Terms and Conditions

INTEGRATED RADIOLOGICAL SERVICES TERMS AND CONDITIONS

The Customer’s attention is particularly drawn to the provisions of clause 14 (Limitation of liability).

1. Interpretation

The following definitions and rules of interpretation apply in this Contract.

1.1. Definitions:

Additional Deliverables	any electronic and/or physical deliverables that the Supplier shall provide as a result of its supply of Additional Services to the Customer;
Additional Service Confirmation	has the meaning given in clause 4.4;
Additional Service Request	has the meaning given in clause 4.1;
Additional Services	any additional services (and associated deliverables) set out in an Additional Service Confirmation that the Supplier agrees to provide to the Customer pursuant to clause 4;
Additional Services Charges	the amounts payable/paid by the Customer to the Supplier for the Additional Services, as set out in and/or calculated in accordance with the Order Form;
Business Day	a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;
Charges	the Core Services Charges and any Additional Services Charges;
Commencement Date	has the meaning given in clause 2.2;
Conditions	these terms and conditions as amended from time to time in accordance with clause 18.8;
Contract	the contract between the Supplier and the Customer for the supply of Deliverables and/or Services, in accordance with these Conditions detailed in the Order Form;
Control	shall be as defined in Section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly;
Core Deliverables	electronic and/or physical deliverables, as set out in the Order Form that are provided by the Supplier to the Customer including applicable Third Party Deliverables;
Core Services	the services, including the Core Deliverables, supplied by the Supplier to the Customer, as set out in the Order Form including Third Party Services;
Core Services Charges	the amounts payable/paid by the Customer to the Supplier for the Additional Services, as set out in and/or calculated in accordance with the Order Form;
Core Service Specification	the description or specification for the Services provided in writing by the Supplier to the Customer;
Customer	the person or firm who purchases the Deliverables and/or Services from the Supplier as identified in the Order Form;
Customer Default	has the meaning given in clause 8.2;
Data Controller	has the meaning set out in the Data Protection Legislation;
Data Subject	an individual who is the subject of Personal Data;
Data Processor	has the meaning set out in the Data Protection Legislation;
Data Protection Legislation	all applicable data protection and privacy legislation, regulations and guidance including  the Data Protection Act 2018, the GDPR (Regulation (EU) 2016/679) (as amended or re-enacted from time to time and including any replacement or subordinate legislation);
Deliverables	the Core Deliverables and any Additional Deliverables;
Delivery Location	has the meaning given in clause 6.2;
End User	the employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Portal;
End User Personal Data	has the meaning given in clause 11.2;
Extended Term	has the meaning given in clause 15.1;
Force Majeure Event	has the meaning given to it in clause 17;
Intellectual Property Rights	patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral 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 or unfair competition, rights in designs, rights in computer software, 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 and 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;
IRS Portal	any SaaS/web-based portal owned or operated by the Supplier;
Order Form	the written document containing specific information relating to the particular services and deliverables supplied or to be arranged to be supplied by the Supplier to the Customer;;
Personal Data	has the meaning set out in the Data Protection Legislation and relates only to personal data, or any part of such personal data, in respect of which the Customer is the Data Controller and in relation to which the Supplier is providing services under the Contract;
Portal	any IRS Portal and/or any Third Party Portal;
processing and process	have the meaning set out in the Data Protection Legislation;
Services	the Core Services and any Additional Services;
Supplier	Integrated Radiological Services (IRS) Limited registered in England and Wales with company number 01941809;
Supplier Materials	has the meaning given in clause 8.1.7;
Third Party Deliverables:	any deliverables owned, supplied or licensed by a third party to the Supplier that are used in the provision of the Services, as set out in the Order Form, and/or an Additional Service Confirmation;
Third Party Portal	any SaaS/web-based portal owned or operated by a third party as outlined in the Order Form or as agreed in writing between the parties from time to time;
Third Party Services:	any service or services supplied by a third party to the Supplier which is used in the provision of the Services including access to the Third Party Portal; and
Virus:	anything or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

 

1.2. Interpretation:

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

1.2.2. A reference to a party includes its personal representatives, successors and permitted assigns.

1.2.3.A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.

1.2.4. 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 those terms.

1.2.5. A reference to writing or written includes email.

1.2.6. Words imparting the singular shall include the plural and vice versa. Words imparting a gender shall include the other gender and the neutral.

