THE SUPPLIER’S ATTENTION IS DRAWN IN PARTICULAR TO CLAUSE 9 (INTELLECTUAL PROPERTY RIGHTS) IN RELATION TO FOOTAGE AND STILLS PHOTOGRAPHY
The following definitions and rules of interpretation apply in these Conditions.
Affiliates: any entity that directly or indirectly controls, is controlled by, or is under common control with another entity.
Assigned Materials: all of the Deliverables excluding any Deliverables or parts of them, which are Third-Party Materials in respect of which the Customer has approved, under clause 9.12, the obtaining of a licence, as opposed to an assignment.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Commencement Date: has the meaning given in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 17.7.
Contract: the contract between the Customer and the Supplier for the supply of Goods and/or Services in accordance with these Conditions.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical measures: as defined in the Data Protection Legislation
Customer: Warwick Events Limited registered in England and Wales with company number 07975134.
Customer Materials: has the meaning set out in clause 5.3(j).
Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.
Deliverables: all documents, products and materials developed by the Supplier or its agents, contractors and employees as part of or in relation to the Services in any form or media, including drawings, maps, plans, diagrams, designs, pictures, computer programs, data, specifications and reports (including drafts), all copy, layouts, artwork, storyboards, scripts, presentations, charts, graphics, photographs and films, on any media (whether any media exist at the Commencement Date or are subsequently developed).
Goods: the goods (or any part of them) set out in the Order.
Goods Specification: any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and the Supplier.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Mandatory Policies: the Customer’s business policies notified in writing to the Supplier from time to time.
Order: the Customer’s order for the supply of Goods and/or Services, as set out in the Customer’s purchase order form, or in the Customer’s written acceptance of the Supplier’s quotation, as the case may be.
Personnel: officers, employees, consultants, agents, representatives and advisers.
Services: the services, including any Deliverables, to be provided by the Supplier under the Contract as set out in the Service Specification.
Service Specification: the description or specification for Services agreed in writing by the Customer and the Supplier.
Shakespeare-themed: any part of the Services utilising a theme relating to William Shakespeare, his family and friends and works associated with him (as the case may be).
Subcontractor: any third party engaged by the Supplier to provide any part of the Services or any of the Deliverables.
Supplier: the person or firm from whom the Customer purchases the Goods and/or Services.
Third-Party Materials: any work or materials authored, created or performed by a third party and either commissioned for, or used in relation to, the Services, including library images.
UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive (2002/58/EC) (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors and permitted assigns.
(c) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
(d) Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(e) A reference to writing or written includes fax and email.
2. Basis of contract
2.1 The Order constitutes an offer by the Customer to purchase Goods and/or Services from the Supplier in accordance with these Conditions.
2.2 The Order shall be deemed to be accepted on the earlier of:
(a) the Supplier issuing written acceptance of the Order; or
(b) any act by the Supplier consistent with fulfilling the Order,
at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 These Conditions apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.4 All of these Conditions shall apply to the supply of both Goods and Services except where the application to one or the other is specified.
3. Supply of Goods
3.1 The Supplier shall ensure that the Goods shall:
(a) correspond with their description and any applicable Goods Specification;
(b) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and fit for any purpose held out by the Supplier or made known to the Supplier by the Customer, expressly or by implication, and in this respect the Customer relies on the Supplier’s skill and judgement;
(c) where they are manufactured products, be free from defects in design, materials and workmanship and remain so for 12 months after delivery; and
(d) comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods.
3.2 The Supplier shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract in respect of the Goods.
3.3 The Customer may inspect and test the Goods at any time before delivery. The Supplier shall remain fully responsible for the Goods despite any such inspection or testing and any such inspection or testing shall not reduce or otherwise affect the Supplier’s obligations under the Contract.
3.4 If following such inspection or testing the Customer considers that the Goods do not comply or are unlikely to comply with the Supplier’s undertakings at clause 3.1, the Customer shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.
3.5 The Customer may conduct further inspections and tests after the Supplier has carried out its remedial actions.
4. Delivery of Goods
4.1 The Supplier shall ensure that:
(a) the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition;
(b) each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the Order number (if any), the type and quantity of the Goods (including the code number of the Goods (where applicable)), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
(c) it states clearly on the delivery note any requirement for the Customer to return any packaging material for the Goods to the Supplier. Any such packaging material shall only be returned to the Supplier at the cost of the Supplier.
