TERMS AND CONDITIONS FOR THE SUPPLY OF SERVICES BY HGV TRAINING SERVICES LIMITED

BACKGROUND

• (A)The Supplier is in the business of providing specialist training and recruitment services for drivers of Large Goods Vehicles (“LGV”) and Passenger Carrying Vehicles (“PCV”).
• (B)The Customer wishes to obtain, and the Supplier wishes to provide, the Services on the terms set out in these Conditions.

1. Interpretation

The following definitions and rules of interpretation apply in these Conditions.

Affiliate: any entity that directly or indirectly controls, is controlled by, or is under common control with another entity.

Applicable Laws: all applicable laws, statutes, regulations and codes from time to time in force.

Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

Business Hours: the period from 9.00 am to 5.30 pm on any Business Day.

Change Order: has the meaning given in clause 7.1.

Charges: the charges payable by the Supplier to the Customer in respect of the Contract, as set out in the Order and these Conditions.

Conditions: these terms and conditions as amended from time to time.

Contract: the contract between the Supplier and the Customer for the supply of 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.

Course: has the meaning given in clause 6.

• Customer: the person or firm who purchases Services from the Supplier.

Customer’s Equipment: any equipment, including tools, systems, cabling or facilities, provided by the Customer, its agents, subcontractors or consultants which is used directly or indirectly in the supply of the Services.

Customer Materials: all documents, information, items and materials in any form, whether owned by the Customer or a third party, which are provided by the Customer to the Supplier in connection with the Services, including the items provided pursuant to clause 5.1(e).

Deliverables: any output of the Services to be provided by the Supplier to the Customer and any other documents, products and materials provided by the Supplier to the Customer in relation to the Services (excluding the Supplier’s Equipment).

DVLA: the Driver and Vehicle Licensing Agency.

DVSA: the Driver and Vehicle Standards Agency.

Group: in relation to a party means that party, any subsidiary undertaking or parent undertaking of that party and any subsidiary undertaking of any parent undertaking of that party from time to time.

Order: the Customer’s order for Services as set out in the Customer’s purchase order form or the Customer’s signatory to and/or written acceptance of the Supplier’s Quotation or the submission of driver(s) to train by providing driver details over email, via the portal or in a shared spreadsheet.

Services: the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Order.

Supplier: HGV Training Services Limited a company incorporated and registered in England and Wales with company number 09820295 whose registered office is at 64 New Cavendish Street, London, England, W1G 8TB.

Supplier’s Equipment: any equipment, including vehicles, tools, systems, cabling or facilities, provided by the Supplier to the Customer and used directly or indirectly in the supply of the Services including any such items specified in the Order but excluding any such items which are the subject of a separate agreement between the parties under which title passes to the Customer.

Trainee Driver: a driver enrolled on a course with a view to license acquisition.

Training Event: any one individual element of a Course.

Training Vehicle: a vehicle in which Trainee Drivers are trained in during the period of the course.

VAT:value added tax or any equivalent tax chargeable in the UK or elsewhere.

• Clause, Schedule and paragraph headings shall not affect the interpretation of these Conditions.
• A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
• The Schedules form part of these Conditions and shall have effect as if set out in full in the body of these Conditions. Any reference to these Conditions includes the Schedules.
• A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
• Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
• Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
• The Contract shall be binding on, and ensure to the benefit of, the parties to the Contract and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.
• A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time or it is in force as at the date of the Contract.
• A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
• A reference to writing or written includes
• Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
• A reference to these Conditions or to any other agreement or document referred to in these Conditions is a reference of these Conditions or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of these Conditions) from time to time.
• References to clauses and Schedules are to the clauses and Schedules of these Conditions and references to paragraphs are to paragraphs of the relevant Schedule.
• 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.

2. Basis of Contract

• The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
• The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence.
• These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
• Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
• The Supplier shall not make a deduction from payment made by the Customer or a Trainee Driver if a Training Event is cancelled or rearranged with at least 15 Business Days’ notice of the confirmed start date. If the Customer cancels after that time, the full cost of the course will apply.

3. Cancellation Policy

• The Customer may swap the enrolled Trainee Driver with a new Trainee Driver from the same company up to 3 business days prior to the confirmed start date of a Training Event but is liable to pay a £55 admin fee. Queries of this kind should be directed to the Account Manager or the Business Development Manager.