1.2.7. The headings are inserted for convenience only and shall not affect the construction or interpretation of this Contract.

1.2.8. References to clauses are to clauses of these Conditions.

2. Basis of Contract

2.1. The Customer’s submission of a signed Order Form to the Supplier constitutes an offer by the Customer to purchase Services and receive Deliverables in accordance with these Conditions.

2.2. An Order Form signed by the Customer shall only be deemed to be accepted when the Supplier issues the Customer with a further version of the Order Form signed by the Supplier or provides the Customer with express written confirmation of its acceptance of an Order Form signed by the Customer, at which point and on which date the Contract shall come into existence (Commencement Date).

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

2.4. These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.5. All of these Conditions shall apply to the supply of both Deliverables and Services, except where application to one or the other is specified.

2.6. In the event of a conflict between a clause set out in these Conditions and a term set out in the Order Form, the term set out in the Order Form shall take precedence of the clause set out in these Conditions.

3. Supply of Services

3.1. The Supplier shall, if applicable, supply the Services to the Customer in accordance with the Core Service Specification in all material respects.

3.2. The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in the Core Service Specification (if applicable) or as agreed in writing from time to time, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.

3.3. The Supplier reserves the right to amend the Core Service Specification or any other agreed 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.

3.4. The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.

4. Additional Services

4.1. This Contract governs the overall relationship of the parties in relation to the Services provided by the Supplier to the Customer and sets out in this clause 4 the procedure for the Supplier to submit requests for Additional Services (an Additional Service Request).

4.2. The Customer shall be entitled to submit an Additional Service Request, using the functionality available through the IRS Portal (if applicable), or by contacting the Supplier in writing, and submitting the necessary information the Supplier requires to consider each Additional Service Request. The Customer acknowledges and agrees that if accepted by the Supplier, the Additional Services shall be performed by the Supplier in return for the Additional Services Charges.

4.3. The Supplier shall either:

4.3.1. reject the Additional Service Request and provide reasons as to why such Additional Service Request has been rejected; or

4.3.2. contact the Customer to seek to agree the Additional Service Charges and, if such Additional Service Charges are agreed, accept the Additional Service Request.

4.4. When the Supplier accepts an Additional Service Request in accordance with Clause 3.2, the Supplier shall notify the Customer of the following information or make such information available to the Customer:

4.4.1. a description of the agreed Additional Services to be performed by the Supplier and any Additional Deliverables it shall provide to the Customer; and

4.4.2. the agreed Additional Services Charges;

(referred to as an Additional Service Confirmation).

4.5. No Additional Service Request shall be deemed to be accepted by the Supplier until it has provided the Customer with an Additional Service Confirmation.

5. Deliverables

5.1. The Supplier reserves the right to amend the Deliverables, if required, by any applicable statutory or regulatory requirement, and the Supplier shall notify the Customer in any such event.

5.2. If the Customer notifies the Supplier in writing within 30 days of its receipt of any Deliverables that such Deliverables are (i) materially defective; or (ii) not of satisfactory quality or fit for the purpose held out by the Supplier, the Supplier may, at its option, repair (where the Deliverable is physical in nature) or replace/amend (where the Deliverables are electronic in nature) such defective Deliverables or refund the price paid for such defective Deliverables, provided that the Supplier is given reasonable opportunity to examine such Deliverables.

5.3. The Supplier shall not be liable for any defective Deliverables if:

5.3.1. the Customer makes further use of the Deliverables following a notice given in accordance with clause 2;

5.3.2. the defect arises because the Customer has failed to follow good trade practice or the Supplier’s oral or written instructions on storage, installation, commissioning or maintenance of the Deliverables (where the Deliverables are physical in nature);

5.3.3. the Customer alters or repairs the Deliverables without the written consent of the Supplier;

5.3.4. the defect arises as a result of fair wear and tear, wilful damage, negligence or abnormal working conditions; or

5.3.5. the Deliverables differ from any description provided by the Supplier as a result of changes made to ensure they comply with applicable statutory or regulatory standards.

6. Delivery of Deliverables that are physical in nature

6.1. The Supplier shall ensure that Deliverables that are physical in nature are accompanied by a delivery note or appropriate report which shows the date of the Deliverable.

6.2. The Supplier shall deliver Deliverables that are physical in nature to the location the parties agree in writing (Delivery Location).

