Terms & Conditions

CAPITAL COMPUTER CARE LIMITED

TERMS AND CONDITIONS FOR THE SUPPLY OF SERVICES

THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CONDITION 9 (LIMITATION OF LIABILITY).

1. Definitions and Interpretation

1.1. In the Contract, unless the context otherwise requires, the following words and expressions shall have the following meanings:

  • ADR Notice has the meaning set out in Condition 15;
  • Applicable Laws means applicable law of the United Kingdom (or of a part of the United Kingdom);
  • Business Day any day other than the Saturday, Sunday or public holiday in England, when banks in London are open for business;
  • Charges all fees and charges payable by the Customer to the Supplier under and/or in connection with the Contract in accordance with Condition 6;
  • Commencement Date has the meaning given to in Condition 2.4;
  • Conditions these terms and conditions, as amended from time to time in accordance with Condition 17;
  • Contract this contract between the Supplier and the Customer for the supply of Services comprising of the Quotation and these Conditions;
  • Control has the meaning set out in section 1244 of the Corporation Tax Act 2010, and the expression Change of Control shall be construed accordingly;
  • CPI Consumer Prices Index or any official index replacing it;
  • Customer the person named as such in the Quotation, (the Data Controller);
  • Customer Default has the meaning set out in Condition 5.3;
  • Customer Materials all materials, equipment and tools, drawings, specifications and data supplied by the Customer to the Supplier;
  • Data Protection Legislation Means as binding on either Party or the Services; the General Data Protection Regulation ((EU) 2016/679) (GDPR), the Data Protection Act 2018 and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK;
  • Deliverables the documents, reports or audits to be produced by the Supplier for the Customer as part of the Services in any form;
  • Dispute has the meaning set out in Condition 15;
  • Dispute Notice has the meaning set out in Condition 15;
  • Event of Default has the meaning set out in Condition 9.2;
  • Event of Force Majeure any cause preventing the Supplier from performing any or all of its obligations, which arises from or is attributable to acts, events, omissions or accidents beyond the reasonable control of the Supplier, including strikes, lockouts or other industrial actions, acts of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, fire, flood, storm or default of suppliers or subcontractors;
  • Intellectual Property Rights all patents, utility models, rights to inventions, copyright and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered, including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, 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;
  • Initial Term 24 months commencing on the first Service Start Date;
  • Quotation the Supplier’s written quotation setting out the details of the Services and applicable Charges;
  • Service Start Date the date on which the Supplier is to start provision of the Services (or any part thereof), as set out in the Quotation or as otherwise notified to the Customer by the Supplier;
  • Services the services, including the Deliverables, to be provided by the Supplier to the Customer pursuant to the Contract as set out in the Quotation;
  • Site a physical location not owned or occupied by the Supplier, where the Supplier performs any Services;
  • Specification the detailed specification of the Services (if any) set out in the Quotation;
  • Sub-Processor means any Processor engaged by the Supplier (or by any other Sub-Processor) for carrying out any processing activities in respect of the Protected Data on behalf of the Customer;
  • Supplier Capital Computer Care Limited registered in England and Wales with company number 02262817 (the Processor);
  • Supplier IPRs all Intellectual Property Rights subsisting in the Deliverables, any Customer Materials incorporated in them;
  • Supplier Materials has the meaning set out in Condition 5.1.9;
  • VAT value added tax chargeable under the Value Added Tax Act 1994 or any equivalent sales tax applicable from time to time;
  • Year each period of 12 months commencing on the Commencement Date or anniversary thereof (save for the final Year which shall be the period from the last anniversary of the Commencement Date up to the expiry or termination of the Contract);
  • Controller, Data Subject, Personal Data, Personal Data Breach, Processor and Processing shall have the respective meanings given to them in applicable Data Protection Legislation from time to time (and related expressions, including process, processed and processes shall be construed accordingly).

1.2. Any headings used in the Contract shall not affect the interpretation of the Contract.

1.3. A reference to a person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or otherwise.

1.4. References to the singular include the plural and vice versa, and to the masculine include the feminine and neuter and vice versa.