4. Supplier’s responsibilities

• The Supplier shall use reasonable endeavours to supply the Services in accordance with these Conditions in all material respects.

• Where a test forms part of the Course, The Supplier shall ensure that the Trainee Driver is enrolled in the relevant test.

• The Supplier shall use reasonable endeavours to meet any performance dates specified in the Contract, but any such dates shall be estimates only and time for performance by the Supplier shall not be of the essence of the Contract.

• The Supplier shall appoint an Account Manager for the Services. That person shall have responsibility for taking orders, solving problems, reporting and holding regular meetings. The Supplier shall use all reasonable endeavours to ensure that the same person acts as the Supplier’s manager throughout the term of these Conditions but may replace that person from time to time where reasonably necessary in the interests of the Supplier’s business.

• The Commercial Director at the Supplier shall have authority to contractually bind the Supplier on all matters relating to the Services (including by signing Change Orders).

• The Supplier shall use reasonable endeavours to observe all health and safety and security requirements that apply at any of the Customer’s premises and that have been communicated to it under clause 5.1(g), provided that it shall not be liable under the Contract if, as a result of such observation, it is in breach of any of its obligations under the Contract.

• Subject to clause 4.7, the Supplier shall arrange for additional training time at a time agreeable to the Supplier and the Trainee Driver and at no extra cost if (i) the training vehicle breaks down during the course, or (ii) if the course or part of the course is cancelled due to instructor illness, or (iii) if the course or part of the course is cancelled due to inclement weather.

• In the event the Supplier has delivered the completed package of training, yet the test was cancelled, Trainee Drivers shall be able to attend the rebooked test at their will; however, any additional training will be paid for by the Customer.

• The Supplier shall make every endeavour to respond to Customer queries within 24 hours.

• The Supplier shall schedule regular meetings with the Customer, either weekly, monthly or quarterly, depending on the requirement.

• In addition to the Customer having the ability to access the online portal to track candidate progress, the Supplier shall also provide regular (monthly) reports to the Customer.

• The Supplier shall schedule a structured Strategic Review, either in-person or over Teams, at least twice per year, as required by the Customer.

