Standard Service Terms and Conditions
1 DEFINITIONS AND INTERPRETATION
1.1 In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
1.1.1 Acceptance Date
means the date on which a Product Milestone is accepted (or deemed to be accepted) by the Client pursuant to passing Acceptance Tests;
1.1.2 Acceptance Tests
means the tests specified in the Agreement and/or such other tests as may be agreed in writing between the Client and the Service Provider;
1.1.3 Additional Services
means any additional services requested by the Client to be provided by the Service Provider as set out in Schedules defined in the Agreement;
means the agreement entered into by the Service Provider and the Client incorporating these Terms and Conditions (or variation thereof agreed upon by both Parties) which shall govern provision of the Services;
1.1.5 Basic Enhancements
means changes or additions to the Licensed Software, including any Error Corrections, which are logical improvements to the Licensed Software, but are limited to only those improvements that are generally made available at no additional cost to the Service Provider's customers that purchase annual Maintenance Services;
1.1.6 Business Day
means any day (other than Saturday or Sunday) on which ordinary banks are open for their full range of normal business in England and Wales;
1.1.7 Change Request
means a request, made by Client or the Service Provider, for a change to the product of the Services;
means the Party procuring the Services from the Service Provider who shall be identified in the Agreement;
1.1.9 Client Group
means, where the Client is a company or otherwise acting in the course of business, the Client's parent company holding a majority interest in the Client, and such parent company's majority‐owned subsidiaries;
1.1.10 Client’s Materials
means the materials set out in an attached Equipment and Media Schedule which the Client shall provide to the Service Provider for use in the delivery of the Services;
1.1.11 Commencement Date
means the date on which the Agreement shall come into force, as set out in the Agreement, or the date from which Support and Maintenance Services shall begin for each element of the Supported Software;
1.1.12 Confidential Information
means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to or in connection with the Agreement (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such);
means any person(s) whose name is set out in the Agreement or if no name is set out there, any person(s) with suitable skill and experience nominated by the Service Provider from time to time;
1.1.14 Data Protection Legislation
1) unless and until EU Regulation 2016/679 General Data Protection Regulation (“GDPR”) is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations, and secondary legislation (as amended from time to time), in the UK and subsequently
2) any legislation which succeeds the GDPR;
means any material difference between the actual performance, utility and functionality of the Software and that which can be reasonably expected based upon the Service Provider’s description of the Software, taking into account the specifications of the relevant computer systems;
1.1.16 Development Services
means the software development, procurement, consulting and computer programming services required to produce New Software;
means the documentation set out in the Schedules in the Agreement, e.g. the operating manuals, user instructions, technical literature and all other related materials supplied to the Client by the Service Provider for aiding the use and application of the Supported Software;
any failure of the New Software to substantially conform to the specifications included in the Documentation;
1.1.19 Error Correction/s
means a software modification or addition that, when made or added to the Licensed Software, establishes material conformity to the specifications in the Documentation;
means the consideration payable to the Service Provider for the Services as defined in the Agreement;
1.1.21 Implementation Plan / Project Specification and Implementation Plan / Project Specification
means a document setting out in detail, the Services which the Service Provider is to provide to the Client and the timing and sequence of events agreed between the Client and the Service Provider for the performance of the Agreement, as set out in Schedules in the Agreement;
1.1.22 Initial Fee
means the first sum payable to the Service Provider under the Agreement prior to the payment of any Milestone Payments;
1.1.23 IP Rights / Intellectual Property Rights
a) any and all rights in any patents, trade marks, service marks, registered designs, applications (and rights to apply for any of those rights) trade, business and company names, internet domain names and e‐mail addresses, unregistered trade marks and service marks, copyrights, database rights, know‐how, rights in designs and inventions;
b) rights under licences, consents, orders, statutes or otherwise in relation to a right in paragraph a);
c) rights of the same or similar effect or nature as or to those in paragraphs a) and b) which now or in the future may subsist; and
d) the right to sue for past infringements of any of the foregoing rights;
means the licence to use the New Software granted by the Service Provider to the Client pursuant to Clause 23, LICENCE;
1.1.25 Licensed Software Materials
means the Licensed Software, the Documentation, and the Media;
1.1.26 Licensed Software
means the systems, applications and computer programs of the Service Provider specified in the Software Specification, and all releases and versions thereof;
means the premises where the Software is to be installed as specified in the Agreement;
1.1.28 Maintenance Charge
means the fee for Maintenance Services to be provided under the Agreement and specified in attached schedules;
1.1.29 Maintenance Services
means the maintenance services to be provided by the Service Provider including analysis, coding, testing, and release of corrections to software faults. Maintenance Services shall be within reasonable limits, as determined by the Service Provider, and does not include requests for basic product training or technical consulting;
1.1.30 Major Enhancements
means changes or additions to the Licensed Software, other than an Error Correction or Basic Enhancement, that
a) contain significant new features;
b) may be priced and offered separately as optional additions to the Licensed Software; and
c) are not made available to customers that purchase annual Maintenance Services from the Service Provider without separate charge;
1.1.31 Milestone Payment
means a part of the Project Fee payable to the Service Provider for each of the Project Milestones set out in the Agreement;
1.1.32 New Software / Software / Supported Software
means any and all software listed in the Software Specification in addition to new or replacement software supplied by the Service Provider in their provision of the Services, being developed or customised by the Service Provider for the Client, preliminary details of which are set out in the Software Specification, including any enhancements and modifications made;
1.1.33 Normal Support Hours
means from Monday through to Friday and from 0900 to 1730 (excluding national holidays);
1.1.34 Payment Schedule
means the Payment Schedule attached to the Agreement;
1.1.35 Planned Acceptance Date
means the date, or in the case of Project Milestones, multiple dates, specified in the Implementation Plan on which the New Software is intended to be accepted by the Client in accordance with the Agreement;
1.1.36 Preliminary Payment
means a payment by way of deposit defined in the Payment Schedule;
means, collectively, the Work to be carried out by the Service Provider for the Client as set out in the Project Specification, including delivery and testing of the New Software;
1.1.38 Project Fee / Price
means the total fee payable for the Project as set out in the Project Specification, including the New Software, Documentation and Licence, where applicable;
1.1.39 Project Milestone
means one of multiple phases into which the Project is divided as set out in the Project Specification;
means the rates set out in Payment Schedule;
1.4.42 Service Fee
means a fixed sum to be paid monthly by the Client to the Service Provider as set out in the Payment Schedule;
means the services to be provided by the Service Provider to the Client in accordance with the Project and the Agreement;
means the locations at which the Service Provider shall provide the Services;
