard to the processing of Personal Data in accordance with the requirements of the applicable data protection legislations and will undertake to be abide by the terms of such Data Processing Agreement in performing the Agreement.
5. Acceptance
5.1 Following delivery of any Deliverables (or resubmission of any Deliverables), the Client shall promptly notify in writing (and in any event within 10 days) the Supplier of its acceptance or reject (with reasons) of such Deliverables or Services.
5.2 The Client's acceptance shall be based on the acceptance criteria set out in the proposal or term sheet, or in the absence of such acceptance criteria, the Client shall act reasonably and in good faith in accepting the Deliverables.
5.3 The Deliverables shall be deemed accepted on the earlier of:
(a) notification of acceptance by the Client in accordance with Clauses 5.1 and 5.2;
(b) 10 days after the delivery where the Client has not notified the Supplier in accordance with Clauses 5.1 and 5.2; or
(c) the Client's use of the Deliverables in the normal course of its business.
6. Invoicing and payment
6.1 The Client shall pay the Supplier the Fees in accordance with this Clause 6 and in accordance with any other payment terms or conditions set out in the Agreement.
6.2 The Client shall pay all sums under the Agreement to the Supplier:
(a) in such other currency specified in the Agreement;
(b) to the credit of the bank account specified in the Agreement, as applicable, or such other bank account that the Supplier notifies to the Client in writing.
6.3 All sums payable by the Client to the Supplier under the Agreement are exclusive of VAT. The Client shall pay all VAT properly chargeable on those sums, provided that the Supplier has delivered a correct VAT invoice.
6.4 The Supplier shall invoice the Client at the intervals or frequency specified in the Agreement or, if no invoicing frequency is specified, at such reasonable intervals as the Supplier may determine from time to time.
6.5 The Client shall pay the Supplier no later than thirty (30) days after the date of invoice. Supplier shall be entitled to invoice the Client even in the event of the absence of the received Purchase Order issued by the Client.
6.6 If the Client fails to make any payment to the Supplier under the Agreement on or before the due date for payment, the Client shall pay interest on the overdue amount at the rate of 4% above the Bank of England's base rate from time to time. Such interest shall accrue on a day-to-day basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Parties acknowledge that this amounts to a substantial remedy for late payment. The Client shall pay the interest together with the overdue amount.
6.7 Notwithstanding anything to the contrary specified herein, the Supplier reserves the right to suspend Services immediately upon providing written notice to the Client if the Client fails to make any payment when due, as stipulated in the Agreement or relevant Term Sheet. Suspension of Services under this clause shall continue until all outstanding payments are received by the Supplier, including any applicable late payment fees or interests, as stipulated in the Agreement. The Supplier shall not be liable for any damages, losses, or inconveniences suffered by the Client as a result of a suspension of Services exercised in accordance with this clause.
6.8 The Client shall pay the Supplier all sums under the Agreement in full without any set-off, counterclaim or deduction. If a deduction or withholding is required by law, Clause 6.9 shall apply.
6.9 If the Client is required by law to deduct or withhold an amount from any sum payable to the Supplier under the Agreement, the Client shall pay to the Supplier a sum that ensures that the Supplier receives and retains a net sum equal to the amount the Supplier would have received if no such deduction or withholding had been made or required to be made.
6.10 Where the parties commence services which are outside of the scope of the proposal or term sheet and these have not been agreed in a separate written agreement, the Supplier shall be entitled to charge for such services at its standard rate card rate.
6.11 Starting from each anniversary of the Term of the Agreement, the Supplier shall be entitled to increase the Fees as set out in the Agreement by an amount equal to the percentage increase in the applicable Consumer Price Index during the previous 12 months.
7. Intellectual Property
7.1 The Supplier (and, where applicable, the Supplier's third-party licensors or Affiliates) owns and shall retain all right, title and interest in and to all Intellectual Property Rights the Supplier Background IPR and in the Supplier Products.
7.2 Any licence to use Supplier Products from the Supplier to the Client, are subject to separate Supplier agreements and terms and are not covered by this Agreement.
