TERMS OF BUSINESS
LOGIQ LIMITED
TERMS OF BUSINESS
1.
1.1
DEFINITIONS AND INTERPRETATION
The following capitalised terms apply in these Terms:
Applicable Law means: (a) any statute, bye-law, order, directive or law of, and any regulations issued by any competent authority of, the island of Jersey (including any customary law, judgment, demand, order or decision of any court, regulator or tribunal in the island of Jersey); (b) any rule, policy, guidance, code of practice or recommendation issued by any governmental, statutory or regulatory body in Jersey, that relates to the Contract and (c) any other laws to which either Party is subject.
Background Information means all and any materials, documents, drawings, plans or other information made available by the Customer to the Supplier in connection with the negotiation and preparation of the Order Document and during any process of competitive tender which preceded such negotiation and preparation (including any invitation to tender prepared by the Customer, if applicable).
Business Day means a day other than Saturday or Sunday or a public or bank holiday in Jersey.
Change Variation Document means a document agreed and signed by both Parties to record any changes made in accordance with clause 6.1.
Charges means the charges payable by the Customer to the Supplier for the provision of the Services as set out in the Order Document.
Commencement Date means in respect of each Service set out in the Order Document, the earlier of: (i) the date on which delivery of that Service is made, commences or goes live; or (ii) the date on which the Supplier commits to a Third Party Services Provider to receive any product or service from that Third Party Services Provider in order to allow the Supplier to provide that Service to the Customer.
Contract means together the Order Document and these Terms.
Customer means the person, firm or company who purchases Services from the Supplier.
Data Protection Legislation shall mean all applicable data protection legislation in force from time to time in Jersey, including the Data Protection (Jersey) Law 2018.
Data Subject, Controller, Processor, Processing and Personal Data have the meaning set out in the Data Protection Legislation in relation to data that is Processed under the Contract.
End User means any person who uses a Service as a result of the Customer entering into the Contract.
Effective Date means the date of the Order Document.
Event of Default means in relation to either Party (i) any breach of its contractual obligations under or in connection with the Contract; and (ii) any representation, misrepresentation (whether innocent or negligent), statement, tortious act or omission (including negligence), or breach of statutory duty arising under or in connection with the Contract.
Force Majeure Event means in relation to either Party, any cause affecting the performance by that Party of its obligations arising from acts, events, omissions or circumstances beyond the reasonable control of that Party, including acts of God, acts of governmental, supra-national, highways or other authority or any public telecommunications operator, outbreak of hostilities, national emergency, riots, civil commotion, terrorism, fire, explosion, flood, epidemic, pandemics, lock outs (not by that Party), strikes and other industrial disputes (not relating to that Party’s workforce), restraints or delays affecting carriers, and inability or delay in obtaining supplies or adequate or suitable materials.
Good Industry Practice means the exercise of that degree of skill and care, diligence and timeliness which would be reasonably expected from an expert in the Party's field of business.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, trade names, rights in domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered, and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Materials means all materials supplied by or on behalf of the Supplier or any Third Party Services Provider in connection with the provision of the Services (including, without limitation all marketing materials supplied by or on behalf of the Supplier or any Third Party Services Provider designed to promote and explain the applicable functionality and benefits of the Services).
Order Document means the proposal document prepared by the Supplier at the request of the Customer setting out the Services to be provided by the Supplier and accepted by the Customer, including the Charges for the Services, as supplemented or amended from time to time.
Party means the Supplier or the Customer, who together shall be the Parties.
Primary Representative means the person nominated by each Party in accordance with clause 9.1.
Second Representative means the person nominated by each Party in accordance with clause 9.2.
Services means each of the services set out in the Order Document.
Supplier means Logiq Limited, a company incorporated in Jersey with registration number 130753.
Term means the period from the Effective Date to the Termination Date.
Terms means these terms and conditions as amended from time to time.
Termination Date means the date on which the Contract is terminated.
Third Party Services means any part of the Services that the Supplier procures from a third party and that the Supplier uses in order to provide the Services.
Third Party Services Provider means a provider of Third Party Services.
Working Hours means between 08:00 and 18:00 on Business Days.
1.2
1.3
1.4
1.5
1.6
1.7
1.8
The headings to the clauses of these Terms shall not affect their construction.
Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
Any reference to “writing” or cognate expressions includes references to any communication effected by email or any comparable means.
The expression “person” means any individual, firm, company, incorporated association, partnership, government, state or agency of state, or joint venture.
Any phrase in the Contract introduced by the term “include”, “including”, “in particular” or any similar expression will be construed as illustrating and will not limit the sense of the words preceding that term.
1.2
1.3
1.4
1.5
1.6
1.7
1.8
The headings to the clauses of these Terms shall not affect their construction.
Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
Any reference to “writing” or cognate expressions includes references to any communication effected by email or any comparable means.
The expression “person” means any individual, firm, company, incorporated association, partnership, government, state or agency of state, or joint venture.
Any phrase in the Contract introduced by the term “include”, “including”, “in particular” or any similar expression will be construed as illustrating and will not limit the sense of the words preceding that term.
2
2.1
2.2
2.3
2.4
3
3.1
4
4.1
APPLICATION OF THESE TERMS
In the event of any conflict or inconsistency between any elements of the Contract, such conflict or inconsistency shall be resolved in accordance with the following order of precedence with the earlier items taking precedence over the later items, and all listed items taking precedence over any other document referred to in the Contract.
2.1.1 The Order Document;
2.1.2 These Terms.
These Terms shall prevail over any inconsistent terms or conditions contained in, or referred to in, any purchase order, confirmation of order, specification or communication from the Customer or implied by law, trade custom, practice or course of dealing.
No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on the Supplier unless in writing and signed by a duly authorised representative of the Supplier.
The Supplier may vary these Terms from time to time without the Customer’s consent. The current applicable version of these Terms will be available for inspection on the Supplier’s website. Where the Supplier proposes to amend these Terms in a way which materially affects the Services, then the Supplier shall notify the Customer not less that than 20 (twenty) Business Days prior to their introduction. In such event, the Customer will be bound by the revised Terms unless the Customer informs the Supplier within that 20 (twenty) Business Day period that such changes are not acceptable to the Customer, in which case the Supplier may terminate the Contract in accordance with clause 11.4. In all other cases, the Customer will be bound 10 (ten) Business Days after the Supplier has given notification to the Customer. Any such variation shall not affect any rights or obligations of a Party that have already accrued.
PROVISION OF THE SERVICES
The Supplier agrees to supply the Services to the Customer from the Commencement Date for the relevant Service upon the terms and conditions of the Contract, and in consideration of the payment of the Charges by the Customer.
CUSTOMER OBLIGATIONS
Without prejudice to its other obligations under the Contract, the Customer undertakes to the Supplier that it shall during the Term:
2
2.1
2.2
2.3
2.4
3
3.1
4
4.1
APPLICATION OF THESE TERMS
In the event of any conflict or inconsistency between any elements of the Contract, such conflict or inconsistency shall be resolved in accordance with the following order of precedence with the earlier items taking precedence over the later items, and all listed items taking precedence over any other document referred to in the Contract.
2.1.1 The Order Document;
2.1.2 These Terms.
These Terms shall prevail over any inconsistent terms or conditions contained in, or referred to in, any purchase order, confirmation of order, specification or communication from the Customer or implied by law, trade custom, practice or course of dealing.
No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on the Supplier unless in writing and signed by a duly authorised representative of the Supplier.
