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Terms and conditions

KARMAN DIGITAL

CUSTOMER TERMS AND CONDITIONS

(these "Terms and Conditions")

  1. Definitions and Interpretation

    In this Agreement:

    1. the following terms shall have the following meanings unless the context requires otherwise:

      "Acceptance": the acceptance or deemed acceptance of any Deliverables by the Customer pursuant to Clause 4.3 or Clause 4.5;

      "Acceptance Tests": the tests to be carried out on any applicable Deliverables, as may be detailed to you by us in writing from time to time, to test that it materially complies with the relevant Deliverable Specification;

      "Agreement": these Terms and Conditions together with the Order Form, any Schedules referred to in the Order Form and any document referred to in these Terms and Conditions, the Order Form or any Schedules;

      "Breach of Duty": the breach of any: (i) obligation arising from the express or implied terms of a contract to take reasonable care or exercise reasonable skill in the performance of the contract; or (ii) common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty);

      "Business Day": any day other than: (i) a Saturday; (ii) a Sunday; or (iii) a day when the clearing banks in the City of London are not physically open for business;

      "Change": any change to this Agreement including to any of the Services;

      "Change Control Note": has the meaning given in Clause 20.7;

      "Commencement Date": the date of commencement of this Agreement in accordance with Clause 2.4;

      "Confidential Information": any information in any form or medium obtained by or on behalf of either Party from or on behalf of the other Party in relation to this Agreement which is expressly marked as confidential or which a reasonable person would consider to be confidential, whether disclosed or obtained before, on or after the Commencement Date, together with any reproductions of such information or any part of it;

      "Controller": has the meaning given in the Data Protection Legislation;

      "Customer Materials": the materials and content provided to us by you from time to time for incorporation into a Deliverable;

      "Customer, you or your": the recipient of Services under this Agreement, as set out in Order Form;

      "Data Protection Legislation": in relation to any Personal Data which is processed in the performance of this Agreement, the Data Protection Act 2018 and the UK GDPR, in each case together with any national implementing laws, regulations, secondary legislation and any other applicable or equivalent data protection or privacy laws, as amended or updated from time to time, in the UK, and any successor legislation to such laws;

      "Data Subject": has the meaning given in Data Protection Legislation;

      "Deliverables": the documents, products and materials set out in the Order Form that we agree to supply to you under this Agreement, whether developed and/or supplied by us, our agents, subcontractors or personnel, or any third party, and which may include a Website, computer programs, software, data, reports, documentation, analyses, statistics, and/or media content;

      "Deliverable Specification": the specification for any relevant Deliverable as set out in the Order Form;

      "Development Fees": the fees payable by you to us in consideration of our provision of the Development Services, as set out in the Order Form;

      "Development Services": our design and development of any Deliverables, as further outlined in clause 4 and the Order Form;

      "Event of Force Majeure": has the meaning given in Clause 14.1;

      "Fees": the fees payable by you to us under this Agreement for our Services, as stipulated in the Order Form;

      "GDPR": the General Data Protection Regulation (EU 2016/679);

      "Go-Live Date": the first date that a particular deliverable developed by us or supplied to us by you to be hosted, is live and accessible;

      "Hosting Fees": the fees payable by you to us in consideration of our provision of the Hosting Services, as set out in the Order Form;

      "Hosting Services": our services in hosting the agreed deliverables (set out in the Order Form) on our, or a third party's, computer server, to be provided in accordance with the Order Form and the relevant Schedule;

      "Intellectual Property Rights": copyright and related rights, trademarks and service marks, trade names and domain names, rights under licences, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, patents, rights to inventions, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, 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;

      "Karman", "we", "us", and "our": Karman Digital is a trading style of ClientsFirst Limited, a company incorporated and registered in England with company number 07143834 and registered offices at 97 Alderley Road, Wilmslow, Cheshire, SK9 1PT;

      "Manager": has the meaning given in Clause 7.1;

      "Non-Karman Defect": those defects described in Clause 4.4;

      "Order Form": the written document we provide to you containing specific information relating to the particular services supplied or to be arranged to be supplied by us to you;

      "Party": us or you, and "Parties" means both of us and you;