means the specification of the New Software set out in the Software Specification describing the facilities and functions thereof together with any releases or enhancements of software that have been made generally available to the Client;
1.1.46 Specified Equipment / Equipment
means the computers and/or devices, including operating systems, on which the New Software / Supported Software is to function or is installed or is in operational use as specified in the Equipment and Media Schedule;
1.4.47 Software Licence
means the licence documentation accompanying software setting out the relevant permissions, rights and restrictions over the user’s use of that software;
means support services to be provided by the Service Provider in respect of the Licensed Software and available for the continuance of the Agreement;
1.1.49 Support Fee
means the fee for the Support Services to be provided under the Agreement and specified in the Payment Schedule;
means collectively the Specified Equipment and the New Software;
means the term of the Agreement as defined therein;
1.1.52 the Media
means the media on which the Licensed Software and the Documentation are recorded or printed, as provided to the Client by the Service Provider and specified in Equipment and Media Schedule;
means the programme of training of the Client's employees specified in the Training Schedule;
1.1.54 Use the Licensed Software Materials
means to Use the Licensed Software, to read and possess the Documentation in conjunction with the use of the Licensed Software and to possess the Media;
1.1.55 Use the Licensed Software
means to read all or any part of the Licensed Software from magnetic or other storage media and to load the Licensed Software on the Equipment for the storage and running of the Licensed Software;
1.1.56 Warranty Period
means the period specified in the Agreement after the Acceptance Date;
means the Client’s website which is to be developed OR worked on by the Service Provider as defined in the Agreement;
means the Website development work and services to be carried out in the Agreement;
1.1.59 Service Provider
means MyStream Agency
1.2 Unless the context otherwise requires, each reference in these Terms and Conditions to:
1.2.1 “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
1.2.2 a statute or a provision of a statute is a reference to that statute or provision as amended or re‐enacted at the relevant time;
1.2.3 “these Terms and Conditions” is a reference to these Terms and Conditions as amended or supplemented at the relevant time;
1.2.4 a Clause or paragraph is a reference to a Clause of these Terms and Conditions; and
1.2.5 a "Party" or the "Parties" refer to the Parties to the Agreement.
1.3 The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions.
1.4 Words importing the singular number include the plural number and vice versa;
1.5 Words importing any gender include every gender;
1.6 Words importing persons include firms, companies and corporations and vice versa
2 PROJECT SPECIFICATION
2.1 The Parties shall agree upon the Project Specification either before or after the Commencement Date, as set out in the Agreement. If the Project Specification is agreed prior to the date of the Agreement, it shall be attached thereto.
2.2 The Project Specification shall set out, in full, the Services required by the Client.
2.3 Either Party may request or propose amendments to the Project Specification. Any proposed amendments must be made in writing. If either Party wishes to discuss such issues at a meeting that Party shall provide at least 1 week's notice of the meeting to the other Party.
3 PROVISION OF THE SERVICES
3.1 With effect from the Commencement Date set out in the Agreement, the Service Provider shall, throughout the Term of the Agreement, provide the Services to the Client as set out in the Project Specification.
3.2 The Service Provider shall provide the Services with reasonable skill and care, commensurate with prevailing standards in the IT sector in the United Kingdom.
3.3 The Service Provider shall act in accordance with all reasonable instructions given to it by the Client provided such instructions are compatible with the Project Specification.
3.4 The Service Provider shall be responsible for ensuring that it complies with all statutes, regulations, byelaws, standards, codes of conduct and any other rules relevant to the provision of the Services.
3.5 The Service Provider shall keep the Client informed of all activities related to the Project by means of regular reports, supplied to the Client at regular intervals to be defined in the Project Specification. Such reports shall indicate any important matters for the attention of the Client.
3.6 In the event that the Project falls behind schedule in the opinion of either Party, either Party may request a meeting to further discuss the Project including the rectifying of delays and putting the project back on schedule in accordance with the Project Specification.
3.7 The Service Provider shall use all reasonable endeavours to accommodate any changes in the Services that may be requested by the Client, subject to the Client’s acceptance of any related extensions to the timeline or additions to the Project Fees that may be due as a result of such changes.
4 CLIENT'S OBLIGATIONS
4.1 The Client shall use all reasonable endeavours to provide all pertinent information to the Service Provider that is necessary for the Service Provider’s provision of the Services.
4.2 The Client will provide the Service Provider with detailed reports of any and all problems that require remedy within the Services. Such reports shall be in the form provided by the Service Provider or, where no such form is specified, in such a form that clearly sets out all known details relating to the problem, such details to include any specifically requested by the Service Provider.
4.3 The Client may, from time to time, issue reasonable instructions to the Service Provider in relation to the Service Provider’s provision of the Services. Any such instructions should be compatible with the Project Specification.
4.4 In the event that the Client requires a variation of the Project Specification, the Client and Service Provider should meet to discuss the proposed variation, agree whether to incorporate within the Project Specification or not and, if accepted, the impact on time‐frame, cost, milestones, payments, etc.
4.5 If the nature of the Services requires that the Service Provider has access to the Client’s premises or any other location, access to which is lawfully controlled by the Client, the Client shall ensure that the Service Provider has access to the same at the times to be agreed between the Service Provider and the Client as required. Such access shall include use of and access to electrical infrastructure and outlets, computer networks, telephones and any other facilities which the Service Provider reasonably requires.
4.6 The Client will take all reasonable precautions to protect the health and safety of the Service Provider’s employees, agents and sub‐contractors while on any of the Sites.
4.7 If required by the Service Provider. the Client shall provide reasonable remote access to the Client's equipment and the Software and shall provide such reasonable assistance as the Service Provider may request, including, but not limited to, providing sample output and other diagnostic information.
4.8 Any delay in the provision of the Services resulting from the Client’s failure or delay in complying with any of the provisions of this Clause shall not be the responsibility or fault of the Service Provider.
4.9 The Client shall:
4.9.1 operate the software, maintain data and the database in accordance with the user manual and operator manual;
4.9.2 make hardware accessible to the Service Provider's support staff, and when required enable logons or passwords required for such support staff (who will have their own logons);
4.9.3 permit the Service Provider to install the current version of software from time to time when upgrades or fixes occur, to provide a reasonable level of assistance in implementation and testing;
4.9.4 provide notice of intention to change hardware or operating system or data‐feeds.
5 CLIENT'S WARRANTIES
5.1 The Client warrants that it has not relied on any oral representation made by the Service Provider or upon any descriptions, illustrations or specifications contained in any catalogues and publicity material produced by the Service Provider which are only intended to convey a general idea of the products and services mentioned. The Client has however relied upon the descriptions, illustrations, functions, specifications contained in the user manual and software specification in the Software Specification.