The Supplier may vary these Terms from time to time without the Customer’s consent. The current applicable version of these Terms will be available for inspection on the Supplier’s website. Where the Supplier proposes to amend these Terms in a way which materially affects the Services, then the Supplier shall notify the Customer not less that than 20 (twenty) Business Days prior to their introduction. In such event, the Customer will be bound by the revised Terms unless the Customer informs the Supplier within that 20 (twenty) Business Day period that such changes are not acceptable to the Customer, in which case the Supplier may terminate the Contract in accordance with clause 11.4. In all other cases, the Customer will be bound 10 (ten) Business Days after the Supplier has given notification to the Customer. Any such variation shall not affect any rights or obligations of a Party that have already accrued.
PROVISION OF THE SERVICES
The Supplier agrees to supply the Services to the Customer from the Commencement Date for the relevant Service upon the terms and conditions of the Contract, and in consideration of the payment of the Charges by the Customer.
CUSTOMER OBLIGATIONS
Without prejudice to its other obligations under the Contract, the Customer undertakes to the Supplier that it shall during the Term:
4.1.1
4.1.2
4.1.3
4.1.4
4.1.5
procure all necessary rights and licences to enable the Supplier to exercise its rights and/or perform its obligations under the Contract and Applicable Law in respect of the Services, including in respect of any Third Party software other than where the Supplier has specifically agreed in writing to acquire the relevant software licences;
promptly provide the Supplier with such information about its requirements for the Services as the Supplier may reasonably require and request from time to time in order to enable it to provide the Services in accordance with the Contract;
provide the Supplier with such access to any premises, systems and networks as the Supplier may reasonably require for the purposes of delivering the Services and co-operate with the Supplier’s reasonable requests from time to time for assistance and information to enable the Supplier to perform its obligations under the Contract and comply with its obligations under Applicable Law;
where applicable permit the Supplier or any of its appointed representatives (on reasonable notice and during normal Working Hours) to enter onto any of the Customer’s premises to audit the Customers compliance with its obligations under the Contract. The Customer shall co-operate in all respects with any audit and allow the Supplier and/or its appointed representatives access to relevant documents, data, software, equipment and other relevant materials;
comply with, insofar as they relate to the Services provided under the Contract:
4.1.1
4.1.2
4.1.3
4.1.4
4.1.5
procure all necessary rights and licences to enable the Supplier to exercise its rights and/or perform its obligations under the Contract and Applicable Law in respect of the Services, including in respect of any Third Party software other than where the Supplier has specifically agreed in writing to acquire the relevant software licences;
promptly provide the Supplier with such information about its requirements for the Services as the Supplier may reasonably require and request from time to time in order to enable it to provide the Services in accordance with the Contract;
provide the Supplier with such access to any premises, systems and networks as the Supplier may reasonably require for the purposes of delivering the Services and co-operate with the Supplier’s reasonable requests from time to time for assistance and information to enable the Supplier to perform its obligations under the Contract and comply with its obligations under Applicable Law;
where applicable permit the Supplier or any of its appointed representatives (on reasonable notice and during normal Working Hours) to enter onto any of the Customer’s premises to audit the Customers compliance with its obligations under the Contract. The Customer shall co-operate in all respects with any audit and allow the Supplier and/or its appointed representatives access to relevant documents, data, software, equipment and other relevant materials;
comply with, insofar as they relate to the Services provided under the Contract:
4.1.5.1
4.1.5.2
4.1.5.3
Applicable Law;
all reasonable instructions of the Supplier or a Third Party Services Provider; and
all instructions issued by a regulatory body and notified to the Customer;
4.1.6
4.1.6
not use or permit the Services to be used for:
4.1.6.1
4.1.6.2
4.1.6.3
any illegal, immoral or unlawful purpose, or any purpose other than that for which the Services are provided; or
the transmission of any material which is illegal, defamatory, offensive, of an abusive or menacing character or that is likely to be deemed a nuisance;
notify the Supplier promptly in writing of any change to its name, operating address or registered office address.
4.1.6.1
4.1.6.2
4.1.6.3
any illegal, immoral or unlawful purpose, or any purpose other than that for which the Services are provided; or
the transmission of any material which is illegal, defamatory, offensive, of an abusive or menacing character or that is likely to be deemed a nuisance;
notify the Supplier promptly in writing of any change to its name, operating address or registered office address.
5
5.1
5.2
5.3
5.4
5.5
5.6
5.7
CHARGES
Clause 5.2 shall apply if the Services are to be provided on a time-and-materials basis. Clauses 5.3 and 5.4 shall apply if the Services are to be provided for a fixed price. The remainder of this clause 5 shall apply in either case.
Where the Services are provided on a time-and-materials basis, the charges payable for the Services shall be calculated in accordance with the Supplier's standard daily fee rates as amended from time to time. The Supplier shall invoice the Customer monthly in arrears for its charges for time, expenses and materials for the month concerned. Any expenses, materials, and Third Party Services shall be invoiced by the Supplier at cost.
Where the Services are provided for a fixed price, the total price for the Services shall be the amount set out in the Order Document. The total price shall be paid to the Supplier at the times provided in the Order Document.
Any fixed price contained in the Order Document excludes the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the Supplier’s personnel in connection with the Services, and the cost of any materials or services reasonably and properly provided by third parties required by the Supplier for the supply of the Services. Such expenses, materials and third party services shall be invoiced by the Supplier at cost.
Except where otherwise expressly stated in the Contract, the Customer shall pay to the Supplier the Charges within thirty (30) days of the date of the Supplier’s invoice. Time for payment shall be of the essence of the Contract.
Where, as part of the Services, the Supplier as a Microsoft Cloud Solutions Provider (CSP), the Customer engages the Supplier to provide Microsoft 365 and Azure Service subscriptions, the Customer shall pay the Supplier in respect of all fees and charges incurred by the Supplier in respect of such subscriptions for the term stipulated by Microsoft (whether or not the Customer shall cancel any such subscription with the Supplier).
Without prejudice to any other right or remedy that the Supplier may have, where the Customer has failed to pay Charges in accordance with this clause 5 and such Charges remain unpaid for a period of 7 (seven) days after the Customer has received a written notice from the Supplier demanding payment, such notice expressly referring to the consequences of failing to remedy the failure, the Supplier may (at its option):
5
5.1
5.2
5.3
5.4
5.5
5.6
5.7
CHARGES
Clause 5.2 shall apply if the Services are to be provided on a time-and-materials basis. Clauses 5.3 and 5.4 shall apply if the Services are to be provided for a fixed price. The remainder of this clause 5 shall apply in either case.
Where the Services are provided on a time-and-materials basis, the charges payable for the Services shall be calculated in accordance with the Supplier's standard daily fee rates as amended from time to time. The Supplier shall invoice the Customer monthly in arrears for its charges for time, expenses and materials for the month concerned. Any expenses, materials, and Third Party Services shall be invoiced by the Supplier at cost.
Where the Services are provided for a fixed price, the total price for the Services shall be the amount set out in the Order Document. The total price shall be paid to the Supplier at the times provided in the Order Document.
Any fixed price contained in the Order Document excludes the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the Supplier’s personnel in connection with the Services, and the cost of any materials or services reasonably and properly provided by third parties required by the Supplier for the supply of the Services. Such expenses, materials and third party services shall be invoiced by the Supplier at cost.
Except where otherwise expressly stated in the Contract, the Customer shall pay to the Supplier the Charges within thirty (30) days of the date of the Supplier’s invoice. Time for payment shall be of the essence of the Contract.