      "Personal Data": has the meaning given in the Data Protection Legislation, and relates only to personal data, or any part of such personal data, of which you are the Controller and we are the Processor and providing services under this Agreement;

      "Personal Data Breach": has the meaning given in the Data Protection Legislation;

      "Personnel": all persons employed or engaged by us to provide the Services;

      "Processing": has the meaning given in the Data Protection Legislation and "Process" shall be interpreted accordingly;

      "Processor": has the meaning given in the Data Protection Legislation

      "Schedule": a schedule containing a further description of the services provided by us to you, including further rights and obligations for the Parties in relation to any services provided by us to you;

      "Server": a computer server administered by us or a third party supplier;

      "Services": the services we are to provide under this Agreement, as may be more particularly described in the Order Form and/or the relevant Schedule(s), including the Development Services, the Hosting Services, the Support Services and any other additional/consultancy services listed in the Order Form or agreed between the Parties in writing from time to time;

      "Special Categories of Personal Data": those categories of data listed in Article 9(1) UK GDPR;

      "Supervisory Authority": (a) an independent public authority which is established by a Member State pursuant to Article 51 UK GDPR; and (b)any similar regulatory authority responsible for the enforcement of Data Protection Legislation;

      "Support Fees": the fees payable by you to us in consideration of our provision of the Support Services, as set out in the Order Form;

      "Support Services": the maintenance and support services in respect of any relevant Deliverable identified in the Order Form (but not provided in respect of any Third Party Software), to be provided in accordance with the Order Form and the relevant Schedule;

      "Term": has the meaning given in Clause 13.1;

      "Third Party Software": third party software products incorporated into any relevant Deliverable, as set out in the Order Form;

      "UK GDPR": the GDPR, as applied by Chapter 3 of Part 2 of the Data Protection Act 2018;

      "Website": a set of related web pages located under a single domain name that, if stipulated as a "Deliverable" in the Order Form, we shall develop for you, further details of which may be set out in the Order Form; and

      "Vulnerability": a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be interpreted accordingly;

    2. references to "Clauses" are to clauses of these Terms and Conditions; references to "Paragraphs" are to paragraphs of a Schedule;
    3. the headings are inserted for convenience only and shall not affect the construction or interpretation of this Agreement;
    4. a "person" includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
    5. a reference to a Party includes its personal representatives, successors or permitted assigns;
    6. words imparting the singular shall include the plural and vice versa. Words imparting a gender shall include the other gender and the neutral;
    7. a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
    8. any phrase introduced by the terms "including", "include", "in particular" or any similar expression, shall be construed as illustrative, shall not limit the sense of the words preceding or following thoseterms, and shall be deemed to be followed by the words "without limitation" unless the context requires otherwise;and
    9. a reference to "writing" or "written" includes in electronic form and similar means of communication (except under Clause 15).
  2. Agreement
    1. The terms of this Agreement apply to the exclusion of any terms and conditions submitted, proposed or stipulated by you in whatever form and at whatever time. These Terms and Conditions apply to all Services.
    2. Save as expressly provided in this Agreement, this Agreement shall operate to the entire exclusion of any other agreement, understanding or arrangement of any kind between the Parties preceding the date of this Agreement and in any way relating to the subject matter of this Agreement and to the exclusion of any representations not expressly stated in this Agreement except for any fraudulent misrepresentations or any misrepresentation as to a fundamental matter. Each of the Parties acknowledge that it has not entered into this Agreement based on any representation that is not expressly incorporated into this Agreement.
    3. This Agreement constitutes the whole agreement and understanding of the Parties as to the subject matter of this Agreement and there are no provisions, terms, conditions or obligations, whether oral or written, express or implied, other than those contained or referred to in this Agreement.
    4. The Order Form shall be in the form that we require from time to time. This Agreement shall be legally formed and the Parties shall be legally bound when we have received and signed the Order Form that has been signed by an authorised signatory of you and submitted by you to us. Submission to us by you of the Order Form as signed shall be deemed to be an offer by you to purchase Services (as specified in the Order Form) from us, subject to the provisions of this Agreement, and our countersignature on the Order Form shall be considered acceptance of such offer, but the requirements for us to perform any of our obligations under this Agreement shall be conditional upon our receipt from you of any advance payment of Fees as required under this Agreement.
    5. If you provide to us a purchase order for your receipt of Services other than as set out in Clause 2.4, that purchase order (and any terms and conditions attached or referred to in it) shall be purely for your administrative purposes and shall not form part of this Agreement.
    6. In the event of a conflict between these Terms and Conditions, the Schedules and the Order Form, then:
      1. the Order Form shall prevail over;
      2. these Terms and Conditions, which shall prevail over;
      3. a Schedule.
  3. Services
    1. We warrant that:
      1. we shall provide the Services with all due skill, care and diligence using appropriately experienced and qualified Personnel;
      2. our Personnel have the necessary skill to provide any Services;
      3. any Services will be provided in a professional, competent and workmanlike manner;
      4. we have all necessary consents, rights and permission to enter into, and perform our obligations under, this Agreement;
      5. we shall ensure that our Personnel co-operate with, and make themselves available at all reasonable times for, discussion and meetings with, you and your employees, agents or subcontractors; and
      6. we shall comply with all applicable laws, statutes, regulations and byelaws in relation to the exercise of our rights and performance of our obligations under this Agreement.
    2. We are not responsible for any people, equipment, deliverables or services that we are not expressly stipulated to provide in this Agreement. You are responsible for any people, equipment, deliverables and services that you need to obtain from someone other than us. Except for any matter in relation to which we specifically agree in writing to advise or do, we shall not be responsible, or have any liability (subject to Clause 12.2) for advising on, or failing to advise on, or doing, or failing to do, anything else.
    3. Subject to us performing the Services within any timeframe agreed as being necessary for the performance of the Services, we may select our own working times and location provided that the nature of particular services does not require those particular services to be undertaken during particular working times or at a particular location (in which situation you shall be entitled to request that we perform the Services at such working times and location as are reasonable in the circumstances).
    4. We shall use our reasonable endeavours to perform our obligations under this Agreement within any timescales set out in this Agreement. However, subject to Clause 12.2, we shall not have any liability for any delays or failures to accurately perform our obligations:
      1. if we have used those endeavours; or
      2. if caused by any failure or delay on your part or on the part of your employees, agents or subcontractors or by any breach by you of this Agreement or any other agreement.

