Terms and Conditions

Dated

(1) xxxxxxx Limited

(2) GI Solutions Group Limited trading as Go Inspire Insight

Data Marketing Solution Supply Framework Agreement


THIS AGREEMENT is made on

BETWEEN

(1) xxxxxxx LIMITED a company incorporated in England with registered number xxxxxx , whose registered office is at xxxxxxxx ("Client"); and

(2) GI SOLUTIONS GROUP LIMITED TRADING AS GO INSPIRE INSIGHT a company incorporated and registered in England and Wales with company number 02734835 whose registered office is at 147 Scudamore Road Leicester Leicestershire LE3 1UQ; ("Supplier").

BACKGROUND:

The Supplier is in the business of providing loyalty and database marketing services. The Client is in the process of establishing a flexible loyalty scheme and has a requirement for customer relationship management system and associated services in support of such loyalty scheme. Accordingly the Supplier has agreed to provide and the Client has agreed to receive the Specified Services on the terms and conditions set out in this Agreement.

IT IS AGREED as follows:

1 DEFINITIONS AND EXPLANATION

1.1 In this Agreement, and each Contract, the following terms shall have the following meanings:

‘ACS System’ means a key based security system which protects the security of Intellectual Property Rights underlying IT systems;

‘Additional Deliverables’ means any software, databases, computer programs and related materials required by the Client in addition to the Database as may be agreed between the parties in accordance with clause 2.2;

‘Additional Services’ means any services required by the Client in addition to the Specified Service as may be agreed between the parties in accordance with clause 2.2;

‘Agreement’ means the terms and conditions set out in this agreement, together with all Schedules and Appendices attached to them and all Contracts agreed between the parties in Writing;

‘Application’ means an application submitted by a Customer to join a Programme;

‘Client Affiliates’ means in relation to the Client, its subsidiaries, subsidiary undertakings, any company of which the Client is a subsidiary (its holding company), any other subsidiaries of any such holding company, the Client’s parent undertaking and ultimate holding company, and any subsidiary undertakings of any such parent company or holding company; the terms “holding company”, “subsidiary”, “subsidiary undertaking” and “parent undertaking” shall have the meanings assigned to them in sections 1159 and 1162 of the Companies Act 2006;

‘Client Group’ means the Client and the Client Affiliates;

‘Commencement Date’ means the date on which the Database is delivered and payment becomes due in accordance with clause 4.1.1;

‘Confidential Information’ means any and all information, data and material of a technical or business nature or relating in any way to the business, products, services, suppliers, customers and personnel of a party which the other party may receive or obtain in connection with the operation of this Agreement and/or the confidentiality agreement between the parties dated 6 June 2012 and/or each Contract or otherwise;

‘Contract’ means a contract for the provision of Additional Services and/or Additional Deliverables comprised of this Agreement and the relevant Services Schedule and agreed in Writing by the parties;

‘Customer’ means a customer of any member of the Client Group;

‘Database’ means the database which has been built by the Supplier using the Supplier’s Intellectual Property Rights and the Input Material for the purposes of operating the Programme and tested and approved by a member of the Client Group in accordance with this Agreement;

‘Database Tables’ means the Database, including the table structure and the data contained in it, but not including the Supplier’s Intellectual Property Rights;

‘Deliverables’ means the Database and any and all software, programs, documents, information, data, ideas, concepts, know-how, techniques and other material, things or items arising from or produced in the course of the provision of the Database and/or the Specified Services and including any Additional Deliverables and/or Additional Services detailed in any Services Schedules but excluding any non-bespoke software and any third party owned software;

‘Document’ includes, in addition to a document in Writing, any map, plan, graph, drawing or photograph, film, negative, tape or other device embodying visual images and any disc, tape or other device embodying any other data;

‘DPA’ means the Data Protection Act 1998;

‘Effective Date’ means the date of signature of this Agreement;

‘Employment Liabilities’ means all claims, including claims for redundancy payments, unlawful deduction of wages, unfair, wrongful or constructive dismissal compensation, compensation for discrimination, claims for equal pay, compensation for less favourable treatment of part-time and/or fixed term workers, and any claims (whether in tort, contract, statute or otherwise), demands, actions, proceedings, liability, cost and any award, compensation, damages, tribunal awards, fine, loss, order, penalty, disbursement, payment made by way of settlement and costs and expenses reasonably incurred in connection with any claim, allegation or investigation and of implementing any requirements which may arise from such investigation, and any legal costs and expenses;

