PROFESSIONAL SERVICES AGREEMENT
(A) The Supplier has developed and will provide the Services (each as defined below).
(B) The Client (as defined below) wishes to use the Supplier’s Services in its business operations.
(C) The Supplier has agreed to provide, and the Client has agreed to take and pay for, the Services, subject to the terms and conditions of this Agreement.
Agreed terms
1. Interpretation
1.1 The definitions and rules of interpretation in this Clause apply in this Agreement.
Acceptance Criteria: means the acceptance criteria as specified in Clause 9.2 (a) or referred to in a Statement of Work or as otherwise agreed by the Parties expressly in writing after the date of the Statement of Work against which the Acceptance Tests are to be carried out to determine whether the Deliverables meet any agreed specification or the Statement of Work (as the case may be), are satisfactory and as a result, ready to be invoiced.
Acceptance Tests: the acceptance tests as specified or referred to in the Statement of Work to be undertaken to determine whether the Deliverables meet the Acceptance Criteria.
Affiliate: means in relation to any entity, (a) that entity; (b) any subsidiary undertaking or parent undertaking of such entity or a subsidiary undertaking of any such parent undertaking from time to time (as defined by section 1162 of the Companies Act 2006); or (c) any entity controlling, controlled by, or under common control with, the relevant entity or any of the aforementioned parent undertakings or subsidiary undertakings.
Applicable Data Protection Legislation: means:
a) To the extent the UK data protection law applies: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
b) To the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the Supplier is subject, which relates to the protection of personal data.
Assumptions: has the meaning given in Clause 7.2.
Background Materials: means all Intellectual Property Rights, know-how, information, methodologies, techniques, tools, schemata, diagrams, ways of doing business, trade secrets, instructions manuals and procedures (including, but not limited, to software, documentation, and data of whatever nature and in whatever media) owned, developed or controlled by the Supplier which may have been created outside the scope, or independently of, the Statement of Work, the Services and/or this Agreement, and including all updates, modifications, derivatives or future developments thereof.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Business Systems: the information technology and communication systems, including networks, hardware, software and interfaces owned by, or licensed to, the Client or any of its agents or contractors.
Change Request Procedure: any request to alter the Services pursuant to this Agreement as set out in Clause 12.
Commencement Date: means the date of this Agreement, unless otherwise specified in the relevant Statement of Work.
Commissioner: the Information Commissioner (see section 114, DPA 2018).
Confidential Information: all confidential information (however recorded or preserved) disclosed by a Party or its employees, officers, representatives, advisers or subcontractors involved in the provision or receipt of the Services (together, its “Representatives”) to the other Party and that Party’s Representatives in connection with this Agreement which information is either labelled as such or should reasonably be considered as confidential because of its nature and the manner of its disclosure.
Client: the client set out in the Statement of Work.
Client Personal Data: any personal data which the Supplier processes in connection with this Agreement, in the capacity of a processor on behalf of the Client.
Client Site: means the locations where the Services are provided as identified in the Statement of Work.
Customer Agreement: the customer agreement, which is a direct agreement between the Client and Microsoft and is a condition of Cloud Solution Provider Program that the Client enters into this agreement, the terms of which are found at https://www.microsoft.com/licensing/docs/customeragreement and which may be updated from time to time.
Deliverable: means all Documents, products and materials developed by the Supplier or its agents, subcontractors, consultants and employees in relation to the Services in any form, including computer programs, data, reports and specifications (including drafts).
Designated Representative: has the meaning given in Clause 23.2.
Dispute: has the meaning given in Clause 23.1.
Dispute Notice: has the meaning given in Clause 23.1.
Dispute Resolution Procedure: the procedure described in Clause 23.
Document: means, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.
EU GDPR: the General Data Protection Regulation ((EU) 2016/679) as it has effect in EU law.
Fees: means the fees and any other charges payable by the Client to the Supplier for the Services as set out under a Statement of Work and as payable in accordance with Clause 7 of this Agreement and the Statement of Work or as otherwise agreed between the Parties in writing.
Force Majeure: any cause preventing either Party from performing any or all of its obligations which arises from or is attributable to acts, events, omissions or accidents beyond the reasonable control of the Party so prevented including, without limitation, act of God, war, riot, civil commotion, future epidemic or pandemic, compliance with any law or governmental order, rule, regulation or direction, flood or storm, save that strike or lock out of the Party’s own staff shall not entitle them to claim that to be a force majeure event.
Good Industry Practice: the standards that fall within the upper quartile of a skilled and experienced provider of business-critical professional services similar or identical to the Services, having regard to factors such as the nature and size of the Parties, the term, the pricing structure and any other relevant factors.
Intellectual Property Rights or IPR: any and all intellectual property rights of any nature, whether registered, registerable or otherwise, including any patents, utility models, trademarks, registered designs and domain names, applications for any of the foregoing, trade or business names, goodwill, copyright and rights in the nature of copyright, design rights, rights in databases, moral rights, know-how and any other intellectual property rights that subsist in computer software, computer programs, websites, documents, information, techniques, business methods, drawings, logos, instruction manuals, lists and procedures and particulars of clients, marketing methods and procedures and advertising literature, including the “look and feel” of any websites, and in each case all rights and forms of protection of a similar nature or having equivalent or similar effect to any of these that may subsist anywhere in the world, in each case for their full term, together with any future rights and renewals or extensions.
IPR Claim: means a claim arising from the infringement of IPR belonging to third parties.
Issues List: means a written list of the non-conformities to the Acceptance Criteria for a specific Deliverable.
Losses: means costs, fines, damages, losses and liabilities suffered by a Party.
Milestone: means the milestones for each of the Deliverables as specified in the Statement of Work.
Normal Business Hours: 8.00 am to 6.00 pm local UK time on Business Days.
Project: the project agreed between the Parties as set out in the Statement of Work which may be amended by the Parties in writing from time to time.
Purpose: the purposes for which the Client Personal Data is processed, as set out in Schedule 1.
Representative: means the person nominated by each Party in accordance with this Agreement.
Retail Prices Index: means the Retail Prices Index (all Items, excluding mortgages) as published by the Office for National Statistics from time to time, or failing such publication, such other index as the Parties may agree (such agreement not to be unreasonably withheld or delayed), acting reasonably, most closely resembles such index.
Services: means consulting, advisory, integration or technical services performed by the Supplier under a Statement of Work or otherwise agreed between the Parties in writing.
Site: means any property owned, leased, licensed or occupied by the Client or any Affiliate as may be agreed by the Parties as being the locations to or at which any Services are to be provided.
Statement of Work: means a statement of work and agreed target cost signed by both Parties that describes the relevant Services to be performed by the Supplier for the Client in respect of a particular Project.