5.2 The Client warrants that it 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.
5.3 The Client shall use all commercially reasonable endeavours to ensure that the Client’s Materials it provides to the Service Provider is original to the Client and shall not infringe any copyright, other Intellectual Property Rights, moral rights, rights of privacy, rights of publicity, or any other rights whatsoever of any person.
5.4 The Client hereby warrants that copyright in the Client’s Materials shall, throughout the full period of copyright protection, be valid and subsisting pursuant to the laws of the United Kingdom [and the provisions of the Berne Convention and/or the Universal Copyright Convention].
5.5 The Client shall not assign, licence, transfer, encumber or otherwise dispose of any rights of copyright or any other rights in or to the Client’s Materials or Website except pursuant to the Agreement.
5.6 The Client shall not enter into any agreement or arrangement which might conflict with the Service Provider’s rights under this Agreement or might interfere with the Service Provider’s performance of his obligations under the Agreement.
5.7 The Client acknowledges that it is the responsibility of the Client to ensure that the facilities and functions described in the Specification meet its requirements.
5.8 The Client agrees that its sole remedy in respect of any non‐conformance with any warranty or other provision of this Agreement is that the Service Provider will remedy such non‐conformance (either by itself or through a third party) and if, in the Service Provider's reasonable opinion, it is unable to remedy such non‐conformance, the Service Provider will refund the Support Fee and/or Maintenance Charge for the month in which the Services, the subject of such claim, were supplied, if paid.
5.9 The Client must promptly notify the Service Provider of any non‐conformance to the above warranties in order to benefit from the remedy stated above, and in any event within 3 months.
6 SERVICE PROVIDER’S OBLIGATIONS
6.1 The Service Provider will use all reasonable endeavours to ensure that it does not:
6.1.1 Create any unsafe or hazardous conditions at the Sites;
6.1.2 Materially interfere with or impair the operation of HVAC systems, lighting, electrical infrastructure, plumbing, fire protection systems, safety systems or security systems at the Sites; or
6.1.3 Impose any unreasonable expense upon the Client in connection with its use or operation of the Sites.
6.2 The Service Provider will immediately notify the Client of:
6.2.1 Any damage or destruction to property, real or personal; and
6.2.2 Any injury to any person resulting from the performance of the Services by the Service Provider, its sub‐contractors or their respective employees.
7 SERVICE PROVIDER’S WARRANTIES
7.1 The Service Provider warrants to the Client that the Services supplied under this Agreement will be carried out with reasonable care and skill by personnel whose qualifications and experience will be appropriate for the tasks to which they are allocated.
7.2 The Service Provider shall use all commercially reasonable endeavours to ensure that the Website is original to the Service Provider and shall not infringe any copyright, other Intellectual Property Rights, moral rights, rights of privacy, rights of publicity, or any other rights whatsoever of any person.
7.3 The Service Provider hereby warrants that copyright in the Website shall, throughout the full period of copyright protection be valid and subsisting pursuant to the laws of the United Kingdom.
7.4 The Service Provider shall not assign, licence, transfer, encumber or otherwise dispose of any rights of copyright or any other rights in or to the Client’s Materials or the Website except pursuant to this Agreement, and shall not enter into any agreement or arrangement which might conflict with the Client’s rights under this Agreement or might interfere with the Service Provider’s performance of his obligations under this Agreement
7.5 Except as expressly provided in this Agreement, no warranty, condition, undertaking or term, express or implied, statutory or otherwise, as to the satisfactory quality, fitness for purpose, or ability to achieve a particular result, of the Services is given or assumed by the Service Provider, and all such warranties, conditions, undertakings and terms are hereby excluded.
7.6 The Service Provider does not warrant that all problems can and will be corrected but the Service Provider will use all reasonable endeavours to correct problems so long as the problems are replicable or otherwise identifiable by the Service Provider, or to provide a software patch; or to bypass around such Error.
8 FEES, PAYMENT AND RECORDS
8.1 The Client shall make payments to the Service Provider in accordance with the Payment Schedule.
8.2 Milestone Payments, if applicable, will be due on the successful completion and acceptance of the relevant Project Milestone in accordance with the Project Specification.
8.3 The Service Provider shall invoice the Client for all sums due under the Payment Schedule.
8.4 The Service Provider will send all invoices by email to the Client at the Client’s address set out at the top of the first page of the Agreement unless otherwise agreed by the Parties.
8.5 All payments required to be made pursuant to the Agreement by either Party shall be made within7 Calendar Days of receipt by that Party of the relevant invoice.
8.6 All payments required to be made pursuant to the Agreement by either Party shall be made in GBP in cleared funds to such bank in such a location as the receiving Party may from time to time nominate, without any set‐off, withholding or deduction.
8.7 Where any payment pursuant to the Agreement is required to be made on a day that is not a Business Day, it shall be made on the immediately preceding Business Day.
8.8 All sums and charges payable specified in the Agreement and Payment Schedule are exclusive of any VAT unless expressly stated otherwise.
8.9 The Service Provider shall at all times be responsible for all income tax and national insurance contributions or similar taxes or contributions in respect of the consideration payable under this Agreement and for all of its expenses and value added tax.
8.10 The Service Provider hereby agrees to indemnify the Client in respect of any claims that may be made by the relevant authorities against the Client in respect of income tax or national insurance contributions or similar taxes or contributions, including interest and penalties, relating to the Work undertaken by the Service Provider under the Agreement.
8.11 Without prejudice to TERM AND TERMINATION sub‐Clause 15.4.1 of the Terms and Conditions, any sums which remain unpaid following the expiry of the period set out in the Agreement shall incur interest on a daily basis at 8% p.a. above the base rate of Bank of England from time to time until payment is made in full of any such outstanding sums. Interest shall accrue on a daily basis from the due date for payment until the actual date of payment of the overdue sum, whether before or after judgment. Any interest due shall be payable when paying an overdue sum.
8.12 Each Party shall be required to:
8.12.1 keep, or procure that there are kept, such records and books of account as are necessary to enable the amount of any sums payable pursuant to the Agreement to be accurately calculated;
8.12.2 at the reasonable request of the other Party, allow that Party or its agent to inspect those records and books of account and, to the extent that they relate to the calculation of those sums, to take copies of them.