‘Good Industry Practice’ means the use of standards, practices, methods and procedures conforming to the Law and the exercise of that degree of skill, care, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced person engaged in the provision of services which are similar to the Specified Services to be supplied by the Supplier under this Agreement and/or any Contract;

‘Initial Term’ means a period of two (2) years commencing on the Commencement Date;

‘Input Material’ means any Document or other materials, and any data or other information (including Customer information) provided by the Client or a Client Affiliate from time to time relating to the Database and/or a Programme and/or the Specified Services and/or any Additional Services and/or any Additional Deliverables or which may be inputted or otherwise incorporated into the Database;

‘Intellectual Property Rights’ means any and all intellectual property rights including patents, trade marks, trade names, design rights, copyright, rights in databases, rights to inventions, domain names, topography rights, know-how, goodwill, look and feel, rights in confidential information (including know-how and trade secrets) and the right to sue for passing off and all similar rights (whether or not registered or capable of registration and whether subsisting in the United Kingdom or any other part of the world), existing now or at any time in the future, together with the right to apply for registration of and/or register such rights any and all goodwill relating or attached to them and all extensions and renewals of them;

‘Laws’ means any and all applicable rules of law, statutes, statutory instruments, directives, regulations, orders and other instruments having the force of law and any applicable codes of conduct, guidance, directions and/or determinations with which the Client and/or the Supplier is bound to comply, in each case as may be amended, enacted, extended, replaced, modified, consolidated or repealed from time to time;

‘Output Material’ means any Documents (by way of example user manuals or instructions) or other materials, and any data or other information provided by the Supplier to the Client for the purposes of operating the Database and/or performing the Specified Services and/or any Additional Services and/or supplying any Additional Deliverables, which does not relate to Customers and/or a Programme;

‘Output Information’ means any and all data or other information stored on the Database together with any other information, Documents or materials created by the Supplier in connection with operating the Database and/or performing the Specified Services and/or any Additional Services and/or supplying any Additional Deliverables relating to Customers and/or a Programme, including Reports and WRRs;

‘Policy’ means the Client’s Anti-Bribery and Corruption Policy in the form made available by the Client from time to time, the current version of which is attached at Appendix 5;

‘Programme’ means any customer loyalty programme operated by the Client, or a Client Affiliate, which a Customer may participate in from time to time;

‘Prohibited Acts’ means (a) offering, giving or receiving an inducement or reward: (i) in relation to obtaining or performing the Agreement or otherwise in relation to the Client’s business; or (ii) for showing or not showing favour to any person in relation to the Agreement or otherwise in relation to the Client’s business; or (b) committing any offence under the Bribery Act 2010 as amended or replaced from time to time or any related legislation;

‘Proposal’ means the Supplier’s response to the Client’s request for proposal dated 19 June 2012 and attached at Appendix 6;

‘Quarter’ means a period of three (3) months from the Effective Date and each subsequent three (3) month period thereafter during the term of this Agreement;

‘Quarterly Reports’ means Reports covering any Quarter;

‘Report’ means a report generated by the Supplier’s data analysts setting out information relating to the Database and/or any Additional Deliverables and the operation of a Programme including (a) the number of Applications; (b) with respect to each Customer, details of the Customer’s participation in a Programme, including details relating to each Transaction; (c) with respect to each Customer, details of the revenue generated from Transactions (including the total value of all Transaction and value broken down to each Transaction), or such other reports as the Client may require from time to time;

‘Service Levels’ means the service levels set out in Appendix 3;

‘Services Schedule’ means a list of services and/or deliverables presented in the form of the pro forma services schedule appended to this Agreement (or such other form as may be agreed by the parties from time to time) agreed by the parties in Writing;

‘Specification’ means the written specification prepared by the Supplier setting out the functions of the Database attached at Appendix 1;

‘Specified Services’ means the services to be provided by the Supplier to the Client as set out in Appendix 2 and the Additional Deliverables and Additional Services once agreed in Writing and the services specified in the Proposal;

‘Standard Charges’ means the Supplier’s standard charges for the Specified Services as set out in Appendix 4 and in respect of any Additional Services the charges set out in the relevant Services Schedule;

‘Transaction’ means the sale of a product or service of the Client to a Customer at one of the Client’s stores or through the Website;

‘Transfer Regulations’ means The Transfer of Undertakings (Protection of Employment) Regulations 2006;

‘Term’ means the Initial Term together with the Extended Term(s) (if applicable) as defined in clause 12.1;

‘User’ means a member of a party’s staff who must be authorised by the relevant party in Writing to access and use the Database for the purposes of this Agreement and who shall be provided with a unique username and password by the Supplier;

‘Writing’ includes electronic transmission but does not include facsimile.