1.5. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and such statute or statutory provision shall include all subordinate legislation made from time to time.

1.6. A reference to writing or written includes email.

1.7. A reference to the Parties shall, unless otherwise expressly stated, be construed as a reference to the Supplier and the Customer, and the term Party shall be construed accordingly.

1.8. Any obligation on a Party not to do something includes an obligation not to allow that thing to be done.

1.9. A reference to a Condition is to a condition of these Conditions and a reference to a Condition number is, unless otherwise specified, a reference to all its sub-conditions.

1.10. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words description, definition, phrase or term preceding or following those terms and shall be deemed to incorporate the expression without limitation.

1.11. If as to the extent of any inconsistency or conflict between any of the provisions of these Conditions and any document otherwise attached or incorporated into the Contract, the order of priority for the purposes of construction is, in descending order:

  • 1.11.1. The Specification;
  • 1.11.2. The Quotation, and
  • 1.11.3. The Conditions.

2. Basis of Contract

2.1. The Customer may request a Quotation for the provision of services by submitting an enquiry to the Supplier’s website, contacting the Supplier through an approved email address or calling the Supplier’s contact telephone number. The Supplier will prepare a Quotation based on all relevant information provided by the Customer. A Quotation shall only be valid for a period of 30 days from its date of issue unless otherwise specified in the Quotation.

2.2. The Quotation constitutes an offer by the Supplier to provide the Services in accordance with these Conditions. The Contract shall come into existence when the Customer accepts the Quotation in writing or by placing an order based on the Quotation.

2.3. The Contract constitutes the entire agreement between the Parties for the provision of the Services. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance, or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.

2.4. The Contract shall commence on the date specified in the Quotation or, if none is specified, the date of acceptance of the Quotation by the Customer (the Commencement Date).

2.5. Any samples, drawings, descriptive matter, or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.

3. Customer’s Obligations

3.1. The Customer shall:

  • 3.1.1. ensure that the terms of the Quotation and any information it provides to the Supplier are complete and accurate;
  • 3.1.2. co-operate with the Supplier in all matters relating to the Services;
  • 3.1.3. provide the Supplier, its employees, agents, consultants, and subcontractors with access to the Customer’s premises, office accommodation, and other facilities as reasonably required by the Supplier to provide the Services;
  • 3.1.4. provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
  • 3.1.5. prepare the Site for the supply of the Services and make available (without charge) electric power and other facilities required by the Supplier to facilitate its performance of the Services;
  • 3.1.6. if requested by the Supplier, ensure that a member of its staff is present for the duration of the provision of any Services at the Site;
  • 3.1.7. obtain and maintain all necessary licences, permissions, and consents which may be required in respect of the Services before the Service Start Date;
  • 3.1.8. comply with all applicable laws, statutes, regulations, and codes including health and safety laws from time to time in force;
  • 3.1.9. keep all materials, equipment, documents, and other property of the Supplier (Supplier Materials) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorization;
  • 3.1.10. comply with any additional obligations set out in the Specification;
  • 3.1.11. bring any complaint in respect of the Services to the attention of the Supplier in writing within 5 Business Days of receipt of the Services;
  • 3.1.12. notify the Supplier of any matter that may hinder, obstruct, prevent, delay, or otherwise impact on the Supplier’s ability to perform the Services, upon becoming aware of the same;
  • 3.1.13. provide sufficient advance notice to the Supplier if it wishes to alter any scheduled date and/or time that the Supplier is to provide the Services. The Customer agrees that the Supplier shall have absolute discretion in determining whether sufficient advance notice has been given and may take such other matters as the Supplier deems relevant into consideration, including the location of the Site.

3.2. The Customer agrees and acknowledges that where the Supplier determines that insufficient or no notice has been provided, the Customer shall still be liable to pay the Charges for the Services scheduled for the original date and time (irrespective of whether the Customer requires those Services to be provided), and the Customer may be liable to pay the Supplier’s additional Charges if the Supplier provides the Services on a different date or time. The Supplier shall not be obliged to perform the Services at a different time but may elect to do so. The provisions of this Condition 3.2 are without prejudice to the Supplier’s other rights or remedies set out in Condition 3.3.