9 REMOTE ACCESS
If the Service Provider has remote access to any part of the Client's Equipment in the course of performing its obligations under this Licence the following provisions of this Clause 9 shall apply additionally. The Service Provider:
a) only use a remote access method approved by the Client (such approval not to be unreasonably withheld or delayed);
b) provide the Client with the name of each individual who will have remote access to the Client's Equipment and the phone number at which the individual may be reached during log‐in;
c) ensure that any computer used by its personnel to remotely access the Client's Equipment will not simultaneously access the Internet or any other third‐party network while logged on to the Client's Equipment;
9.2 further warrants and agrees that its personnel will not remotely access the Client's Equipment from a networked computer unless the network is protected from all third‐party networks by a firewall that is maintained by a 24x7 administrative staff. This firewall must be certified by the International Computer Security Association (ICSA) (or an equivalent certification as determined by the Client) if the connection to the Client's network is an ongoing connection such as frame relay or T1 line;
9.3 will restrict remote access by the Service Provider to only the Client's test and/or training systems and nothing in this clause shall entitle the Service Provider to have access to the Client's live production copy of the Licensed Programs unless the Parties have expressly agreed in writing that such access is to take place and the client has given written confirmation of the date on which such access was implemented. The Service Provider shall report in writing when such access takes place detailing all activities and actions taken during such access.
10 SECURITY AND CONTROL
The Client shall during the continuance of the Licence:
10.1 effect and maintain adequate security measures to safeguard the Licensed Software Materials from access or use by any unauthorised person;
10.2 retain the Licensed Software Materials and all copies thereof under the Client's effective control;
10.3 maintain a full and accurate record of the Client's copying and disclosure of the Licensed Software Materials and shall produce such record to the Service Provider on request from time to time;
10.4 comply with all reasonable instructions of the Service Provider with regard to the use of the Licensed Software Materials, including, without limitation, the implementation of upgrades to the Licensed Software, third‐party software, specified operating system and computer hardware which the Service Provider may provide from time to time.
11 LIABILITY, INDEMNITY AND INSURANCE
11.1 This Clause sets out the entire financial liability of the Parties to each other for any breach of the Agreement; for the supply by the Service Provider of the Work and Website, any use made by the Client of the Work and Website; and any representation, statement, or tortuous act or omission (including, but not limited to, negligence and breach of statutory duty) arising out of or in connection with the Agreement.
11.2 Subject to sub‐Clause 11.3, neither Party shall be liable to the other, whether in contract, tort (including negligence), restitution, or for breach of statutory duty or misrepresentation for any loss of profit, loss of goodwill, loss of business opportunity, loss of anticipated saving, or any special, indirect or consequential damage or loss that may be suffered by the other Party that arises out of or in connection with the Agreement.
11.3 Nothing in this Agreement shall limit the liability of either Party to the other for fraud or fraudulent misrepresentation, for deliberate or wilful misconduct, or for death or personal injury.
11.4 Subject to the provisions of sub‐Clause 11.6, in the event of any actions, proceedings, claims, demands or costs (including, without prejudice to the generality of this provision, the legal costs of the Client on a solicitor and own‐client basis) against the Client on the grounds that the Service Provider’s Work or the Client’s use, possession and/or ownership of the Website in accordance with this Agreement constitutes the infringement of any Intellectual Property Rights belonging to a third‐party, the Service Provider shall indemnify the Client from and against the same.
11.5 Subject to the provisions of sub‐Clause 11.6, in the event of any actions, proceedings, claims, demands or costs (including, without prejudice to the generality of this provision, the legal costs of the Service Provider on a solicitor and own‐client basis) against the Service Provider on the grounds that the Service Provider’s use or possession of any Client’s Materials for the purposes of carrying out the Work in accordance with this Agreement constitutes the infringement of any Intellectual Property Rights belonging to a third‐party, the Client shall indemnify the Service Provider from and against the same.
11.6 The indemnities set out in sub‐Clauses 11.4 and 11.5 shall apply only if the indemnified Party:
11.6.1 notifies the indemnifying Party immediately in writing upon becoming aware of any such action, proceeding, claim, demand or costs;
11.6.2 makes no admissions or any settlements without the indemnifying Party’s prior written consent;
11.6.3 makes all relevant information available to the indemnifying Party upon request;
11.6.4 provides all reasonable assistance to the indemnifying Party upon request; and
11.6.5 allows the indemnifying Party complete control over any relevant litigation and/or settlement.
11.7 The Service Provider shall ensure that it has in place at all times suitable and valid insurance that shall include employer's liability, third‐party liability, product liability, professional negligence and public liability cover. The Service Provider shall on request supply copies of the relevant certificates of insurance to the Client as evidence that such policies remain in force. The Service Provider undertakes to use reasonable commercial efforts to pursue claims under such insurance policies.
11.8 In the event that the Service Provider fails to perform the Services with reasonable care and skill the Client may elect to terminate the contract without incurring costs beyond those already invoiced.
11.9 The Service Provider shall not be liable for any loss or damage suffered by the Client that results from the Client’s failure to follow any instructions given by the Service Provider.
11.10 Nothing in the Agreement shall limit or exclude either Party’s liability for death or personal injury or for fraud or fraudulent misrepresentation.
11.11 In no event will the Service Provider be liable by reason of any breach by it of any express term of the Agreement, or breach by it of any implied warranty, condition or other term, or any negligent or innocent misrepresentation, or any negligence or other duty at common law, for any:
11.11.1 loss of or damage to data;
11.11.2 loss of use of data;
11.11.3 loss of use of Software;
11.11.4 interruption to business;
11.11.5 loss of income or revenue;
11.11.6 loss of profit, contracts, business, business opportunity, or goodwill;
11.11.7 loss of anticipated savings; or
11.11.8 any indirect, special or consequential loss, damage, costs, expenses or other claims, whether or not the same were reasonably foreseeable or actually foreseen arising from any act or omission of the Service Provider in connection with the performance of its obligations under the Agreement.
11.12 The Service Provider’s total liability for any loss or damage caused as a result of its negligence in connection with the performance of the Services under the Agreement or by defects in any Software or other product supplied by the Service Provider pursuant to the Agreement shall be limited to £10,000 for any one event or series of connected events.
11.13 Subject to sub‐Clause 11.12 the Service Provider shall indemnify the Client against any costs, liability, damages, loss, claims or proceedings arising out of the Service Provider’s breach of the Agreement.
11.14 The Client shall indemnify the Service Provider against any costs, liability, damages, loss, claims or proceedings arising from loss or damage to any equipment (including that belonging to any third‐parties appointed by the Service Provider) caused by the Client or its agents or employees.
11.15 Neither Party shall be liable to the other or be deemed to be in breach of the Agreement by reason of any delay in performing, or any failure to perform, any of that Party’s obligations if the delay or failure is due to any cause beyond that Party’s reasonable control.