1.2 In this Agreement:

1.2.1 the headings are for convenience only and shall not affect the interpretation of this Agreement;

1.2.2 any reference to a clause, schedule or appendix shall (unless expressly provided otherwise) be a reference to a clause of or schedule or appendix to this Agreement. Schedules and appendices shall have the same force and effect as if set out in the body of this Agreement;

1.2.3 any reference to the singular shall include the plural and vice versa and any reference to one gender shall include all genders including the neuter gender;

1.2.4 any reference to a person shall, unless the context otherwise requires, include individuals, partnerships, companies and all other legal persons;

1.2.5 the words “include”, “includes”, “including” and “included” shall be construed without limitation; and

1.2.6 any reference in this agreement or any law or to any statute, statutory instrument, directive, regulation, order or other enactment shall mean the same as shall be amended, enacted, replaced, extended, modified, consolidated or repealed from time to time.

1.3 The relationship of the Supplier to the Client, and to each Client Affiliate, shall be that of independent contractor and nothing contained in this Agreement and/or any Contract shall create a relationship of employer and employee, principal and agent or partnership between either the Client, or the relevant Client Affiliate, and the Supplier.

 

2 THE BASIS OF THE SUPPLY OF SERVICES

2.1 With effect from the Effective Date, the Client engages the Supplier, and the Supplier accepts its engagement to supply the Database and the Specified Services to the Client on the terms and conditions of this Agreement.

2.2 The Client, and/or a Client Affiliate may, from time to time, request that the Supplier shall provide Additional Services and/or Additional Deliverables. The Supplier shall, within two (2) days of its receipt of a request for Additional Services and/or the Additional Deliverables, indicate to the Client or to the relevant Client Affiliate (as the case may be) whether it is able to provide the Additional Services and/or the Additional Deliverables requested and, if the Supplier indicates that it is, the parties shall work together in good faith to produce and agree a Services Schedule in respect of the Additional Services and/or the Additional Deliverables requested.

2.3 Nothing in this Agreement shall:

2.3.1 oblige the Client, or any Client Affiliate, to request the provision of any Additional Services and/or any Additional Deliverables; or

2.3.2 oblige the Supplier to provide any Additional Services and/or any Additional Deliverables,
until such time as a Contract has been agreed.

2.4 The Supplier shall supply any Additional Services and/or any Additional Deliverables in accordance with this Agreement and the relevant Services Schedule.

2.5 The Client shall, at its own reasonable expense, supply the Supplier with all necessary Input Material, within reasonably sufficient time to enable the Supplier to provide the Specified Services in accordance with this Agreement and/or any Contract. To the extent that the Client created the Input Material, the Client shall ensure the accuracy of the Input Material.

2.6 The Supplier shall, prior to the commencement of the Specified Services, establish the necessary channels of communication with third parties to enable it to comply with the processes set out in this Agreement.

 

3 DELIVERY OF THE DATABASE AND PERFORMANCE OF THE SPECIFIED SERVICES

3.1 The Supplier shall at all times during the Term of this Agreement:

3.1.1 create and operate the Database in accordance with this Agreement, the Specification, Laws and Good Industry Practice;

3.1.2 ensure that the Database complies with the security requirements in clause 7;

3.1.3 perform the Specified Services and/or any Additional Services in a diligent manner with reasonable care and skill and in accordance with the Service Levels, the Agreement and the relevant Contract, Laws and Good Industry Practice;

3.1.4 create and supply any Additional Deliverables in the accordance with the relevant Contract, Laws and Good Industry Practice;

3.1.5 devote all the time and attention to the performance of the Specified Services and/or any Additional Services which is necessary for their satisfactory completion in accordance with this Agreement and/or the relevant Contract;

3.1.6 advise and assist the Client with respect to all aspects of the Specified Services and/or any Additional Services, and comply with the reasonable requests of the Client with respect to their performance;

3.1.7 not do anything to bring the name or reputation of any member of the Client Group into disrepute or prejudice the interests of the business of the whole or any part of the Client Group; and

3.1.8 keep the Client, or the Client Affiliate (as the case may be), informed of the progress of delivery of the Database and/or any Additional Deliverables and the performance of the Specified Services and/or any Additional Services on a regular basis and, in any event, as and when may reasonably required by the Client, or the Client Affiliate (as the case may be).