4.2 The Supplier shall deliver the Goods:
(a) on the date specified in the Order (unless the parties agree otherwise in writing);
(b) to such location as is set out in the Order or as instructed by the Customer before delivery (Delivery Location); and
(c) during the Customer’s normal hours of business on a Business Day, or as instructed by the Customer.
4.3 Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location.
4.4 If the Supplier:
(a) delivers less than 95% of the quantity of Goods ordered, the Customer may reject the Goods; or
(b) delivers more than 105% of the quantity of Goods ordered, the Customer may at its sole discretion reject the Goods or the excess Goods,
and any rejected Goods shall be returnable at the Supplier’s risk and expense. If the Supplier delivers more or less than the quantity of Goods ordered, and the Customer accepts the delivery, the Supplier shall make a pro rata adjustment to the invoice for the Goods.
4.5 The Supplier shall not deliver the Goods in instalments without the Customer’s prior written consent. Where it is agreed that the Goods are delivered by instalments, they may be invoiced and paid for separately. However, failure by the Supplier to deliver any one instalment on time or at all or any defect in an instalment shall entitle the Customer to the remedies set out in clause 6.1.
4.6 Title and risk in the Goods shall pass to the Customer on completion of delivery.
5. Supply of Services
5.1 The Supplier shall from the Commencement Date and for the duration of the Contract supply the Services to the Customer in accordance with the terms of the Contract.
5.2 The Supplier shall meet any performance dates for the Services specified in the Order or that the Customer notifies to the Supplier and time is of the essence in relation to any of those performance dates.
5.3 In providing the Services, the Supplier shall:
(a) co-operate with the Customer in all matters relating to the Services, and comply with all instructions of the Customer;
(b) perform the Services with the best care, skill and diligence in accordance with best practice in the Supplier’s industry, profession or trade;
(c) use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Supplier’s obligations are fulfilled in accordance with the Contract;
(d) ensure that the Services will conform with all descriptions, standards and specifications set out in the Service Specification, and that the Deliverables shall be fit for any purpose that the Customer expressly or impliedly makes known to the Supplier;
(e) provide all equipment, tools and vehicles and such other items as are required to provide the Services;
(f) use the best quality goods, materials, standards and techniques, and ensure that the Deliverables, and all goods and materials supplied and used in the Services or transferred to the Customer, will be free from defects in workmanship, installation and design;
(g) obtain and at all times maintain all licences and consents which may be required for the provision of the Services;
(h) comply with all applicable laws, regulations, regulatory policies, guidelines or industry codes which may apply to the provision of the Services, and with the Mandatory Policies;
(i) observe all health and safety rules and regulations and any other security requirements that apply at any premises where the Services are being provided;
(j) hold all materials, equipment and tools, drawings, specifications and data supplied by the Customer to the Supplier (Customer Materials) in safe custody at its own risk, maintain the Customer Materials in good condition until returned to the Customer, and not dispose or use the Customer Materials other than in accordance with the Customer’s written instructions or authorisation;
(k) not do or omit to do anything which may cause the Customer to lose any licence, authority, consent or permission upon which it relies for the purposes of conducting its business, and the Supplier acknowledges that the Customer may rely or act on the Services; and
(l) comply with any additional obligations as set out in the Service Specification.
6. Customer remedies
6.1 If the Supplier fails to deliver the Goods by the applicable date or to perform the Services by the applicable date, or both, the Customer shall, without limiting or affecting other rights or remedies available to it, have one or more of the following rights:
(a) to terminate the Contract with immediate effect by giving written notice to the Supplier;
(b) to refuse to accept any subsequent performance of the Services and/or delivery of the Goods which the Supplier attempts to make;
(c) to recover from the Supplier any costs incurred by the Customer in obtaining substitute goods and/or services from a third party;
(d) to require a refund from the Supplier of sums paid in advance for Services that the Supplier has not provided and/or Goods that it has not delivered; and
(e) to claim damages for any additional costs, loss or expenses incurred by the Customer which are in any way attributable to the Supplier’s failure to meet such dates.
6.2 If the Supplier has delivered Goods that do not comply with the undertakings set out in clause 3.1, then, without limiting or affecting other rights or remedies available to it, the Customer shall have one or more of the following rights, whether or not it has accepted the Goods:
(a) to terminate the Contract with immediate effect by giving written notice to the Supplier;
(b) to reject the Goods (in whole or in part) whether or not title has passed and to return them to the Supplier at the Supplier’s own risk and expense;
(c) to require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods (if paid);
(d) to refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make;
(e) to recover from the Supplier any expenditure incurred by the Customer in obtaining substitute goods from a third party; and
(f) to claim damages for any additional costs, loss or expenses incurred by the Customer arising from the Supplier’s failure to supply Goods in accordance with clause 3.1.
