TERMS AND CONDITIONS FOR THE PURCHASE OF GOODS AND SERVICES
The following definitions and rules of interpretation apply in this agreement.
- 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 16.8.
- 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.
- Customer: Paragon Group (UK) Limited trading as Service Graphics, a company incorporated in England and Wales under number 01066773 whose registered office is at Crown House 30a Commerce Road, Brentford, Middlesex, TW8 8LE.
- Customer Materials: has the meaning set out in clause 5.3.11.
- Data Controller, Data Processor, Data Subject, Personal Data, Personal Data Breach: as defined in the Data Protection Legislation.
- Data Protection Legislation: (i) unless and until the GDPR is no longer directly applicable in the UK, the General Data Protection Regulation ((EU) 2016/679) (GDPR) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 2018.
- Deliverables: all documents, products and materials developed and/or supplied 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).
- End Customer: Customer’s customer, for whom the Goods are being produced and/or supplied.
- 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.
- Location: the address(es) for delivery of the Goods and performance of the Services as set out in the Order or such other address(es) as notified in writing to the Supplier by the Customer.
- Order: the Customer's order for the purchase of Goods and/or Services as set out in Schedule 1 overleaf or the Customer's purchase order form or the Customer's written acceptance of the Supplier's quotation, as the case may be.
- 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 set out in the Order or otherwise agreed in writing by the Customer and the Supplier.
- Supplier: the person or firm from whom the Customer purchases the Goods and/or Services as specified in the Order.
- (i) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
- (ii) A reference to a party includes its personal representatives, successors and permitted assigns.
- (iii) 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.
- (iv) 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.
- (v) A reference to writing or written includes 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:
- 2.2.1 the Supplier issuing written acceptance of the Order; or
- 2.2.2 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 Goods are described in any applicable Goods Specification.
- 3.2 The Supplier shall ensure that the Goods shall:
- 3.2.1 correspond with their description and any applicable Goods Specification;
- 3.2.2 be of satisfactory quality 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 judgment;
- 3.2.3 be free from defects in design, materials and workmanship and remain so for 24 months after delivery; and
- 3.2.4 comply with all applicable statutory and regulatory requirements, including but not limited to all applicable European Union legislation and other relevant local legislation which must be complied with from time to time and which is applicable in respect of the Goods, relating to the manufacture, marking (including but not limited to CE marking for qualifying goods to evidence conformity with all applicable European Union legislation and relevant local legislation which must be complied with from time to time in respect of the Goods), labelling, packaging, storage, handling and delivery of the Goods.
- 3.3 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.
- 3.4 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.
- 3.5 If following such inspection or testing pursuant to clause 3.4 or during any warranty period pursuant to clause 3.2.3 the Customer considers that the Goods do not comply or are unlikely to comply with the Supplier's undertakings at clause 3.2, the Customer shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance in addition to making good any damage caused and paying the cost of any services required (for example installation) as a result of the Goods not being in compliance with clause 3.2 pursuant to clause 3.7. The End Customer shall have the right to enforce the undertakings at clause 3.2 directly against the Supplier.
- 3.6 The Customer may conduct further inspections and tests after the Supplier has carried out its remedial actions.
- 3.7 Where the Goods are defective and do not comply with the warranties at clause 3.2 and such defects cause damage to property or to other goods or materials stored or installed with the Goods or to property on or in which the Goods are installed, the Supplier shall, in addition to be responsible for promptly remedying the defect or supplying replacement Goods, be responsible for repairing or procuring the repair of the other goods materials and property and the associated costs of transport, installation and affixation of any replacement Goods, other goods, material or property.
4. Delivery of Goods
- 4.1 The Supplier shall ensure that:
- 4.1.1 the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition;
- 4.1.2 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
- 4.1.3 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:
- 4.2.1 on the date(s) specified in the Order or on such date(s) as instructed by the Customer before delivery;
- 4.2.2 to the Location or to such at such other location as instructed by the Customer before delivery (Delivery Location); and
- 4.2.3 during 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:
- 4.4.1 delivers less than 95% of the quantity of Goods ordered, the Customer may reject the Goods; or
- 4.4.2 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 If agreed in writing by the Customer, the Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. 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 date set out in the Order, or from such other date(s) that the Customer notifies to the Supplier, 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:
- 5.3.1 co-operate with the Customer in all matters relating to the Services, and comply with all instructions of the Customer;
- 5.3.2 perform the Services with the best care, skill and diligence in accordance with best practice in the Supplier's industry, profession or trade;
- 5.3.3 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;
- 5.3.4 ensure, where the Supplier has prepared the Service Specification, that the Service Specification meets the Customer’s requirements and includes all components necessary to enable the Customer to make full use of the Services;
- 5.3.5 ensure that the Services and Deliverables will conform with all descriptions 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;
- 5.3.6 provide all equipment, tools and vehicles and such other items as are required to provide the Services;
- 5.3.7 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;
- 5.3.8 obtain and at all times maintain all licences and consents which may be required for the provision of the Services;
- 5.3.9 comply with all applicable laws, regulations, regulatory policies, guidelines or industry codes which may apply in relation to the provision of the Services, including but not limited to in relation to where the Services may be delivered;
- 5.3.10 observe all health and safety rules, regulations, policies and any other security requirements that apply at any of the Customer's premises and those at the Delivery Location;
- 5.3.11 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;
- 5.3.12 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;
- 5.3.13 comply with any Customer policies and additional obligations as set out in the Service Specification or Order;
- 5.3.14 provide Customer with such financial and other Supplier due diligence information that Customer may reasonably require to audit Supplier’s financial health and compliance with applicable laws and promptly notify the Customer if the Supplier’s financial standing or health significantly deteriorates in any way.