3.3. If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer, its agents, subcontractors, consultants, or employees, or failure by such persons to perform any relevant obligation (Customer Default):

  • 3.3.1. without limiting or affecting any other right or remedy available to the Supplier, the Supplier shall 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 in each case to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
  • 3.3.2. 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 Condition 3.3;
  • 3.3.3. 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.

4. Supply of Services

4.1. The Supplier shall supply the Services to the Customer from the Service Start Date in accordance with the terms of the Contract. Time for delivery of the Services shall not be of the essence of the Contract.

4.2. The Supplier shall:

  • 4.2.1. use its reasonable endeavours to supply the Services in accordance with the Specification in all material respects;
  • 4.2.2. perform the Services with reasonable care and skill;
  • 4.2.3. ensure that the Deliverables, and all goods, materials, standards, and techniques used in providing the Services are of satisfactory quality and are fit for purpose;
  • 4.2.4. comply with all laws, statutes, regulations applicable to the provision of the Services from time to time in force, provided that the Supplier shall not be liable under the Contract if, as a result of such compliance, it is in breach of any of its obligations under the Contract;
  • 4.2.5. observe all reasonable health and safety rules and regulations and security requirements that apply at the Site and have been communicated to the Supplier, provided that the Supplier shall not be liable under the Contract if, as a result of such observance, it is in breach of any of its obligations under the Contract;
  • 4.2.6. use its reasonable endeavours to supply the Services on the dates or in accordance with the frequency requirements set out in the Quotation or as otherwise notified to the Customer by the Supplier.

4.3. The Supplier reserves the right to amend the Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.

5. Charges and Payment

5.1. The Customer shall pay the Supplier the Charges as set out in the Quotation, which shall be invoiced at the times and in the manner specified in the Quotation.

5.2. The Customer acknowledges that the method and rates used to calculate the Charges vary, and the Customer shall be liable for any costs or losses sustained or incurred by the Supplier due to any applicable charging structure for the Services.

5.3. The Supplier reserves the right to increase the Charges on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the CPI during the period from the Commencement Date or the date of the last increase, and the Supplier shall notify the Customer of any such increase in writing.

5.4. The Supplier shall submit an invoice in respect of the Services at the intervals specified in the Quotation. If no intervals are specified, the Supplier shall invoice the Services monthly in arrears.

5.5. The Customer shall pay each invoice submitted by the Supplier:

  • 5.5.1. unless otherwise agreed between the Parties, by direct debit;
  • 5.5.2. within 30 days of the date of the invoice;
  • 5.5.3. in full and in cleared funds to a bank account nominated in writing by the Supplier.

5.6. All amounts payable by the Customer under the Contract are stated exclusive of any applicable 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 at the same time as payment is due for the supply of the Services.

5.7. If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s other rights and remedies under Condition 9, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this Condition 5.7 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

5.8. All amounts due under the Contract shall be paid by the Customer in full without any set-off, counterclaim, deduction, or withholding (other than any deduction or withholding of tax as required by law).

6. Intellectual Property Rights

6.1. All Intellectual Property Rights in or arising out of and/or in connection with the Services and the Deliverables (excluding the Customer Materials) shall be owned by the Supplier.

6.2. The Supplier grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free license during the term of the Contract to copy the Deliverables (excluding the Customer Materials) for the purpose of receiving and using the Services and the Deliverables in its business.

6.3. The Customer shall not sublicense, assign, or otherwise transfer the rights granted in Condition 6.2.

6.4. In relation to the Customer Materials, the Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable license to copy and modify the Customer Materials for the purpose of providing the Services to the Customer.

7. Data Protection

7.1. Each Party warrants that it shall, in the course of performing its obligations under the Contract, comply with the applicable provisions of the Data Protection Legislation.

7.2. The Parties acknowledge that for the purposes of the Data Protection Legislation, each Party shall be responsible for the Personal Data of its own employees, agents, consultants, and representatives.

7.3. The Parties agree that for the purposes of this Contract, the Customer is the Data Controller and the Supplier is a Processor for the purposes of processing Personal Data pursuant to this Contract. The Customer shall at all times comply with all Data Protection Legislation in connection with the processing of Personal Data.