6.3 If the Supplier has supplied Services that do not comply with the requirements of clause 5.3(d) then, without limiting or affecting other rights or remedies available to it, the Customer shall have one or more of the following rights:
(a) to terminate the Contract with immediate effect by giving written notice to the Supplier;
(b) to return the Deliverables to the Supplier at the Supplier’s own risk and expense;
(c) to require the Supplier to provide repeat performance of the Services, or to provide a full refund of the price paid for the Services (if paid);
(d) to refuse to accept any subsequent performance of the Services which the Supplier attempts to make;
(e) to recover from the Supplier any expenditure incurred by the Customer in obtaining substitute services or deliverables from a third party; and
(f) to claim damages for any additional costs, loss or expenses incurred by the Customer arising from the Supplier’s failure to comply with clause 5.3(d).
6.4 These Conditions shall extend to any substituted or remedial services and/or repaired or replacement goods supplied by the Supplier.
6.5 The Customer’s rights and remedies under the Contract are in addition to, and not exclusive of, any rights and remedies implied by statute and common law.
7. Customer’s obligations
The Customer shall:
(a) procure that the Supplier is provided with reasonable access at reasonable times to any premises where the Services are to be provided, for the purpose of providing the Services; and
(b) provide such necessary information for the provision of the Services as the Supplier may reasonably request.
8. Charges and payment
8.1 The price for the Goods:
(a) shall be the price set out in the Order, or if no price is quoted, the price set out in the Supplier’s published price list in force at the Commencement Date; and
(b) shall be inclusive of the costs of packaging, insurance and carriage of the Goods. No extra charges shall be effective unless agreed in writing and signed by the Customer.
8.2 The charges for the Services shall be set out in the Order, and shall be the full and exclusive remuneration of the Supplier in respect of the performance of the Services. Unless otherwise agreed in writing by the Customer, the charges shall include every cost and expense of the Supplier directly or indirectly incurred in connection with the performance of the Services.
8.3 In respect of the Goods, the Supplier shall invoice the Customer on or at any time after completion of delivery. In respect of Services, the Supplier shall invoice the Customer on completion of the Services. Each invoice shall include such supporting information required by the Customer to verify the accuracy of the invoice, including but not limited to the relevant purchase order number.
8.4 In consideration of the supply of Goods and/or Services by the Supplier, the Customer shall pay the invoiced amounts within 30 days of the date of a correctly rendered invoice to a bank account nominated in writing by the Supplier.
8.5 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of valued added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods and/or Services at the same time as payment is due for the supply of the Goods and/or Services.
8.6 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 8.6 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
8.7 The Supplier shall maintain complete and accurate records of the time spent and materials used by the Supplier in providing the Services, and the Supplier shall allow the Customer to inspect such records at all reasonable times on request.
8.8 The Customer may at any time, without notice to the Supplier, set off any liability of the Supplier to the Customer against any liability of the Customer to the Supplier, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Contract. If the liabilities to be set off are expressed in different currencies, the Customer may convert either liability at a market rate of exchange for the purpose of set-off. Any exercise by the Customer of its rights under this clause shall not limit or affect any other rights or remedies available to it under the Contract or otherwise.
9. Intellectual property rights
9.1 All Intellectual Property Rights in or arising out of footage or stills photographs taken (in connection with an event to which the Goods and/or Services relate) by the Supplier or a third party commissioned by the Supplier shall be owned by the Customer. The Supplier shall not (and shall procure that no third party shall) use (including but not limited to sharing, disclosing and publishing in any medium) any such footage or stills photographs without the prior written consent of the Customer.
9.2 The Customer has the right to record its own footage and use its own stills photographer(s) at the event to which the Goods and/or Services relate and the Customer shall have the exclusive right to use such footage and photography in advertising in all mediums for the Customer’s business purposes.
9.3 Subject to clauses 9.1 and 9.2, all Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any Customer Materials and any Shakespeare-themed Intellectual Property Rights) shall be owned by the Supplier.
9.4 The Supplier grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence to copy and modify the Deliverables (excluding Customer Materials and Shakespeare-themed Intellectual Property Rights) for the purpose of receiving and using the Services and the Deliverables.