6. Customer remedies
- 6.1 If the Supplier fails to deliver the Goods and/or perform the Services by the applicable date, the Customer shall, without limiting or affecting other rights or remedies available to it, have one or more of the following rights:
- 6.1.1 to terminate the Contract with immediate effect by giving written notice to the Supplier;
- 6.1.2 to refuse to accept any subsequent performance of the Services and/or delivery of the Goods which the Supplier attempts to make;
- 6.1.3 to recover from the Supplier any costs incurred by the Customer in obtaining substitute goods and/or services from a third party;
- 6.1.4 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 in accordance with the Contract; and
- 6.1.5 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 3.2, 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:
- 6.2.1 to terminate the Contract with immediate effect by giving written notice to the Supplier;
- 6.2.2 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;
- 6.2.3 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);
- 6.2.4 to refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make;
- 6.2.5 to recover from the Supplier any expenditure incurred by the Customer in obtaining substitute goods from a third party; and
- 6.2.6 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 3.2 pursuant to clause 3.7.
- 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 under the Contract are in addition to its rights and remedies implied by statute and common law.
7. Customer's obligations
- 7.1 The Customer shall:
- 7.1.1 provide the Supplier with reasonable access at reasonable times to the Location for the purpose of providing the Services; and
- 7.1.2 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:
- 8.1.1 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
- 8.1.2 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 on the later of (i) the date specified in the Order, and (ii) within 60 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 2% a year above the Bank of England's base rate from time to time, but at 2% 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. This shall be in addition to Customer’s rights under clause 5.3.14.
- 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 Except where otherwise specified in the Order, all Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Customer, provided however that this shall not affect Supplier’s rights in any materials which existed prior to the date of the Contract (Pre-Existing Rights).
- 9.2 Where the Deliverables include any Pre-Existing Rights or third party rights, the Supplier grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, sub-licensable, royalty-free perpetual and irrevocable licence to copy, modify use those Pre-Existing Rights and third party rights in connection with the normal use of the Deliverables and/or for the purpose of receiving and using the Services and the Deliverables.
- 9.3 The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free nontransferable, non-sublicensable licence to copy and modify any materials provided by the Customer to the Supplier for the term of the Contract for the sole purpose of providing the Services to the Customer.
- 9.4 All Customer Materials are and shall remain the exclusive property of the Customer.
- 10.1 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:
- 10.1.1 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);
- 10.1.2 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;
- 10.1.3 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; and
- 10.1.4 any breach by the Supplier, its employees, officers, representatives, agents, subcontractors or advisers of the undertakings and obligations contained in clauses 3, 4 and 5.
- 10.2 This clause 10 shall survive termination of the Contract.
- 11.1 During the term of the Contract and for a period of 2 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 the supply of the Goods and Services to the Customer including use of the Goods and Services, 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. If Goods or Services are being sold to Customer that have been sourced from a non-insured geography or specification it is the Supplier’s responsibility to notify this to the Customer on receipt of the Order or submitting the Supplier’s proposal (whichever is earlier) otherwise the Supplier, Goods and Services are deemed to be provided with full insurance cover adequate to cover the liabilities that may occur under the Contract.
- 11.2 Supplier shall on renewal of the insurance policies specified above or otherwise agreed with the Customer send a copy of the insurance certificate giving details of cover.
- 11.3 If at any time on Customer’s request Supplier does not have the required insurance cover in place or does not send copy of the certificate of insurance for such required cover within 10 working days of Customer’s written request (email included), this shall constitute an irremediable material breach of the Contract entitling Customer to terminate with immediate effect.