      If there is any slippage in time, we shall use our reasonable endeavours to reschedule delayed tasks to a mutually convenient time.

    5. If we are delayed or hindered in providing any Services as a result of any breach, delay or failure by you to perform any of your obligations under this Agreement or of any other agreement between us and you, then we may charge you at our time and material rates in force at such time for:
      1. any time reasonably incurred as a result of the hindrance or breach (including any wasted time for which we had anticipated that our Personnel would provide Services under this Agreement but become unable to provide the Services at that time as a result of your act or omission); and
      2. any time that we were going to spend in providing the Services, in addition to the time we actually do spend in providing the Services.
    6. Except as specifically stipulated in this Agreement, we:
      1. shall not be responsible for providing or achieving any particular results or outcomes or within a particular time; and
      2. exclude all conditions, warranties, terms and obligations, whether express or implied by statute, common law or otherwise, to the fullest extent permitted by law in respect of the Services.
    7. This Agreement sets out the full extent of our liability in respect of the supply of the Services. All conditions, warranties or other terms concerning the Services which might otherwise be implied into this agreement or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.
  4. Development Services
    1. We shall, from the Commencement Date, provide the Development Services and use our reasonable endeavours to deliver the applicable Deliverables within any timescales set out in the Order Form or agreed in writing between the Parties from time to time.
    2. Once we have completed the Development Services, we shall run the Acceptance Tests in order to test a Deliverable's compliance with its applicable Deliverable Specification.
    3. Acceptance of a Deliverable shall occur when the Deliverable has passed the Acceptance Tests. We shall notify you when the Acceptance Tests have been passed and provide the results of the Acceptance Tests to you if requested by you in writing.
    4. If any failure to pass the Acceptance Tests results from a defect which is caused by an act or omission of yours, or by one of your sub-contractors or agents for whom we have no responsibility (Non-Karman Defect), the applicable Deliverable shall be deemed to have passed the Acceptance Tests notwithstanding such Non-Karman Defect. We shall provide assistance reasonably requested by you in remedying any Non-Karman Defect by supplying additional services or products. You shall pay us in full for all such additional services and products at our time and material rates in force at such time.
    5. Acceptance of a Deliverable shall be deemed to have taken place upon the occurrence of any of the following events:
      1. you use any part of the Deliverable, as part of your day to day operations, for any revenue-earning purposes or to provide any services to third parties other than for test purposes; or
      2. you unreasonably delay the start of the relevant Acceptance Tests or any retests for a period of 5 Business Days from the date on which we are ready to commence running such Acceptance Tests or retests.
    6. Any Third Party Software incorporated into a Deliverable shall be supplied by us to you in accordance with the relevant third party owner's terms and conditions and the cost of incorporating into the Deliverable shall be paid by you to us as part of the payment of the Fees. Any Third Party Software shall be provided "as is" and on an "as available" basis. We give no warranty that Third Party Software will be free of defects or faults, viruses or malware and to the maximum extent permitted by the law, we provide no warranties (express or implied) of fitness for a particular purpose, accuracy of information, compatibility or satisfactory quality of any Third Party Software.
    7. If applicable, you acknowledge and agree that you shall be required to adhere to the terms and conditions imposed by any third party owner of Third Party Software and you agree to indemnify us for any losses, damages, liability, costs and expenses (including reasonable professional fees) incurred by us as a result of any action, demand or claim that results from a breach by you of any such terms and conditions ("Third Party Software Claim").
    8. In the event that we receive notice of any Third Party Software Claim, we shall use reasonable endeavours to forward all details of such claim(s) to you in writing without delay, and we shall have sole authority to manage and settle any such Third Party Software Claim. We reserve the rights to terminate this Agreement with immediate effect and without further liability in the event of a Third Party Software Claim arising.