9.5 The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Services to the Customer.
9.6 All Customer Materials are the exclusive property of the Customer.
9.7 It is the intention of the parties that:
(a) the Customer shall own all Shakespeare-themed Deliverables produced by the Supplier;
(b) the Customer shall own all Third-Party Materials comprised in Shakespeare-themed Deliverables, where an assignment of such materials is available on commercially reasonable terms which have been approved by the Customer in accordance with clause 9.12; and
(c) where no assignment of Third-Party Materials comprised in Shakespeare-themed Deliverables is available on commercially reasonable terms the Customer shall receive a direct, fully paid-up, worldwide, exclusive, royalty-free perpetual and irrevocable licence to copy, modify and use such materials for any purpose.
9.8 The Supplier hereby irrevocably, unconditionally and absolutely assigns to the Customer, with full title guarantee, and without restriction, all right, title and interest in and to all existing and future Intellectual Property Rights (including future copyright and design right) subsisting in or relating to all Shakespeare-themed Assigned Materials whether created, developed or produced before, on or after the Commencement Date, in all countries and with the right to sue for damages and other relief for past infringement of any of those Intellectual Property Rights. For the avoidance of doubt, the assignment under this clause 9.8 shall take effect from the date on which the relevant Shakespeare-themed Assigned Material was or is created, developed or produced.
9.9 To the extent that clause 9.8 is not effective to assign legal title to the Intellectual Property Rights in or to the Shakespeare-themed Assigned Materials, then the Supplier shall assign to the Customer such Intellectual Property Rights as and when requested by the Customer by executing any assignment documents reasonably requested by the Customer. Until such time as those Intellectual Property Rights are assigned to the Customer, the Supplier shall hold all such Intellectual Property Rights on trust for the Customer and the Customer shall have a fully paid-up, worldwide, exclusive, royalty-free perpetual and irrevocable licence under those Intellectual Property Rights and to use the Shakespeare-themed Assigned Materials for any purpose.
9.10 The Supplier warrants that it has obtained or shall obtain from all Subcontractors an unconditional assignment without restriction of the legal and beneficial ownership of all existing and future Intellectual Property Rights subsisting in or relating to any Shakespeare-themed Assigned Materials created or developed by such Subcontractors, in all countries, and that the assignment under clause 9.8 includes the assignment of all of those Intellectual Property Rights.
9.11 The Supplier shall not incorporate and/or use Third-Party Materials in any Shakespeare-themed Deliverable unless the Supplier has obtained the prior written consent of the Customer to do so. The Supplier shall give the Customer reasonable prior notice of its intention to include any such Third-Party Materials and at the same time shall notify the Customer in writing:
(a) whether an assignment to the Customer of the relevant Third-Party Materials can be obtained and the cost of obtaining it; and
(b) if no assignment of the relevant Third-Party Materials can be obtained or cannot be obtained for a reasonable cost, the cost of obtaining a fully paid-up, worldwide, exclusive, royalty-free perpetual and irrevocable licence to use the relevant Third-Party Materials for any purpose The Supplier shall not propose the inclusion of any Third-Party Materials in any Shakespeare-themed Deliverable unless the Supplier is able to negotiate such a licence.
9.12 Following receipt of the Supplier’s notice under clause 9.11, the Customer shall notify the Supplier in writing of whether inclusion of the relevant Third-Party Material is approved, and whether the Supplier is required to obtain an assignment (if available) or a licence, and if so, the extent of such licence required and the approved cost thereof. The Customer may also require the Supplier to negotiate prices at which the licence obtained may, at the Customer’s option, be extended.
9.13 The Supplier shall ensure that all licences of Shakespeare-themed Third-Party Materials are granted directly to the Customer or such of its Affiliates as the Customer shall notify to the Supplier.
9.14 The Supplier shall, at any time on request, provide to the Customer such information on the rights acquired in respect of each Shakespeare-themed Third-Party Material (including Shakespeare-themed Assigned Material and Shakespeare-themed Third-Party Material in respect of which a licence has been obtained), in a Schedule or such other format as the Customer may reasonably request, and warrants that any usage rights information provided to the Customer shall be accurate and complete.
9.15 The Supplier shall procure that its Personnel, Subcontractors and its Subcontractors’ Personnel and all artists, photographers, actors, models and other third parties used by the Supplier in connection with the provision of the Services shall unconditionally and irrevocably waive all of their moral rights described in Chapter 4 of Part 1 of the Copyright Designs and Patents Act 1988 (or any similar or equivalent legislation anywhere in the world) in respect of the Shakespeare-related Deliverables. Any such waivers shall be made in favour of the Supplier, the Customer and the Customer’s licensees, sub-licensees, assignees and successors in title to the Shakespeare-themed Deliverables or the Customer’s business. The Supplier shall promptly provide copies of any waivers to the Customer, on request.