7.3 Nothing in the Agreement operates as an assignment of the Supplier Background IPR or Intellectual Property Rights in the Supplier Products to the Client.
7.4 The Client owns and shall retain all right, title and interest in and to Client Background IPR. Nothing in the Agreement operates as an assignment of Client Background IPR to the Supplier.
7.5 Except for Foreground IPR that is assigned to the Client under Clause 7.6, all Foreground IPR shall belong to and vest in the Supplier.
7.6 Subject to Clauses 7.1 and 7.3, the Supplier assigns to the Client with effect from the date that the Client pays the Supplier in full for the Deliverables all Foreground IPR in Deliverables and the right to sue for and recover damages and other relief in respect of Foreground IPR in Deliverables. The assignment in this Clause 7.6 shall take effect as a present assignment of future rights. At the Client's request, the Supplier shall execute (or procure the execution of) any document and/or do anything else necessary to give full effect to the assignment under this Clause 7.6.
7.7 In respect of any Supplier Background IPR that is incorporated into Deliverable by the Supplier (or on its behalf by its Personnel or any the Supplier subcontractor), the Supplier grants the Client a worldwide (except for OFAC sanctioned countries), fully paid-up, non-exclusive, irrevocable, perpetual, royalty-free and transferable right to:
(a) copy and modify such Supplier Background IPR but only as an integral part of the relevant Deliverable;
(b) publish, distribute and make available such the Supplier Background IPR, but only as an integral part of the relevant Deliverable; and
(c) sub-license third parties to do any of the foregoing, solely to enable the Client to use the relevant Deliverable.
7.8 The Client grants to the Supplier a worldwide, fully paid-up, non-exclusive, non-transferable (except as provided in Clause 19.3) licence during the Term, to:
(a) use, copy, modify, communicate to the public, publish and distribute Client Materials solely for the purpose of providing the Services to the Client and as otherwise described in this Agreement; and
(b) use, copy, modify, communicate to the public, publish and distribute Deliverables for any purpose, provided that where this is a purpose other than referred to in clause 7.8(a) above, the Supplier shall remove all Client Materials from such Deliverable prior to such use; and
(c) sublicense its subcontractors to do any or all of the things referred to in Clause 7.8(a) or (b).
7.9 The Client shall not:
(a) translate any Deliverable or Supplier Product into any other computer language;
(b) modify or adapt any Deliverable or Supplier Product;
(c) create any derivative works from any Deliverable or Supplier Product;
(d) circumvent or interfere with the operation of any electronic or digital protection measure whose function is to prevent unlawful copying or use of a Deliverable;
(e) create a substitute or similar service or product to any Deliverable or Supplier Product through use of or access to the Deliverable or Supplier Product or related proprietary information; or
(f) attempt to do any of the above.
7.10 The Client shall not:
(a) interfere with the operation of any Supplier Product;
(b) remove, deface, obscure or alter any copyright notice, Supplier trademark or other proprietary notice affixed to, contained in or provided within any part of a Supplier Product or Deliverable ("Supplier Proprietary Notice");
(c) use in respect of any Supplier Product or Deliverable and/or in relation to any advertising, marketing or promotional material relating to a Supplier Product or Deliverable any copyright notice or trademark that conflicts with or negates any Supplier Proprietary Notice.
7.11 The Client shall not, nor permit others to, decompile, reverse engineer, or dissemble any Software Deliverable or the Supplier Product except to the extent permitted by, and in accordance with, law.
7.12 The Client shall notify the Supplier in writing promptly upon becoming aware of any infringement of any Supplier Intellectual Property Right or any unauthorised use of any Supplier Product and shall provide reasonable co-operation and assistance to the Supplier in connection with any claim or suit that the Supplier brings in relation to such infringement or unauthorised use.