Where, as part of the Services, the Supplier as a Microsoft Cloud Solutions Provider (CSP), the Customer engages the Supplier to provide Microsoft 365 and Azure Service subscriptions, the Customer shall pay the Supplier in respect of all fees and charges incurred by the Supplier in respect of such subscriptions for the term stipulated by Microsoft (whether or not the Customer shall cancel any such subscription with the Supplier).
Without prejudice to any other right or remedy that the Supplier may have, where the Customer has failed to pay Charges in accordance with this clause 5 and such Charges remain unpaid for a period of 7 (seven) days after the Customer has received a written notice from the Supplier demanding payment, such notice expressly referring to the consequences of failing to remedy the failure, the Supplier may (at its option):
5.7.1
5.7.2
suspend the Services related to the non-payment until payment has been made in full (and for the avoidance of doubt, such suspension shall be at no cost or penalty to the Supplier); and/or
require reasonable payment assurances including pre-payment of Charges, guarantees or letters of credit as a condition of the Supplier continuing to supply the Services.
5.8
5.9
The Supplier shall be entitled to increase the Charges for each Service in its absolute discretion at the end of any initial term or any extended term.
In addition, the Charges for each Service may be increased on reasonable notice to the Customer at any time throughout the Term by an amount to reflect material increases in:
5.9.1
5.9.2
the charges payable by the Supplier to any Third Party Services Provider in respect of any relevant Third Party Services, where the Supplier was unaware of the details of such increases as at the respective Commencement Date; and
other Supplier costs which are outside the Supplier’s direct control, including: (i) currency exchange rate fluctuations; or (ii) increased energy costs.
5.9.1
5.9.2
the charges payable by the Supplier to any Third Party Services Provider in respect of any relevant Third Party Services, where the Supplier was unaware of the details of such increases as at the respective Commencement Date; and
other Supplier costs which are outside the Supplier’s direct control, including: (i) currency exchange rate fluctuations; or (ii) increased energy costs.
5.10
5.11
5.12
In the event that the Supplier’s agreement with any Third Party Services Provider is varied or terminated at the request of the Third Party Services Provider such that the Supplier is no longer able to provide all or any part of the Third Party Services, the Supplier shall use its reasonable endeavours promptly to put in place alternative arrangements for the supply of the relevant parts of the Services which minimise any adverse impact (including any increase in the Charges) to the Customer. If, notwithstanding such endeavours, the Supplier’s costs of providing the Services to the Customer increase as a result of such alternative arrangements, the Supplier shall be entitled to increase the relevant Charges for the affected Services to reflect this increase or in the event that alternative arrangements cannot be put in place, the Supplier shall be able to terminate the provision of the effected Third Party Services or the Contract on giving reasonable notice to the Customer.
Save as otherwise expressly provided in the Contract or required by Applicable Law, all payments to be made by the Customer to the Supplier under the Contract shall be made in full and without any set-off or any deduction or withholding including on account of any counter-claim.
If the Customer, on bona fide grounds, disputes any part of an amount invoiced by the Supplier, the Customer shall promptly and in any event within fifteen (15) days of the date of the relevant invoice, notify the Supplier of that dispute giving full details of the nature of the dispute and the amount that it claims should have been invoiced and:
5.10
5.11
5.12
In the event that the Supplier’s agreement with any Third Party Services Provider is varied or terminated at the request of the Third Party Services Provider such that the Supplier is no longer able to provide all or any part of the Third Party Services, the Supplier shall use its reasonable endeavours promptly to put in place alternative arrangements for the supply of the relevant parts of the Services which minimise any adverse impact (including any increase in the Charges) to the Customer. If, notwithstanding such endeavours, the Supplier’s costs of providing the Services to the Customer increase as a result of such alternative arrangements, the Supplier shall be entitled to increase the relevant Charges for the affected Services to reflect this increase or in the event that alternative arrangements cannot be put in place, the Supplier shall be able to terminate the provision of the effected Third Party Services or the Contract on giving reasonable notice to the Customer.
Save as otherwise expressly provided in the Contract or required by Applicable Law, all payments to be made by the Customer to the Supplier under the Contract shall be made in full and without any set-off or any deduction or withholding including on account of any counter-claim.
If the Customer, on bona fide grounds, disputes any part of an amount invoiced by the Supplier, the Customer shall promptly and in any event within fifteen (15) days of the date of the relevant invoice, notify the Supplier of that dispute giving full details of the nature of the dispute and the amount that it claims should have been invoiced and:
5.12.1
5.12.2
5.12.3
5.12.4
the Customer shall pay, if not already paid, that part of the invoice which is not disputed in accordance with this clause 5;
the Parties shall negotiate in good faith to resolve the dispute, but if a resolution cannot be reached within fourteen (14) days of the Customer giving notice under this clause 5.12, clause 16 shall apply to the dispute;
the Supplier shall provide all such information and evidence as may be reasonably necessary to verify the disputed sum; and
within seven (7) days following resolution of the dispute, the Customer shall pay to the Supplier that part of the disputed sum (if any) as it is resolved is payable by the Customer or, as applicable, the Supplier shall reimburse the Customer any part of the disputed sum already paid by the Customer that it is resolved was not payable by the Customer.
5.12.1
5.12.2
5.12.3
5.12.4
the Customer shall pay, if not already paid, that part of the invoice which is not disputed in accordance with this clause 5;
the Parties shall negotiate in good faith to resolve the dispute, but if a resolution cannot be reached within fourteen (14) days of the Customer giving notice under this clause 5.12, clause 16 shall apply to the dispute;
the Supplier shall provide all such information and evidence as may be reasonably necessary to verify the disputed sum; and
within seven (7) days following resolution of the dispute, the Customer shall pay to the Supplier that part of the disputed sum (if any) as it is resolved is payable by the Customer or, as applicable, the Supplier shall reimburse the Customer any part of the disputed sum already paid by the Customer that it is resolved was not payable by the Customer.
5.13
5.14
5.15
6.
6.1
7.
7.1
Any invoice which is not disputed in accordance with clause 5.12 shall be deemed to be fully accepted by the Customer together with each invoice that preceded it, whether or not any such preceding invoice includes any amount reimbursed as a consequence of a dispute in the most recent invoice. Where and to the extent that an invoice is (i) not paid by the due date in accordance with clause 5.5; and is not disputed in accordance with clause 5.12, or (ii) is not paid by the due date in accordance with clause 5.12.4 where a dispute has been resolved, the Supplier shall be entitled to charge interest on a daily basis at the rate of 4% above the base rate of HSBC Bank plc from the due date for payment until the date of receipt by the Supplier of payment in cleared funds (including any accrued interest) whether before or after Judgement in respect of the overdue amount.
The Charges quoted by the Supplier exclude any value added or goods and services tax and any other applicable taxes, which shall be added at the prevailing rate where applicable and paid by the Customer following delivery of a tax invoice.
Where the Customer has defaulted in payment of any Charges, or in the Supplier’s reasonable opinion the credit-worthiness of the Customer has materially deteriorated, the Supplier may upon notice require the Customer to provide the Supplier with such security as the Supplier may reasonably require and amend the payment terms as reasonably required. The Supplier may hold any security until the Customer has paid all sums due to the Supplier under the Contract.
CHANGES TO THE SERVICES
Any changes to the Services or to the terms of the Contract shall be made via a Change Variation Document.
WARRANTIES
The Customer acknowledges that the Supplier has relied and will rely upon the Background Information supplied by the Customer in specifying the Services to be provided. The Customer warrants that the Background Information does not contain any errors or omission be misleading or inaccurate in any material respect.