    9. Unless the Order Form sets out that we are to provide you with Support Services, we shall ensure that any applicable Deliverable will, where applicable, materially perform in accordance with its Deliverable Specification for a period of 60 days from Acceptance. If, during this 60 days the relevant Deliverable does not so perform, we shall, for no additional charge, carry out any work necessary in order to ensure that the Deliverable materially complies with its Deliverable Specification.
    10. The requirement set out in Clause 4.9 shall not apply to the extent that any failure of the Deliverable to perform substantially in accordance with its Deliverable Specification is caused by your acts or omission, or any Customer Materials.
    11. We do not warrant that:
      1. each Deliverable will be uninterrupted or error-free; or
      2. each Deliverable will be free from Vulnerabilities.
  5. Customer Materials
    1. During our provision of the Development Services, we shall update any relevant Deliverable with Customer Materials provided to us by you. You shall ensure that the Customer Materials do not infringe any applicable laws, regulations or third party rights or contain material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous or in breach of any third party Intellectual Property Rights ("Inappropriate Content").
    2. We shall only include Customer Materials on or within any applicable Deliverables. You acknowledge that we have no control over any content placed on any Deliverable accessibly via the Internet by those who access the Deliverable and we do not purport to monitor the content of any such Deliverable, even if we provide Support Services under the Agreement. Notwithstanding this, we reserve the right to remove content from any Deliverable accessibly via the Internet where we reasonably suspect content to be Inappropriate Content.
    3. You shall indemnify us against all damages, losses and expenses arising as a result of our use of the Customer Materials regardless of the circumstances which cause such damages, losses and/or expenses to arise.
  6. Your obligations
    1. You shall:
      1. ensure that the terms of the Order Form, any Customer Materials and that any written instructions that you provide to us are complete and accurate;
      2. sign a confirmatory note upon any of the Services (in whole or in part) having taken place if we reasonably require you to do so;
      3. ensure that your employees, agents and subcontractors co-operate with, and make themselves available at all reasonable times for discussion and meetings with, us and our employees, agents and subcontractors and to enable us to promptly perform our obligations under this Agreement;
      4. promptly provide to us such data, information and assistance that will enable us to carry out fully, accurately and promptly our obligations under this Agreement to the best of our ability;
      5. have all rights, permissions and consents to enter into, and perform your obligations under, this Agreement; and
      6. comply with all applicable laws, statutes, regulations and byelaws in relation to the exercise of your rights and performance of your obligations under this Agreement.
    2. It is your responsibility to ensure that the Services are sufficient and suitable for your purposes and meet your individual requirements. It is your responsibility for ensuring that the Services, and any deliverables or other materials used as part of the Services, are compliant with any applicable laws and regulations to which you are subject.
    3. You are responsible for ensuring that you provide us with the information and assistance required to enable us to properly provide the Services. We shall not be responsible or, subject to Clause 12.2, have any liability for any failure to provide the Services to the extent caused by your failure to properly ensure the provision of the relevant information and/or assistance, including as set out in Clause 6.1.
  7. Management of the Services
    1. Each Party shall appoint a person to oversee the provision of Services by us to you, where such person shall act as the first point of contact for the other Party in respect of the Services (each being a "Manager").
    2. The relevant Managers shall cooperate with each other and shall attend meetings at reasonable intervals to discuss the provision of the relevant Services.
  8. Fees
    1. In consideration of receiving the relevant Services that we provide pursuant to this Agreement, you shall pay to us the Fees.
    2. The Fees shall be as set out in the Order Form.
    3. We shall be entitled to increase the Hosting Fees and Support Fees (as applicable) on an annual basis on each anniversary of the Commencement Date.
    4. In accordance with the Order Form, or as otherwise in accordance with our normal expenses policies or procedures from time to time, we may charge you for our reasonable expenses incurred in the course of performing our obligations under this Agreement, including for the reasonable accommodation, travel, telephone, food, subsistence, out-of-pocket, any other expenses incurred in the course of performing this Agreement outside of the relevant person's normal place of work, and materials or equipment agreed in writing between the Parties that we will purchase on your behalf. Such expenses shall not be considered to be included in any estimates or quotations we provide to you at any time and shall be incurred and charged to you on an ad hoc basis.