11.16 Except as provided above in the case of personal injury, death and damage to tangible property, and below as to fraud or fraudulent misrepresentation, the Service Provider's maximum liability to the Client under the Agreement or otherwise for any cause whatsoever (whether in the form of the additional cost of remedial services or otherwise) will be limited to the greater of:
11.16.1 the sum for which the Service Provider carries comprehensive insurance cover pursuant to Clause 11.12; or
11.16.2 a sum equivalent to the price paid up until the point of claim to the Service Provider for the Services, Software or other products that are the subject of the Client's claim.
11.17 The Parties acknowledge and agree that the limitations contained in this Clause 11 are reasonable in the light of all the circumstances.
11.18 These limitations shall apply cumulatively, and shall apply regardless of the form of action, whether under statute, in contract or tort, including negligence, or any other form of action.
11.19 For the purposes of this clause, the 'Service Provider' includes its employees, sub‐contractors and suppliers.
11.20 The employees, sub‐contractors and suppliers of the Service Provider shall all have the benefit of the limits and exclusions of liability set out above in terms of the Contracts (Rights of Third Parties) Act 1999.
11.21 The Client's statutory rights as a consumer (if any) are not affected. All liability that is not expressly assumed in the Agreement is excluded.
12.1 The Service Provider shall guarantee that the product of the Services provided shall be free from any and all defects for a period that shall be defined in the Agreement.
12.2 If any defects in the product of the Services appear during the guarantee period set out in the Agreement the Service Provider shall rectify any and all such defects at no additional cost to the Client.
13.1 Each Party shall undertake that, except as provided by sub‐Clause 13.2 or as authorised in writing by the other Party, it shall, at all times during the continuance of the Agreement and after its termination:
13.1.1 keep confidential all Confidential Information, including payment terms in the Agreement and all information contained or embodied in the Licenced Software Materials and the Specification and all documentation and/or information conveyed to the Client in respect of the Software (collectively referred to as 'the information');
13.1.2 not disclose any Confidential Information to any other Party;
13.1.3 not use any Confidential Information for any purpose other than as contemplated by and subject to the terms of the Agreement;
13.1.4 not make any copies of, record in any way or part with possession of any Confidential Information; and
13.1.5 ensure that none of its directors, officers, employees, agents, subcontractors or advisers does any act which, if done by that Party, would be a breach of the provisions of this Clause 13.
13.2 Subject to sub‐Clause 13.3, either Party may disclose any Confidential Information to:
13.2.1 any Consultant engaged in the Work;
13.2.2 any of their sub‐contractors, substitutes or suppliers of that Party;
13.2.3 any governmental or other authority or regulatory body;
13.2.4 the Client's auditors or any other persons or bodies having a right, duty or obligation to know the business of the client, and then only in pursuance of such right, duty or obligation;
13.2.5 any person who is for the time being appointed by the Client to maintain any equipment on which the Licensed Software are for the time being used (in accordance with the terms of the Licence) and then only to the extent necessary to enable such person to properly maintain such equipment; or
13.2.6 any of their employees or officers of that Party or of any of the aforementioned persons, Parties or bodies;
13.3 Disclosure under sub‐Clause 13.2 may be made only to the extent that is necessary for the purposes contemplated by the Agreement (including, but not limited to, the provision of the Services), or as required by law. In each case the disclosing Party shall first inform the person, Party or body in question that the Confidential Information is confidential and (except where the disclosure is to any such body under sub‐Clause 13.2.2 or any employee or officer of any such body) obtaining and submitting to the other Party a written confidentiality undertaking from the Party in question. Such undertaking should be as nearly as practicable in the terms of Clause 13 of the Terms and Conditions, to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made; and
13.4 Either Party may use any Confidential Information for any purpose, or disclose it to any other Party, to the extent only that it is at the date of the Agreement, or at any time after that date becomes, public knowledge through no fault of that Party.
13.5 When using or disclosing Confidential Information under sub‐Clause 13.4, the disclosing Party must ensure that it does not disclose any part of the Confidential Information that is not public knowledge.
13.6 The provisions of this Clause 13 shall continue in force in accordance with their terms, notwithstanding the termination of the Agreement for any reason.
13.7 The Client undertakes to ensure that persons and bodies mentioned in Clause 13.2 are made aware, before the disclosure of any part of the Information, that the same is confidential, and that they owe a duty of confidence to the Service Provider. The Client shall indemnify the Service Provider against any loss or damage which the Service Provider may sustain or incur as a result of the Client failing to comply with such undertaking.
13.8 The Client shall promptly notify the Service Provider if it becomes aware of any breach of confidence by any person to whom the Client divulges all or any part of the Information and shall give the Service Provider all reasonable assistance in connection with any proceedings which the Service Provider may institute against such person for breach of confidence.
13.9 The foregoing obligations as to confidentiality shall remain in full force and effect notwithstanding any termination of the Licence or the Agreement.
14 FORCE MAJEURE
14.1 No Party to the Agreement will be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
14.2 In the event that a Party to the Agreement cannot perform their obligations thereunder as a result of force majeure for a continuous period as defined in the Agreement, the other Party may at its discretion terminate the Agreement by written notice at the end of that period. In the event of such termination, the Parties shall agree upon a fair and reasonable payment for all Services provided up to the date of termination. Such payment shall take into account any prior contractual commitments entered into in reliance on the performance of the Agreement.
15 TERM AND TERMINATION
15.1 The Agreement shall come into force on the agreed Commencement Date and shall continue for an agreed Term from that date, subject to the Termination clause of the Agreement.
15.2 Either Party shall have the right, exercisable by giving written notice to the other at any time of not less than the notice period as defined in the Agreement prior to the expiry of the term specified in sub‐Clause Termination 15.1 of the Agreement (or any further period for which the Agreement has been extended) to extend the Agreement for a further period.
15.3 Either Party may terminate the Agreement by giving to the other written notice of not less than the notice period as defined in the Agreement, to expire on or at any time after the minimum term of the Agreement (which shall be defined in the Agreement).