The Supplier provides the following warranties only to the Customer (and the Customer acknowledges that any other statement in the Contract that could be interpreted as a warranty will not be treated as such):
5.13
5.14
5.15
6.
6.1
7.
7.1
Any invoice which is not disputed in accordance with clause 5.12 shall be deemed to be fully accepted by the Customer together with each invoice that preceded it, whether or not any such preceding invoice includes any amount reimbursed as a consequence of a dispute in the most recent invoice. Where and to the extent that an invoice is (i) not paid by the due date in accordance with clause 5.5; and is not disputed in accordance with clause 5.12, or (ii) is not paid by the due date in accordance with clause 5.12.4 where a dispute has been resolved, the Supplier shall be entitled to charge interest on a daily basis at the rate of 4% above the base rate of HSBC Bank plc from the due date for payment until the date of receipt by the Supplier of payment in cleared funds (including any accrued interest) whether before or after Judgement in respect of the overdue amount.
The Charges quoted by the Supplier exclude any value added or goods and services tax and any other applicable taxes, which shall be added at the prevailing rate where applicable and paid by the Customer following delivery of a tax invoice.
Where the Customer has defaulted in payment of any Charges, or in the Supplier’s reasonable opinion the credit-worthiness of the Customer has materially deteriorated, the Supplier may upon notice require the Customer to provide the Supplier with such security as the Supplier may reasonably require and amend the payment terms as reasonably required. The Supplier may hold any security until the Customer has paid all sums due to the Supplier under the Contract.
CHANGES TO THE SERVICES
Any changes to the Services or to the terms of the Contract shall be made via a Change Variation Document.
WARRANTIES
The Customer acknowledges that the Supplier has relied and will rely upon the Background Information supplied by the Customer in specifying the Services to be provided. The Customer warrants that the Background Information does not contain any errors or omission be misleading or inaccurate in any material respect.
The Supplier provides the following warranties only to the Customer (and the Customer acknowledges that any other statement in the Contract that could be interpreted as a warranty will not be treated as such):
7.2.1
7.2.2
7.2.3
7.2.4
the Supplier will provide the Services exercising reasonable skill and care and in accordance with the terms of the Order Document;
will perform its obligations in accordance with Applicable Law;
it will discharge its obligations using reasonable skill and care and in accordance with Good Industry Practice; and
subject to the Customer’s obligations set out at clause 4.1.1, the Supplier has full right, power and authority to provide the Services to the Customer in accordance with the terms of the Contract.
7.2.1
7.2.2
7.2.3
7.2.4
the Supplier will provide the Services exercising reasonable skill and care and in accordance with the terms of the Order Document;
will perform its obligations in accordance with Applicable Law;
it will discharge its obligations using reasonable skill and care and in accordance with Good Industry Practice; and
subject to the Customer’s obligations set out at clause 4.1.1, the Supplier has full right, power and authority to provide the Services to the Customer in accordance with the terms of the Contract.
7.3
If the Supplier fails to comply with the warranty in clause 7.2, the Supplier may at its sole option take such steps as it deems necessary to either:
7.3
7.3.1
7.3.2
remedy such failure; or
refund such part of the Charges as relates to the relevant part of the Services,
7.3
provided that the exercise of either option by the Supplier shall constitute an entire discharge of the Supplier’s liability for such failure and the Customer's sole and exclusive remedies and the liability of the Supplier under the warranty in clause 7.2 shall in no event exceed the Charges payable in respect of the relevant part of the Services.
7.4
Each Party irrevocably represents, warrants, agrees and undertakes with the other that:
7.3
7.4.1
7.4.2
7.4.3
it has the power to enter into the Contract;
the Contract constitutes legal, valid and binding obligations enforceable against it in accordance with the terms;
neither the execution nor the performance of the Contract contravenes any:
7.3
7.4.1
7.4.2
7.4.3
it has the power to enter into the Contract;
the Contract constitutes legal, valid and binding obligations enforceable against it in accordance with the terms;
neither the execution nor the performance of the Contract contravenes any:
7.3
7.3
7.4.3.1
7.4.3.2
7.4.3.3
7.4.3.4
provision of any Applicable Law;
judgment, injunction or award of any court or authority; or
provision of any existing agreement between it and any third party; and
the execution and performance of the Contract has been duly authorised by all appropriate corporate actions and, in particular, the person who signs the Order Document has been duly authorised to do so.
7.3
7.3
7.4.3.1
7.4.3.2
7.4.3.3
7.4.3.4
provision of any Applicable Law;
judgment, injunction or award of any court or authority; or
provision of any existing agreement between it and any third party; and
the execution and performance of the Contract has been duly authorised by all appropriate corporate actions and, in particular, the person who signs the Order Document has been duly authorised to do so.
7.5
The Customer hereby irrevocably represents, warrants and agrees and undertakes to the Supplier that:
7.3
7.5.1
7.5.2
7.5.3
it will perform its obligations in accordance with Applicable Law;
it will discharge its obligations using reasonable skill and care and in accordance with Good Industry Practice; and
except as provided expressly in the Contract, all other warranties, express or implied, are strictly excluded to the fullest extent permitted by law.
7.3
7.5.1
7.5.2
7.5.3
it will perform its obligations in accordance with Applicable Law;
it will discharge its obligations using reasonable skill and care and in accordance with Good Industry Practice; and
except as provided expressly in the Contract, all other warranties, express or implied, are strictly excluded to the fullest extent permitted by law.
8
8.1
8.2
LIMITATION OF LIABILITY
The following provisions set out the entire liability of each Party (including any liability for the acts and omissions of its employees, agents or sub-contractors) to the other in respect of any Event of Default.
Nothing in the Contract shall limit the liability of either Party for:
8
8.1
8.2
LIMITATION OF LIABILITY
The following provisions set out the entire liability of each Party (including any liability for the acts and omissions of its employees, agents or sub-contractors) to the other in respect of any Event of Default.
Nothing in the Contract shall limit the liability of either Party for:
7.3
8.2.1
8.2.2
8.2.3
death or personal injury caused by negligence;
fraud or fraudulent misrepresentation made by either Party or its representatives;
any other liability which cannot be excluded or limited by law.
8.3
Subject to clauses 8.2 and 8.4, neither Party’s aggregate liability for any and all Events of Default during the term of the Contract shall exceed:
7.3
8.3.1
8.3.2
in the case of Events of Default caused by the acts or omissions of Third Party Service Providers, the total amount recovered by the Supplier from the relevant Third Party Service Providers in respect of the relevant Events of Default arising from their acts or omissions; and
for all other Events of Default, except for liability for damage to property (in which case clause 8.4 shall apply) 125% of the annual Charges invoiced by the Supplier to the Customer for all Services provided to the Customer in the previous twelve (12) months.
8.4
8.5
For any Event of Default in respect of damage to or loss of real property shall not exceed £5,000,000 (five million pounds sterling) in aggregate.
Subject to clause 8.2, the Supplier shall not in any circumstances be liable, whether in tort (including for negligence or breach of statutory duty however arising), contract, misrepresentation (whether innocent or negligent) or otherwise for:
7.3
8.5.1
8.5.2
8.5.3
8.5.4
8.5.5
8.5.6
8.5.7
8.5.8
8.5.9
8.5.10
8.5.11
8.5.12
loss of actual or anticipated profits; or
loss of business; or
depletion of goodwill or similar losses; or
loss of actual or anticipated savings; or
loss of goods; or
loss of contract; or
loss of use; or
wasted expenditure; or
loss or corruption of data or information; or
loss of reputation; or
loss of goodwill; or
any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
9.