8. Indemnities
8.1 Subject to Clauses 8.2 and 8.3 and subject to the limitations and exclusions of liability in Clause 15, the Supplier shall indemnify the Client against (i) damages awarded by a court of competent jurisdiction (ii) amounts paid in settlement to a third party with the Supplier's written approval; and (iii) reasonable expenses (including reasonable legal expenses) suffered or incurred by the Client in respect of any third party claim that the Client's use of Deliverables under the Agreement infringes any copyright, rights in confidential information or trade secret of any third party enforceable anywhere in the world or any patent of any third party enforceable in the United Kingdom ("Third Party Infringement Claim"). For the sake of clarity, this Clause 12.1 shall not apply to any Open Source Software (any software code that is made available to the public generally in source code form without any confidentiality restrictions, including any code that is derived in any manner (in whole or in part) from such code) embedded into the Deliverables.
8.2 The indemnity at Clause 8.1 is provided on the condition that the Client informs the Supplier of each relevant claim reasonably promptly upon becoming aware of it, does not admit liability or settle any relevant claim without the Supplier's prior written consent, gives the Supplier full control of running, defending and settling each relevant claim, gives the Supplier at the Supplier's expense such information and assistance in relation to the relevant claim as the Supplier may reasonably request and takes (and has taken) reasonable steps to mitigate all damages, costs, losses and expenses for which the Client seeks indemnification.
8.3 The Supplier shall have no obligation or liability under Clause 8.1 to the extent that the infringement or alleged infringement arises from:
(a) the combination, operation, or use of any Deliverable with products, services, information, materials, technologies, business methods or processes not provided by the Supplier to the Client or expressly authorised by the Supplier;
(b) modification to any Deliverable made by anyone other than the Supplier or Supplier Personnel;
(c) the Client's directions or design requirements for the relevant Deliverable or (part of the relevant Deliverable );
(d) use of the relevant Deliverable other than in accordance with the Agreement;
(e) the Client Materials being infringing; or
(f) use of a Deliverable where a non-infringing version or release of that Deliverable was offered by the Supplier to the Client that would have avoided the claim or infringement and the Client did not promptly implement the non-infringing version or release.
8.4 Clauses 8.1 to 8.3 set out the Client's sole and exclusive remedy and the Supplier's entire liability for Third Party Infringement Claims.
8.5 The Client shall indemnify the Supplier against all losses, costs, expenses, and damages that the Supplier suffers or incurs as a result of any claim by a third party that the Supplier's, the Supplier Personnel's and/or the Supplier subcontractor's use of Client Materials in accordance with the Agreement infringes the Intellectual Property Rights or rights in confidential information or trade secrets of a third party.
9. Termination
9.1 The termination rights in this Clause 9 apply in addition to any termination rights that a party has under applicable law.
9.2 A Party may terminate the whole of the Agreement immediately by giving notice in writing to the other Party if the other Party:
(a) suffers an Insolvency Event; or
(b) commits any breach of Clause 17 (Anti-bribery).
9.3 The Supplier may terminate the Agreement immediately by giving notice in writing to the Client if:
(a) The Client has failed to pay any sum to the Supplier when due under the Agreement; and
(b) the Supplier has given the Client written notice that payment is overdue, specifying the amount that is overdue and informing the Client that if payment is not made within ten (10) days, the Supplier may terminate; and
(c) the Client has failed to pay the overdue amount within ten (10) days after receipt of the Supplier's written notice under Clause 9.3(b).
10. Consequences of termination
10.1 Termination or expiry of the Agreement shall not affect any rights, obligations, remedies, or liabilities that accrued before such expiry or termination.
10.2 If the Agreement expires or is terminated with effect from the date of termination, the Supplier shall cease providing the Services under the Agreement, except as expressly provided otherwise in the Agreement, and the Client's right to use, access and receive such Services shall end.
10.3 The following Clauses and Schedules of the Agreement shall survive termination or expiry of the Agreement: Clause 2; Clause 5; Clause 7.9, Clause 7.10, Clause 10, Clause 13.1, Clause 14, Clause 15, Clause 16, Clause 18, Clause 19, and Schedule 1.
11. Force Majeure
11.1 Neither party shall be liable for any failure to perform or delay in the performance of its obligations under the Agreement or for any other breach of the Agreement to the extent that such failure, delay or breach is due to Force Majeure. This Clause 11.1 shall not affect any of the Client's payment obligations which shall continue in full force and effect.