Supplier: Pomerol Partners Ltd incorporated and registered in England and Wales with company number 08611495 whose registered office is at Level 8, One Canada Square, Canary Wharf, London, E14 5AA.
Third Party Software: any code or software programs written or provided by Microsoft or other third parties which are used or to be used by the Client in connection with any Statement of Work.
UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
Variation Agreement: a variation agreement which is sent by the Supplier to the Client to vary the terms of this Agreement and when signed forms part of the terms of this Agreement.
1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.3 The Schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Schedules.
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.8 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.9 A reference to writing or written includes e-mail.
1.10 Any phrase introduced by the words including, includes, in particular or for example, or any similar phrase, shall be construed as illustrative and shall not limit the generality of the related general words.
1.11 References to Clauses and Schedules are to the Clauses and Schedules of this Agreement. References to paragraphs are to paragraphs of the relevant Schedule.
1.12 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.13 A reference to this Agreement or to any other agreement or document referred to in this Agreement is a reference to this Agreement or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of this Agreement) from time to time.
1.14 In the event of any conflict or inconsistency between the Clauses, the Variation Agreement, a Statement of Work and the Customer Agreement (including any changes or variations to each of the Clauses, the Statement of Work and Customer Agreement, the following order of precedence shall apply (in decreasing order) to the extent of such conflict or inconsistency:
(a) the Variation Agreement;
(b) Statement of Work;
(c) the Customer Agreement; and
(d) the Clauses.
2. Provision of Services
2.1 This Agreement sets out the terms and conditions under which the Supplier shall provide the Services to the Client.
2.2 This Agreement shall:
(a) apply to and be incorporated in any Statement of Work for the purchase of Services;
(b) be in substitution for any prior oral or other prior arrangements between the Supplier and the Client in connection with the purchase of the relevant Services; and
(c) prevail over any inconsistent terms or conditions contained in, or referenced in, any order confirmation or other acknowledgement, quotation, delivery note, invoice or similar document or implied by law, trade custom or practice.
2.3 No addition to, variation of or other amendment or purported amendment to any Statement of Work, or this Agreement shall be binding on the Parties unless made in writing.
3. Statement of Work
3.1 The Supplier shall not be under any obligation to perform and the Client shall not be under any obligation to accept any Services unless and until a Statement of Work has been executed.
3.2 Each Statement of Work concluded between the Parties shall set out the Services to be performed by the Supplier including any Deliverables and shall form an independently terminable contractual obligation.
3.3 The Supplier shall utilise employees, agents, representatives and authorised sub-contractors who have the necessary skills and experience to perform the Services to general industry standards.
3.4 The Supplier shall co-operate with the Client in all matters relating to the Project and shall appoint a Representative (“Supplier Representative”), as a contact throughout the Services.
4. Responsibilities of the Supplier
4.1 The Supplier shall:
(a) provide the Services in accordance with the terms of this Agreement and any Statement of Work;
(b) use its commercially reasonable endeavours to complete any Project and/or Deliverables in accordance with any timescales set out in any Statement of Work but any such timescale shall be estimates only;
(c) where expressly agreed, document the Services and provide to the Client copies of the documentation upon request and at the completion or termination of the Statement of Work;
(d) commit sufficient resource to the provision of the Services to enable their delivery in accordance with this Agreement and any Statement of Work and shall use its reasonable endeavours to ensure that the same personnel provide the Services in order to maintain consistency and build a relationship with the Client;
(e) provide the Services with due care, skill and ability in accordance with Good Industry Practice;
(f) take such steps as may be required to fulfil its obligations under this Agreement and any Statement of Work;
(g) utilising suitably skilled, qualified, experienced, supervised and vetted employees, agents, representatives and authorised sub-contractors who will exercise all reasonable skill and care;
(h) notify the Client promptly if the Supplier is unable to comply with any of the terms of this Agreement or any Statement of Work; and
(i) observe and ensure that its personnel observe all health and safety rules and regulations and any other security requirements that apply at any of the Sites and which have been communicated to it in writing a week prior to the Services commencing, where the Supplier is required to be on such Sites for the provision of the Services.
4.2 The Supplier may employ sub-contractors without seeking the prior consent of the Client. The Supplier shall at all times be responsible for and liable in respect of the performance of all obligations under any Statement of Work whether such obligations are performed by the Supplier itself, any Supplier Affiliates or any sub-contractor engaged by the Supplier.
4.3 The Supplier shall provide reasonable notice to the Client of any change in its senior personnel engaged as part of the Project. Where relevant, the Supplier shall replace any senior personnel who are removed with another appropriately skilled person.
4.4 The Supplier does not and cannot control the flow of data to or from its network and other portions of the internet. Such flow depends in large part on the performance of internet services provided or controlled by third parties. At times, actions or omissions of such third parties can impair or disrupt connections to the internet (or portions thereof). Whilst the Supplier will use commercially reasonable efforts to take all actions it deems appropriate to remedy and avoid such events, the Supplier cannot guarantee that such events will not occur. Accordingly, the Supplier disclaims any and all liability resulting from or related to such events.
5. Responsibilities of the Client
5.1 To the extent that the Supplier requires access to any Site to perform the Services, the Client shall use reasonable endeavours to provide such access during Normal Business Hours and to provide a suitable work environment to enable the Supplier to perform such Services subject to the Supplier complying with such internal policies and procedures of the Client (including those relating to security and health and safety) as may be notified to the Supplier in writing from time to time.
5.2 The Client shall co-operate with the Supplier in all matters relating to the Project and shall appoint a Representative (“Client Representative”) as a contact throughout the Services.
5.3 The Client agrees and acknowledges the terms of the Customer Agreement shall form part of the Agreement. For the avoidance of doubt, in the event the Customer Agreement is not applicable to the Services being received or delivered by the Supplier to the Client under the Agreement, such agreement shall not apply.