9.1
9.2
9.3
10.
10.1
10.2
10.3
REPRESENTATIVES
The Supplier and the Customer shall, where applicable to the Services, on or before the relevant Commencement Date each nominate and inform the other of the identity of a Primary Representative who shall be authorised to make decisions relating to the Contract and who shall be responsible for providing and/or allowing access to all information and documentation to which the Supplier or the Customer (as the case may be) and/or their agents, sub-contractors or professional advisers are entitled pursuant to the Contract (subject to the provisions in respect of confidentiality set out in clause 13).
The Supplier and the Customer shall on or before the relevant Commencement Date each nominate and inform the other of the identity of a Second Representative who shall be involved in the resolution of Disputes in accordance with clause 16.
Each Party shall inform the other in writing of any change in the identity of its Primary Representative or Second Representative during the Term.
INTELLECTUAL PROPERTY RIGHTS
Each of the Parties acknowledges that nothing in the Contract shall operate to transfer to the other Party any right, title or interest in or to, or to grant to the other Party any licence or other right to use, any of the Intellectual Property Rights owned and/or licensed by the other Party and/or any Third Party Services Provider, save that each Party hereby grants (or shall procure that the relevant Third Party Services Provider grants) to the other a licence, for the Term to use such rights that exist in respect of the Services solely to the extent necessary to use the Services for the purpose for which they are supplied.
Where the Supplier provides any software to the Customer as a part of the Services, such software shall be provided on the licence terms accompanying or contained in such software or otherwise notified by the Supplier to the Customer, and the Customer shall act in accordance with those terms.
The Customer shall not and shall procure that any End User shall not:
9.
9.1
9.2
9.3
10.
10.1
10.2
10.3
REPRESENTATIVES
The Supplier and the Customer shall, where applicable to the Services, on or before the relevant Commencement Date each nominate and inform the other of the identity of a Primary Representative who shall be authorised to make decisions relating to the Contract and who shall be responsible for providing and/or allowing access to all information and documentation to which the Supplier or the Customer (as the case may be) and/or their agents, sub-contractors or professional advisers are entitled pursuant to the Contract (subject to the provisions in respect of confidentiality set out in clause 13).
The Supplier and the Customer shall on or before the relevant Commencement Date each nominate and inform the other of the identity of a Second Representative who shall be involved in the resolution of Disputes in accordance with clause 16.
Each Party shall inform the other in writing of any change in the identity of its Primary Representative or Second Representative during the Term.
INTELLECTUAL PROPERTY RIGHTS
Each of the Parties acknowledges that nothing in the Contract shall operate to transfer to the other Party any right, title or interest in or to, or to grant to the other Party any licence or other right to use, any of the Intellectual Property Rights owned and/or licensed by the other Party and/or any Third Party Services Provider, save that each Party hereby grants (or shall procure that the relevant Third Party Services Provider grants) to the other a licence, for the Term to use such rights that exist in respect of the Services solely to the extent necessary to use the Services for the purpose for which they are supplied.
Where the Supplier provides any software to the Customer as a part of the Services, such software shall be provided on the licence terms accompanying or contained in such software or otherwise notified by the Supplier to the Customer, and the Customer shall act in accordance with those terms.
The Customer shall not and shall procure that any End User shall not:
7.3
10.3.1
10.3.2
copy the Services or the Materials or any part of any of them except to the extent and for the purposes expressly permitted by the Contract; or
modify, adapt, develop, create any derivative work, reverse engineer, decompile, disassemble or carry out any act otherwise restricted by copyright or other Intellectual Property Rights in the Services or the Materials except and only to the extent that it is expressly permitted to do so by Applicable Law.
10.4
11.
11.1
The Customer shall ensure, and shall procure, that each reference to, and use of, any of the Trade Marks by the Customer or any End User is in a manner approved from time to time by the Supplier and accompanied by an acknowledgement in a form approved by the Supplier that the same is a trade mark (or registered trade mark) of the Supplier or its licensors as applicable.
TERMINATION
The Contract may be terminated by notice in writing by either Party with immediate effect if:
10.4
11.
11.1
The Customer shall ensure, and shall procure, that each reference to, and use of, any of the Trade Marks by the Customer or any End User is in a manner approved from time to time by the Supplier and accompanied by an acknowledgement in a form approved by the Supplier that the same is a trade mark (or registered trade mark) of the Supplier or its licensors as applicable.
TERMINATION
The Contract may be terminated by notice in writing by either Party with immediate effect if:
7.3
11.1.1
11.1.2
11.1.3
the other commits any material breach of the Contract and in the case of a breach capable of remedy it has not been remedied within thirty (30) days of a written request by the other Party to do so;
the other becomes subject to any voluntary arrangement with its creditors, is unable to pay its debts as they fall due, has a receiver, manager or administrative receiver appointed over any of its assets or undertaking, has passed a resolution for its winding-up, or has a petition presented to any court for its winding-up, has an administrator appointed in respect of it or is the subject of an application for administration filed at any court, commits any act of bankruptcy or if any petition or other process in relation to bankruptcy is presented or made against that other Party (each an Insolvency Event) and the Party to which the Insolvency Event relates shall immediately inform the other of its occurrence; or
the other ceases or threatens to cease to trade.
7.3
11.1.1
11.1.2
11.1.3
the other commits any material breach of the Contract and in the case of a breach capable of remedy it has not been remedied within thirty (30) days of a written request by the other Party to do so;
the other becomes subject to any voluntary arrangement with its creditors, is unable to pay its debts as they fall due, has a receiver, manager or administrative receiver appointed over any of its assets or undertaking, has passed a resolution for its winding-up, or has a petition presented to any court for its winding-up, has an administrator appointed in respect of it or is the subject of an application for administration filed at any court, commits any act of bankruptcy or if any petition or other process in relation to bankruptcy is presented or made against that other Party (each an Insolvency Event) and the Party to which the Insolvency Event relates shall immediately inform the other of its occurrence; or
the other ceases or threatens to cease to trade.
11.2
11.3
For the purposes of clause 11.1.1, a breach shall be considered capable of remedy if the Party in breach can comply with the requirement in all respects other than the time of performance.
Without prejudice to the generality of clause 11.1.1, the Supplier shall be entitled to terminate the whole or part of the Contract with immediate effect by notice in writing by the Supplier to the Customer without liability for the Supplier:
7.3
11.3.1
11.3.2
11.3.3
if any invoice rendered to the Customer remains wholly or partly unpaid for more than thirty (30) days after becoming due, unless there is a bona fide dispute in respect of the unpaid sum which has been notified to the Supplier in accordance with clause 5.7; or
in the circumstances set out in clause 5.5; or
in the circumstances set out in clause 15.3.
11.4
11.5
12.
12.1
12.2
For the purposes of clause 11.1.1, a breach shall be considered capable of remedy if the Party in breach can comply with the requirement in all respects other than the time of performance.
Without prejudice to the generality of clause 11.1.1, the Supplier shall be entitled to terminate the whole or part of the Contract with immediate effect by notice in writing by the Supplier to the Customer without liability for the Supplier:
EFFECT OF TERMINATION
Any termination of the Contract for any reason shall not affect any accrued rights or liabilities of either Party, nor the coming into force, or the continuance in force, of any provision of the Contract which is expressly or by implication intended to come into or continue in force on or after such termination.
Upon the termination of the Contract for whatever reason:
11.4
11.5
12.
12.1
12.2
For the purposes of clause 11.1.1, a breach shall be considered capable of remedy if the Party in breach can comply with the requirement in all respects other than the time of performance.