15.4 Either Party may immediately terminate the Agreement by giving written notice to the other Party if:
15.4.1 any sum owing to that Party by the other Party under any of the provisions of the Agreement is not paid within 10 Business Days of the due date for payment;
15.4.2 the other Party commits any other breach of any of the provisions of the Agreement and, if the breach is capable of remedy, fails to remedy it within 2 Business Days after being given written notice giving full particulars of the breach and requiring it to be remedied;
15.4.3 an encumbrancer takes possession, or where the other Party is a company, a receiver is appointed, of any of the property or assets of that other Party;
15.4.4 the other Party makes any voluntary arrangement with its creditors or, being a company, becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
15.4.5 the other Party, being an individual or firm, has a bankruptcy order made against it or, being a company, goes into liquidation (except for the purposes of bona fide amalgamation or re‐construction and in such a manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on that other Party under the Agreement);
15.4.6 anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the other Party;
15.4.7 that other Party ceases, or threatens to cease, to carry on business; or
15.4.8 control of that other Party is acquired by any person or connected persons not having control of that other Party on the date of the Agreement. “Control” and “connected persons” shall have the meanings ascribed thereto by Sections 1124 and 1122 respectively of the Corporation Tax Act 2010.
15.5 For the purposes of sub‐Clause 15.4.2, a breach shall be considered capable of remedy if the Party in breach can comply with the provision in question in all respects.
15.6 The rights to terminate the Agreement shall not prejudice any other right or remedy of either Party in respect of the breach concerned (if any) or any other breach.
16 EFFECTS OF TERMINATION
Upon the termination of the Agreement for any reason:
16.1 any sum owing by either Party to the other under any of the provisions of the Agreement shall become immediately due and payable;
16.2 all Clauses which, either expressly or by their nature, relate to the period after the expiry or termination of the Agreement shall remain in full force and effect;
16.3 termination shall not affect or prejudice any right to damages or other remedy which the terminating Party may have in respect of the event giving rise to the termination or any other right to damages or other remedy which any Party may have in respect of any breach of the Agreement which exist at or before the date of termination;
16.4 subject as provided in Clause 16 of the Agreement and except in respect of any accrued rights neither Party shall be under any further obligation to the other; and
16.5 each Party shall (except to the extent referred to in Clause 13 of the Agreement) immediately cease to use, either directly or indirectly, any Confidential Information, and shall immediately return to the other Party any documents in its possession or control which contain or record any Confidential Information.
17.1 All personal information that the Service Provider may use will be collected, processed, and held in accordance with the provisions of the current Data Protection Legislation.
17.2 For complete details of the Service Provider’s collection, processing, storage, and retention of personal data including, but not limited to, the purpose(s) for which personal data is used, the legal basis or bases for using it, details of the Client’s rights and how to exercise them, and personal data sharing (where applicable), please refer to the Service Provider’s Privacy Notice available on request.
18.1 In this Clause and in the Agreement, “personal data”, “data subject”, “data controller”, “data processor”, and “personal data breach” shall have the meaning defined in Article 4, EU Regulation 2016/679 General Data Protection Regulation (“GDPR”) and in the Data Protection Act 2018.
18.2 All personal data to be processed by the Service Provider on behalf of the Client, subject to these Terms and Conditions and/or the Agreement, shall be processed in accordance with the terms of a Data Processing Agreement into which the Parties shall enter before any personal data is processed.
18.3 Both Parties shall comply with all applicable data protection requirements set out in the Data Protection Legislation. Neither this Clause 18 nor the Agreement shall relieve either Party of any obligations set out in the Data Protection Legislation and shall not remove or replace any of those obligations.
18.4 For the purposes of the Data Protection Legislation and for this Clause 18 and the Agreement, the Service Provider is the “Data Processor” and the Client is the “Data Controller”.
18.5 The type(s) of personal data, the scope, nature and purpose of the processing, and the duration of the processing shall be set out in a Privacy Notice.
18.6 The Data Controller shall ensure that it has in place all necessary consents and notices required to enable the lawful transfer of personal data to the Data Processor for the purposes described in the Agreement.
18.7 The Data Processor shall, with respect to any personal data processed by it in relation to its performance of any of its obligations under the Agreement:
18.7.1 Process the personal data only on the written instructions of the Data Controller unless the Data Processor is otherwise required to process such personal data by law. The Data Processor shall promptly notify the Data Controller of such processing unless prohibited from doing so by law.
18.7.2 Ensure that it has in place suitable technical and organisational measures (as approved by the Data Controller) to protect the personal data from unauthorised or unlawful processing, accidental loss, damage or destruction. Such measures shall be proportionate to the potential harm resulting from such events, taking into account the current state of the art in technology and the cost of implementing those measures. Measures to be taken shall be agreed between the Data Controller and the Data Processor and set out in the Data Processing Agreement.
18.7.3 Ensure that any and all staff with access to the personal data (whether for processing purposes or otherwise) are contractually obliged to keep that personal data confidential; and
18.7.4 Not transfer any personal data outside of the United Kingdom or the European Economic Area without the prior written consent of the Data Controller and only if the following conditions are satisfied:
18.104.22.168 The Data Controller and/or the Data Processor has/have provided suitable safeguards for the transfer of personal data;
22.214.171.124 Affected data subjects have enforceable rights and effective legal remedies;
126.96.36.199 The Data Processor complies with its obligations under the Data Protection Legislation, providing an adequate level of protection to any and all personal data so transferred; and
188.8.131.52 The Data Processor complies with all reasonable instructions given in advance by the Data Controller with respect to the processing of the personal data.
18.7.5 Assist the Data Controller at the Data Controller’s cost, in responding to any and all requests from data subjects in ensuring its compliance with the Data Protection Legislation with respect to security, breach notifications, impact assessments, and consultations with supervisory authorities or regulators (including, but not limited to, the Information Commissioner’s Office);
18.7.6 Notify the Data Controller without undue delay of a personal data breach;
18.7.7 On the Data Controller’s written instruction, delete (or otherwise dispose of) or return all personal data and any and all copies thereof to the Data Controller on termination of the Agreement unless it is required to retain any of the personal data by law; and
18.7.8 Maintain complete and accurate records of all processing activities and technical and organisational measures implemented necessary to demonstrate compliance with this Clause 18 AND/OR the Agreement and to allow for audits by the Data Controller and/or any Party designated by the Data Controller.
18.8 The Data Processor shall not sub‐contract any of its obligations to a subprocessor with respect to the processing of personal data under this Clause 18 AND/OR the Agreement without the prior written consent of the Data Controller (such consent not to be unreasonably withheld). In the event that the Data Processor appoints a sub‐processor, the Data Processor shall:
18.8.1 Enter into a written agreement with the sub‐processor, which shall impose upon the sub‐processor the same obligations as are imposed upon the Data Processor by this Clause 18 AND/OR the Agreement and which shall permit both the Data Processor and the Data Controller to enforce those obligations; and
18.8.2 Ensure that the sub‐processor complies fully with its obligations under that agreement and the Data Protection Legislation.