5.4 The Client shall:
(a) notwithstanding Clause 10.9, be a bona fide licensed user of any Third Party Software used by the Supplier;
(b) co-operate with the Supplier in all matters relating to the Services as reasonably requested by the Supplier;
(c) adhere to the dates scheduled for provision of Services by the Supplier to the Client as stated in the applicable Statement of Work or otherwise agreed between the Parties in writing. In the event the Client wishes to reschedule or cancel the dates for the provision of Services, liquidated damages (“Liquidated Damages”) will become payable from the Client to the Supplier on the following basis:
(i) if dates are changed or cancelled at the Client’s request more than fourteen (14) days before the scheduled start date no Liquidated Damages are payable;
(ii) if dates are changed or cancelled between seven (7) days and fourteen (14) days before the scheduled start date Liquidated Damages equivalent to fifty percent (50%) of the Fees for the Services to be provided at that time will be payable; and
(iii) if dates are changed or cancelled less than seven (7) days before the scheduled start date Liquidated Damages equivalent to one hundred percent (100%) of the Fees for the Services to be provided at that time will be payable;
(d) provide such access to the Client’s systems, software and platforms as may reasonably be requested by the Supplier;
(e) inform the Supplier in writing of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Client’s premises;
(f) in respect of any Microsoft funded services, sign and deliver the Microsoft Proof of Execution (“POE”) within seven (7) days of the date of issue by Microsoft. In the event that the Client does not return the POE within the seven (7) days’ notice period, the Supplier may be entitled to charge the Client the amounts directly and the Client shall follow the payment terms in this Agreement;
(g) where a Microsoft Cloud service is deployed / utilised the Client shall assign the Supplier as the Digital Partner of Record and/or Claiming Partner of Record and/or Transacting Partner of Record (TPOR) and/or Partner Admin Link (PAL) and Admin on Behalf of (AOBO) for that particular Services a minimum of twelve (12) months from Project completion date;
(h) maintain continuous global admin access to the Client’s relevant Microsoft cloud services portals for the duration of the applicable Statement of Work;
(i) provide appropriate hardware interface, software and access authorisation to enable remote diagnosis, should such capability be required;
(j) provide all information and make available all resources as reasonably requested by the Supplier in the execution of its obligations under this Agreement;
(k) use all reasonable efforts to follow the reasonable instructions of the Supplier support personnel with respect to the resolution of defects;
(l) gather all relevant information prior to requesting assistance in respect of any defects including detailed defect description, and procedures required to replicate a problem if possible. Any additional information which may help in the diagnosis of a defect should be included such as network configuration details;
(m) provide the Supplier with access to the Client’s computer system via a secure broadband link operating at the industry accepted bandwidth for the purposes of remote diagnostics should such capability be required; and
(n) agree that if, in the course of performing the Services, it is reasonably necessary for the Supplier’s performance of its obligations under a Statement of Work for the Supplier to access or use any equipment, software or data of the Client (or which is in the possession of the Client) then it shall where it is able to do so grant to the Supplier a non‑exclusive, royalty free, terminable licence to use the same solely for the purpose of delivering the Services only for as long as is strictly necessary to deliver such Services.
6. Project Organisation
6.1 The Client Representative and the Supplier Representative (who shall be named with contact details in the Statement of Work) shall be available at all reasonable times in order to co-ordinate all activities which are to be carried out by the relevant Party under any Statement of Work and shall supervise the fulfilment of the duties ascribed to that Party in the Statement of Work, responding to questions, providing necessary support and information. Both Parties agree to keep each other informed if the named Representative changes.
6.2 Before each meeting, the Client Representatives shall notify the Pomerol Representative, and vice versa, of any problems relating to the provision of the Services for discussion at the meeting. At each such meeting, the Parties shall agree a plan to address such problems. In the event of a dispute in relation to any matter under this Agreement, including approval of timesheets, payment of invoices and the provision of the services pertinent to the Statement of Work, the Parties shall deal with the matter under the Dispute Resolution Procedure.
7. Price and payment
7.1 The Client shall pay the Fees for the Services and the fees for any other services or software that may be provided to the Client by the Supplier in accordance with this Agreement and the applicable Statement of Work. Clause 7.3 shall apply if the Services are to be provided on a time-and-materials basis and Clause 7.4 shall apply if the Services are to be provided for a fixed price. The remainder of this Clause 7 shall apply in either case.
7.2 Where a Fee has been quoted, this is a best estimate based on the information given to the Supplier by the Client and/or which is available at that time and may be based on a number of assumptions set out in the Statement of Work (“Assumptions”). If it materialises that in the Supplier’s reasonable opinion, the information provided and/or Assumptions made are incorrect, inaccurate or have changed and/or that the proposed scope of Services is not feasible, the Supplier shall be entitled to charge (at the Supplier’s current rates) the Client for any Services that out of scope or other additional Services provided to those detailed in the Statement of Work together with all related costs and expenses incurred by the Supplier.
7.3 Where the Services are provided on a time-and-materials basis:
(a) the charges payable for the Services shall be calculated in accordance with the Supplier’s standard daily fee rates, as agreed in advance with the Client and which shall be set out in the Statement of Work;
(b) the Supplier’s standard daily fee rates are calculated on the basis of an eight-hour Business Day but, for the avoidance of doubt, shall be payable on the basis of actual time worked with the minimum price payable calculated as a four-hour half day;
(c) work required outside of Normal Business Hours and on weekends or public holidays, at the Client’s request, will incur a higher charge of two (2) times the standard daily fee rates.
7.4 Where the Services are provided for a fixed price, the total price for the Services shall be the amount set out in the relevant Statement of Work. The total price shall be paid to the Supplier in instalments as set out in the Statement of Work, with the payment of each instalment being conditional on the Parties agreeing that the Supplier has achieved the appropriate Milestones as set out in the Statement of Work. On achieving a specified Milestone, the Supplier shall invoice the Client for the charges which are then payable, together with any relevant agreed expenses and any agreed third-party costs.
7.5 The Supplier’s charges exclude:
(a) out of pocket expenses (if any) as provided for in the applicable Statement of Work or capped at a fixed rate of one hundred and fifty pounds (£150) per day;
(b) travelling time to and from any Client Site greater than two (2) hours per day (total elapsed time) to be charged on a pro rata basis at the standard daily fee rate. The Supplier shall use reasonable endeavours to minimise travel time;
(c) VAT or other relevant sales tax, which the Supplier shall add to its invoices at the appropriate rate.
7.6 The Client shall pay in full each invoice properly due, issued and submitted by Pomerol within thirty (30) days of the invoice date without set-off or deduction. In the event the Client does not make payments within thirty (30) days of the invoice date, the Client shall in addition pay the Supplier interest on the unpaid balance, commencing to accrue thirty (30) calendar days after the date of date of the invoice at four per cent (4%) interest per annum above the Bank of England’s base rate, compounded monthly.
7.7 All payments by the Client hereunder shall be in United Kingdom pound sterling unless otherwise agreed or set out in the Statement of Work and shall be paid to the Supplier’s bank account as advised by the Supplier to the Client in writing.
7.8 In the event of any dispute, the Client shall raise such dispute with the Supplier within fourteen (14) days of the date of invoice. The Client shall not be able to dispute any amounts which have been paid by the Client after a period of three (3) months has elapsed from the date of invoice.
7.9 Should the Client be required by any law or regulation to make any deduction on account of tax including but not limited to withholding tax or otherwise on any sum payable under this Agreement the Fees payable shall be increased by the amount of such tax to ensure that the Supplier receives a sum equal to the amount to be paid under the applicable Statement of Work.