3.2 No change may be made to the Database and/or any Additional Deliverables the Specified Services and/or any Additional Services without the prior Written consent of the Client, or the Client Affiliate (as the case may be), except where a change is necessary to comply with any applicable health and safety or other statutory requirements in which event the Supplier shall give reasonable notice to the Client of such change.

4 CHARGES

4.1 All charges quoted to the Client for the operation of the Database and the provision of the Specified Services and any Additional Service and/or any Additional Deliverables will be exclusive of any value added tax, for which the Client shall be additionally liable at the applicable rate from time to time.

4.2 The Supplier shall be entitled to invoice the Client following the end of each month in which the Specified Services or any Additional Service is performed unless otherwise agreed by the parties in Writing.

4.3 The Standard Charges that are not disputed by the Client shall be paid by the Client within thirty (30) days of the date of the Client receiving the Supplier’s properly submitted, due and valid invoice.

4.4 If payment is not made on the due date, the Supplier shall be entitled, without limiting any other rights it may have, to serve a Written notice on the Customer demanding that payment of the outstanding invoice be made within a reasonable time, except where such amount is subject to a dispute by the Client, and if such outstanding invoice is not paid within the time specified in the notice, to stop providing the Specified Services and/or to charge interest on the outstanding amount at the rate of three per cent. (3%) above the base lending rate from time to time of Barclays Bank Plc from the due date until the outstanding amount is paid in full.

 

5 RIGHTS IN INPUT MATERIAL AND OUTPUT MATERIAL

5.1 All right, title and interest in and to (including Intellectual Property Rights) which subsist in:

5.1.1 the Input Material shall be the exclusive property of the Client, and the Client shall be entitled to exploit the Input Material with full freedom (including for the avoidance of doubt, disclosing the Input Material to third parties). The Supplier shall not be entitled to use the whole or any part of the Input Material except as permitted by this Agreement;

5.1.2 the Output Information shall be the exclusive property of the Client, and the Client shall be entitled to exploit the Output Information with full freedom (including for the avoidance of doubt, disclosing the Output Information to third parties). The Supplier shall not be entitled to use the whole or any part of the Output Information except as permitted by this Agreement;

5.1.3 any Output Material shall be the exclusive property of the Supplier, unless otherwise agreed in Writing between the Client and the Supplier, subject only to the right of the Client to use the Output Material for the purposes of utilising the Database and/or the Specified Services and/or any Additional Service and/or any Additional Deliverables, and the Supplier agrees that the Output Material shall be licensed to the Client in accordance with clause 5.2.

5.1.4 the Database and/or any Additional Deliverables, but excluding any Input Material and Output Information, shall be the exclusive property of the Supplier, unless otherwise agreed in Writing between the Client and the Supplier, subject only to the right of the Client to use such rights for the purposes of utilising the Database and/or the Additional Deliverables and/or the Specified Services and/or any Additional Services, and the Supplier agrees that such rights shall be licensed to the Client in accordance with clause 5.2.

5.2 The Supplier grants to the Client a non-exclusive, worldwide, fully transferable, irrevocable, unlimited and fully paid licence for the Client Group to use the Output Material, the Intellectual Property Rights underlying the Database and/or any Additional Deliverables for the normal business purposes of the Client Group during the Term.

 

6 CONFIDENTIAL INFORMATION

6.1 Any Confidential Information supplied to a party or a Client Affiliate, marked as confidential or which by its nature is confidential obtained under or in connection with this Agreement and/or each Contract, shall be kept strictly confidential, and shall not be divulged to a third party (except to any Client Affiliates), or used by the other party except for the purposes of this Agreement and/or the relevant Contract but this shall not apply to any Document or other materials, data or other information which the receiving party can show:

6.1.1 is public knowledge at the time when it is so provided by a party, and shall cease to apply if at any future time it becomes public knowledge through other than as a result of a breach of this Agreement by the other party; or

6.1.2 is required to be disclosed under operation of Law, by court order or by any regulatory body of competent jurisdiction (but then only to the extent and for the purpose required).

6.2 The Client shall procure that each Client Affiliate who is supplied with any Confidential Information of the Supplier, marked as confidential or which by its nature is confidential obtained under or in connection with this Agreement and/or each Contract, complies with this clause 6.

6.3 A party shall be entitled to divulge the other party’s or a Client Affiliate’s Confidential Information to its employees, agents, directors, officers, professional advisors and consultants who have a need to know the same in connection with this Agreement and/or each Contract, provided that the receiving party shall ensure that such persons are aware of and, shall procure that such persons comply with, obligations equivalent to these obligations as to confidentiality.