5. Customer’s obligations

• The Customer:
  • shall co-operate with the Supplier in all matters relating to the Services, including, but not limited to, facilitating structured Strategic Reviews at least twice per year, as required by the Supplier;
  • shall indemnify the Supplier for any costs relating to cancellation or rescheduling of courses.
  • acknowledges that if a candidate is deemed unready for his test, the test fee is non-refundable.
  • shall provide to the Supplier in a timely manner all documents, information, items and materials in any form (whether owned by the Customer or third party) required in the Order or otherwise reasonably required by the Supplier in connection with the Services and ensure that they are accurate and complete in all material respects;
  • shall ensure that any information provided to the Supplier under clause 5.1(e), is full and accurate at all times. Failure to adhere to this may invalidate a booking;
  • shall at their discretion assume responsibility for the payment of cost of any retests in the event the Trainee Driver fails either the MCQ, Hazard Perception or Module 2 element of the DSA Theory Test. Notwithstanding this clause, this responsibility falls with the Trainee Driver;
  • shall appoint a manager for the Services, such person as is identified in the Order. That person shall have the authority to contractually bind the Customer on matters relating to the Services (including by signing Change Orders);
  • shall inform the Supplier of all health and safety and security requirements that apply at any of the Customer’s premises. If the Customer wishes to make a change to those requirements which will materially affect provision of the Services, it can only do so via the change control procedure set out in clause 7 (Change control);
  • shall ensure that all the Customer’s Equipment is in good working order and suitable for the purposes for which it is used in relation to the Services and conforms to all relevant United Kingdom standards or requirements;
  • shall obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable the Supplier to provide the Services, including in relation to the installation of the Supplier’s Equipment, the use of all Customer Materials and the use of the Customer’s Equipment insofar as such licences, consents and legislation relate to the Customer’s business, premises, staff and equipment, in all cases before the date on which the Services are to start;
  • shall ensure that the Trainee Driver is in possession of all necessary legal and driving documentations at all times when undertaking their course. The Trainee Driver accepts full responsibility for their driving licence and documents while on the course;
  • shall ensure the Trainee Driver’s driving licence is valid and has the correct provisional and full entitlements added to it. Failure to possess a valid licence and have the correct provisional and full entitlements will not affect payment of the Charges by the Customer to the Supplier, all Charges already paid being forfeited and all further Charges remaining payable in full;
  • acknowledges that if the Trainee Driver fails to show the relevant testing authority the required form of photographic Identity Card, this will not affect payment of the Charges by the Customer to the Supplier, all Charges already paid being forfeited and all further Charges remaining payable in full;
  • acknowledged that if the Trainee Driver is under the influence of alcohol or illegal drugs during their course, the course will be terminated immediately and this will not affect payment of the Charges by the Customer to the Supplier, all Charges already paid being forfeited and all further Charges remaining payable in full;
  • shall pay the associated change fee if the Trainee Driver cannot attend the Course on the agreed dates. If the Customer fails to pay the associated change fee the Trainee Driver’s result will be recorded as a “Fail” and this will not affect payment of the Charges by the Customer to the Supplier, all Charges already paid being forfeited and all further Charges remaining payable in full; and
  • accepts that the DVSA examiner holds the ultimate prerogative concerning the “Pass” or “Fail” of the Trainee Driver and the qualified instructor has the discretion to hold that the Trainee Driver has failed to reach the required standard to attend the driving or operator Test for reasons of safety. In this instance, the result will be recorded as a “Fail” and this will not affect payment of the Charges by the Customer to the Supplier, all Charges already paid being forfeited and all further Charges remaining payable in full;
  • accepts that the qualified instructor has the discretion to hold that the Trainee Driver is unfit to train or hasn’t demonstrated the requisite level of competence for reasons of safety. In this instance, the Trainee Driver will be unable to continue with their Course and this will not affect payment of the Charges by the Customer to the Supplier, all Charges already paid being forfeited and all further Charges remaining payable in full;
  • accepts that if a Trainee Driver is no longer able to undertake a Training Event because the prerequisite Training Event has not been passed or completedthe Trainee Driver will be unable to continue with their Course and this will not affect payment of the Charges by the Customer to the Supplier, all Charges already paid being forfeited and all further Charges remaining payable in full;
  • Notwithstanding clause 5.1(s), No deduction will be made if a Trainee Driver fails their medical, provided a formal rejection letter from the DVLA can be presented to the Supplier. It is acknowledged by the parties that it is the DVLA not the examining doctor who determine the outcome of a Trainee Driver’s medical and any correspondence from the examining doctor will not be admissible as evidence or grounds for a refund on the basis of medical grounds.

6. Course

• The courses provided by the Supplier will be as outlined in the Order.

• The Supplier shall ensure the Trainee Drivers are enrolled to sit the DSA Theory Test pursuant to clause 4.2 of these Conditions.

• In line with clause 5.1(g) of these Conditions, the cost of any retests of the DSA Theory Test are the responsibility of the Trainee Driver unless the Customer assumes responsibility of the same.

• Trainee Drivers are required to spend a minimum number of hours behind the wheel, set out in the Order if enrolled on a standard Cat C, C1, C + E, D or D1 course. This time period includes the time spent sitting the Test. The time period shall span over a minimum of three and a maximum of five days. Trainee Drivers shall spend between 3.5 and 8 hours a day in the Training Vehicle.

• The Supplier can provide practical training on a one-to-one or two-to-one basis dependent on the location. The Supplier reserves the right to decide whether the former or latter is the more suitable option.

• The Supplier reserves the right to amend course dates without being subject to any financial or other penalty. The Supplier shall use reasonable endeavours to provide reasonable and appropriate notice to the Customer in the event of such amendment.

7. Change control

• Either party may propose changes to the scope or execution of the Services, but no proposed changes shall come into effect until a Change Order has been signed by both parties. A Change Order shall be a document setting out the proposed changes and the effect that those changes will have on:
  • the Services;
  • the Supplier’s existing charges;
  • the timetable of the Services; and
  • any of the terms of these Conditions.
• If the Supplier wishes to make a change to the Services, it shall provide a draft Change Order to the Customer.