Without prejudice to the generality of clause 11.1.1, the Supplier shall be entitled to terminate the whole or part of the Contract with immediate effect by notice in writing by the Supplier to the Customer without liability for the Supplier:
EFFECT OF TERMINATION
Any termination of the Contract for any reason shall not affect any accrued rights or liabilities of either Party, nor the coming into force, or the continuance in force, of any provision of the Contract which is expressly or by implication intended to come into or continue in force on or after such termination.
Upon the termination of the Contract for whatever reason:
7.3
12.2.1
Immediately following the Termination Date both Parties shall promptly:
7.3
7.3
12.2.1.1
12.2.1.2
deliver up to the other all property of the other Party in its possession or control; and
either deliver up to the other Party or (where delivery is not feasible) destroy any Confidential Information of the other Party in its possession or control,
7.3
12.2.1
and, for the purposes of this clause 12.2, references to the property and Confidential Information of a Party shall include (as applicable) any property and Confidential Information of any Third Party Services Provider or any contractor or agent of that Party, and a Party’s obligation to deliver such property and Confidential Information (as applicable) pursuant to this clause 12.2 shall be to deliver the same to the relevant Third Party Services Provider, contractor or agent;
7.3
12.2.2
12.2.3
all outstanding Charges (which for the avoidance of doubt shall include any Charges for Services consumed but not yet paid for) and any Charges to be paid by the Customer to the Supplier (including any charges payable to Third Party Service Providers) shall become immediately due and payable; and
the Supplier shall repay to the Customer any Charges paid by the Customer in advance insofar as such Charges relate to the provision of Services during the period following the Termination Date and provided that no termination fee (where applicable) is payable or would be payable taking into account such repayment.
7.3
12.2.2
12.2.3
all outstanding Charges (which for the avoidance of doubt shall include any Charges for Services consumed but not yet paid for) and any Charges to be paid by the Customer to the Supplier (including any charges payable to Third Party Service Providers) shall become immediately due and payable; and
the Supplier shall repay to the Customer any Charges paid by the Customer in advance insofar as such Charges relate to the provision of Services during the period following the Termination Date and provided that no termination fee (where applicable) is payable or would be payable taking into account such repayment.
13.
13.1
CONFIDENTIALITY
Each Party undertakes during the Term and thereafter:
7.3
13.1.1
13.1.2
13.1.3
to keep confidential all Confidential Information (written or oral) concerning the business and affairs of the other Party. Confidential Information shall include all information relating to the business activities, software and technology of the other Party and all Intellectual Property Rights, personal data and data of the other Party and any other information that would normally be regarded as confidential);
not without the other Party’s written consent to disclose that Party’s Confidential Information in whole or in part to any other person, save those of its employees, agents and sub-contractors involved in the provision or receipt of the Services to the extent that they need to know the same for the purposes of the Contract; and
to use the other Party’s Confidential Information solely in connection with the provision or receipt of the Services and not for its own benefit or the benefit of any third Party.
7.3
13.1.1
13.1.2
13.1.3
to keep confidential all Confidential Information (written or oral) concerning the business and affairs of the other Party. Confidential Information shall include all information relating to the business activities, software and technology of the other Party and all Intellectual Property Rights, personal data and data of the other Party and any other information that would normally be regarded as confidential);
not without the other Party’s written consent to disclose that Party’s Confidential Information in whole or in part to any other person, save those of its employees, agents and sub-contractors involved in the provision or receipt of the Services to the extent that they need to know the same for the purposes of the Contract; and
to use the other Party’s Confidential Information solely in connection with the provision or receipt of the Services and not for its own benefit or the benefit of any third Party.
13.2
The provisions of clause 13.1 shall not apply any Confidential Information to the extent that it is:
7.3
13.2.1
13.2.2
13.2.3
already in the other Party’s possession without breach of any obligation of confidentiality;
in the public domain other than as a result of a breach of this clause; or
independently developed by the other Party without reference to or use of the Confidential Information.
13.3
13.4
14.
14.1
14.2
14.3
14.4
Either Party may disclose the Confidential Information of the other Party to the extent that it is required to be disclosed pursuant to any Applicable Law.
Each Party undertakes to make all its relevant employees, agents and sub-contractors aware of the confidentiality of the Confidential Information and of this clause 13, and to take all such steps as shall be necessary to ensure compliance by its employees, agents and sub-contractors with this clause 13.
DATA PROTECTION
The Parties acknowledge that the Supplier is a Processor of Personal Data acting on behalf of the Customer and that the Customer is the Controller of Personal Data. The Supplier may from time to time engage third parties, including Third Party Services Providers, to carry out Processing (as a sub-processor) under the Contract.
The Customer consents to the Supplier transferring Personal Data to Third Party Service Providers where this is reasonably required for the provision of the relevant services by the Third Party Service Provider, and the Customer authorises the Supplier to transfer Personal Data outside Jersey, the United Kingdom and the European Economic Area.
The Customer warrants and undertakes that it has a lawful basis for, and that it has secured all appropriate consents, and provided appropriate notification to Data Subjects in respect of the Processing to be undertaken by the Supplier and/or any Third Party Service Provider.
The Supplier shall comply with its obligations under the Data Protection Legislation and shall, in particular:
13.3
13.4
14.
14.1
14.2
14.3
14.4
Either Party may disclose the Confidential Information of the other Party to the extent that it is required to be disclosed pursuant to any Applicable Law.
Each Party undertakes to make all its relevant employees, agents and sub-contractors aware of the confidentiality of the Confidential Information and of this clause 13, and to take all such steps as shall be necessary to ensure compliance by its employees, agents and sub-contractors with this clause 13.
DATA PROTECTION
The Parties acknowledge that the Supplier is a Processor of Personal Data acting on behalf of the Customer and that the Customer is the Controller of Personal Data. The Supplier may from time to time engage third parties, including Third Party Services Providers, to carry out Processing (as a sub-processor) under the Contract.
The Customer consents to the Supplier transferring Personal Data to Third Party Service Providers where this is reasonably required for the provision of the relevant services by the Third Party Service Provider, and the Customer authorises the Supplier to transfer Personal Data outside Jersey, the United Kingdom and the European Economic Area.
The Customer warrants and undertakes that it has a lawful basis for, and that it has secured all appropriate consents, and provided appropriate notification to Data Subjects in respect of the Processing to be undertaken by the Supplier and/or any Third Party Service Provider.
The Supplier shall comply with its obligations under the Data Protection Legislation and shall, in particular:
7.3
14.4.1
14.4.2
14.4.3
14.4.4
14.4.5
process the Personal Data only to the extent necessary for the purpose of providing the Services and in accordance with any written instructions from the Customer and for no other purpose save to the extent required by law;
implement appropriate technical and organisational measures in accordance with the Data Protection Legislation to ensure a level of security appropriate to the risks that are presented by such Processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data, taking into account the state of the art, the costs of implementation, the nature, scope, context and purposes of Processing and the likelihood and severity of risk in relation to the rights and freedoms of the Data Subjects;
not transfer the Personal Data outside Jersey, the United Kingdom and the European Economic Area without ensuring adequate safeguards are in place in accordance with the Data Protection Legislation;
ensure that any employees or other persons authorised to Process the Personal Data are subject to appropriate obligations of confidentiality;
on termination of the Contract, destroy or return (as the Customer directs) all Personal Data in its power, possession or control and delete all existing copies of such data except to the extent the Supplier is required to retain a copy the Personal Data by Applicable Law.