7.10 If the Client is in breach of any obligations under this Agreement (including payment obligations) which has not been directly caused by the actions of the Supplier, and such breach is not remedied within fourteen (14) calendar days, then the Supplier shall have the right to suspend immediately any related Services if deemed reasonably necessary by the Supplier to protect the proper interests of the Supplier or its other clients.
7.11 Subject to clauses 7.12 and 7.13, the Fees relating to the provision of Services shall increase on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index in the preceding 12-month period.
7.12 Subject to clause 7.13 below, Pomerol reserves the right, on giving the Client thirty (30) days’ notice, to increase the Fees on an annual basis with effect from each anniversary of the Agreement. If the Client does not agree with this increase, then they may terminate this Agreement upon thirty (30) days written notice and before such price increase takes effect. If Pomerol does not receive written acknowledgement within thirty (30) days, the Client is deemed to have agreed to the amendment to the Fees.
7.13 For the avoidance of doubt, the Supplier may increase any Third-Party Software fee in line with any increases imposed upon the Supplier by such third party and/or in line with the Customer Agreement (where applicable).
8. Warranties
8.1 The Supplier warrants and undertakes that:
(a) the Supplier shall use reasonable endeavours to perform the Services with reasonable care and skill;
(b) it has authority to enter into this Agreement and that this Agreement is executed by a duly authorised representative of the Supplier; and
(c) the Services shall be provided in accordance with all relevant laws.
8.2 The Client warrants and undertakes that:
(a) it has authority to enter into this Agreement; and
(b) that this Agreement is executed by a duly authorised representative of the Client.
8.3 Except for any warranties expressly set forth in this Agreement, the Services are provided on an “as is” basis, and Client’s use of the Services is at its own risk. The Supplier does not make, and hereby disclaims, any and all other express and/or implied warranties, statutory or otherwise, including, but not limited to, warranties of merchantability, fitness for a particular purpose and any warranties arising from a course of dealing, usage, or trade practice.
8.4 Save only as may be provided for otherwise under any Statement of Work, the Supplier makes no warranty or representation of any data backup with the Services. The Client is responsible for all database and/or system back-ups as required before any change is carried out.
8.5 The Client is responsible with facilitating the Supplier with all necessary information for ensuring that any changes meet with the Client’s security policies.
9. Acceptance
9.1 The relevant Statement of Work shall specify the Deliverables that are to be subject to Acceptance Testing and provide a framework for the nature of the testing that will be required.
9.2 In relation to any Acceptance Testing:
(a) The Client shall have a reasonable period of time, up to five (5) Business Days unless otherwise specified in the Statement of Work, from the Supplier’s delivery of each Deliverable under the relevant Statement of Work (the “Acceptance Period”) to confirm that such Deliverable conforms to the acceptance criteria as agreed between the Parties (collectively, the “Acceptance Criteria”). If the Client determines that a Deliverable does not conform to the Acceptance Criteria, the Client shall by the last day of the Acceptance Period provide to the Supplier a written list of the non-conformities to the Acceptance Criteria (the “Issues List”).
(b) The Client shall use best efforts to correctly and efficiently ensure appropriate Acceptance Testing in relation to any Deliverable which is subject to Acceptance Tests and shall notify the Supplier within the Acceptance Period (as defined in Clause 9.2(a)) if any of the Deliverables do not conform to the Acceptance Criteria. In the event that the Client:
(i) has undertaken the Acceptance Testing within the Acceptance Period and fails to reject any Deliverable and/or provide written comments within the relevant Acceptance Period; or
(ii) commences live running of the whole or part of such Deliverable other than in the course of undertaking Acceptance Testing; or
(iii) if the Deliverable or Services are found to conform with the Statement of Work,
then in each case the Service or Deliverable shall be deemed accepted from the date of the notification by the Supplier pursuant to Clause 9.2(a).
(c) Once the Deliverable has been accepted by the Client or deemed to have been accepted in accordance with Clause 9.2(b) and payment has been settled in accordance with Clause 7, the Deliverable shall become the property of the Client. For the avoidance of doubt, should any non-conformities be found in earlier stages of the Deliverables but which were not highlighted to the Supplier during the applicable Acceptance Period, such non-conformities shall not be subject to the remedies as set out in Clause 9.2(d) below.
(d) If there are any non-conformities within any Deliverable, which have been highlighted by Client or the Supplier during the Acceptance Period and whereby the Deliverable has not been accepted by the Client for this reason and such non-conformity is directly attributable to any act or omission on the part of the Supplier (and not subject to a Change Request or attributable to the Client’s acts or omissions including inadequate Acceptance Testing) the Supplier shall (without prejudice to the Client’s other rights and remedies) carry out all necessary remedial work without additional charge as part of the next Deliverable which shall accordingly be modified. In the event of any such remedial work, the Client shall have up to five (5) Business Days unless otherwise agreed by the Supplier (the “Retest Period”) to confirm that the Deliverable meets the Acceptance Criteria. If the Client fails to notify the Supplier of any issues within the Retest Period, that Deliverable shall be deemed accepted.
(e) If any non-conformity cannot be remedied by the Supplier due to an error, defect or fault which the Supplier is able to demonstrate to the reasonable satisfaction of the Client to be outside the Supplier’s control and which has disabled the Supplier’s ability to remedy such non-conformity, then the Supplier reserves the right to terminate work on that specific Deliverable. The Supplier agrees not to charge the Client, any amounts paid or payable by the Client to the Supplier which specifically relate to the non-conforming Deliverable which cannot be remedied. If the Supplier is unable to correct the non-conformity within thirty (30) Business Days, either Party may terminate the applicable Statement of Work without further liability to the other.
10. Intellectual Property Rights
10.1 Subject to Clause 10.2 below, on creation by the Supplier and upon the Supplier receiving payment in full, all Intellectual Property Rights in bespoke materials or code created under the Services (“Bespoke IPR”) for the Client shall vest automatically in the Client. The Supplier assigns to the Client with full title guarantee all IPR in such Deliverables (including by way of an assignment of future IPR) in and to each such Deliverable. The Client grants to the Supplier an irrevocable, worldwide royalty free licence to use the Bespoke IPR for the duration of this Agreement strictly for the purpose of providing the Services.
10.2 Notwithstanding Clause 10.1 above, the Supplier shall retain exclusive ownership of:
(a) all of its Background Materials; and
(b) ideas, concepts, techniques and know-how discovered, created or developed by the Supplier during the performance of the Services that are of general application and that are not based on or derived from the Client’s business or Confidential Information (“General IP”, together with the Background Materials, the “Supplier Intellectual Property”). The Supplier grants to the Client a non-exclusive, irrevocable, worldwide royalty free and non-transferable licence to use the Supplier Intellectual Property only in so far as is necessary for the Client’s business purposes solely in connection with such Deliverables. For the avoidance of doubt this does not include any of the Client’s Affiliates.