6.3. Any date(s) quoted for delivery of Deliverable(s) that are physical in nature is/are approximate only, and the time of delivery is not of the essence. The Supplier may deliver by instalments which shall be invoiced and paid for separately. The Supplier shall not be liable for any delay in delivery of such Deliverables caused by a Force Majeure Event, or the Customer’s failure to provide adequate instructions, or make the necessary arrangements for service delivery. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

6.4. If the Supplier fails to deliver Deliverables that are physical in nature, its liability is limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available.

7. Portal access

Where Deliverables are to be provided to the Customer via a Portal, as indicated in the Order Form, the following provisions shall also apply.

7.1. Subject to clause 2, the Supplier agrees to grant each End User a non-exclusive, non-transferable right, without the right to grant sublicences, to use the Portal.

7.2. The Customer acknowledges and agrees that the Supplier shall only be required to provide an individual End User with access to the Portal if such End User has agreed to the Supplier’s, and if applicable any third party’s, terms and conditions of use when registering as a user of the Portal.

7.3. The Customer shall:

7.3.1. ensure that the End Users use the Portal in accordance with this Contract and the Customer shall be responsible for any End User’s breach of this Contract or any applicable terms and conditions of use as if it were the Customer’s;

7.3.2. ensure that the Customer’s network and systems comply with the relevant specifications provided by the Supplier from time to time for access to the Portal or if none is/are provided, good industry practice in relation to the same; and

7.3.3. be solely responsible for procuring and maintaining the Customer’s network connections and telecommunications links from the Customer’s computer systems to the Supplier’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the Internet.

7.4. In relation to the End Users, the Customer warrants that:

7.4.1. each End User shall keep a secure password for use of the Portal, and that each End User shall keep their password confidential;

7.4.2. only one End User may access the Portal using an End User account at any one time; and

7.4.3. the Customer shall permit the Supplier to audit the Customer’s use (and each End User’s use) of the Portal.

7.5. The Customer shall not, and shall ensure that all End Users shall not, access, store, distribute or transmit any Viruses, or any material during the course of its use of the Portal that:

7.5.1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

7.5.2. facilitates illegal activity;

7.5.3. depicts sexually explicit images;

7.5.4. promotes unlawful violence;

7.5.5. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

7.5.6. in a manner that is otherwise illegal or causes damage or injury to any person or property,

and the Supplier reserves the right, without liability and without prejudice to the Supplier’s other rights and remedies whether under this Contract or at law, to disable the Customer’s (or any End User’s) access to the Portal if the Customer or any End User is in breach of this clause 7.5.

7.6. The Customer shall not, and shall ensure that all End Users shall not:

7.6.1. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Portal in any form or media or by any means;

7.6.2. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Portal;

7.6.3. access or use all or any part of the Portal or the Deliverables in order to build a product or service which competes with the Portal or the Supplier;

7.6.4. use the Portal to provide services to third parties;

7.6.5. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Portal available to any third party; or

7.6.6. attempt to obtain, or assist third parties in obtaining, access to the Portal, except as expressly provided for by this Contract.

7.7. The Customer will ensure that the Customer’s use, and each End User’s use, of the Portal:

7.7.1. does not infringe the privacy rights or Intellectual Property Rights of any third party;

7.7.2. does not harm the Supplier or bring the Supplier or the Supplier’s name into disrepute;

7.7.3. is not for the purposes of breaching or circumventing the security of any network or internet user;

7.7.4. does not impose an unreasonable or disproportionately large load on the Supplier’s infrastructure or the Portal;

7.7.5. does not interfere with any other user’s use of the Portal; and

7.7.6. conforms in all respects will all applicable laws, rules, regulations, bye-laws and codes of practice (including disability discrimination, intellectual property, privacy and Data Protection Legislation).

7.8. The Customer shall prevent any unauthorised access to, or use of, the Portal and, in the event of any such unauthorised access or use, immediately notify the Supplier.

7.9. The Supplier reserves the right, at any time, to carry out repairs, maintenance, amend or introduce new facilities and functions in respect of all or any part of the Portal.

7.10. It is the Customer’s responsibility to ensure that it provides the Supplier with the information required to enable the Supplier to properly make the Portal available, and to perform the Supplier’s obligations under this Contract. The Supplier shall not be responsible or have any liability for any failure to make the Portal available to the extent caused by the Customer’s failure to properly ensure the provision of the relevant information to the Supplier.