6.4 The Client’s and any Client Affiliate’s Confidential Information shall include any and all know how, documentation and information, (including the terms and conditions of this Agreement and any Contract) whether commercial, financial, technical, operational or otherwise relating to the business, affairs, Customers, suppliers that is disclosed to or otherwise directly or indirectly obtained by the Supplier in connection with this Agreement and/or each Contract. All right, title and interest in the Client’s or any Client Affiliate’s Confidential Information shall remain vested solely with the Client or the relevant Client Affiliate.

6.5 Each party warrants that any material supplied by it in connection with this Agreement and each Contract and its use, by the other party for the purpose of providing and using the Database, Specified Services, any Additional Services and/or any Additional Deliverables shall not infringe the Intellectual Property Rights or other rights of any third party, and a party shall indemnify the other party (and in the case of the Supplier, the shall also indemnify a Client Affiliate), against any loss, damages, costs, expenses or other claims suffered or incurred by the other party arising directly from any such infringement.

6.6 The Supplier warrants that the Database, the Deliverables and the Output Information together with any material supplied by it in connection with this Agreement and its use for the purpose of providing the Database, Specified Services, any Additional Services and/or any Additional Deliverables does not and shall not infringe the Intellectual Property Rights or other rights of any third party, and the Supplier shall indemnify the Client (and the Client Affiliates), against any loss, damages, costs, expenses or other claims suffered or incurred by the Client or the Client Affiliates arising from any such infringement, except in the event that such loss, damages, costs, expenses or other claims arise as a direct result of Input Material supplied by the Client.

6.7 Within fourteen (14) days of expiry or the termination of this Agreement the Supplier will return all of the Client’s, or any Client Affiliate’s, Confidential Information and all Input Material in the Supplier’s possession, custody and/or control in accordance with clause 13.

 

7 HOSTING AND SECURITY

7.1 The Supplier has in place hosting, recovery, transmission and security policies and procedures sufficient to maintain the security of the Client’s data, including the Confidential Information and Input Material and/or the Database and/or any Additional Deliverables at all times, and have such policies and procedures as necessary in this area. Such policies and procedures shall include:

7.1.1 Data Security policies and procedures;

7.1.2 firewall protection and anti-virus software which is regularly updated in line with all notices, updates and alerts issued by the licensors of such protection and software;

7.1.3 the encryption of all sensitive and personal data during transit through internal and external networks;

7.1.4 physical security, including the location of equipment used as part of connectivity between the parties in a secure environment sufficient to prevent unauthorised physical access to such equipment;

7.1.5 the use of minimum configuration PCs where appropriate;

7.1.6 Internet protocol (IP) and media access control (MAC) address authentication;

7.1.7 password security;

7.1.8 any and all other safeguards and protections as may from time to time be required to comply with Laws and Good Industry Practice; and

7.1.9 the Business Continuity Plan.

7.2 The Supplier shall at all times during the term of this Agreement and each Contract own and operate an ACS System to protect the Database and any Additional Deliverables.

7.3 The Supplier shall, and shall procure that all of its personnel requiring access to the Database, any Additional Deliverables, the Client Group’s IT systems, premises and any other property shall at all times comply with such internal policies and procedures of the Client and/or the Client Affiliates, and with any and all reasonable instructions and warnings given by the Client and/or the Client Affiliates orally or in Writing, from time to time and Good Industry Practice.

 

8 WARRANTIES

8.1 The Supplier warrants and represents that, and it shall be a condition of this Agreement and each Contract that:

8.1.1 it has full capacity and authority and all necessary consents to enter into and to perform its obligations under this Agreement and/or each Contract;

8.1.2 it shall carry out the Specified Services in accordance with this Agreement, and any Additional Services in accordance with the relevant Contract, and in each case with reasonable care and skill, in accordance with Laws and Good Industry Practice;

8.1.3 the Specified Services and any Additional Services shall be provided by appropriately trained, qualified and experienced staff;

8.1.4 during the term of this Agreement and each Contract, the Database and any Additional Deliverables shall reliably provide the facilities and functions set out in the Specification, Appendix 1 and/or the relevant Services Schedule;

8.1.5 receipt of the Specified Services and/or use of the Output Material and/or the Deliverables and/or Output Information shall not infringe the Intellectual Property Rights or other rights of any third party;

