TERMS AND CONDITIONS
These terms (“Terms”) were published on 11 March, 2021
Definitions and interpretation
- In these Terms:
|‘Agreement’||has the meaning given in clause 1.2(a);|
|‘Analysis Data’||has the meaning given in clause 6.4;|
|‘Business Day’||means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;|
|‘Charges’||means the charges payable by the Client for the supply of the Services in accordance with clause 4.1;|
|‘Client’||means the entity or firm who purchases Services from the Company as set out in the Purchase Order;|
|‘Commencement Date’||means the effective date of the applicable Purchase Order;|
|‘Company’||Aldgate East Technologies Ltd registered in England and Wales with company number 12299563 with its registered office at 20-30 Whitechapel Road, Shadwell, London, United Kingdom E1 1EW;|
|‘Confidential Information’||means all information (whether in oral, written or electronic form) relating to either party’s business which may reasonably be considered to be confidential in nature including information relating to a party’s technology, know-how, Intellectual Property Rights, assets, finances, strategy, pricing, products, customers, clients or suppliers. Information that has been anonymised and aggregated will not be considered Confidential Information;|
|‘Data Protection Legislation’||means all applicable data protection and privacy legislation, including but not limited to the Data Protection Act 2018, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, and any successor legislation to the GDPR or the Data Protection Act 2018, as applicable;|
|‘Deliverables’||means the deliverables produced by the Company for the Client as set out in the Purchase Order;|
|‘Intellectual Property Rights’||means patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up, 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;|
|‘Purchase Order’||means the Client’s order for Services as set out in a purchase order;|
|‘Services’||means the services, including the Deliverables supplied by the Company to the Client as set out in the Purchase Order.|
- In these Terms, unless otherwise stated:
- the background section and the clause, paragraph, schedule or other headings are included for convenience only and shall have no effect on interpretation;
- the Client and the Company are together the ‘parties’ and each a ‘party’, and a reference to a ‘party’ includes that party’s successors and permitted assigns;
- words in the singular include the plural and vice versa;
- any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
- a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form (including email); and
- a reference to specific legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time and a reference to legislation includes all subordinate legislation made as at the date of the Agreement under that legislation.
- In the Agreement:
- each Purchase Order entered into by the Client shall form a separate agreement, incorporating these Terms for the respective Services (‘the Agreement’);
- in the event of any conflict between these Terms and any Purchase Order, the Purchase Order shall take precedence; and
- any later version of these Terms shall prevail over earlier versions if there is any conflict or inconsistency between them.
- Supply of Services
- Subject to the Agreement, including the Client’s payment of the Charges, the Company shall supply the Services to the Client using reasonable care and skill and in accordance with the Purchase Order.
- The Company is not obliged to perform (i) any Services or function or provide any Deliverables except as expressly set out in a Purchase Order, or (ii) any Services or provide any Deliverables to the extent its performance is limited by the Client’s failure to meet any reasonable dependency. For the avoidance of doubt, the parties acknowledge that the Company’s performance of the Services and any provision of the Deliverables (including any findings and recommendations set forth therein) are dependent on the participation of the Client’s employees and stakeholders.
- Client’s Obligations
- The Client shall:
(a) co-operate with the Company in all matters relating to the Services, including but not limited to granting the Company access to its employees and stakeholders in order to gather data, as well as and use its best efforts to assist and facilitate the cooperation of its employees and stakeholders;
(b) provide the Company with such information and materials as the Company may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects; and
(c) obtain and maintain all necessary licences, permissions and consents which may be required for the Company to perform the Services before the date on which the Services are to start.
- Charges and Payment
- Unless a Purchase Order expressly sets out a payment schedule, the Company shall invoice the Client monthly in arrears and the Client shall pay each invoice submitted by the Company within thirty (30) days of the date of the invoice.
- All amounts payable by the Client under the Purchase Order 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 Agreement by the Company to the Client, the Client shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT necessary to ensure that Company is in the same position as it would have been in had no deductions or withholdings been required.
- If the Client fails to make a payment due to the Company under the Purchase Order by the due date, then, without limiting the Company’s remedies under the Agreement, the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 4.3 will accrue each day at 4% a year above the Bank of England’s base rate from time to time.
- The Company reserves the right to increase the Charges on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index in the preceding twelve (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.
- Intellectual Property Rights
- All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any Deliverables or materials provided by the Client) shall be owned by the Company.
- The Company grants to the Client, or shall procure the direct grant to the Client of, a worldwide, non-exclusive, irrevocable perpetual licence to use the Deliverables for the Client’s own internal business purposes.
- The Client shall not sub-license, assign or otherwise transfer the rights granted in clause 5.2.