    5. You shall pay the Fees (and expenses) to us within 30 days of the date of each invoice. Unless set out otherwise in this Agreement, we may issue invoices to you for the Fees (and expenses) on a monthly basis or at such intervals as we may, at our absolute discretion, consider appropriate. However, if we are to incur significant expense on your behalf, the Parties may agree (such agreement not to be unreasonably conditioned, withheld or delayed), on a case-by-case basis, that you shall pay us in advance before we have incurred the expense; you acknowledge that, without your agreement to incur the expense, we reserve the right to stop performing the Services that are dependent on us incurring that expense, and we shall have no liability, subject to Clause 12.2, for any delay or failure in the performance of the Services as a result.
    6. Unless otherwise set out in the Order Form, all sums due under this Agreement are exclusive of VAT or other sales, import or export duties or taxes (if applicable) which shall be payable in addition at the same time as payment of any sums due.
    7. You shall pay us all sums due under this Agreement by any payment method that we may stipulate from time to time. No payment shall be considered paid until we have received it in cleared funds in full.
    8. Payment of sums due under this Agreement shall be in the currency in force in England from time to time.
    9. All amounts due under this Agreement shall be paid by you to us in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
    10. If you are late in paying any part of any monies due to us under this Agreement and such payment remains outstanding for 7 days following us providing notice to you of such outstanding payment, we may (without prejudice to any other right or remedy available to us whether under this Agreement or by any statute, regulation or byelaw) do any or all of the following:
      1. charge interest on the overdue amount due but unpaid at the annual rate of interest set under Section 6 of the Late Payment of Commercial Debts (Interest) Act 1998 from time to time from the due date until payment (after as well as before judgement), such interest to run from day to day and to be compounded monthly;
      2. recover our costs and expenses and charges (including legal and debt collection fees and costs) in collecting the late payment; and/or
      3. suspend performance of this Agreement or any Services until payment in full has been made.
  9. Confidentiality
    1. Each Party shall keep the other Party's Confidential Information confidential and shall not:
      1. use such Confidential Information except for the purpose of exercising or performing its rights and obligations under this Agreement; or
      2. disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this Clause 9.
    2. Each Party shall use adequate procedures and security measures to protect the other Party's Confidential Information from inadvertent disclosure or release to unauthorised persons.
    3. A Party may disclose the other Party's Confidential Information to those of its employees, agents and subcontractors who need to know such Confidential Information provided that:
      1. it informs such employees, agents and subcontractors of the confidential nature of the Confidential Information before disclosure; and
      2. it does so subject to obligations equivalent to those set out in this Clause 9.
    4. A Party may disclose the Confidential Information of the other Party to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other Party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this Clause 9.4, it takes into account the reasonable requests of the other Party in relation to the content of such disclosure.
    5. The obligations of confidentiality in this Clause 9 shall not extend to any matter which either Party can show:
      1. is in, or has become part of, the public domain other than as a result of a breach of the confidentiality obligations of this Agreement; or
      2. was independently developed by it; or
      3. was independently disclosed to it by a third party entitled to disclose the same; or
      4. was in its written records prior to receipt.
    6. Each Party reserves all rights in its Confidential Information. No rights or obligations in respect of a Party's Confidential Information other than those expressly stated in this Agreement are granted to the other Party, or to be implied from this Agreement.
    7. We may:
      1. identify you as our customer and the type of Services provided by us to you;
      2. make any announcements (including any announcement required for regulatory compliance) regarding entry into this Agreement on or following the Commencement date; and
      3. use information relating to this Agreement and the Services in marketing and case studies with third parties, including reasonable use of your logo and other branding;