11.2 If a Force Majeure prevents the Supplier from performing substantially all of its obligations under the Agreement for a continuous period of seventy-five (75) Business Days, either Party may terminate the Agreement on fifteen (15) days' written notice to the other Party.
12. General warranties
12.1 Each Party warrants and undertakes to the other that:
(a) it has all necessary, power and authority to enter into the Agreement; and
(b) there is no pending or, to its knowledge, threatened action, suit or proceeding before any court, tribunal, governmental body, agency or official or any arbitrator that purports to draw into question or is likely to affect the legality, validity or enforceability of the Agreement or its ability to perform its obligations under the Agreement.
13. Change Control
13.1 The Parties may request a Change at any time by agreeing to such change in writing, after having given to the other party, written notice requesting (the "Change Notice") or recommending a Change.
13.2 The Supplier shall provide to the Client within a reasonable period of time after receiving such Change Notice (or if the Supplier is suggesting the change, with the notice) an impact statement, explaining the time it is likely to take to make the Change, the likely impact of the Change on the Agreement, and any other modifications which are required to the Services or the Agreement (including costs) as would be required to give effect to that Change (the "Impact Notice"). The assessment of a change to produce an Impact Notice, shall be charged to the Client on a time and materials basis according to the suppliers standard rates at that time which are applicable, (details of which are available upon request), where the Client requests a change.
13.3 The Change Notice shall set out the Change required in sufficient detail to enable the Supplier to evaluate the impact of the Change Notice upon the Services.
13.4 If the Client notifies the Supplier that it approves the Impact Notice, the parties shall agree an amendment to the Agreement to give effect to the Impact Notice. Neither party shall be required to implement an Impact Notice until the Agreement is amended as required.
14. Confidentiality
14.1 Subject to Clause 14.2, each Party shall treat all Confidential Information as strictly confidential and shall not disclose Confidential Information to any person.
14.2 A Party (the recipient Party) may disclose the other Party's (the disclosing Party's) Confidential Information:
(a) with the prior written consent of the disclosing Party;
(b) on a confidential basis to the recipient Party's professional advisers, auditors, and bankers; or
(c) to the recipient Party's employees and authorised contractors (and where the Supplier is the recipient Party, subcontractors) who need to know that Confidential Information for the purposes of the recipient Party performing its obligations or exercising its rights under the Agreement provided that such persons have entered into written confidentiality undertakings in respect of the disclosing Party's Confidential Information that are equally protective as this Clause 13.1;
(d) where the Confidential Information has come into the public domain other than by a breach of any obligation of confidentiality; or
(e) required by law, or order of a court of competent jurisdiction, or an order or direction of a governmental or regulatory authority, provided that, to the extent legally permissible, the recipient Party gives the disclosing Party prior written notice of such requirement, and the scope of such disclosure is limited to the extent required by the relevant law.
14.3 For the purposes of this Clause 14 the Party shall include that Party's Affiliates.
15. Limitations and exclusions of liability
15.1 Neither the Supplier nor the Client limits or exclude its liability under the Agreement for:
(a) death or personal injury caused by its negligence;
(b) fraud or fraudulent misrepresentation; or
(c) any statutory or other liability that cannot be excluded or limited under applicable law.
1.2 Neither Party shall be liable to the other for any of the following losses arising out of or in connection with the Agreement, whether in contract, tort (including negligence), for breach of statutory duty or under any other legal basis:
(a) loss of profits or account of profits;
(b) loss of sales or business;
(c) failure to achieve or loss of anticipated savings;
(d) work stoppage or business interruption;
(e) wasted management time;
(f) loss of or damage to goodwill;
(g) computer failure or malfunction; or
(h) any indirect or consequential loss.
15.3 Clause 15.4 shall apply so as to limit each Party's liability under or in connection with the Agreement, whether the liability in questions arises in contract, tort (including negligence), for breach of statutory duty, under any indemnity and/or on any other legal basis.