• If the Customer wishes to make a change to the Services:
  • it shall notify the Supplier and provide as much detail as the Supplier reasonably requires of the proposed changes, including the timing of the proposed changes; and
  • the Supplier shall, as soon as reasonably practicable after receiving the information at clause 7.3, provide a draft Change Order to the Customer.
• If the parties:
  • agree to a Change Order, they shall sign it and that Change Order shall amend the Contract; or
  • are unable to agree a Change Order, either party may require the disagreement to be dealt with by the senior management of the other party.
• The Supplier may charge for the time it spends on preparing and negotiating Change Orders which implement changes proposed by the Customer pursuant to clause 7.3 on a time and materials basis at the Supplier’s daily rates specified in the Order.

8. Charges and payment

• In consideration of the provision of the Services by the Supplier, the Customer shall pay the Charges.

• All course bookings made by the Customer are inclusive of the DSA Test fee.

• The Customer shall pay each invoice submitted to it by the Supplier within 30 days of receipt by purchasing card or to a bank account nominated in writing by the Supplier from time to time.

• Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier any sum due under the Contract on the due date:
  • 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 8.4 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%;
  • the Supplier may suspend all or part of the Services until payment has been made in full.
• All sums payable to the Supplier under the Contract:
  • are exclusive of VAT, and the Customer shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and
  • shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
• Where specified in the Order, the Customer may be liable to procure a minimum amount of Services during a specified period.  In the event that such minimum amount of Services is not procured by the Customer (provided that such failure is not due to a breach of these Conditions by the Supplier), the Customer shall pay for the total minimum amount specified.

9. Compliance with laws and policies

• In performing its obligations under the Contract, the Supplier shall comply with the Applicable Laws.

• Changes to the Services required as a result of changes to the Applicable Laws shall be agreed via the change control procedure set out in clause 7 (Change control).

10. Confidentiality

• 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 10.2.

• Each party may disclose the other party’s confidential information:
  • to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 10;
  • as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority;
  • if it is, or has become, generally available to the public other than as a direct or indirect result of the information being disclosed by a party or its representatives in breach of these Conditions;
  • if it was made available on a non-confidential basis to a party prior to disclosure to it by the other party;
  • if it was developed by or for a party independently of the information disclosed by the other party;or
  • the Parties agree in writing that the information is not confidential.
• The Supplier will keep confidential any information which the Trainee Driver supplies to the Supplier in connection with the Contract, with the exception of basic personal details which may be shared with training partners and potential employers as part of the placement service provided by the Supplier.

• No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.

11. Limitation of liability

• The Supplier has obtained insurance cover in respect of its own business and legal liability for individual claims not exceeding £5,000,000. The limits and exclusions in this clause reflect the insurance cover the Supplier has been able to arrange, and the Customer is responsible for making its own arrangements for the insurance of any excess loss.

• Nothing in these Conditions limits any liability which cannot legally be limited, including but not limited to liability for:
  • death or personal injury caused by negligence;
  • fraud or fraudulent misrepresentation; and
  • breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
• The Supplier’s total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contracts and shall be subject to the cap set out in the clause below:

• The cap on the Supplier’s liability in respect of all Contracts is the greater of £1,000,000 and seventy-five per cent % of the total charges in the contract year in which the breaches occurred. A contract year means a 12-month period commencing with the date of the relevant Contract or any anniversary of it. The total charges means all sums paid by the Customer and all sums payable under the Contract in respect of goods and services actually supplied by the Supplier, whether or not invoiced to the Customer.

• Please see below for specific heads of excluded loss:

(a) Loss of profits
(b) Loss of sales or business.
(c) Loss of agreements or contracts.

• Loss of anticipated savings.
• Loss of use or corruption of software, data or information.
• Loss of or damage to goodwill.
• Indirect or consequential loss.

• Unless the Customer notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire twelve months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.

12. Termination
    • 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:
      • 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 twenty-eight days after being notified in writing to do so;
      • the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;
      • the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
      • a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
      • an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company);
      • the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
      • a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
      • a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
      • any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.1(c) to clause 12.1(i) (inclusive); or
      • the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
    • Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
      • the Customer fails to pay any amount due under these Conditions on the due date for payment and remains in default not less than twenty-eight days after being notified in writing to make such payment; or
      • there is a change of control of the Customer.