      provided that, in doing so, we shall not reveal any of your Confidential Information (without your prior written consent).

    8. On termination of this Agreement, each Party shall:
      1. return to the other Party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other Party's Confidential Information;
      2. erase all the other Party's Confidential Information from its computer systems (to the extent possible); and
      3. if requested in writing, certify in writing to the other Party that it has complied with the requirements of this Clause 9.8, provided that a recipient Party may retain documents and materials containing, reflecting, incorporating or based on the other Party's Confidential Information to the extent required by law or any applicable governmental or regulatory authority, or to otherwise maintain reasonable business records.
    9. The provisions of this Clause 9 shall continue to apply after termination of this Agreement.
  10. Intellectual Property Rights
    1. Unless the Order Form stipulates otherwise, all Intellectual Property Rights in the Deliverables and/or any other results of any Services provided by us under this Agreement, but excluding the Customer Materials, shall be the property of Karman and/or our relevant third party owners, and we hereby grant you a non-exclusive perpetual licence of such Intellectual Property Rights for the purpose of using the Deliverables or using the results of any Services. You acknowledge and agree that, as we are not the owners of any Third Party Software, any owner of any such Third Party Software incorporated into the Deliverables reserves the right to revoke any licence granted to you under this Agreement on the basis of any terms and conditions that you are required to comply with pursuant to Clause 4.6.
    2. You hereby grant to us a non-exclusive licence, during the Term, to use and modify the Intellectual Property Rights in any Customer Materials provided to us in order to provide the Services under this Agreement.
    3. You shall indemnify us against all damages, losses and expenses suffered by us arising as a result of any action or claim that the Customer Materials infringe the Intellectual Property Rights of any third party.
    4. Except as expressly agreed in this Agreement, no Intellectual Property Rights of either Party are transferred or licensed as a result of this Agreement.
    5. We shall defend you against any claim that your use of any Deliverables or the results of any Services (save for any Third Party Software) infringe any third party's Intellectual Property Rights (save for in respect of any Customer Materials), and we shall indemnify you for any direct amounts awarded against you in judgment or settlement of such claims, provided that:
      1. we are given prompt notice of any such claim;
      2. you make no admissions or settlements without our prior written consent;
      3. you provide reasonable co-operation to us in the defence and settlement of such claim, at our expense; and
      4. you give us complete control over any negotiations, litigation and the settlement of any claim or action.
    6. In the defence or settlement of any claim under the indemnity in Clause 10.5, we may (i) procure the right for you to continue using any applicable Deliverables or the results of the Services, (ii) replace or modify any applicable Deliverables or such results so that they become non-infringing or, (iii) if such remedies are not reasonably available, terminate this Agreement on 2 Business Days' notice to you and refund you the applicable Development Fees.
    7. In no event shall we, our employees, agents and/or sub-contractors have any liability (subject to Clause 12.2) under Clause 10.5 to the extent that the alleged infringement is based on:
      1. your negligence or breach of this Agreement;
      2. a modification of the Services by anyone other than us; or
      3. your use of the Services in a manner contrary to our instructions; or
      4. your use of the Services after notice of the alleged or actual infringement from us or any appropriate authority.
    8. Clause 10.5 to Clause 10.7 (inclusive) state your sole and exclusive rights and remedies, and our (including our employees', agents' and sub-contractors') entire obligations and liability (subject to Clause 12.2), for infringement of Intellectual Property Rights by us, or your use of any Deliverables or the results of any Services.
  11. Data Protection
    1. You are exclusively responsible for, the legality, reliability, integrity, accuracy and quality of the Personal Data shared with us as a result of our performance of the Services.
    2. We acknowledge that you shall own and retain all rights, title and interest in and to the Personal Data. We shall not have any rights to access, use or modify the Personal Data without your prior written consent, except to the extent necessary for you to access the Services or as otherwise required by applicable law.
    3. The Parties acknowledge that, for the purposes of Data Protection Legislation, you are the Controller and we are the Processor of any Personal Data.
    4. Details of the scope, nature and purpose of Processing by us, the duration of the Processing, the types of Personal Data that we are to Process, the categories of Data Subject and the sub-Processors that we have appointed are as set out in Order Form.
    5. Each Party confirms that it holds, and during the Term will maintain, all registrations and notifications required in terms of the Data Protection Legislation which are appropriate to the performance of its obligations under this Agreement.
    6. Each Party confirms that, in the performance of this Agreement, it will comply with the Data Protection Legislation.
    7. We will:
      1. Process Personal Data only on documented instructions from you, unless required to do so by Data Protection Legislation or any other applicable law to which we are subject; in such a case, we shall inform you of that legal requirement before Processing, unless that law prohibits us to so inform you;
      2. ensure that persons authorised to Process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
      3. take all measures required pursuant to Article 32 of the UK GDPR in respect of security of Processing;
      4. notify you as soon as reasonably practicable before appointing any subcontractor in respect of Processing of Personal Data, and ensure that any such subcontractor complies with the provisions of this Clause 11 as if it was a Party; if you (acting reasonably) disagree with the appointment of the subcontractor for reasons relating to the Processing of Personal Data, you shall have the right to terminate this Agreement on no less than 30 days' written notice. For the avoidance of doubt, any appointment of subcontractors in the same corporate group or banner as an existing subcontractor (for example, a subsidiary in the UK, in a different country within the European Economic Area or otherwise any adequate jurisdictions for data processing purposes) shall not require further approval from you;
      5. taking into account the nature of the Processing, assist you by putting in place appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of your obligation to respond to requests for exercising the Data Subject's rights laid down in Data Protection Legislation, to the extent that such requests relate to this Agreement and our obligations under it;
      6. assist you in ensuring compliance with your obligations pursuant to Articles 32 to 36 of the UK GDPR taking into account the nature of Processing and the information available to us;
      7. at your option, delete (to the extent practicable) or return all the Personal Data to you after termination of this Agreement or otherwise on your request, and delete existing copies (to the extent practicable) unless applicable law requires our ongoing storage of the Personal Data;
      8. make available to you all information necessary to demonstrate our compliance with this Clause 11, and allow for and reasonably contribute to audits, including inspections, conducted by you or another auditor mandated by you; and
      9. inform you immediately if, in our opinion, an instruction from you infringes (or, if acted upon, might cause an infringement of) Data Protection Legislation.
    8. Each Party will notify the other Party as soon as is reasonably practicable (any in event within 24 hours) if it becomes aware of a Personal Data Breach relating to either Party's obligations under this Agreement.
    9. You shall undertake appropriate data protection impact assessments to ensure that Processing of Personal Data complies with Data Protection Legislation. We will provide you with reasonable assistance, where necessary and upon your request, in carrying out any data protection impact assessment and undertaking any necessary prior consultation of the Supervisory Authority.
    10. It is your responsibility to ensure that Personal Data is dealt with in a way that is compliant with Article 5(1) of the UK GDPR.
    11. It is your responsibility to ensure that:
      1. you are able to justify the Processing of Personal Data in accordance with Article 6(1) of the UK GDPR (including, where applicable, obtaining any and all consents of Data Subjects required in order to commence the Processing), and that you have recorded or documented this in accordance with the record keeping requirements of the GDPR;
      2. where Personal Data falls within the Special Categories of Personal Data, Article 9(2) of the UK GDPR applies to that Personal Data before Processing takes place;
      3. where Article 9(2) of the UK GDPR does not apply to any Personal Data falling within the Special Categories of Personal Data, no such data will be shared with us; and
      4. you have all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to us for the duration and purposes of this Agreement.
    12. You agree to indemnify us, keep us indemnified and defend us at your own expense, against all costs, claims, damages or expenses incurred by us or for which we may become liable, arising from or in connection with a breach by you of your obligations under this Clause 11.
  12. Limitation of liability
    1. This Clause 12 prevails over all of this Agreement and sets forth our entire liability, and your sole and exclusive remedies, in respect of:
      1. performance, non-performance, purported performance, delay in performance or mis-performance of this Agreement or any services or deliverables in connection with this Agreement; or
      2. otherwise in relation to this Agreement or entering into this Agreement.
    2. Neither Party excludes or limits its liability for:
      1. its fraud or fraudulent misrepresentation;
      2. death or personal injury caused by its Breach of Duty;
      3. any breach of the obligations implied by Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982; or
      4. any other liability which cannot be excluded or limited by applicable law.
    3. Subject to Clause 12.2, we do not accept and hereby exclude any liability for Breach of Duty other than any liability arising pursuant to the terms of this Agreement.
    4. Subject to Clause 12.2, we shall not have any liability in respect of any:
      1. indirect or consequential losses, damages, costs or expenses;
      2. loss of actual or anticipated profits;
      3. loss of contracts;
      4. loss of use of money;
      5. loss of anticipated savings;
      6. loss of revenue;
      7. loss of goodwill;
      8. loss of reputation;
      9. loss of business;
      10. ex gratia payments;
      11. loss of operation time;
      12. loss of opportunity;
      13. loss caused by the diminution in value of any asset; or
      14. loss of, damage to, or corruption of, data,