- The Client grants the Company a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Client to the Company for the term of the Agreement for the purpose of providing the Services to the Client.
- Each party undertakes that it shall not at any time during the Agreement, and for as long as the information remains confidential, disclose to any person any Confidential Information, except as permitted by clause 6.2.
- Each party may disclose the other party’s Confidential Information:
- 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 Agreement. 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 6; and
- as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
- Neither party shall use the other party’s Confidential Information for any purpose other than to perform its obligations under the Agreement.
- Nothing in the Agreement shall prevent the Company from aggregating anonymous data collected in the course of providing the Services to the Client and conducting analysis on such aggregated and anonymised data for its own business purposes (‘Analysis Data’). The intellectual property rights in and arising out of or in connection with the Analysis Data shall belong to the Company.
- The Client acknowledges that it shall have no access to the raw data being collected by the Company from Client’s employees and stakeholders for purposes of performing the Services.
- Data Protection
Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 7 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
- Warranty Disclaimer
- Neither party makes any representations or warranties of any kind, whether oral or written, whether express, implied, or arising by statute, custom, course of dealing or trade usage, with respect to the subject matter hereof or otherwise in connection with the Agreement. Each party specifically disclaims any and all implied warranties or conditions of title, satisfactory quality, merchantability, satisfactoriness, fitness for a particular purpose and non-infringement.
- Limitation of Liability
- Subject to clause 9.3, the Company’s total liability to the Client under the Agreement in respect of all breaches of duty occurring within any contract year whether based on contract, tort (including negligence) or otherwise, shall not exceed the amount fees paid or payable by the Client in the twelve (12) months preceding the act or omission alleged to give rise to such liability.
- Subject to clause 9.3, neither party will be liable for any indirect, special, incidental, punitive or consequential loss or damage or for any loss of or damage to data, ex gratia payments, loss of profit, loss of contract or loss of other economic advantage (in each case whether direct or indirect) arising out of or in connection with the Agreement, even if that party has previously been advised on the possibility of the same and whether foreseeable or not. These limitations will apply notwithstanding any failure of essential purpose of any limited remedy.
- Nothing in the Agreement excludes or limits the liability of either party for (i) death or personal injury; (ii) fraud; (iii) breach of the confidentiality provisions; or (iv) anything else that cannot be excluded or limited by applicable law.
- This clause 9 shall survive termination of the Agreement.
- Term and Termination
- Unless as otherwise stated in a Purchase Order, the Agreement will commence on the Commencement Date and shall continue for a term of one year and thereafter shall automatically renew on an annual basis unless either party terminates the Agreement by providing the other party with written notice at least thirty (30) days prior to the end of any term, or in accordance with clause 10.2.
- Either party may terminate the Agreement with immediate effect by giving written notice to the other party if:
- the other party commits a material breach of the Agreement and (if such a breach is remediable) fails to remedy that breach within thirty (30) days of that party being notified in writing to do so; or
- the other party ceases or threatens to cease to carry on business; or any similar event; enters into liquidation whether compulsorily or voluntarily (otherwise than for the purposes of a solvent amalgamation or reconstruction); becomes insolvent.
- For the avoidance of doubt, a written notice terminating the Agreement will terminate all Services supplied by the Company under the applicable Purchase Order.
- Consequences of Termination
- On termination of the Agreement the Client shall immediately pay all outstanding unpaid invoices applicable to such Agreement and, in respect of Services supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Client immediately on receipt.
- Termination of the Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination.
- Force majeure. Neither party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control.
- Assignment. Neither party mayassign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Agreement without the other party’s prior written consent (not to be unreasonably withheld or delayed).
- Entire agreement. The Agreement 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.
- Variation. Except as set out in these Terms, no variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
- Waiver. A waiver of any right or remedy under the Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Agreement 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 Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
- Severance. If any provision or part-provision of the Agreement 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 12.6 shall not affect the validity and enforceability of the rest of the Agreement.
- Any notice given by a party under the Agreement shall be: (i) in writing and in English; (ii) signed by, or on behalf of, the party giving it (except for notices sent by email); and (iii) sent to the relevant party at its registered address.
- Notices may be given, and are deemed received: (i) by recorded and signed for post: at 9.00 am on the second Business Day after posting; (ii) by international tracked and signed for post: at 9.00 am on the fourth Business Day after posting; and (iii) by email: on receipt of a delivery email from the correct address.
- Any change to the contact details of a party shall be notified to the other party in writing and shall be effective: (i) on the date specified in the notice as being the date of such change; or (ii) if no date is so specified, five Business Days after the notice is deemed to be received.
- Third party rights. Unless it expressly states otherwise, the Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.
- Governing law and jurisdiction. The Agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Agreement or its subject matter or formation.