15.4 Subject to Clause 15.3, each Party's total and aggregate liability for all claims arising under or in connection with the Agreement, shall be limited, to an amount equal to whichever is the greater of the Fees under Clauses 15.4(a) or 15.4(b) below:
(a) the Fees paid by the Client under the Agreement in the twelve-month period preceding the date of the relevant Default that is the subject of the most recent claim under or in respect of the Agreement;
(b) the sum of the Fees payable (or projected to be payable) in respect of Services performed or to be performed under the Agreement during the twelve-month period starting on the Agreement Start Date.
15.5 Clause 15.4 shall not limit either Party's liability in respect of:
(a) any Fees payable to the Supplier under the Agreement; or
(b) breach of Clause 13.1 (Confidentiality)
For clarity, no amount payable in respect of the items set out in this Clause 15.5 shall count towards the caps on liability under Clause 15.4.
15.6 All warranties, terms, conditions, undertakings, representations, and obligations implied by statute, common law, trade usage, course of dealing or otherwise are excluded to the fullest extent permitted by law.
15.7 The Parties agree that each of Clauses 15.1, 15.2, 15.3, 15.4, 15.5 and 15.6 and each sub-clause within those Clauses, are separate and independent exclusions and limitations applying and surviving even if one or more of such Clauses or sub-clauses is held unreasonable, void, or unenforceable for any reason.
16. Notices
16.1 Formal notices under the Agreement must be in writing and sent by first class post, personal delivery, or email to the applicable address of the relevant party to the Agreement and marked for the attention of the person or office holder specified. Each Party may change its nominated address and/or nominated person or officeholder by giving the other Party notice of the change in accordance with this Clause 16. With effect from the date of receipt of such notice, the other Party shall deliver all formal notices under the Agreement to the address, person or officeholder specified in the notice.
16.2 A formal notice sent in accordance with Clause 16.1 will be deemed to be received:
(a) in the case of a first-class letter, on the second Business Day after posting;
(b) in the case of personal delivery, on receipt;
(c) in the case of an email sent on a Business Day before 5pm (time to be measured in the place of receipt), on the same Business Day the email was sent, unless Clause 16.3 applies; and
(d) in the case of an email sent on a Business Day after 5pm (time to be measured in the place of receipt) or sent on a day that is not a Business Day, on the next Business Day after the email was sent, unless Clause 16.3 applies.
16.3 If the sender of an email notice receives an error message relating to the sending of the email, the email notice shall be deemed not to have been received.
17. Anti-bribery
17.1 A Party shall not:
(a) Offer, give, receive, or solicit from any person anything of value or exert undue interference on any person to obtain, influence, induce or reward (or attempt to obtain, influence, induce or reward, any improper advantage in connection with the Agreement; or
(b) Offer, give, or agree to give any gift, commission, or consideration of any kind to any personnel of the other Party as an inducement or reward for any act or omission in relation to the Agreement.
17.2 A Party undertakes to comply with all anti-bribery and anti-corruption laws that apply to that Party.
18. Non-solicitation
18.1 Except as set out in Clause 18, each Party undertakes that during the Term of this Agreement and for a period of four (4) months afterwards, it shall not solicit, directly or indirectly, any employee of the other Party (or its Affiliates) involved in the provision of the services under this Agreement to:
(a) become its employee or an employee of any of its Affiliates; or
(b) provide services to it or any of its Affiliates (whether directly or indirectly, including through a related, associated, subsidiary or labour hire company), without the other Party's prior written consent.
18.2 If a Party breaches Clause 18.1, that Party shall pay to the other Party by way of liquidated damages the sum of £50,000 (fifty thousand British pounds) for each employee affected.
18.3 Clause 18.1 does not restrict a Party from hiring employees of the other Party who independently apply for a position entirely unsolicited, in response to a general advertising or recruitment campaign.
19. General
19.1 Other terms and conditions: As long as the Agreement is in force, it shall govern all purchases of Services by the Client from the Supplier and all provision and licensing of Services by the Supplier to the Client. No conflicting, additional or other terms or conditions shall apply unless agreed by the Parties in writing and signed by their authorised representatives. No terms and conditions sent with, attached to or contained in any quotation, order acknowledgement, delivery note, or invoice delivered by or on behalf of the Client to the Supplier shall apply.