7.4. Without prejudice to the generality of Condition 7.1:

  • 7.4.1. The Data Controller will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of its Personal Data to the Processor for the duration and purposes of the Contract;
  • 7.4.2. The Processor shall, in relation to the Customer’s Personal Data processed by it in connection with the performance of its obligations under the Contract:
    • (a) process Personal Data in compliance with the obligations placed on it under Data Protection Legislation and the terms of this Contract;
    • (b) process the Personal Data only in accordance with the Customer’s written instructions from time to time unless it is required by the laws of any member of the European Union or by the laws of the European Union applicable to it to process Personal Data (Applicable Laws). Where a Party is relying on Applicable Laws as the basis for processing the Personal Data, it shall promptly notify the other Party of the basis for processing the Personal Data and the Applicable Laws, unless those Applicable Laws prohibit it from so notifying the other Party;
    • (c) ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of the Personal Data and against accidental loss, destruction, or damage to the Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction, or damage to the Personal Data, and in particular, having regard to the state of technological development and the nature, sensitivity, value, and cost of the Personal Data, including, where appropriate, pseudonymising and encrypting the Personal Data, ensuring confidentiality, integrity, availability, and resilience of the Personal Data and the ability to restore the availability and access to the Personal Data in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it;
    • (d) ensure that all personnel who have access to and/or process the Personal Data are subject to appropriate contractual or other legal obligations;
    • (e) not transfer any Personal Data outside of the European Economic Area or the United Kingdom unless the processing of the same by the Customer has been obtained and the following conditions are fulfilled:
      • (i) appropriate safeguards have been provided in relation to the transfer;
      • (ii) the Data Subject has enforceable rights and effective legal remedies;
      • (iii) it complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred;
      • (iv) it complies with reasonable instructions notified to it in advance by the other Party with respect to the processing of the Personal Data;
    • (f) assist the Customer in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments, and consultations with supervisory authorities or regulators;
    • (g) notify the Customer without undue delay on becoming aware of a Personal Data Breach;
    • (h) at the written direction of the Customer, delete or return the Personal Data and copies thereof to the Customer on termination of the Contract unless required by Applicable Laws to store the Personal Data;
    • (i) maintain complete and accurate records and information to demonstrate its compliance with this Condition 7;
    • (j) make available to the Customer on request such information that is in its possession or control as is necessary to demonstrate the Supplier’s compliance with the obligations placed on it under Article 28 of the GDPR.

7.5. The Supplier may engage Sub-Processors to process Personal Data on behalf of the Customer, provided that it informs the Customer of any intended changes concerning the addition or replacement of Sub-Processors, thereby giving the Customer the opportunity to object to such changes.

7.6. The Supplier shall ensure that any Sub-Processor is bound by a written contract that imposes the same data protection obligations as set out in this Condition 7.

7.7. Each Party shall indemnify and keep indemnified and defend at its own expense the other Party from and against all claims, actions, proceedings, liabilities, costs, expenses, damages, and losses (including legal and other professional fees) arising out of or in connection with any breach by that Party of its obligations under this Condition 7 or the Data Protection Legislation.

8. Limitation of Liability

8.1. The Customer’s attention is particularly drawn to this Condition 8.

8.2. Any act or omission on the part of the Supplier or its directors, employees, agents, or subcontractors acting within Condition 8.1 shall for the purposes of this Condition 8 be known as an Event of Default.

8.3. Nothing in the Contract shall limit or exclude the Supplier’s liability:

  • 8.3.1. for death or personal injury caused by the negligence, or the negligence of its directors, employees, agents, or subcontractors;
  • 8.3.2. for any fraud or fraudulent misrepresentation;
  • 8.3.3. to the extent such liability, action, or exclusion is not permitted by applicable law.

8.4. Subject to Condition 8.3, the Supplier’s total liability in respect of all Events of Default in any Year shall be limited to damages of an amount equal to:

  • 8.4.1. £1 million in respect of damage or loss to the tangible property of the Customer due to an Event of Default;
  • 8.4.2. in respect of any other damage or loss, 125% of the total Charges that have been paid to the Supplier in the immediately preceding Year, or in respect of the first Year, 125% of the total Charges paid by the Customer in the first Year.