7.3
14.4.1
14.4.2
14.4.3
14.4.4
14.4.5
process the Personal Data only to the extent necessary for the purpose of providing the Services and in accordance with any written instructions from the Customer and for no other purpose save to the extent required by law;
implement appropriate technical and organisational measures in accordance with the Data Protection Legislation to ensure a level of security appropriate to the risks that are presented by such Processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data, taking into account the state of the art, the costs of implementation, the nature, scope, context and purposes of Processing and the likelihood and severity of risk in relation to the rights and freedoms of the Data Subjects;
not transfer the Personal Data outside Jersey, the United Kingdom and the European Economic Area without ensuring adequate safeguards are in place in accordance with the Data Protection Legislation;
ensure that any employees or other persons authorised to Process the Personal Data are subject to appropriate obligations of confidentiality;
on termination of the Contract, destroy or return (as the Customer directs) all Personal Data in its power, possession or control and delete all existing copies of such data except to the extent the Supplier is required to retain a copy the Personal Data by Applicable Law.
14.5
15.
15.1
15.2
The Supplier shall notify the Customer, as soon as reasonably practicable, about any request or complaint received from Data Subjects without responding to that request (unless authorised to do so by the Customer) and assist the Customer by technical and organisational measures, insofar as possible, for the fulfilment of the Customer's obligations in respect of such requests or complaints. The Supplier may charge the Customer for its reasonable costs incurred in complying with any request made by the Customer, a Data Subject, any relevant authority or any court order in connection with the performance of the Supplier’s obligations under this clause 14.
FORCE MAJEURE
Neither Party shall be in breach of the Contract for any failure or delay in performing its obligations under the Contract due to a Force Majeure Event.
If a Party’s performance of its obligations under the Contract is affected by a Force Majeure Event, then:
14.5
15.
15.1
15.2
The Supplier shall notify the Customer, as soon as reasonably practicable, about any request or complaint received from Data Subjects without responding to that request (unless authorised to do so by the Customer) and assist the Customer by technical and organisational measures, insofar as possible, for the fulfilment of the Customer's obligations in respect of such requests or complaints. The Supplier may charge the Customer for its reasonable costs incurred in complying with any request made by the Customer, a Data Subject, any relevant authority or any court order in connection with the performance of the Supplier’s obligations under this clause 14.
FORCE MAJEURE
Neither Party shall be in breach of the Contract for any failure or delay in performing its obligations under the Contract due to a Force Majeure Event.
If a Party’s performance of its obligations under the Contract is affected by a Force Majeure Event, then:
7.3
15.2.1
15.2.2
15.2.3
it shall give written notice to the other Party, specifying the nature and extent of the Force Majeure Event, immediately on becoming aware of it and will at all times use all reasonable endeavours to mitigate the impact of the Force Majeure Event;
subject to clause 15.3, the date for performance of such obligations shall be suspended for a period equal to the delay caused by the Force Majeure Event; and
it shall not be entitled to payment from the other Party in respect of extra costs and expenses incurred by virtue of the Force Majeure Event.
7.3
15.2.1
15.2.2
15.2.3
it shall give written notice to the other Party, specifying the nature and extent of the Force Majeure Event, immediately on becoming aware of it and will at all times use all reasonable endeavours to mitigate the impact of the Force Majeure Event;
subject to clause 15.3, the date for performance of such obligations shall be suspended for a period equal to the delay caused by the Force Majeure Event; and
it shall not be entitled to payment from the other Party in respect of extra costs and expenses incurred by virtue of the Force Majeure Event.
15.3
16.
16.1
16.2
16.3
16.4
16.5
16.6
17.
17.1
17.2
17.3
17.4
18.
18.1
The Supplier shall notify the Customer, as soon as reasonably practicable, about any request or complaint received from Data Subjects without responding to that request (unless authorised to do so by the Customer) and assist the Customer by technical and organisational measures, insofar as possible, for the fulfilment of the Customer's obligations in respect of such requests or complaints. The Supplier may charge the Customer for its reasonable costs incurred in complying with any request made by the Customer, a Data Subject, any relevant authority or any court order in connection with the performance of the Supplier’s obligations under this clause 14.
DISPUTES
Any dispute or difference (a Dispute) arising between the Customer and the Supplier arising out of the Contract shall be dealt with in accordance with this clause 16.
In the first instance, the Representatives shall each use their reasonable endeavours to resolve the Dispute. If the Dispute cannot be resolved by the Representatives within ten (10) Business Days of the Dispute arising, it shall be escalated to the Second Representatives, who shall each have ten (10) Business Days to resolve the same.
If the escalation process does not lead to resolution of the Dispute, then, in respect of any Dispute of a technical nature, either Party may refer the same to such independent third party (the Independent Third Party) as the Supplier and the Customer shall jointly nominate. If the Supplier and the Customer shall fail to nominate an Independent Third Party within five (5) Business Days of the end of the escalation process in this clause 16, then the Independent Third Party shall be nominated at the request of either the Supplier or the Customer by the President for the time being of BCS, The Chartered Institute for IT or its successor or equivalent body. In relation to all other Disputes the Parties agree to enter into mediation in good faith to settle such a dispute and will do so in accordance with the Centre for Effective dispute Resolution (CEDR) Model Mediation Procedure. Unless otherwise agreed between the Parties, within 14 days of notice of the Dispute, the mediator will be nominated by CEDR.
The Parties shall use their reasonable endeavours to procure that the Independent Third Party shall reach a decision within twenty (20) Business Days of his nomination and shall provide all necessary co-operation and information to the Independent Third Party to achieve this.
The Independent Third Party shall act as an expert and not as an arbitrator whose decision (including as to costs) shall, except in the case of manifest error, be final and binding upon the Supplier and the Customer.
Disputes of a non-technical nature that cannot be resolved by the Parties pursuant to clauses 16.2 and 16.3 shall be subject to clause 23.
WAIVER
A waiver of any breach or provision of the Contract shall only be effective if it is made in writing and signed on behalf of the Party who is waiving the breach or provision.
Any failure or delay by either Party in exercising any right, power or remedy under the Contract shall not in any circumstances impair such right, power or remedy nor operate as a waiver of it. The single or partial exercise by either Party of any other right, power or remedy under the Contract shall not in any circumstances preclude any other or further exercise of it, or the exercise of any other right, power or remedy.
Save as otherwise expressly provided in the Contract the rights, powers and remedies provided in the Contract are cumulative and not exclusive of any rights, powers and remedies provided by law.
Any waiver of a breach of, or default under, any of the terms of the Contract shall not be deemed to be a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
INVALIDITY AND SEVERABILITY
If any part of the Contract is held by any court or other competent authority to be void, invalid or unenforceable in whole or part:
15.3
16.
16.1
16.2
16.3
16.4
16.5
16.6
17.
17.1
17.2
17.3
17.4
18.
18.1
The Supplier shall notify the Customer, as soon as reasonably practicable, about any request or complaint received from Data Subjects without responding to that request (unless authorised to do so by the Customer) and assist the Customer by technical and organisational measures, insofar as possible, for the fulfilment of the Customer's obligations in respect of such requests or complaints. The Supplier may charge the Customer for its reasonable costs incurred in complying with any request made by the Customer, a Data Subject, any relevant authority or any court order in connection with the performance of the Supplier’s obligations under this clause 14.
DISPUTES
Any dispute or difference (a Dispute) arising between the Customer and the Supplier arising out of the Contract shall be dealt with in accordance with this clause 16.