19.2 Further acts and documents: Each Party shall promptly do all further acts and execute and deliver all further documents required by law or reasonably requested by the other Party to give effect to the Agreement.
19.3 Assignment: The Client shall not assign all or part of its rights under the Agreement to any person without the Supplier's prior written consent which may be given or withheld in the Supplier's absolute discretion. The Supplier may assign its rights or otherwise transfer its rights and/or obligations under the Agreement to any person provided the Supplier gives the Client written notice of the assignment or transfer.
19.4 Subcontracting: The Supplier may sub-contract or delegate in any manner any or all of its obligations under the Agreement to any third party or agent.
19.5 Relationship between the Parties: Nothing in the Agreement is intended to create a partnership or the relationship of principal and agent or employer and employee between the Parties. Neither Party has the authority or power to bind, to contract in the name of or to create a liability for the other in any way or for any purpose, except as expressly stated.
19.6 Cumulative remedies: Except as expressly stated otherwise in the Agreement, the rights, powers, and remedies provided in these Terms and Conditions are cumulative and are not exclusive of any rights, powers or remedies provided by law or under the Agreement, and the exercise of any of the rights, powers and remedies provided in these Terms and Conditions will not prejudice the exercise of any other right, power or remedy under these Terms and Conditions or existing at law.
19.7 Third Party Rights: A person who is not a Party to the Agreement has no rights under the Contracts (Rights of Third Parties) Act of 1999 to enforce or to enjoy the benefit of any term of the Agreement.
19.8 Illegality and severance: If any provision of the Agreement is declared by a competent court or body to be illegal, invalid, or unenforceable, or if any enactment is passed that renders any provision of the Agreement illegal, invalid, or unenforceable:
(a) this shall not affect or impair the legality, validity, or enforceability of the remaining provisions; and
(b) the Supplier and the Client will endeavour, without delay to negotiate and to agree a substitute provision which is legal, valid, and enforceable and which achieves, to the greatest extent possible, the same effect as would have been achieved by the illegal, invalid, or unenforceable provision.
19.9 Entire Agreement: The Agreement constitutes the entire understanding between the Parties relating to its subject matter and, except as may be expressly referred to in the Agreement, supersedes all prior representations, writings, negotiations, or understandings (written or oral) relating to the same subject matter. In entering into the Agreement, each Party agrees that it does not rely on and shall have no remedy in respect of any statement, representation, warranty or understanding other than those expressly set out in the Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement expressly set out in the Agreement. Nothing in the Agreement is intended to exclude or limit a party's liability for fraudulent misrepresentation.
19.10 Waiver: Neither Party will be deemed to have waived any right under the Agreement unless the waiver is in writing and signed by the Parties. Any failure or delay by a Party to exercise any right or power under the Agreement will not operate as a waiver of that right or power. Any waiver by a Party of any breach, or failure to exercise any right, under the Agreement will not constitute a waiver of any subsequent breach or continuing right.
19.11 Counterparts: The Agreement may be executed in any number of counterparts and by the different Parties on separate counterparts. This has the same effect as if the signatures on the counterparts were on a single copy of the relevant document.
19.12 Variations: No amendment or variation of the Agreement shall be effective unless it is in writing and signed by authorised representatives of the Supplier and the Client.
19.13 Modern slavery: Each party shall comply with the Modern Slavery Act 2015 and all applicable anti-slavery and human trafficking laws in force from time to time.
19.14 Use of AI: The Client acknowledges that the Supplier uses AI Systems in connection with its business operations. The Supplier shall ensure that its use of Relevant AI Systems complies with applicable law and this Agreement (including in particular clause 19 (Confidentiality) and the Data Processing Addendum).
19.15 Governing law: The Agreement and all disputes and claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by English law.
19.16 Arbitration: Subject to Clause 19.15, any dispute arising out of or in connection with the Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the London Court of International Arbitration Rules ("Rules"), which Rules are deemed to be incorporated by reference into this Clause 19.16, and for the purpose of such arbitration:
(a) the number of arbitrators shall be three.