13. Consequences of termination

• On termination or expiry of these Conditions:
  • the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt;
  • the following clauses shall continue in force: clause 1 (Interpretation), clause 10 (Confidentiality), clause 11 (Limitation of liability), clause 13 (Consequences of termination), clause 17 (Waiver), clause 19 (Severance), clause 21 (Conflict), clause 23 (Third Party Rights), clause 24 (Notices), clause 25 Intellectual Property), clause 26 (Data Protection), clause 27 (Governing law) and clause 26 (Jurisdiction).
• Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.

14. Force majeure

• Force Majeure Event means any circumstance not within a party’s reasonable control including, without limitation:
  • acts of God, flood, drought, earthquake or other natural disaster;
  • epidemic or pandemic;
  • terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
  • nuclear, chemical or biological contamination or sonic boom;
  • any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
  • collapse of buildings, fire, explosion or accident; and
  • any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause, or companies in the same group as that party);
  • non-performance by suppliers or subcontractors (other than by companies in the same group as the party seeking to rely on this clause); and
  • interruption or failure of utility service.
• Provided it has complied with clause 14.4, if a party is prevented, hindered or delayed in or from performing any of its obligations under the Contract by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of the Contract or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.

• The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.

• The Affected Party shall:
  • as soon as reasonably practicable after the start of the Force Majeure Event but no later than fourteen days from its start, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Contract; and
  • use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
• If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than four weeks, the party not affected by the Force Majeure Event may terminate these Conditions by giving four weeks’ written notice to the Affected Party.

15. Assignment and other dealings

• The Contract is personal to the Customer and the Customer 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.

16. Variation

• Subject to clause 7 (Change control), no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

17. 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 these Conditions 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 these Conditions or by law shall prevent or restrict the further exercise of that or any other right or remedy.

• A party that waives a right or remedy provided under these Conditions or by law in relation to one party, or takes or fails to take any action against that party, does not affect its rights in relation to any other party.

18. Rights and remedies

• The rights and remedies provided under these Conditions are in addition to, and not exclusive of, any rights or remedies provided by law.

19. Severance

• If any provision or part-provision of the Contract (including these Conditions) is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of these Conditions.

• If any provision or part-provision of the Contract (including these Conditions) is deemed deleted under clause 19.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

20. Entire agreement

• These Conditions together with the Order 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.

• Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Conditions or the Order. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Conditions or the Order.

21. Conflict

• If there is an inconsistency between any of the provisions of these Conditions and the provisions of the Order, the provisions of the Order shall prevail.

22. No partnership or agency

• Nothing in these Conditions is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.

• Each party confirms it is acting on its own behalf and not for the benefit of any other person.

23. Third party rights

• Unless it expressly states otherwise, these Conditions do not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Conditions.

• The rights of the parties to rescind or vary these Conditions are not subject to the consent of any other person.

24. Notices

• Any notice or other communication given to a party under or in connection with these Conditions 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 specified in the Order.
• Any notice or communication shall be deemed to have been received:
  • if delivered by hand, on signature of a delivery receipt; and
  • 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 or at the time recorded by the delivery service; and
  • if sent by 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 24.2(c), 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.
• This clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

25. Intellectual Property Rights

• All intellectual property rights in or arising out of or in connection with the Services (other than intellectual property rights in any materials provided by the Customer) shall be owned by the Supplier.

• 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 purpose of providing the Services to the Customer.

26. Data protection

• For the purposes of this clause 26:

Controller means a person which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data; Data Protection Laws means all laws and regulations relating to the Processing of Personal Data as the same may be in force from time to time; Data Subject means the individual to which the Personal Data relates; Personal Data means any information relating to an identified or identifiable living individual; Personal Data Breach means the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data;

Processing means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, and Process, Processes and Processed shall be construed accordingly; and Processor means a person which Processes Personal Data on behalf of a Controller.