7.11. The Supplier may, at its absolute discretion, from time to time either host the Portal on its own servers or use third party suppliers to do so in whole or in part. The Customer acknowledges that the Supplier may from time to time without prior notice and without the need for prior agreement provide reasonable additional obligations or requirements on the Customer or reasonably restrict the Customer’s rights due to the requirements of a third party supplier.

7.12. Whilst the Supplier shall endeavour to ensure that information and materials on or provided through the Portal (including the Deliverables) are correct and accurate and replace defective Deliverables in accordance with clause 2, no warranty or representation, express or implied, is given that such information, materials or Deliverables are complete, accurate, up-to-date, fit for a particular purpose. To the extent permitted by law, the Supplier shall not have any liability for any errors, omissions or inaccuracy in such information, materials or Deliverables.

7.13. Access to the Portal may be suspended or withdrawn from the Customer or any End Users temporarily at any time without notice. The Supplier may also impose restrictions on the length and manner of usage of any part of the Portal or access for any reason. If the Supplier imposes restrictions on the Customer, the Customer must not attempt to use the Portal under any other name or user.

7.14. Except as expressly stipulated in this Contract and the IRS Portal’s material compliance with any specification made available to the Customer by the Supplier from time to time, the Supplier shall not, at any point or within a particular time, be responsible for providing or achieving any particular results or outcomes from the Customer’s use of the Portal.

7.15. The Supplier does not warrant that use of the Portal will be uninterrupted, timely, error-free or secure from unauthorised access, or that it will meet the Customer’s (or an End User’s) individual requirements. Whilst the Supplier will use its reasonable endeavours to make the Portal available, it shall not have any liability if for any reason the Portal is unavailable for any time or for any period.

7.16. The Supplier undertakes that the IRS Portal will be made available substantially in accordance with any relevant specification made available by the Supplier to the Customer from time to time. Such undertaking shall not apply to the extent of any non-conformance which is caused by the Customer (or any End User’s) use of the IRS Portal contrary to the Supplier’s instructions, or modification or alteration of the IRS Portal by any party other than the Supplier. If the IRS Portal does not conform with such undertaking, the Supplier will correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance (such as providing the Deliverables by another means). Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of such undertaking.

7.17. The Supplier, at no additional cost, shall maintain and support the IRS Portal. If the Supplier informs the Customer of any fault or failure in the operation of the IRS Portal, the Supplier will use its reasonable endeavours to respond to the Customer and resolve and rectify the fault or failure as soon as reasonably practicable.

8. Customer’s Obligations

8.1. The Customer shall:

8.1.1. ensure that the terms of the Order Form are complete and accurate;

8.1.2. co-operate with the Supplier in all matters relating to the Services, including the provision of suitable purchase order numbers, if and when required;

8.1.3. 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;

8.1.4. 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;

8.1.5. obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;

8.1.6. comply with all applicable laws, including health and safety laws; and

8.1.7. 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 authorisation.

8.2. 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 or failure by the Customer to perform any relevant obligation (Customer Default):

8.2.1. without limiting or affecting any other right or remedy available to it, 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;

8.2.2. 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 clause 2; and

8.2.3. 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.

9. Charges and Payment

9.1. In consideration of the provision of the Services (and any associated Deliverables) by the Supplier, the Customer shall pay the Charges to the Supplier.

9.2. Unless stipulated otherwise in the Order Form, the Supplier shall submit invoices for the Charges, as follows:

9.2.1. any amounts due in instalments (as set out in the Order Form) shall be invoiced in advance on or around the beginning of each month;

9.2.2. any amounts set out in an Additional Service Confirmation), shall be invoiced upon the completion of such specific services/tasks or as agreed and set out in the applicable Additional Service Confirmation; and

9.2.3. any amounts due in respect of any training courses to be provided (whether as part of the Core Services or any Additional Services) on or around the Commencement Date (where a part of the Core Services) or on or around the date that the Supplier provides the Customer with the Additional Service Confirmation (where a part of any Additional Services).

9.3. The Customer acknowledges and agrees that its obligation to pay to the Customer the Charges identified in the Order Form as a “fixed amount” that is due for the Term arises in its entirety on the Commencement Date notwithstanding if the Supplier agrees (as set out in the Order Form) that the Customer may pay such an amount in periodic instalments. Accordingly, if this Contract terminates prior to the end of the Term for any reason, the Customer acknowledges and agrees that the Supplier shall be entitled to invoice the Customer for the balance of any “fixed amount” and the Customer agrees to pay such an amount with 30 days of such invoice’s date.