(b) the place of arbitration shall be London.
(c) the language to be used in the arbitral proceedings shall be English.
19.17 Nothing in Clause 19.16 shall restrict either Party's freedom to:
(a) seek recourse to the courts to obtain an interim order for the purpose of preserving or protecting Intellectual Property Rights and/or confidential information or trade secrets; or
(b) exercise a right to terminate the Agreement in accordance with the Agreement or law.
Schedule 1
Definitions and interpretation
In these Terms and Conditions, the following words and expressions shall have the following meanings:
"Affiliate" means, with respect to a Party, any corporation, firm, partnership, or other entity, which directly or indirectly owns, is owned by or is under common ownership with such Party, and any person, corporation, firm, partnership, or other entity actually controlled by, controlling, or under common control with such Party. For purposes of this definition, ownership shall mean the ownership of securities representing at least 50% of the voting power of the relevant entity on matters submitted to the equity holders of such entity generally, or otherwise having the ability to direct the affairs of such entity;
"Agreement" means these Terms and Conditions and their Schedules and any other documents attached to these terms or referenced in these terms, including any term sheet or proposal and all documents referenced those documents;
"Agreement Start Date" means the start date for the Agreement;
"Agreement End Date" means the end date for the Agreement;
"AI System" means software that is designed to operate with autonomy and that, based on machine and/or human-provided data and inputs, infers how to achieve a given set of human-defined objectives using machine learning and/or logic and knowledge-based approaches, and produces system-generated outputs such as content, predictions, recommendations or decisions, influencing the environments with which the AI System interacts;
"Business Day" means a day other than a Saturday, Sunday or a public holiday in the territory where Supplier has its principal place of business;
"Change" means any change to the Services or the Agreement;
"Client" means the person named as the client in the Agreement;
"Client Background IPR" means all Intellectual Property Rights:
(a) owned by the Client before the Agreement Start Date; or
(b) developed by the Client independently of the Agreement;
"Client Materials" means:
(a) the documents, materials and other items listed or described as Client materials in the Agreement; and
(b) all other works, materials, documents, databases, data and software in whatever form that the Client makes available to the Supplier, Supplier Personnel or any Supplier subcontractor in connection with the Agreement including any such materials provided to the Client by a third party that the Client makes available to the Supplier;
"Client Responsibilities" means the tasks, responsibilities and obligations of the Client described in the Agreement;
"Confidential Information" means information that is disclosed before or after the date of the Agreement by or on behalf of one Party (the disclosing Party) to the other Party (the recipient Party):
(a) that is marked as confidential;
(b) that the disclosing Party identifies as confidential to the recipient Party before, during or promptly after disclosure to the recipient Party;
(c) that the recipient Party should reasonably have understood to be confidential, given the manner or circumstances of its disclosure, whether or not that information is marked as confidential or was identified as confidential; or
(d) that relates to the business, affairs, products, trade secrets, technology, knowhow, methodology of supply, developments, finances, employees, customers or service providers of the disclosing Party or its Affiliates, including the subject matter of the Agreement;
"Contract Manager" means the Contract Manager for the Supplier or the Client, as the context requires, as detailed in the Agreement (or such other person as one Party notifies the other Party in writing as being a replacement Contract Manager);
"Default" means any breach of contract, negligence or other act, omission or event that gives rise to the liability in question;
"Deliverable" means any product or output designated in the Agreement as a "Deliverable" for supply by the Supplier to the Client under the Agreement, but excluding Supplier Background IPR and Supplier Products;
"Dependency" means:
(a) an act, task, or responsibility to be performed by a third party appointed or engaged by the Client;
(b) any other event specified as a "dependency" in the Agreement ;
"Fees" means the fees, charges and expenses set out in or calculated in accordance with the Agreement, as applicable;
"Force Majeure" means the occurrence of any cause or event that is beyond the reasonable control of the affected party, provided that the affected party is without fault in causing or failing to prevent such occurrence;