8.1.6 it has in place all necessary security and organisational measures (including notifying the Information Commissioner, if applicable) for compliance in full with the requirements of the DPA and any related Laws;

8.1.7 it has not committed any Prohibited Acts and each of its agents, employees, group companies and assigns have not committed any Prohibited Acts and that it has in place adequate procedures to prevent and monitor the occurrence of any Prohibited Acts and that it is otherwise in compliance with the Policy and all Laws, legislation, rules, regulations and codes of conduct relating to bribery and corruption;

8.1.8 the Specified Services and all Additional Services will conform with all descriptions and specifications provided to the Company by the Supplier, including the Proposal and the Specification, unless the same are amended with the prior Written agreement of the Client;

8.1.9 the Proposal and the Specification are accurate and not misleading;

8.1.10 it will obtain and at all times maintain all necessary licences and consents in relation to the provision of the Specified Services; and

8.1.11 it will observe, and ensure that each of its agents, employees, group companies and assigns observe, all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Client's premises.

8.2 The Client warrants that it has full capacity and authority and all necessary consents to enter into and perform its obligations under this Agreement.

 

9 LIABILITY

9.1 The Standard Charges are based, in part, on the limits on the Supplier’s liability in this Agreement. The Client’s attention is drawn in particular to the remaining provisions of this clause 9.

9.2 The Supplier shall have no liability to the Client for any loss, damage, costs, expenses or other claims for compensation arising from any Input Material supplied by the Client which are incomplete, incorrect, inaccurate or illegible or arising from their late arrival or non-arrival (where transmission of the same is within the Client’s reasonable control).

9.3 The Supplier shall have no liability to the Client for any loss, damage, costs, expenses or other claims for compensation arising from any instructions supplied by the Client which are incomplete, incorrect, inaccurate or illegible or arising from their late arrival or non-arrival in the event the Supplier has asked for clarification of such instructions within a reasonable period and the Client has failed to provide the same and/or following clarification such instructions remain ambiguous.

9.4 Subject to clauses 9.7 below, the Supplier’s liability under this Agreement shall not exceed the level of the relevant insurance cover held by the Supplier at the relevant time (details of the levels of the relevant insurance cover held by the Supplier at the date of this Agreement being set out in clause 10).

9.5 A party not shall be liable to the other party for any indirect, special or consequential loss which arises out of or in connection with the provision of the Database and/or the Specified Services and/or any Additional Services and/or any Additional Deliverables.

9.6 Clauses 9.4 and 9.5 shall not limit the Supplier’s liability for:

9.6.1 for death or personal injury caused resulting from negligence ;

9.6.2 for fraud or fraudulent misrepresentation;

9.6.3 under the indemnities set out in clauses 6.5 and 14; or

9.6.4 for any other liability the exclusion or limitation of which is not permitted by law

9.7 A party shall not be liable to the other or be deemed to be in breach of this Agreement and/or a Contract by reason of any delay in performing, or any failure to perform, any of its obligations, if the delay or failure was due to any cause beyond the party’s reasonable control excepting a cause existing immediately prior to execution of this Agreement and/or a Contract. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond a party’s reasonable control, including:

9.7.1 act of God, explosion, flood, tempest, fire or accident;

9.7.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition; and

9.7.3 strikes, lock-outs or other industrial actions or trade disputes (involving the employees of a party).

9.8 If a party shall be so prevented pursuant to clause 9.7 above, the party so affected shall give Written notice of suspension as soon as possible to the other party stating the date and extent of the suspension and its cause. The affected party shall resume the performance of those obligations as soon as reasonably practicable after the removal of the cause and shall so notify the other party in Writing. In the event that the cause continues for more than one (1) month a party may terminate this Agreement and/or a Contract by giving the other party thirty (30) days’ prior written notice.

 

10 INSURANCE

10.1 At all times during this Agreement, the Supplier shall maintain in force an appropriate public liability insurance cover, with a reputable insurance company, for not less than £1 million arising from any single event and not less than £2 million in aggregate for all claims arising in any year during the term of this Agreement.

10.2 On taking out and on renewing its insurance policy, the Supplier shall promptly send a copy of the receipt for the insurance policy premium to the Client. On the Client’s Written request, the Supplier shall provide the Client with written confirmation of cover from the Supplier’s insurance broker.

10.3 The Supplier’s liabilities under this Agreement shall not be deemed to be released or limited by the Supplier having in place the insurance policy referred to in clause 10.1.