• The parties acknowledge and agree that the Contractwill require the Processing of Personal Data by the Supplier on behalf of the Customer, that the Customer alone shall determine the purposes for which and the manner in which Personal Data will be processed by the Supplier on behalf of the Customer under these Conditions and the Customer shall be the Controller and the Supplier shall be the Customer’s Processor in respect of all such Personal Data.

• Particulars of the Processing to be carried out by the Supplier on behalf of the Customer under or in connection with the Contract are set out in Schedule 2 (Data protection particulars).

• Where, under or in connection with these Conditions, the Supplier Processes Personal Data on behalf of the Customer as the Customer’s Processor, the Supplier shall:
  • comply with its obligations as a Processor under the Data Protection Laws to which the Supplier is subject;
  • Process the Personal Data only:

(i) on the written instructions of the Customer and to the extent reasonably necessary for the performance by the Supplier of its obligations under these Conditions. The Supplier shall immediately inform the Customer if, in its opinion, Processing the Personal Data in accordance with a written instruction received from the Customer or in the performance of its obligations under these Conditions infringes Data Protection Laws to which either the Customer or the Supplier (in its capacity as a Processor) is subject; or

(ii) as otherwise required by European Union law or individual European Union member state law to which the Supplier is subject, in which case the Supplier shall inform the Customer of that legal requirement before Processing the Personal Data (unless that law, on important grounds of public interest, prohibits the Supplier from informing the Customer);

• not disclose the Personal Data to any person except as required or permitted by these Conditions or with the Customer’s prior written consent;
• without prejudice to clause 10, ensure that all persons authorised by the Supplier to Process the Personal Data Process the Personal Data in accordance with provisions of this clause 4and are under an appropriate contractual or other legal obligation to keep the Personal Data confidential;
• notwithstanding any other provision of these Conditions, and taking into account the state of the art, the nature, scope, context and purposes of the Processing and the risks to Data Subjects, implement appropriate technical and organisational measures to ensure the security of the Personal Data and prevent Personal Data Breaches;
• not engage another Processor to Process the Personal Data on behalf of the Customer (Sub-processor) except with the Customer’s prior written consent. The Supplier shall, prior to engaging a Sub-processor, enter into a written contract with the Sub-processor that imposes on the Sub-processor obligations that are the same as, or more onerous than, the obligations imposed on the Supplier under this Clause 26. Notwithstanding any other provision of these Conditions, the Supplier shall remain fully liable and responsible for all acts and omissions of its Sub-processors and the acts and omissions of those employed or engaged by its Sub-processors as if they were its own. An obligation on the Supplier to do, or to refrain from doing, any act or thing shall include an obligation upon the Supplier to procure that its employees, staff, agents and its Sub-processors’ employees, staff and agents also do, or refrain from doing, such act or thing;
• not transfer or Process the Personal Data outside the European Economic Area, nor disclose the Personal Data to any party located outside the European Economic Area, except with the Customer’s prior written consent. Where such consent is given by the Customer, the Supplier shall take such actions and enter into such written agreements as the Customer may require in order to help ensure that such transfer, disclosure or Processing complies with the Data Protection Laws to which the Customer is subject;
• provide such assistance and co-operation as the Customer may require from time to time in relation to the Personal Data to help the Customer comply with its obligations under the Data Protection Laws to which it is subject, including (without limitation) its obligations in relation to keeping Personal Data secure, dealing with Personal Data Breaches, carrying out data protection impact assessments and dealing with requests from Data Subjects to exercise their legal rights in relation to their Personal Data. This shall include the Supplier entering into such other written agreements as may be required by the Customer from time to time to enable the Customer to comply with the Data Protection Laws to which the Customer is subject;
• notify the Customer without undue delay after, and in any event within 24 hours of, becoming aware of a Personal Data Breach in respect of the Personal Data;
• at the Customer’s option, permanently and securely delete or return to the Customer all the Personal Data promptly on termination of these Conditions, and delete any existing copies of the Personal Data save to the extent that the Supplier is required to retain copies of the Personal Data by European Union law or individual European Union member state law to which the Supplier is subject; and
• make available to the Customer all information necessary to demonstrate its compliance with its obligations under this clause 26.

• This clause 26 shall survive termination or expiry of these Conditions.

27. Governing law

• These Conditions 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.

28. 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 these Conditions or its subject matter or formation.