19 NO WAIVER
No failure, delay, neglect or forbearance on the part of either Party in exercising any of its rights under, or in enforcing against the other Party any term or conditions of, the Agreement shall either be or be deemed to be a waiver or in any way prejudice any right of that Party under the Agreement, and no waiver by either Party of a breach of any provision of the Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision. No right, power or remedy in the Agreement conferred upon or reserved for either Party is exclusive of any other right, power or remedy available to that Party.
20 FURTHER ASSURANCE
Each Party shall execute and do all such further deeds, documents and things as may be necessary to carry the provisions of the Agreement into full force and effect.
21 COSTS AND EXPENSES
Subject to any provisions to the contrary each Party shall pay its own costs of and incidental to the negotiation, preparation, execution and carrying into effect of the Agreement.
Neither Party shall be entitled to set‐off any sums in any manner from payments due or sums received in respect of any claim under the Agreement or any other agreement at any time.
23.1 On receipt in full by the Service Provider of all sums due under the Payment Schedule and upon Client signing the Project Release Form, the Service Provider grants to the Client (and to all members of the Client Group who agree to the terms of this Licence) a non‐exclusive, perpetual, nontransferrable right, copyright, Intellectual Property and full title to use the New Software and the Documentation on any processor owned or controlled by the Client or a member of the Client Group and the Service Provider shall be deemed to have waived its moral rights in respect of the Website arising out of Chapter IV of the Copyright Designs and Patents Act 1988.
23.2 The Client may not disclose or make available the New Software to any entity other than members of the Client Group (where applicable) who have agreed to these licence terms nor permit others to use it except the Client's employees and agents who may use it only on the Client's behalf within the limits of the application licence and who are deemed to have agreed to such terms.
23.3 Following the assignment of rights described in Clause 23.1, the Client shall be free to use the New Software / Website for any purposes including, but not limited to, the purpose for which the Website was originally commissioned.
24 ASSIGNMENT AND SUB-CONTRACTING
24.1 Subject to sub‐Clause 24.2 The Agreement shall be personal to the Parties. Neither Party may assign, mortgage, charge (otherwise than by floating charge) or sub‐licence or otherwise delegate any of its rights thereunder, or sub‐contract or otherwise delegate any of its obligations thereunder without the written consent of the other Party, such consent not to be unreasonably withheld.
24.2 Subject to the provisions of Clause 18, the Service Provider shall be entitled to perform any of the obligations undertaken by it through any other member of its group or through suitably qualified and skilled sub‐contractors. Any act or omission of such other member or sub‐contractor shall, for the purposes of the Agreement, be deemed to be an act or omission of the Service Provider.
24.3 With the prior written consent of the Client (such consent not to be unreasonably withheld or delayed) the Service Provider may perform any or all of its obligations under the Agreement through agents or sub‐contractors, provided that the Service Provider shall remain liable for such performance and shall indemnify the Client against any loss or damage suffered by the Client arising from any act or omission of such agents or sub‐contractors. The Service Provider shall use all reasonable endeavours to avoid or minimise such changes or additions and to consult with the Client beforehand about any such proposed change in engagement of agents or sub‐contractors. However, the Service Provider shall in any event provide such a substitute or addition where the provision of the Work is unduly delayed by absence due to incapacity or for any other reason upon notification by the Client (or the Client’s representative) that a delay is unacceptable.
24.4 Notwithstanding the foregoing, either Party may assign the Agreement to any acquirer of all, or of substantially all, of such Party's equity securities, assets or business relating to the subject matter of the Agreement, or to any entity controlled by, that controls, or is under common control with, a Party to the Agreement. Any attempted assignment in violation of this clause will be void and without effect.
The relationship between the Parties under the Agreement is and shall remain nonexclusive. Both Parties are free to enter into similar relationships with other Parties.
The times and dates referred to in the Agreement shall be for guidance only and shall not be of the essence of the Agreement and may be varied by mutual agreement between the Parties.
27 RELATIONSHIP OF THE PARTIES
27.1 Nothing in the Agreement shall constitute, or be deemed to constitute, a partnership, the relationship of principal and agent, the relationship of employer and employee between the Service Provider and the Client, a joint venture, agency or other fiduciary relationship between the Parties other than the contractual relationship expressly provided for in the Agreement.
27.2 The engagement and appointment of the Service Provider under the Agreement does not create any mutual obligations on the part of the Client or the Service Provider to offer or accept any further engagement and no continuing relationship shall hereby be created or implied.
28.1 Neither Party shall, for the Term of the Agreement and for a defined period (which shall be defined in the Agreement) after its termination or expiry, employ or contract the services of any person who is or was employed or otherwise engaged by the other Party at any time in relation to the Agreement without the express written consent of that Party.
28.2 Neither Party shall, for the Term of the Agreement and for a defined period (which shall be defined in the Agreement) after its termination or expiry, solicit or entice away from the other Party any customer or client where any such solicitation or enticement would cause damage to the business of that Party without the express written consent of that Party.
29 THIRD PARTY RIGHTS
29.1 No part of the Agreement is intended to confer rights on any third‐parties and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to the Agreement.
29.2 Subject to this Clause 29, the Agreement shall continue and be binding on the transferee, successors and assigns of either Party as required.
30 SUCCESSORS AND ASSIGNEES
30.1 The agreement shall be binding upon, and inure to the benefit of, the Parties and their respective successors and permitted assignees, and references to a Party in the Agreement shall include its successors and permitted assignees.
30.2 In the Agreement references to a Party include references to a person:
30.2.1 who for the time being is entitled (by assignment, novation or otherwise) to that Party's rights under the Agreement (or any interest in those rights); or
30.2.2 who, as administrator, liquidator or otherwise, is entitled to exercise those rights; and in particular those references include a person to whom those rights (or any interest in those rights) are transferred or pass as a result of a merger, division, reconstruction or other reorganisation involving that Party. For this purpose, references to a Party's rights under the Agreement include any similar rights to which another person becomes entitled as a result of a novation of the Agreement.
31.1 All notices under the Agreement shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
31.2 Notices shall be deemed to have been duly given:
31.2.1 when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
31.2.2 when sent, if transmitted by e‐mail and a successful transmission report or return receipt is generated; or
31.2.3 on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
31.2.4 on the tenth business day following mailing, if mailed by airmail, postage prepaid.
31.2.5 In each case notices shall be addressed to the most recent address, email address, or facsimile number notified to the other Party.
The Agreement is made only in the English language. If there is any conflict in the meaning between the English language version of the Agreement and any version or translation of it in any other language, the English language version shall prevail.
33 ENTIRE AGREEMENT
33.1 The Agreement contains the entire agreement between the Parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorised representatives of the Parties.