 

11 DATA PROTECTION

11.1 The Supplier acknowledges that it will, in providing the Database and/or the Specified Services and/or any Additional Services and/or any Additional Deliverables, have access to data comprising “personal data”, and that the Supplier shall be a “data processor” in respect of such data and the Client or Client Affiliate (as appropriate) shall be a “data controller” all as are defined in the DPA.

11.2 Accordingly, the Supplier shall:

11.2.1 keep such personal data confidential and use any such personal data solely for the purposes as strictly necessary for the supply of the Database and/or performing the Specified Services and/or any Additional Services and/or any Additional Deliverables in accordance with this Agreement;

11.2.2 process the personal data only in accordance with the Client’s or Client Affiliate’s (as appropriate) instructions;

11.2.3 ensure that only such of the Supplier’s personnel who may be required to assist in performing the Specified Services and/or any Additional Services and/or any Additional Deliverables have access to personal data and take appropriate technical and organisational measures to prevent unauthorised or unlawful processing or, accidental loss or destruction of or damage to personal data;

11.2.4 not disclose personal data to any third party (which for the avoidance of doubt for this clause

11.2.4 shall include sub-contractors) in any circumstances (save in accordance with the Client’s Written instructions);

11.2.5 not delete or amend the personal data (unless the Supplier is requested to do so by a Customer);

11.2.6 perform its obligations as a data processor in accordance with the DPA;

11.2.7 comply with any systems or procedures which the Client may introduce from time to time in respect of processing of the personal data;

11.2.8 take such security measures as notified in Writing from time to time by the Client;

11.2.9 upon request by the Client immediately return to the Client the personal data without retaining any copy and confirm that all personal data has been expunged from any computer or information storage or back-up system;

11.2.10 not transfer the whole or any part of the personal data outside the European Economic Area (or any country deemed adequate by the Commission pursuant to Article 25(6) of Directive 95/46/EC) without the Client’s prior Written consent and then only to states and/or processors having in place an adequate level of protection for the rights and freedoms of data subjects in relation to the processing of personal data and upon the execution of a data transfer agreement;

11.2.11 keep the personal data separate from the data and information of its other customers; and

11.2.12 promptly notify the Client or relevant Client Affiliate if it receives any subject access request or complaint or any information notice, enforcement notice or other correspondence from the Information Commissioner in respect of such data and shall deal with the same in accordance with the Client’s or relevant Client Affiliate’s instructions.

11.3 The Supplier shall provide such information as is reasonably necessary to enable the Client to satisfy itself of the Supplier’s compliance with this clause 11.

11.4 The Supplier acknowledges that due to the confidential nature of the personal data damages may not be an adequate remedy for breach of this clause 11 and the Client or Client Affiliate (as appropriate) would therefore be entitled (without prejudice to other rights and remedies available to the Client and Client Affiliate) to specific performance or other equitable relief to enforce the terms and conditions of this Agreement and/or any Contract.

 

12 TERM AND TERMINATION

12.1 This Agreement shall begin on the Commencement Date and shall continue, unless terminated earlier in accordance with the remainder of this clause 12, for the Initial Term. The term of this Agreement shall then automatically extend for one (1) year (the “Extended Term”) at the end of the Initial Term, and thereafter at the end of each Extended Term, unless a party gives six (6) months’ notice in writing to the other party to terminate this Agreement in whole or in part such notice to expire at any time on or after the end of the Initial Term (the ‘Term’).

12.2 A party shall be entitled to terminate this Agreement immediately by notice in Writing to the other if the other party commits a material breach of this Agreement and, where the breach is capable of remedy, has failed to remedy that breach within thirty (30) days of Written notice requiring remediation

12.3 A party shall be entitled to terminate this Agreement immediately by notice in Writing to the other if the other party commits persistent or repeated breaches of any term or condition of this Agreement and, where such breaches are capable of remedy, has failed to remedy such breaches within thirty (30) days of Written notice requiring remediation.

12.4 The Client shall be entitled to terminate this Agreement by notice in Writing with immediate effect and without liability to the Supplier, if the Supplier fails to achieve any one of the Service Levels over three or more consecutive months or on any 6 occasions during any 12 month period.

12.5 A party shall be entitled to terminate this Agreement and/or any Contract immediately upon notice in Writing to the other if the other makes an arrangement with or enters into a comprise with its creditors, becomes the subject of a voluntary arrangement, scheme of arrangement, receivership, administration, liquidation, bankruptcy or winding up, is unable to pay its debts or otherwise becomes insolvent or suffers or is the subject of a distraint, execution, event of insolvency or event of bankruptcy as defined in the Insolvency Act 1986 or any similar process or event, whether in the United Kingdom or otherwise.