8.5. Subject to Condition 8.3, the Supplier shall not be liable in respect of any Event of Default for any loss or damage to the Customer (or any person claiming through or under the Customer), whether the same arise in contract, tort (including negligence), or otherwise, arising under or in connection with the Contract for:

  • 8.5.1. loss of profits;
  • 8.5.2. loss of turnover;
  • 8.5.3. loss of anticipated savings;
  • 8.5.4. loss of business opportunity;
  • 8.5.5. loss of or damage to goodwill;
  • 8.5.6. loss of use, corruption of, or damage to software, data, or information;
  • 8.5.7. damage to reputation;
  • 8.5.8. any indirect or consequential loss or damage, provided that this Condition 8.5 shall not prevent claims for loss of or damage to the Customer’s property that fall within the provisions of Condition 8.4.1 or any other claim for direct financial loss that are not excluded by Conditions 8.5.1 to 8.5.8 inclusive.

8.6. If a number of Events of Default give rise substantially to the same loss, then they shall be regarded as giving rise to only one claim under the Contract.

  • 8.6.1 In respect of Processing by the Supplier:
Personal Data Purpose Processing Period Categories of Data Subject
Name, E-mail addresses, Home address, Contact number
  1. contact the Data Subjects specifically for the purpose of providing the Services and/or complying with the Supplier’s other obligations set out in the Contract where the Supplier may need to contact such Data Subject; and
  2. such other purposes as are expressly confirmed in writing by the Customer from time to time.

The period commencing on:

  1. the Commencement Date; or
  2. the date the Supplier first Processes Personal Data in respect of that Data Subject,

(whichever is the later); and

Ending on the date:

  1. the particular Data Subject ceases to be an employee, agent or representative of the Customer; or
  2. the Contract terminates; or
  3. that the Supplier no longer needs to Process the Personal Data in respect of that Data Subject for the purpose of the Contract,

(whichever is the earlier).

 the employees, agents, consultants and representatives of the Customer.
Personal Data Purpose Processing Period Categories of Data Subject

8.7. This Condition 8 shall survive termination of the Contract.

9. Termination

9.1. Either Party may immediately terminate the Contract by giving written notice to the other Party if:

  • 9.1.1. the other Party commits a material breach of any term 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 to do so;
  • 9.1.2. 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;
  • 9.1.3. the other Party takes 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), 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 other jurisdiction;
  • 9.1.4. the other Party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business;
  • 9.1.5. the other Party’s financial position deteriorates to such an extent that in the terminating Party’s opinion the other Party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy;
  • 9.1.6. in accordance with Condition 11.3.

9.2. The Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:

  • 9.2.1. the Customer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 7 days after being notified to make such payment;
  • 9.2.2. there is a Change of Control of the Customer;
  • 9.2.3. the Customer does not receive any Services in the 12-month period from the Commencement Date.

9.3. The Supplier may suspend the supply of Services under the Contract or any other contract between the Customer and the Supplier if:

  • 9.3.1. the Customer fails to pay any amount due under the Contract on the due date for payment;
  • 9.3.2. the Customer becomes subject to any of the events listed in Conditions 9.1.3 to 9.1.5 (inclusive);
  • 9.3.3. the Supplier reasonably believes that the Customer is about to become subject to any of the events listed in Conditions 9.1.3 to 9.1.5 (inclusive).

10. Consequences of Termination

10.1. On termination of the Contract:

  • 10.1.1. the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest, and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall be entitled to submit an invoice, which shall be payable by the Customer immediately on receipt;
  • 10.1.2. the Customer shall return all of the Supplier Materials and any Deliverables which the Customer shall be responsible for, and the Supplier shall be entitled to enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract;
  • 10.1.3. the Supplier shall, on request, return any of the Customer Materials not used up in the provision of Services.

10.2. Termination or expiry of the Contract shall not affect any rights, remedies, obligations, or liabilities of the Parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.

10.3. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.