In the first instance, the Representatives shall each use their reasonable endeavours to resolve the Dispute. If the Dispute cannot be resolved by the Representatives within ten (10) Business Days of the Dispute arising, it shall be escalated to the Second Representatives, who shall each have ten (10) Business Days to resolve the same.
If the escalation process does not lead to resolution of the Dispute, then, in respect of any Dispute of a technical nature, either Party may refer the same to such independent third party (the Independent Third Party) as the Supplier and the Customer shall jointly nominate. If the Supplier and the Customer shall fail to nominate an Independent Third Party within five (5) Business Days of the end of the escalation process in this clause 16, then the Independent Third Party shall be nominated at the request of either the Supplier or the Customer by the President for the time being of BCS, The Chartered Institute for IT or its successor or equivalent body. In relation to all other Disputes the Parties agree to enter into mediation in good faith to settle such a dispute and will do so in accordance with the Centre for Effective dispute Resolution (CEDR) Model Mediation Procedure. Unless otherwise agreed between the Parties, within 14 days of notice of the Dispute, the mediator will be nominated by CEDR.
The Parties shall use their reasonable endeavours to procure that the Independent Third Party shall reach a decision within twenty (20) Business Days of his nomination and shall provide all necessary co-operation and information to the Independent Third Party to achieve this.
The Independent Third Party shall act as an expert and not as an arbitrator whose decision (including as to costs) shall, except in the case of manifest error, be final and binding upon the Supplier and the Customer.
Disputes of a non-technical nature that cannot be resolved by the Parties pursuant to clauses 16.2 and 16.3 shall be subject to clause 23.
WAIVER
A waiver of any breach or provision of the Contract shall only be effective if it is made in writing and signed on behalf of the Party who is waiving the breach or provision.
Any failure or delay by either Party in exercising any right, power or remedy under the Contract shall not in any circumstances impair such right, power or remedy nor operate as a waiver of it. The single or partial exercise by either Party of any other right, power or remedy under the Contract shall not in any circumstances preclude any other or further exercise of it, or the exercise of any other right, power or remedy.
Save as otherwise expressly provided in the Contract the rights, powers and remedies provided in the Contract are cumulative and not exclusive of any rights, powers and remedies provided by law.
Any waiver of a breach of, or default under, any of the terms of the Contract shall not be deemed to be a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
INVALIDITY AND SEVERABILITY
If any part of the Contract is held by any court or other competent authority to be void, invalid or unenforceable in whole or part:
7.3
18.1.1
18.1.2
this shall not affect or impair the legality, validity or enforceability of any other provision of the Contract; and
the Parties shall in good faith amend the Contract to reflect as nearly as possible the spirit and intention behind that illegal, invalid or unenforceable provision, to the extent that such spirit and intention is consistent with the laws of the island of Jersey, and so that the amended clause complies with the laws of the island of Jersey.
7.3
18.1.1
18.1.2
this shall not affect or impair the legality, validity or enforceability of any other provision of the Contract; and
the Parties shall in good faith amend the Contract to reflect as nearly as possible the spirit and intention behind that illegal, invalid or unenforceable provision, to the extent that such spirit and intention is consistent with the laws of the island of Jersey, and so that the amended clause complies with the laws of the island of Jersey.
19.
19.1
19.2
20.
20.1
20.2
20.3
20.4
21.
21.1
21.2
22.
22.1
23.
23.1
NOTICES
Any demand, notice or communication to be sent by one Party to the other in connection with the Contract, except for the service of Court proceedings, shall be in writing and shall be sent by e-mail, subject to clause 19.2, to the address of the other Party as set out in the Offer Document and shall be deemed to have been duly given when transmitted provided that the e-mail is not returned as being undeliverable.
Any change to the contact details of a Party as set out in the Contract shall be notified to the other party in accordance with clause 19.1 and shall be effective on the date specified in the notice as being the date of such change.
ENTIRE AGREEMENT
The Contract contains all the terms which the Parties have agreed in relation to the subject matter of the Contract and supersedes, cancels and nullifies any previous agreement between the Parties in relation to such matters.
Neither of the Parties have been induced to enter into the Contract by a statement or promise that the Contract does not contain and shall have no remedy in respect of any statement, representation, warranty or undertaking (whether negligent or innocently made) other than as expressly set out in the Contract.
Save as otherwise agreed in writing by the Parties or as expressly set out in the Contract, all specifications, descriptive material, written or oral representations made by the Supplier and all warranties and conditions relating to the Services, whether express or implied by law, shall to the extent permitted by law, be excluded.
Nothing within this clause 20 shall exclude liability for fraudulent misstatement.
ASSIGNMENT AND SUB-CONTRACTING
Neither Party shall be entitled to assign any of its rights or obligations under the Contract without the prior written consent of the other Party (such consent not to be unreasonably withheld or delayed).
The Supplier shall be entitled to sub-contract any of its obligations under the Contract and any sub-contracting shall not relieve the Supplier from its liabilities under the Contract.
NO PARTNERSHIP, JOINT VENTURE OR AGENCY
Nothing in the Contract shall create any partnership or joint venture between the Parties, authorise either Party to act as agent for the other Party or authorise either Party to act in the name or on behalf of, or otherwise to bind, the other Party in any way.
LAW
The Contract and any contractual or non-contractual disputes or claims arising from it shall be governed by the laws of the island of Jersey and the Parties agree to submit to the exclusive jurisdiction of the courts of the island of Jersey.
19.
19.1
19.2
20.
20.1
20.2
20.3
20.4
21.
21.1
21.2
22.
22.1
23.
23.1
NOTICES
Any demand, notice or communication to be sent by one Party to the other in connection with the Contract, except for the service of Court proceedings, shall be in writing and shall be sent by e-mail, subject to clause 19.2, to the address of the other Party as set out in the Offer Document and shall be deemed to have been duly given when transmitted provided that the e-mail is not returned as being undeliverable.
Any change to the contact details of a Party as set out in the Contract shall be notified to the other party in accordance with clause 19.1 and shall be effective on the date specified in the notice as being the date of such change.
ENTIRE AGREEMENT
The Contract contains all the terms which the Parties have agreed in relation to the subject matter of the Contract and supersedes, cancels and nullifies any previous agreement between the Parties in relation to such matters.
Neither of the Parties have been induced to enter into the Contract by a statement or promise that the Contract does not contain and shall have no remedy in respect of any statement, representation, warranty or undertaking (whether negligent or innocently made) other than as expressly set out in the Contract.
Save as otherwise agreed in writing by the Parties or as expressly set out in the Contract, all specifications, descriptive material, written or oral representations made by the Supplier and all warranties and conditions relating to the Services, whether express or implied by law, shall to the extent permitted by law, be excluded.
Nothing within this clause 20 shall exclude liability for fraudulent misstatement.
ASSIGNMENT AND SUB-CONTRACTING
Neither Party shall be entitled to assign any of its rights or obligations under the Contract without the prior written consent of the other Party (such consent not to be unreasonably withheld or delayed).
The Supplier shall be entitled to sub-contract any of its obligations under the Contract and any sub-contracting shall not relieve the Supplier from its liabilities under the Contract.
NO PARTNERSHIP, JOINT VENTURE OR AGENCY
Nothing in the Contract shall create any partnership or joint venture between the Parties, authorise either Party to act as agent for the other Party or authorise either Party to act in the name or on behalf of, or otherwise to bind, the other Party in any way.
LAW
The Contract and any contractual or non-contractual disputes or claims arising from it shall be governed by the laws of the island of Jersey and the Parties agree to submit to the exclusive jurisdiction of the courts of the island of Jersey.