9.16 The Supplier shall procure from all artists, photographers, actors, models, performers of music, owners of any other Intellectual Property Rights in materials incorporated into the Shakespeare-themed Deliverables and all other third parties used by the Supplier in connection with Shakespeare-themed Deliverables, all necessary consents, releases, and approvals (in a form, and including such terms, as may be requested by the Customer) to use their work or images for any purpose. The Supplier shall obtain such consents, releases and approvals in writing before beginning production of the relevant Shakespeare-themed Deliverables and provide copies of them to the Customer on request.
10. Data protection
10.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 10 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation. In this clause 10, Applicable Laws means (for so long as and to the extent that they apply to the Supplier) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.
10.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the processor and the Supplier is the sub-processor.
10.3 Without prejudice to the generality of clause 10.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Supplier for the duration and purposes of the Contract.
10.4 Without prejudice to the generality of clause 10.1, the Supplier shall, in relation to any personal data processed in connection with the performance by the Supplier of its obligations under the Contract:
(a) process that personal data only on the documented written instructions of the Customer unless the Supplier is required by Applicable Laws to otherwise process that personal data. Where the Supplier is relying on Applicable Laws as the basis for processing personal data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Customer;
(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, 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 (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
(d) not transfer any personal data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
(i) the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
(ii) the data subject (as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies;
(iii) the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
(iv) the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;
(e) assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation;
(f) notify the Customer without undue delay on becoming aware of a personal data breach;
(g) at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the Contract unless required by Applicable Law to store the personal data; and
(h) maintain complete and accurate records and information to demonstrate its compliance with this clause 11 and immediately inform the Customer if, in the opinion of the Supplier, an instruction infringes the Data Protection Legislation.
10.5 Either party may, at any time on not less than 30 days’ notice, revise this clause 10 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).
11.1 The Supplier shall indemnify the Customer against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Customer arising out of or in connection with:
(a) any claim made against the Customer for actual or alleged infringement of a third party’s intellectual property rights arising out of, or in connection with, the manufacture, supply or use of the Goods, or receipt, use or supply of the Services (excluding the Customer Materials);
(b) any claim made against the Customer by a third party for death, personal injury or damage to property arising out of, or in connection with, defects in the Goods, as delivered, or the Deliverables; and
(c) any claim made against the Customer by a third party arising out of or in connection with the supply of the Goods, as delivered, or the Services.
11.2 This clause 11 shall survive termination of the Contract.
During the term of the Contract and for a period of 6 years thereafter, the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Contract, and shall, on the Customer’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance.
13.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 13.2.
13.2 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information must comply with this clause 13; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
13.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
14.1 Without affecting any other right or remedy available to it, the Customer may terminate the Contract:
(a) with immediate effect by giving written notice to the Supplier if:
(i) there is a change of control of the Supplier; or
(ii) the Supplier’s financial position deteriorates to such an extent that in the Customer’s opinion the Supplier’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
(iii) the Supplier commits a breach of clause 5.3(h),
(b) for convenience by giving the Supplier 1 month’s written notice.
14.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 5 days after being notified in writing to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
15. Consequences of termination
15.1 On termination of the Contract, the Supplier shall immediately deliver to the Customer all Deliverables whether or not then complete, and return all Customer Materials. If the Supplier fails to do so, then the Customer may enter the Supplier’s premises and take possession of them. Until they have been returned or delivered, the Supplier shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
15.2 Termination or expiry of the Contract shall not affect the parties’ rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
15.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
16. Force majeure
Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under it if such delay or failure results from events, circumstances or causes beyond its reasonable control. If the period of delay or non-performance continues for 2 weeks, the party not affected may terminate the Contract by giving 5 days’ written notice to the affected party.
17.1 Assignment and other dealings.
(a) The Customer may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights and obligations under the Contract.
(b) The Supplier shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Customer.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by fax to its main fax number or sent by email to the address notified by it.
(b) A notice or other communication shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if sent by fax or email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 17.2(b), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
(c) This clause 17.2 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
17.3 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 17.3 shall not affect the validity and enforceability of the rest of the Contract.
17.4 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
17.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
17.6 Third party rights.
(a) Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
(b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
17.7 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by the parties or their authorised representatives.
17.8 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
17.9 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.