33.2 Each Party shall acknowledge that, in entering into the Agreement, it does not rely on any representation, warranty or other provision except as expressly provided in the Agreement, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
The Agreement may be entered into in any number of counterparts and by the Parties to it on separate counterparts each of which when so executed and delivered shall be an original, but all the counterparts together shall constitute one and the same instrument.
In the event that one or more of the provisions of the Agreement and/or of these Terms and Conditions is found to be unlawful, invalid or otherwise unenforceable by any court or other authority, that / those provision(s) shall, to the extent required, be deemed severed from the remainder of the Agreement and/or these Terms and Conditions and rendered ineffective as far as possible without modifying the remaining provisions of the Agreement and/or these Terms and Conditions. The remainder of the Agreement and/or these Terms and Conditions shall be valid and enforceable.
36.1 In the Agreement unless the context otherwise requires:
36.1.1 references to numbered clauses and schedules are references to the relevant clause in or schedule to the Agreement;
36.1.2 reference in any schedule to the Agreement to numbered paragraphs relate to the numbered paragraphs of that schedule;
36.1.3 the headings to the clauses, schedules and paragraphs of the Agreement will not affect the interpretation;
36.1.4 any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment;
36.1.5 any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done respectively;
36.1.6 any Party who agrees to do something will be deemed to fulfil that obligation if that Party procures that it is done.
36.2 In the case of conflict or ambiguity between any provision contained in the body of the Agreement and any provision contained in any Schedule, the provision in the body of the Agreement shall take precedence.
The Agreement may not be released, discharged, supplemented, interpreted, amended, varied or modified in any manner except by an instrument in writing signed by a duly authorised officer or representative of each of the Parties to the Agreement.
No Party shall issue or make any public announcement or disclose any information regarding the Agreement, unless prior written consent has been obtained from the other Party.
39 ALTERNATIVE DISPUTE RESOLUTION
39.1 The Parties shall attempt to resolve any dispute arising out of or relating to the Agreement through negotiations between their appointed representatives who have the authority to settle such disputes.
39.2 If negotiations under sub‐Clause 39.1 of the Agreement do not resolve the matter within 10 business days of receipt of a written invitation to negotiate, the Parties will attempt to resolve the dispute in good faith through an agreed Alternative Dispute Resolution (“ADR”) procedure.
39.3 If the ADR procedure under sub‐Clause 39.2 of the Agreement does not resolve the matter within 20 business days of the initiation of that procedure, or if either Party will not participate in the ADR procedure, the dispute may be referred to arbitration by either Party.
39.4 The seat of the arbitration under sub‐Clause 39.3 of the Agreement shall be England and Wales. The arbitration shall be governed by the Arbitration Act 1996 and Rules for Arbitration as agreed between the Parties. In the event that the Parties are unable to agree on the arbitrator(s) or the Rules for Arbitration, either Party may, upon giving written notice to the other Party, apply to the President or Deputy President for the time being of the Chartered Institute of Arbitrators for the appointment of an arbitrator or arbitrators and for any decision on rules that may be required.
39.5 Nothing in Clause 34 shall prohibit either Party or its affiliates from applying to a court for interim injunctive relief.
40 LAW AND JURISDICTION
40.1 The Agreement and these Terms and Conditions (including any noncontractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
40.2 Subject to the provisions of Clause 39 of these Terms and Conditions, any dispute, controversy, proceedings or claim between the Parties relating to the Agreement or these Terms and Conditions (including any non‐contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales
40.3 The Agreement and all matters arising from it and any dispute resolutions referred to below shall be governed by and construed in accordance with English law notwithstanding the conflict of law provisions and other mandatory legal provisions save that:
40.3.1 the Service Provider shall have the right to sue to recover its fees in any jurisdiction in which the Client is operating or has assets; and
40.3.2 the Service Provider shall have the right to sue for breach of its intellectual property rights and other proprietary information and trade secrets ('IPR') (whether in connection with the Agreement or otherwise) in any country where it believes that infringement or a breach of the Agreement relating to its IPR might be taking place. For the avoidance of doubt, the place of performance of the Agreement is agreed by the Parties to be England.
40.4 Each Party recognises that the other Party's business relies upon the protection of its IPR and that in the event of a breach or threatened breach of IPR, the other Party will be caused irreparable damage and such other Party may therefore be entitled to injunctive or other equitable relief in order to prevent a breach or threatened breach of its IPR.
40.5 With respect to all other disputes which are not IPR related pursuant to clauses 40.3 and 40.4 above and its special rules, the following procedures in clauses 40.4 to 40.6 shall apply. Where there is a dispute, the aggrieved Party shall notify the other Party in writing of the nature of the dispute with as much detail as possible about the deficient performance of the other Party. A representative from senior management of each of the Parties ('representatives') shall meet in person or communicate by telephone within 5 business days of the date of the written notification in order to reach an agreement about the nature of the deficiency and the corrective action to be taken by the respective Parties. The representatives shall produce a report about the nature of the dispute in detail to their respective boards and if no agreement is reached on corrective action, then the chief executives of each Party shall meet in person or communicate by telephone, to facilitate an agreement within 5 business days of a written notice by one to the other. If the dispute cannot be resolved at board level within a further 5 business days, or if the agreed upon completion dates in any written plan of corrective action are exceeded, either Party may seek its legal remedies as provided below.
40.6 If the Parties cannot resolve a dispute in accordance with the procedure in clause 40.4 above, then they shall with the assistance of the Centre for Effective Dispute Resolution ('CEDR'), seek to resolve the dispute or difference amicably by using an Alternative Dispute Resolution ('ADR') procedure acceptable to both Parties before pursuing any other remedies available to them. If either Party fails or refuses to agree to or participate in the ADR procedure or if in any event the dispute or difference is not resolved to the satisfaction of both Parties within 60 days after it has arisen, the matter shall be settled in accordance with the procedure below.
40.7 If the Parties cannot resolve the dispute by the procedure set out above, the Parties shall irrevocably submit to the exclusive jurisdiction of the courts of England and Wales for the purposes of hearing and determining any dispute arising out of the Agreement.
40.8 While the dispute resolution procedure above is in progress and any Party has an obligation to make a payment to another Party or to allow a credit in respect of such payment, the sum relating to the matter in dispute shall be paid into an interest‐bearing deposit account to be held in the names of the relevant Parties at a clearing bank and such payment shall be a good discharge of the Parties' payment obligations under the Agreement. Following resolution of the dispute, whether by mediation or legal proceedings, the sum held in such account shall be payable as determined in accordance with the mediation or legal proceedings, and the interest accrued shall be allocated between the Parties pro rata according to the split of the principal sum as between the Parties.