11. Event of Force Majeure

11.1. Neither Party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure results from an Event of Force Majeure.

11.2. If a Party’s performance of its obligations under the Contract is affected by an Event of Force Majeure:

  • 11.2.1. it shall give written notice to the other Party, specifying the nature and extent of the Event of Force Majeure, within 5 Business Days of becoming aware of the Event of Force Majeure and will at all times use all reasonable endeavours to mitigate the severity of the Event of Force Majeure;
  • 11.2.2. subject to the provisions of Condition 11.1, the date for performance of such obligation shall be deemed suspended only for a period equal to the delay caused by such event.

11.3. If the Event of Force Majeure continues for more than 3 months, either Party may terminate the Contract by giving written notice to the other Party, specifying the termination date, which must not be less than 15 Business Days after the date on which the notice is given, and once such notice has been validly given, the Contract will terminate on that termination date.

12. Assignment and Other Dealings

12.1. The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over, or deal in any other manner with any or all of its rights and obligations under the Contract.

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

13. Dispute Resolution Procedure

13.1. If a dispute arises out of or in connection with the Contract or the performance, validity, or enforceability of it (Dispute), then the Parties shall follow the procedure set out in this Condition 13:

  • 13.1.1. either Party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. The Customer’s nominated contact and the Supplier’s Operations Manager shall attempt in good faith to resolve the Dispute;
  • 13.1.2. if the Customer’s nominated contact and the Supplier’s Operations Manager are unable to resolve the Dispute within 30 days of service of the Dispute Notice, the Dispute shall be referred to the Customer’s Operations Director or equivalent and the Supplier’s Operations Director who shall attempt in good faith to resolve it;
  • 13.1.3. if the respective Operations Directors are unable to resolve the Dispute within 30 days of it being referred to them, the Parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the Parties, the mediator shall be nominated by CEDR. To initiate the mediation, a Party must give notice in writing (ADR Notice) to the other Party requesting a mediation. The mediation will start not later than 30 days after the date of the ADR Notice.

13.2. Commencement of mediation shall not prevent the Parties commencing or continuing court proceedings in relation to the Dispute under Condition 19, which shall apply at all times.

13.3. No Party may commence any court proceedings in relation to any Dispute arising out of this Contract until it has attempted to settle the Dispute by mediation and the mediation has terminated, provided that this shall not prevent a Party from seeking interim measures of protection, including injunctive relief.

14. Confidentiality

14.1. Each Party undertakes that it shall not at any time during the Contract, and for a period of five 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, except as permitted by Condition 14.2.

14.2. Each Party may disclose the other Party’s confidential information:

  • 14.2.1. to its employees, directors, officers, representatives, subcontractors, or advisers who need to know such information for the purposes of carrying out the Party’s obligations under the Contract. Each Party shall ensure that its employees, officers, representatives, subcontractors, or advisers to whom it discloses the other Party’s confidential information comply with this Condition 14;
  • 14.2.2. as may be required by law, a court of competent jurisdiction, or any governmental or regulatory authority.

14.3. Neither Party shall use the other Party’s confidential information for any purpose other than to perform its obligations under the Contract.

15. Entire Agreement

15.1. The Contract constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations, and understandings between them, whether written or oral, relating to its subject matter.

15.2. Each Party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance, or warranty (whether made innocently or negligently) that is not set out in the Contract. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

15.3. Nothing in this Condition 15 shall limit or exclude any liability for fraud.

16. Variation

16.1. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).

17. Waiver

17.1. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a Party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.

18. Severance

18.1. If any provision or part-provision of the Contract is or becomes invalid, illegal, or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal, and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this Condition shall not affect the validity and enforceability of the rest of the Contract.

19. Notices

19.1. Any notice or other communication given to a Party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case), or sent by email to the address specified in the Contract.

19.2. Any notice or other communication shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or, if sent by email, immediately on successful transmission.

19.3. This Condition does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.

20. Third Party Rights

20.1. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

20.2. The rights of the Parties to rescind or vary the Contract are not subject to the consent of any other person.

21. Governing Law

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

22. Jurisdiction

22.1. Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.

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    Bromley
    Kent
    BR1 1LT

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