"Foreground IPR" means Intellectual Property Rights or other proprietary rights created by the Supplier in the performance of, or for the purposes of providing, the Services, excluding Supplier Background IPR, Intellectual Property Rights in Supplier Products and Intellectual Property Rights in Licensed Technology;
"Insolvency Event" means in relation to a person, that the person ceases or threatens to cease to carry on business, is unable to pay its debts within the meaning of the Insolvency Act 1986 section 123 (without the need for a determination by a court), has an administrator, receiver, administrative receiver or manager appointed over the whole or any part of its assets, enters into any composition with creditors generally, or has an order made or resolution passed for it to be wound up (otherwise than in furtherance of any scheme for solvent amalgamation or solvent reconstruction) or undergoes any similar or equivalent process in any jurisdiction or undergoes any other arrangement which affects the rights of creditors;
"Intellectual Property Rights" means all intellectual property rights, including patents, supplementary protection certificates, petty patents, utility models, trade marks, database rights, rights in designs, copyrights (including rights in computer software) and topography rights (whether or not any of these rights are registered, and including applications and the right to apply for registration of any such rights) and all rights and forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world, in each case for their full term, and together with any renewals or extensions;
"Open Source Software" means any software code that is made available to the public generally in source code form without any confidentiality restrictions, including any code that is derived in any manner (in whole or in part) from such code;
"Party" means a party to the Agreement;
"Personnel" means the Supplier's officers, employees, agents, consultants and individual contractors and those of its Affiliates;
"Relevant AI System" means any AI System that the Supplier uses for the performance of the Services (including the design, development and/or delivery of Deliverables);
"Services" means the services to be performed by the Supplier. "Services" may include:
(a) design, development and/or configuration services;
(b) the design, development and/or delivery of Deliverables;
(c) the provision of a team of dedicated personnel;
(d) making available to the Client Supplier Products on a subscription, software-as-a-service basis
(e) other products described on a term sheet; and/or
(f) support services;
and includes the Supplier's activity to enhance the delivery and quality of its services and Supplier Products and otherwise keeping Supplier Products and services up to date.
"Software Deliverable" means a Deliverable or any part of a Deliverable that comprises software, including mobile apps (but excluding Supplier Products);
“Supplier” means the Deltatre entity referred to in the proposal or in the term sheet.
"Supplier Background IPR" means all Intellectual Property Rights:
(a) owned by the Supplier before the Agreement Start Date; or
(b) that are developed by the Supplier outside of the Agreement;
"Supplier Product" means software (whether in object code or source code form and all program interfaces, tools or object libraries embedded in that software) features, know-how, design patterns, experience designs, visual designs, user-interfaces, workflows, files, documents, records, notes and other works in any format that form:
(a) a Supplier Product from time to time; and
(b) all new releases, updates, upgrades and modifications to any Supplier Product made by or behalf of the Supplier or its third party licensors from time to time;
"Term" means the period starting on the Agreement Start Date and ending on the Agreement End Date or, if earlier, the date of termination of the whole of the Agreement in accordance with the Agreement or in accordance with law;
"Value Added Tax" or "VAT" means value added tax as provided for in the Value Added Tax Act 1994; and
"Virus" means any computer virus, Trojan horse, worm, software bomb or similar item intending to destroy, damage or corrupt an IT system.
2. In these Terms and Conditions:
(a) a reference to a provision of law is a reference to that provision as extended, applied, amended or enacted from time to time and includes any subordinate legislation;
(b) the singular includes the plural and vice versa;
(c) words denoting persons include bodies corporate and unincorporated associations of persons;
(d) references to the Agreement, or any other agreement or document are to the Agreement, or such other agreement as the same may be varied, amended, supplemented, restated, renewed, novated or replaced from time to time;
(e) references to a Party include a reference to its successors and assigns;
(f) the word "including" is by way of illustration and emphasis only and does not operate to limit the generality or extent of any other words or expressions;
(g) references to Clauses are to Clauses of the Agreement;
(h) the headings in the Agreement are for ease of reference and do not affect its interpretation.