10.3 The Client shall pay and indemnify the Supplier and hold it harmless on demand, from and against all actions, claims, liabilities, demands, proceedings, costs suffered or incurred by Supplier, arising by reason of claims that:
(a) the Supplier’s possession of or use of the Client’s Intellectual Property Rights in connection with the provision of the Services infringes the Intellectual Property Rights of a third party;
(b) the Client or any of its clients, modify, alter, replace combine with any other data, code, documents or other software, which alters the Supplier’s Intellectual Property and such alterations infringe the Intellectual Property Rights of a third party. This indemnity applies whether or not legal proceedings are instituted and, if such proceedings are instituted, irrespective of the means, manner or nature of any settlement, compromise or determination.
10.4 The Supplier shall pay and indemnify the Client and hold it harmless on demand, from and against all actions, claims, liabilities, demands, proceedings, costs suffered or incurred by Client, arising by reason of claims that:
(a) the Client’s possession of or use of the Supplier’s Intellectual Property Rights and/or the Client-side equipment in connection with the provision of the Services infringes the Intellectual Property Rights of a third party;
(b) the Supplier, modifies, alters, replaces combines with any other data, code, documents or other software, which alters the Client’s Intellectual Property Rights and such alterations infringe the Intellectual Property Rights of a third party. This indemnity applies whether or not legal proceedings are instituted and, if such proceedings are instituted, irrespective of the means, manner or nature of any settlement, compromise or determination.
10.5 If either Party (“Indemnifying Party”) is required to indemnify the other Party (“Indemnified Party”) under this Clause 10, the Indemnified Party shall:
(a) notify the Indemnifying Party in writing of any IPR Claim against it in respect of which it wishes to rely on the indemnity at Clause 3 or Clause 10.4 (as applicable);
(b) allow the Indemnifying Party, at its own cost, to conduct all negotiations and proceedings and to settle the IPR Claim, always provided that the Indemnifying Party shall obtain the Indemnified Party’s prior approval of any settlement terms, such approval not to be unreasonably withheld;
(c) provide the Indemnifying Party with such reasonable assistance regarding the IPR Claim as is required by the Indemnifying Party, subject to reimbursement by the Indemnifying Party of the Indemnified Party’s costs so incurred; and
(d) not, without prior consultation with the Indemnifying Party, make any admission relating to the IPR Claim or attempt to settle it, provided that the Indemnifying Party considers and defends any IPR Claim diligently, using competent counsel and in such a way as not to bring the reputation of the Indemnified Party into disrepute.
10.6 If an IPR Claim is brought or in the reasonable opinion of the Supplier is likely to be made or brought, the Supplier may at its own expense ensure that the Client is still able to use the Deliverables by either:
(a) modifying any and all of the provisions of the Deliverables without reducing the performance and functionality for any or all of the provision of the Deliverables, so as to avoid the infringement or the alleged infringement, provided that the terms herein shall apply mutatis mutandis to such modified or substituted services and such modified or substituted services shall be acceptable to the Client, such acceptance not to be unreasonably withheld or delayed; or
(b) procuring a licence or permission to use the Deliverables on terms which are acceptable to the Client, such acceptance not to be unreasonably withheld or delayed.
10.7 The Client shall promptly notify the Supplier if any IPR Claim or demand is made or action brought against the Client for infringement or alleged infringement of any third party right which may affect the provision of Deliverables.
10.8 Except to the extent that the Supplier should reasonably have known or advised the Client the foregoing provisions of Clause 10.6, the Supplier shall have no obligation or liability for any IPR Claim to the extent such IPR Claim arises from:
(a) any use by or on behalf of the Client of the combination with any item not supplied or recommended by the Supplier where such use of the Deliverables directly gives rise to the claim, demand or action; or
(b) any modification carried out on behalf of the Client to any item supplied by the Supplier under this Agreement if such modification is not authorised by the Supplier in writing where such modification directly gives rise to a claim, demands or action; and the Client shall indemnify the Supplier in respect of all bona fide and directly attributable Losses suffered or incurred by the Supplier in respect of any IPR Claim detailed in this Clause 10.8(b).
10.9 The Supplier shall procure any Third Party Software required by the Client for the provision of the Services and shall procure the licence rights for the Client to use the Third Party Software in conjunction with the Services. The Supplier expressly excludes any warranty to the Client that the Third Party Software supplied or licensed under this Agreement will operate substantially in accordance with, and perform, the material functions and features as set out in its marketing, sales or other associated documentations. The Client shall remain liable for any and all payments owed to the Supplier throughout this Agreement and until the end of the respective licence terms and shall adhere to any end user licence agreements sent by such third party in relation to the Third Party Software.
11. Exclusions, limitations of liability, warranties and indemnities
11.1 This Clause 11 sets out the entire financial liability of each Party (including any liability for the acts or omissions of its employees, agents and subcontractors) in respect of:
(a) any breach of this Agreement; and
(b) any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
11.2 Nothing in this Agreement excludes or limits either Party’s liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; or
(c) any other liability which cannot lawfully be excluded or limited.
11.3 Pomerol’s liability for breach of their obligations under Clause 14 (Client Personal Data) and Clause 10.4 (Intellectual Property Rights) shall be limited to two hundred and fifty thousand pounds (£250,000) in the aggregate which shall count towards the cap set out in Clause 11.4.
11.4 Subject to Clause 11.2, the Parties’ total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to one hundred and twenty five percent (125%) of the price paid for the Services during the twelve (12) months preceding the date on which the claim arose.
11.5 Except as expressly stated in Clause2:
(a) neither Party shall have any liability for any losses or damages which may be suffered by the other Party (or any person claiming under or through that Party), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
(i) special damage even if the other Party was aware of the circumstances in which such special damage could arise;
(ii) loss of profits;
(iii) loss of actual or anticipated savings;
(iv) loss of business opportunity;
(v) loss of business;
(vi) loss of contracts;
(vii) loss of use of money;
(viii) loss of revenue;
(ix) loss of operation times;
(x) loss of goodwill;
(xi) loss of reputation; and
(xii) loss of, damage to or corruption of data.
11.6 Except as expressly and specifically provided in this Agreement:
(a) the Client assumes sole responsibility for results obtained from the use of the Services, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Client in connection with the Services, or any actions taken by the Supplier at the Client’s direction; and
(b) all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.