12.6 In no circumstances will the Supplier be entitled to terminate this Agreement or a Contract for non-payment by the Client of any part of the Standard Charges or any other sums due where a dispute has arisen under or in connection with this Agreement or a Contract, and the amount withheld by the Client is proportionate to the sums in dispute or the damages claimed by the Client.

 

13 POST-TERMINATION

13.1 Save as provided below, each party’s rights, liabilities and obligations under this Agreement and/or each Contract shall cease upon the termination or expiration of this Agreement and/or the relevant Contract. Each party’s accrued rights and liabilities and the rights and obligations of each party that are expressly or by implication intended to come into force upon, or remain in force following, the termination or expiration of this agreement and/or a Contract (including under clauses 5, 6, 8, 9, 11, 12, 13) and shall survive any termination or expiration of this Agreement and/or each Contract.

13.2 Upon expiration or termination of this Agreement and/or any Contract for any reason:

13.2.1 the Supplier shall promptly deliver (in such format and by such method as the Client may reasonably require) to the Client the Input Material in machine-readable form, Output Information, all Deliverables, information or personal data collected by the Supplier in its performance of the Specified Services and/or any Additional Services;

13.2.2 at its own cost each party shall promptly destroy all other copies of the other’s Confidential Information and personal data in its possession or control;

13.2.3 the Supplier shall provide to the Client a copy of the Database Tables and/or any Additional Deliverables in a format reasonably accessible to the Client, and if the Database is and/or any Additional Deliverables are built on an industry-standard platform a copy of the Database and/or Additional Deliverables schema, together with, for a reasonable charge, which shall not exceed two thousand and eight hundred pounds (£2,800) unless otherwise agreed in Writing by the parties, all information and documentation required to facilitate the handover of Database Tables or schema and/or any Additional Deliverables and/or the Specified Services and/or any Additional Services to the Client or a replacement supplier;

13.2.4 the Supplier shall make available to the Client such employees as the Client may reasonably require to ensure a satisfactory handover of the Database and/or any Additional Deliverables; and

13.2.5 the Supplier will render all reasonable assistance required by the Client and/or a replacement supplier in relation to this Agreement or the relevant Contract.

 

14 GENERAL

14.1 No variation to this Agreement and/or any Contract shall be binding unless agreed in Writing between and signed on behalf of the Client and the Supplier.

14.2 Any notice required or permitted to be given by a party to the other party under this Agreement and/or any Contract shall be in Writing addressed to the other party at its registered office or email address set out below or any other address or email address a party may notify to the other party in Writing from time to time. A notice is deemed to have been served as follows:

14.2.1 if personally delivered by hand at the time of delivery;

14.2.2 if posted, by first class post, at the time of expiration of forty eight (48) hours after posting.

14.2.2.1 Client

14.2.2.1.1 Email address:

14.2.2.2 Supplier

14.2.3 Email address: andy.wood@goinspire.co.uk

14.3 Unless specifically stated to the contrary no failure or delay by a party in enforcing or exercising, at any time or for any period of time, any of its rights under this Agreement and/or any Contract shall be deemed to be a waiver of that right, and no waiver by a party of any breach of this Agreement and/or any Contract by the other party shall be considered as a waiver of any subsequent breach of the same or any other provision.

14.4 If any provision of this Agreement is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of this Agreement and/or any Contract and the remainder of the provision in question shall not be affected.

14.5 This Agreement shall be governed by the laws of England and the parties hereby submit to the exclusive jurisdiction of the English courts for all purposes arising in connection with this Agreement.

14.6 This Agreement and the documents referred to in this Agreement and/or each Contract, constitute the entire agreement and understanding of the parties and supersedes any previous agreement between the parties relating to the subject matter of this Agreement. The parties acknowledge and agree that in entering into this Agreement, and the documents referred to in this Agreement, each party does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to this agreement or not) other than as expressly set out in this Agreement and/or each Contract. The only remedy available to it for breach of any warranty shall be for breach of contract this Agreement.

14.7 A party shall be entitled to assign or transfer this Agreement with the prior Written consent of the other party. Save that, the Client shall be entitled to assign or transfer this Agreement to any Client Affiliate without the consent of the Supplier

14.8 The parties agree that, save as expressly provided, no third party will have any rights under the Contracts (Rights of Third Parties) Act 1999 or otherwise in connection with this Agreement.

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