9.4. The Supplier reserves the right to:

9.4.1. increase any Charges (or the rates upon which any Charges are calculated) on an annual basis with effect from each anniversary of the Commencement Date, in line with the percentage increase in the Retail Prices Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Commencement Date and shall be based on the latest available figure for the percentage increase in the Retail Prices Index;

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

9.5.1. within 30 days of the date of the invoice; and

9.5.2. in full and in cleared funds to a bank account nominated in writing by the Supplier, and time for payment shall be of the essence of the Contract.

9.5.3. if for any reason payment has not been made after 30 days of the date of the invoice, the supplier may issue a notice of intended withdrawal of services. If payment has not been made after 45 days, the notice of withdrawal of services will be implemented (which shall include access to the Portal, if applicable).   

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

9.7. 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 remedies under clause 15 (Termination), the Supplier retains the right, under the Late Payment of Commercial Debts (Interest) Act 1998, to claim interest, compensation and debt recovery costs.

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

10. Intellectual Property Rights

10.1. All Intellectual Property Rights in or arising out of or in connection with the Services (including in the Portal) (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier and/or the Supplier’s licensors.

10.2. 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 licence during the term of the Contract to copy any reports provided as part of, or generated from, the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the applicable Services and the applicable Deliverables in its business.

10.3. The Customer shall not sub-license, assign or otherwise transfer the rights granted by clause 2 to any other party without the Supplier’s written consent (not to be unreasonably withheld or delayed).

10.4. The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Services to the Customer.

11. Data Protection and Data Processing

11.1. The Customer and the Supplier acknowledge that, subject to clause 2 for the purposes of the Data Protection Legislation, the Customer is the Data Controller and the Supplier is the Data Processor in respect of any Personal Data.

11.2. The parties acknowledge and agree that the Supplier shall be a Data Controller in respect of the personal data provided by End Users in order for End Users to access the Portal (End User Personal Data) and that:

11.2.1. the Supplier shall process any End User Personal Data in accordance with its privacy and cookies policy in force from time; and

11.2.2. this clause 11, is not applicable to the Supplier’s processing of End User Personal Data.

11.3. The Supplier shall process the Personal Data only in accordance with the Customer’s instructions from time to time and in accordance with any data protection protocol provided or issued by the Supplier (any such protocols to be notified to the Customer and made available on request).

11.4. The Supplier shall not process the Personal Data for any purposes other than those expressly authorised by the Customer, unless the Supplier is required or permitted by the Data Protection Legislation to otherwise process that Personal Data.

11.5. The Supplier shall take reasonable steps to ensure the reliability of all its employees who have access to the Personal Data.

11.6. The Customer warrants and represents that it has obtained all necessary registrations, notifications and consents required by the Data Protection Legislation.

11.7. Each party warrants to the other that it will process the Personal Data in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments.

11.8. The Supplier warrants that, having regard to the state of technological development and the cost of implementing any measures, it will:

11.8.1. take appropriate technical and organisational measures to protect against the unauthorised or unlawful processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data to ensure a level of security appropriate to:

11.8.1.1. the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage; and

11.8.1.2. the nature of the data to be protected; and

11.8.1.3. having regard to the state of technological development and the cost of implementing any measures; and

11.8.2. take reasonable steps to ensure compliance with those measures.

11.9. The Customer acknowledges that the Supplier is reliant on the Customer for direction as to the extent to which the Supplier is entitled to use and process the Personal Data. Consequently, the Supplier will not be liable for any claim brought by a Data Subject arising from any action or omission by the Supplier, to the extent that such action or omission resulted directly from the Customer’s instructions.

11.10. The Supplier may authorise a third party (subcontractor) to process the Personal Data provided that the subcontractor’s contract:

11.10.1. is on terms which are substantially the same as those set out in this Contract; and

11.10.2. terminates automatically on termination of this Contract for any reason.

11.10.3. where such third party providers are based (or whose servers are based) outside the EEA, provides that the third party takes specific safeguards to ensure a similar degree of protection is afforded to any Personal Data transferred and/or processed outside the EEA (and the Supplier shall use reasonable endeavours to obtain further information of such specific safeguards from such third parties upon any reasonable request from the Customer).