11.7 Any indemnity set out in this Agreement shall not apply unless the Party claiming indemnification notifies (in writing) the other promptly of any matters in respect of which the indemnity may apply and of which the notifying Party has knowledge and gives the other Party full opportunity to control the response to and the defence of such claim; including without limitation, the right to accept or reject settlement offers and to participate in any litigation provided that in no event shall the indemnitor be liable for any settlement or compromise made without its consent, such consent not to be unreasonably withheld or delayed.
11.8 The Supplier shall maintain in force the following insurance policies:
(a) public liability insurance policy – limit £[2 million] per claim;
(b) professional indemnity insurance policy – limit £[2 million] per claim; and
(c) employers’ liability policy – limit £[10 million] per claim.
11.9 The Supplier shall be released from all of its obligations in the event that the Client makes alterations to the software or hardware in any manner, has been guilty of negligence in the use of the software, or utilises the software in a manner contradictory to its intended purpose.
11.10 The Client hereby warrants that it has not been induced to enter into this Agreement by any prior representations, nor has it relied on any oral representation made by the Supplier or upon any descriptions, illustrations or specifications contained in any catalogues and publicity material produced by the Supplier.
11.11 The Parties shall comply in all material respects with all applicable laws, regulations and codes of conduct (whether statutory or otherwise) of the United Kingdom, and that all licences, permissions and consents required for carrying on its business have been obtained and are in full force and effect.
12. Change Request Procedure
12.1 Either Party may request changes to any Statement of Work (in each case, a “Change Request”). Any Change Request shall be made in writing and sent to the Client Representative or Supplier Representative (as appropriate) and shall set out the change in sufficient detail so as to enable the other Party to make a proper assessment of such change.
12.2 Where the Parties propose a Change Request, the Supplier shall provide a written estimate of the likely time required to implement the change, any necessary variations to the Fees as a result of the change, the likely effect of the change on the Services; and any other impact of the change on the terms of this Agreement. The Client shall notify the Supplier whether it accepts or reasonably rejects the Change Request within five (5) Business Days of its receipt of the written estimate.
12.3 A Change Request shall become a “Change Order” when the requirements of the Change Control Procedure as set out in this Clause 12 have been satisfied and the Change Request is signed by a duly authorised representative of both Parties to signify their approval to the change. Until such time the Parties shall continue to perform their respective obligations under the Statement of Work without taking into account the Change Request. Once duly signed, Change Orders shall be deemed incorporated into this Agreement and the applicable Statement of Work and the Supplier shall commence performance of the Change Order accordingly.
12.4 Neither Party shall be required to accept any Change Request made by the other Party and shall not be bound by the Change Request unless it has been agreed in writing as set out above.
12.5 Unless otherwise agreed in writing, the Supplier shall be entitled to charge the Client at the Supplier’s then current rates for investigating, reporting on and, if appropriate, implementing any Change Request requested by the Client.
13. Confidentiality
13.1 The term “Confidential Information” does not include any information that:
(a) is or becomes generally available to the public (other than as a result of its disclosure by the receiving Party or its Representatives in breach of this Clause);
(b) was available to the receiving Party on a non-confidential basis before disclosure by the disclosing Party;
(c) was, is or becomes available to the receiving Party on a non-confidential basis from a person who, to the receiving Party’s knowledge, is not bound by a confidentiality Agreement with the disclosing Party or otherwise prohibited from disclosing the information to the receiving Party;
(d) was known to the receiving Party before the information was disclosed to it by the disclosing Party;
(e) the Parties agree in writing is not confidential or may be disclosed; or
(f) is developed by or for the receiving Party independently of the information disclosed by the disclosing Party.
13.2 Each Party shall keep the other Party’s Confidential Information confidential and shall not:
(a) use such Confidential Information except for the purpose of exercising or performing its rights and obligations under this Agreement (“Permitted Purpose”); or
(b) disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this Clause.
13.3 Each Party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
13.4 The Client acknowledges that the Supplier’s Confidential Information includes any designs, plans, software or other materials created by the Supplier in connection with the Services and the Client agrees not to make use of any such material for any purpose other than receipt of the Services from the Supplier.
13.5 The Supplier acknowledges that the Client Personal Data is the Confidential Information of the Client.
13.6 A Party may disclose the other Party’s Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that:
(a) it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and
(b) at all times, it is responsible for such Representatives’ compliance with the confidentiality obligations set out in this Clause.
13.7 A Party may disclose Confidential Information to the extent required by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other Party as much notice of such disclosure as possible.
13.8 Each Party reserves all rights in its Confidential Information. No rights or obligations in respect of a Party’s Confidential Information other than those expressly stated in this Agreement are granted to the other Party, or to be implied from this Agreement.
13.9 The provisions of this Clause 13 shall continue to apply for three (3) years after termination of this Agreement.
14. Client Personal Data
14.1 For the purposes of this Clause 14, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the Applicable Data Protection Legislation.
14.2 Both parties will comply with all applicable requirements of Applicable Data Protection Legislation. This Clause 14 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under Applicable Data Protection Legislation.
14.3 The Parties have determined that, for the purposes of Applicable Data Protection Legislation, where the Supplier is processing personal data under this Agreement, the Supplier shall process the personal data set out in Schedule 1, as a processor on behalf of the Client.
14.4 Without prejudice to the generality of Clause 14.2, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Client Personal Data to the Supplier for the duration and purposes of this Agreement.
14.5 In relation to the Client Personal Data, Schedule 1 sets out the scope, nature and purpose of processing by the Supplier, the duration of the processing and the types of personal data and categories of data subject.
14.6 Without prejudice to the generality of Clause 14.2 the Supplier shall, in relation to Client Personal Data:
(a) process that Client Personal Data only on the documented instructions of the Client, which shall be to process that Personal Data for the Purpose as set out in Schedule 1;
(b) implement appropriate the technical and organisational measures to protect against unauthorised or unlawful processing of Client Personal Data and against accidental loss or destruction of, or damage to, Client Personal Data, which the Client has reviewed and confirms are appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
(c) ensure that any personnel engaged and authorised by the Supplier to process Client Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
(d) assist the Client insofar as this is possible (taking into account the nature of the processing and the information available to the Supplier), and at the Client’s cost and written request, in responding to any request from a data subject and in ensuring the Client’s compliance with its obligations under Applicable Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(e) notify the Client without undue delay on becoming aware of a personal data breach involving the Client Personal Data;
(f) at the written direction of the Client, delete or return Client Personal Data and copies thereof to the Client on termination of the Agreement unless the Supplier is required by Applicable Law to continue to process that Client Personal Data. For the purposes of this Clause 14.6(f) Client Personal Data shall be considered deleted where it is put beyond further use by the Supplier; and
(g) maintain records to demonstrate its compliance with this Clause 14 and allow for reasonable audits by the Client or the Client’s designated auditor, for this purpose, on reasonable written notice.