- 12.1 A party (Receiving Party) shall keep in strict confidence any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, officers, representatives, agents, subcontractors or advisers, and any other confidential information concerning the Disclosing Party’s products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, officers, representatives, agents, subcontractors or advisers as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, officers, representatives, agents, subcontractors or advisers are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 12 shall survive termination of the Contract.
- 12.2 The obligation of confidentiality contained in clause 12.1 will not apply or will cease to apply to the information stated in clause 12.1 or any part thereof which at the time of its disclosure by the Disclosing Party:
- 12.2.1 is already in the public domain or which subsequently enters the public domain other than by breach of the terms of a Contract by the Receiving Party;
- 12.2.2 is already known to the Receiving Party (as evidenced by written records) at the time of its disclosure by the Disclosing Party and was not otherwise acquired by the Receiving Party from the Disclosing Party under any obligation of confidence;
- 12.2.3 is at any time after the date of the Contract acquired by the Receiving Party from a person having the right to disclose the same to the Receiving Party without breach of obligation owed by that person to the Disclosing Party;
- 12.2.4 or is required to be disclosed by applicable law or regulation, or order of a court of competent jurisdiction or government department or agency.
- 12.3 Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.
- 13.1 Without affecting any other right or remedy available to it, the Customer may terminate the Contract in whole or in part:
- 13.1.1 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 5.3.8; or
- (iv) pursuant to clause 11.3;
- 13.1.2 for convenience by giving the Supplier 1 month’s written notice.
- 13.2 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:
- 13.2.1 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 7 days after being notified in writing to do so;
- 13.2.2 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
- 13.2.3 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.
14. Consequences of termination
- 14.1 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.
- 14.2 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.
- 14.3 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.
15. 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 or more, the party not affected may terminate this agreement by giving 5 Business Days' written notice to the affected party.
- 16.1 Assignment and other dealings.
- 16.1.1 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.
- 16.1.2 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.
- 16.2 Notices.
- 16.2.1 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 email to the address previously specified by the receiving party.
- 16.2.2 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 email, on the next Business Day after transmission. In this clause 16.2.2, 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.
- 16.2.3 This clause 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.
- 16.3 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 shall not affect the validity and enforceability of the rest of the Contract.
- 16.4 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.
- 16.5 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.
- 16.6 Entire agreement. The Contract together with any documents referred to in the Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
- 16.7 Third party rights. 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.
- 16.8 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.
- 16.9 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.
- 16.10 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.
17. Data Protection
17.4 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 17 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 17, Applicable Laws means (for so long as and to the extent that they apply to the parties) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law.
17.5 If the Supplier is processing personal data on the Customer's behalf in respect of the Goods and/or the Services, the parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller and the Provider is the Processor.
17.6 Without prejudice to the generality of clause 17.4, 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 Provider for the duration and purposes of the Contract.
17.7 Without prejudice to the generality of clause 17.4, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under the Contract:
- 17.3 If the Supplier is processing personal data on the Customer's behalf in respect of the Goods and/or the Services:
- 17.3.1 the data processing clauses in 17.4 to 17.9 will apply to the parties;
- 17.3.2 the parties shall ensure the processing complies with the Data Protection Legislation; and
- 17.3.3 the parties shall agree the scope, nature and purpose of processing by the Provider, the duration of the processing and the types of Personal Data and categories of Data Subject as applicable to the Supplier’s processing of personal data on the Customer's behalf.
17.8 The Customer does not consent to the Supplier appointing any third party processor of Personal Data under the Contract without the written consent of the Customer. The Supplier confirms that it has entered or (as the case may be) will promptly on entering into the Contract enter with the third party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 17 and in either case which the Supplier confirms and undertakes reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the Customer and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 17.
17.9 Either party may, at any time on not less than 30 days’ notice, suggest revisions to this clause 17 such as supplementing 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).
- 17.7.1 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 laws of a member of the European Union or European Union law 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;
- 17.7.2 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);
- 17.7.3 ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
- 17.7.4 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) (A) the transfer is to a country approved by the European Commission as providing adequate protection pursuant to Article 45 GDPR or the Data Protection Legislation; or (B) the Customer or the Supplier has provided appropriate safeguards in relation to the transfer in accordance with the Data Protection Legislation; or (C) one of the derogations for specific situations in Article 49 GDPR or the Data Protection Legislation applies to the transfer;
- (ii) the data subject has enforceable rights and effective legal remedies; or
- (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;
- 17.7.5 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 with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
- 17.7.6 notify the Customer without undue delay on becoming aware of a Personal Data Breach;
- 17.7.7 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
- 17.7.8 maintain complete and accurate records and information to demonstrate its compliance with this clause 17 and allow for audits by the Customer or the Customer's designated auditor and immediately inform the Customer if, in the opinion of the Supplier, an instruction infringes the Data Protection Legislation.