12. Third Party Deliverables, Portal and Services

12.1. These Services may incorporate the use of Third Party Services, Third Party Deliverables and/or access to a Third Party Portal, in which case the Customer shall comply with any third party terms and conditions relating to the use of such Third Party Services. Third Party Deliverables and/or Third Party Portal, as notified from time to time.

12.2. Where any third-party terms and conditions relating to the use of Third Party Services, Third Party Deliverables and/or Third Party Portal are more onerous than these Terms, the third party terms and conditions will apply.

12.3. If Third Party Deliverables, Third Party Portal and/or Third Party Services are supplied or used in the provision of the Services and/or Deliverables, the Customer acknowledges that it may be required to enter into a third party agreement and that the Supplier may withhold any Services until the Customer has confirmed in writing to the Supplier that it has entered in to such third party agreement. If requested by the Supplier, the Customer shall provide the Supplier with a copy of any such agreement it has entered in to.

13. Confidentiality

13.1. 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 clause 2.

13.2. Each party may disclose the other party’s confidential information:

13.2.1. to its employees, 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 clause 13; and

13.2.2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

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

14. Limitation of Liability: The Customer’s attention is particularly drawn to this clause.

14.1. Nothing in these Conditions shall limit or exclude the Supplier’s liability for:

14.1.1. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;

14.1.2. fraud or fraudulent misrepresentation;

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

14.1.4. breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession).

14.2. Subject to clause 1, the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:

14.2.1. loss of profits;

14.2.2. loss of sales or business;

14.2.3. loss of agreements or contracts;

14.2.4. loss of anticipated savings;

14.2.5. loss of use or corruption of software, data or information;

14.2.6. loss of or damage to goodwill; and/or

14.2.7. any indirect or consequential loss.

14.3. Subject to clause 1,the Supplier’s total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty or otherwise, arising under or in connection with the Contract, shall be limited to 100% of the total Charges paid under the Contract.

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

14.5. This clause 14 shall survive termination of the Contract.

15. Term & Termination

15.1. This Contract shall commence on the Commencement Date and continue until the end of the Term. The Contract shall, unless terminated earlier, automatically extend for a further 12 month period (Extended Term) at the end of the Term and each Extended Term.

15.2. Either party may terminate this Agreement at the end of the Term or an Extended Term if it provides the other party with written notice no later than 90 days prior to end of the Term or Extended Term, as the case may be.

15.3. Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

15.3.1. the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice in writing to do so;

15.3.2. 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 relevant jurisdiction;

15.3.3. 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; or

15.3.4. 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.

15.4. Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:

15.4.1. the Customer fails to pay any amount due under the Contract on the due date for payment ; or

15.4.2. there is a change of Control of the Customer.

15.5. Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services or all further deliveries of Deliverables under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 3.2 to clause 15.3.4, or the Supplier reasonably believes that the Customer is about to become subject to any of them.

16. Consequences of Termination

16.1. On termination of the Contract:

16.1.1. the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services and Deliverables supplied but for which no invoice has been submitted, the Supplier shall submit an invoice which shall be payable by the Customer immediately on receipt;

16.1.2. the Customer shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them or for Deliverables electronic in nature, terminate the access of End Users to such Deliverables via the Portal.

16.2. Termination or expiry of the Contract shall not affect any rights, remedies, obligations and 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 or expiry.

16.3. Any provision of the Contract that expressly, or by implication, is intended to have effect after termination or expiry shall continue in full force and effect.

17. Force Majeure

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 events, circumstances or causes beyond its reasonable control (a Force Majeure Event).

18. General

18.1. Assignment and other dealings

18.1.1 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.

18.1.2. 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.

18.2. Notices

18.2.1. 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 Order Form.

18.2.2. 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, at 9.00 am on the next Business Day after transmission.

18.2.3. This clause 2 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.

18.3. Severance. 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 clause 18.3 shall not affect the validity and enforceability of the rest of the Contract.

18.4. Waiver. 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.

18.5. No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.

18.6. Entire agreement

18.6.1. 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.

18.6.2. 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 misrepresentation based on any statement in the Contract.

18.6.3. Nothing in this clause 6 shall limit or exclude any liability for fraud.

18.7. Third parties rights. 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.

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

18.9. Governing law. 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.

18.10 Jursidiction.Each party irrevocably agrees that the courts of England 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.