14.7 The Client hereby provides its prior, general authorisation for the Supplier to:
(a) appoint processors to process the Client Personal Data, provided that the Supplier:
(i) shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Legislation, and are consistent with the obligations imposed on the Supplier in this Clause 14;
(ii) shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of the Supplier; and
(iii) shall inform the Client of any intended changes concerning the addition or replacement of the processors, thereby giving the Client the opportunity to object to such changes provided that if the Client objects to the changes and cannot demonstrate, to the Supplier’s reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Legislation, the Client shall indemnify the Supplier for any losses, damages, costs (including legal fees) and expenses suffered by the Supplier in accommodating the objection;
(b) transfer Client Personal Data outside of the UK as required for the Purpose, provided that the Supplier shall ensure that all such transfers are effected in accordance with Applicable Data Protection Legislation. For these purposes, the Client shall promptly comply with any reasonable request of the Supplier, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the Commissioner from time to time (where the UK GDPR applies to the transfer).
14.8 To the extent that Pomerol cannot comply with a change to the Client’s instructions when processing Client Personal Data without incurring material additional costs:
(a) Pomerol shall: (i) promptly inform the Client, giving full details of the problem; and (ii) cease all processing of the affected data (other than securely storing those data) until revised instructions are received; and
(b) any changes in the Client’s instructions that affect the pricing structure or commercial relationship between the Parties should go through an appropriate Change Request (as set out in Clause 12).
14.9 Pomerol’s total aggregate liability in contract, tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement or any collateral contract insofar as it relates to the obligations set out in this Clause 14, or Applicable Data Protection Legislation shall be limited to the amount set out in Clause 3.
15. Term and Termination
15.1 This Agreement shall commence on the Commencement Date and each Statement of Work shall commence on the date stated in the Statement of Work and shall continue in force unless and until terminated in accordance with the provisions of this Agreement or of any Statement of Work as applicable.
15.2 Either Party may terminate this Agreement in its entirety or in respect of a specific Statement of Work only at any time with immediate effect by giving written notice to the other Party if the other Party:
(a) commits a material breach (including failure of the Client to pay) of any term of this Agreement or any Statement of Work and such breach is irremediable or, the other Party fails to remedy where it is capable of remedy or, persists in, any breach of any of its obligations under this Agreement or any Statement of Work after having been required in writing to remedy or desist from that breach within a period of thirty (30) days; or
(b) becomes insolvent or has a receiver or administrative receiver appointed, has called a meeting of creditors, resolves to go into liquidation or has a petition for its winding up presented (except for any bona fide amalgamation or reconstruction while solvent; or
(c) suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
15.3 Save as provided in this Clause 15 or elsewhere in this Agreement, or by mutual consent and on agreed terms, or due to a Force Majeure event, neither Party shall be entitled to terminate a Statement of Work.
15.4 Upon termination of a Statement of Work, the Supplier shall immediately cease provision of the Services and the Client shall pay the Supplier all fees and expenses incurred in providing the Services under that Statement of Work up to and including the termination date.
15.5 On termination of this Agreement for any reason and at the end of the provision of the Services, each Party shall use reasonable endeavours to return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other Party.
15.6 The Supplier may, on written notice to the Client, terminate or suspend the provision of the Services in the event the Client has not paid any Fees that are due to the Supplier in respect of those Services by the due date or within thirty (30) days of receipt of such invoice.
15.7 Termination of any Statement of Work shall be without prejudice to any other rights which either Party may have under any other Statement of Work.
15.8 If for any reason a contract between a Third Party and Pomerol relating to the Pomerol’s right to use, install or support Third Party Software which is the subject of the Agreement is terminated, then the Agreement or applicable Statement of Work (as the case may be) shall automatically terminate, save that where the Agreement or Statement of Work relates to other Services other than that Third Party Software, termination of the Agreement or Statement of Work shall operate only in so far as it relates to such Third Party Software.
15.9 Upon termination of the Agreement or a specific Statement of Work (as applicable), the Supplier shall only retain the Client Personal Data for a maximum period of three (3) months from the date of termination and may delete all such copies of its Client Personal Data after the three (3) months period has ended.
15.10 The provisions of those Clauses intended to continue to take effect after the termination of the Agreement shall survive termination of any Statement of Work or this Agreement.
16. Force Majeure
16.1 Neither Party to this Agreement shall be deemed to be in breach of this Agreement or any Statement of Work, or otherwise liable to the other Party in any manner whatsoever for any failure or delay in performing its obligations under this Agreement or any Statement of Work due to an event of Force Majeure.
16.2 A Party shall only be entitled to claim relief under Clause 16.1 if it:
(a) informs the other Party as soon as reasonably possible that an event of Force Majeure has occurred; and
(b) uses all reasonable endeavours to recommence the performance of its obligations in accordance with this Agreement and any affected Statement of Work as soon as possible and keeps the other Party informed as to progress and the estimated dates on which that Party will be able to recommence full performance of its obligations.
16.3 For so long as the Supplier is unable to provide and/or is delayed in providing any Services in accordance with the requirements of this Agreement and any relevant Statement of Work due to an event of Force Majeure, the Fees payable under each affected Statement of Work shall be subject to a pro-rata reduction so that the Client is not required to pay for any Services which are not performed, incorrectly performed and/or delayed due to that event of Force Majeure.
16.4 In the event that the period of delay or non-performance continues for four (4) weeks or more, the Party not affected may terminate this Agreement by giving fourteen (14) days’ written notice to the other Party.
17. Entire Agreement
17.1 This Agreement and its references to further documentation (including each Statement of Work (together with any documents referred to therein) and any Variation Agreement) constitutes the entire agreement and understanding between the Parties in connection with its subject matter and shall supersede and terminate all prior agreements, undertakings and arrangements (both written and oral) between the Parties relating to the subject matter of that Statement of Work.
17.2 Each Party confirms that it will be deemed not to have relied on any statement, representation or promise made by the other except as expressly set out in the relevant Statement of Work. This Clause 18 shall not exclude any liability for fraudulent misrepresentation.
18. Staff Transfer and Non-Solicitation
18.1 It is not intended that any staff be transferred from the Supplier to the Client or from the Client to the Supplier pursuant to this Agreement or that any ‘relevant transfer’ occur for the purposes of the Transfer of Undertakings (Protection of Employment) Regulations 2006.
18.2 Neither Party shall solicit the other Party’s staff or contractors who have been employed or engaged in the Services or the performance of this Agreement during the lifetime of this Agreement and for a period of six (6) months thereafter. For the purposes of this Clause ‘solicit’ means the soliciting of such person with a view to engaging such person as an employee, director, sub‑contractor or independent contractor.
18.3 In the event that either Party is in breach of Clause 18.2 above then the Party in breach shall pay to the other by way of liquidated damages a sum equal to the greater of (i) fifty thousand pounds (£50,000); or (ii) an amount equal to the gross annual gross remuneration package (as at the time of the breach or when such person was last in the service of the relevant party) of the person so employed or engaged. This provision shall be without prejudice to either Party’s ability to seek injunctive relief.
18.4 The Parties hereby acknowledge and agree that the formula specified in Clause 18.3 above is a reasonable estimate of the loss which would be incurred by the loss of the person so employed or engaged.
19. Anti-Bribery and Modern Slavery
19.1 The Supplier shall:
(a) comply with all applicable laws, regulations and sanctions relating to anti-bribery and anti-corruption, including the Bribery Act 2010 (“Relevant Requirements”);
(b) promptly report to the Client any request or demand for any undue financial or other advantage of any kind received by the Supplier in connection with the performance of this Agreement.
19.2 The Supplier shall procure that any person associated with the Supplier, who is performing services in connection with this Agreement, adheres to terms equivalent to those imposed on the Supplier in this Clause 19 (“Relevant Terms”). The Supplier shall be responsible for the observance and performance by such persons of the Relevant Terms, and shall be directly liable to the Client for any breach by such persons of any of the Relevant Terms.
19.3 For the purpose of this Clause 19, the meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), section 6(5) and (6) of that Act and section 8 of that Act respectively. For the purposes of this Clause 19 a person associated with the Supplier includes any subcontractor of the Supplier.
19.4 In performing its obligations under this Agreement, the Supplier shall:
(a) comply with all applicable anti-slavery and human trafficking laws, statutes, regulations from time to time in force the Modern Slavery Act 2015; and
(b) not engage in any activity, practice or conduct that would constitute an offence under sections 1, 2 or 4, of the Modern Slavery Act 2015 if such activity, practice or conduct were carried out in the UK.
20. Assignment
20.1 The Client may not assign or otherwise transfer the whole or any part of this Agreement, including any of its rights and obligations under this Agreement, without the prior written consent of the Supplier.
20.2 The Supplier may assign or otherwise transfer the whole or any part of this Agreement, including any of its rights and obligations under this Agreement, without the prior written consent of the Client but shall give the Client reasonable notice of its intention to do so.
21. General
21.1 No waiver of any term, provision or condition of any Statement of Work shall be effective unless expressly made in writing and signed by the waiving party. No waiver of any particular breach of any Statement of Work shall be held to be a waiver of any other or subsequent breach.
21.2 No omission or delay on the part of any Party in exercising any right, power or privilege under any Statement of Work shall operate as a waiver by it of any right to exercise it in future or of any other of its rights under such Statement of Work.
21.3 Nothing in this Agreement shall be construed to create a partnership, joint venture or other legal relationship of any kind between the Parties that would impose liability upon one Party for the acts or omissions of the other Party, or authorise either Party to act as agent for, or otherwise bind, the other.
21.4 The relationship of the Supplier to the Client will be that of independent contractor and each Statement of Work shall constitute a contract for the provision of Services and not a contract of employment and accordingly the Supplier shall be fully responsible for, and shall indemnify the Client against, any and all claims arising out of or in connection with the Supplier’s employees, contractors and other personnel whether such claims relate to their employment status, tax, national insurance or otherwise.
21.5 If any term or provision of any Statement of Work is held to be illegal or unenforceable, in whole or in part, under any enactment, court order or rule of law, that term or provision shall to that extent be deemed not to form part of such Statement of Work but the enforceability of the remainder of such term or provision and of that Statement of Work shall not be affected.
21.6 Each of the Parties shall bear and pay its own costs and expenses incurred in connection with the negotiation, preparation and execution of this Agreement or any Statement of Work.
21.7 The Client agrees and acknowledges that any and all publicity relating to the work the Supplier undertakes under this Agreement, may be publicised by the Supplier in the ordinary course of business. For the avoidance of doubt, this shall include use of any and all Client logo’s and trademark names.
21.8 Each Party acknowledges to and agrees with the other Party that any and all Statements of Work shall incorporate the terms and conditions of this Agreement at all times and to the exclusion of any other term and condition, whether expressly, by conduct or otherwise.
22. Third Party Rights
22.1 This Agreement is made for the benefit of the Parties, to it and (where applicable) their successors and permitted assigns, and Microsoft (in respect of enforcing the terms of the Customer Agreement) and is not intended to benefit or be enforceable by anyone else.
23. Dispute Resolution
23.1 If a dispute arises under or in connection with this Agreement (“Dispute”), including any Dispute arising out of any amount due to a Party, then before bringing any legal proceedings or commencing any other alternative dispute resolution procedure in connection with such Dispute, a Party must first give written notice (“Dispute Notice”) of the Dispute to the other Party describing the Dispute and requesting that it is resolved under the dispute resolution procedure described in this Clause 23.
23.2 If the Parties are unable to resolve the Dispute within thirty (30) days of delivery of the Dispute Notice, each Party shall promptly (and in any event within five (5) Business Days):
(a) appoint a representative who has authority to settle the Dispute and is at a higher management level than the person with direct responsibility for the administration of this Agreement (“Designated Representative”); and
(b) notify the other Party of the name and contact information of its Designated Representative.
23.3 Acting reasonably and in good faith the Designated Representatives shall discuss and negotiate to resolve the Dispute, including agreeing the format and frequency for such discussions and negotiations, provided that all reasonable requests for relevant information relating to the Dispute made by one Party to the other Party shall be complied with as soon as reasonably practicable).
23.4 If the Parties are unable to resolve the Dispute within thirty (30) days after the appointment of both Designated Representatives, either Party may proceed with any other available remedy.
23.5 Notwithstanding any other provision of this Agreement, a Party may seek interim or other equitable relief necessary (including an injunction) where damages would be an inadequate remedy.
24. Notices
24.1 Any notice or other communication required to be given to a Party under or in connection with this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first class post or other next working day delivery service, at its registered office (if a company) or (in any other case) its principal place of business or shall be sent by electronic mail to the email address set out in the Statement of Work or otherwise notified to either party by the other party in writing..
24.2 Any notice or communication shall be deemed to have been received if: (a) delivered by hand, on signature of a delivery receipt, (b) sent by post, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or (c) sent by electronic mail, on the next Business Day to when it was sent.
24.3 This Clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this Clause, “writing” shall include e-mail.
25. Governing Law and Jurisdiction
25.1 This Agreement shall be governed by, and construed in accordance with, English law and each party irrevocably submits to the exclusive jurisdiction of the English courts in respect of any claim or matter arising out of or in connection with this Agreement or any Statement of Work.