      whether or not such losses were reasonably foreseeable or we or our Personnel had been advised of the possibility of such losses being incurred. For the avoidance of doubt, Clauses 12.4.2 to 12.4.14 (inclusive) apply whether such losses are direct, indirect, consequential or otherwise.

    5. Subject to Clause 12.2, our total aggregate liability arising out of or in connection with all claims in aggregate (including warranty claims and losses relating to the breach of warranty) shall be limited to 100% of all amounts paid and total other sums payable, in aggregate, by you to us under this Agreement in the 12 months prior to the date on which the claim first arose.
    6. The limitation of liability under Clause 12.5 has effect in relation both to any liability expressly provided for under this Agreement and to any liability arising by reason of the invalidity or unenforceability of any term of this Agreement.
    7. You acknowledge and accept that we only provide the Services to you on the express condition that we will not be responsible for, nor shall we have any liability (subject to Clause 12.2), directly or indirectly, for any act or omission of, you or your employees, agents or subcontractors, or any third party.
    8. Nothing in this Agreement shall restrict or limit either Party's general obligation at law to mitigate any loss it may suffer or incur as a result of an event that may give rise to a claim under this Agreement.
  13. Term and Termination
    1. This Agreement shall commence on the Commencement Date and, unless terminated earlier in accordance with the termination provisions under this Agreement, shall continue in full force and effect until it terminates on the latest of:
      1. the completion or termination of the provision of the Services under this Agreement or the last extant Schedule; or
      2. the conclusion of payment of all sums due under this Agreement;

      (the "Term").

    2. Without prejudice to any of our rights or remedies, we may terminate this Agreement (or, at our absolute discretion, the relevant Schedule) with immediate effect (or such other notice period as we see fit in our absolute direction) by giving notice to you if you fail to pay any amount due under this Agreement on the due date for payment and such amount remains in default not less than 14 days after being notified to make such payment.
    3. By notice in writing to the other Party, either Party may immediately terminate this Agreement:
      1. or the relevant Schedule if (without prejudice to Clause 13.1) the other Party is in material breach of any of its obligations under this Agreement (or that Schedule), and, where such material breach is capable of remedy, the other Party fails to remedy such breach within a period of 20 Business Days of being notified of such breach by the Party;
      2. the other Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
      3. the other Party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this Agreement is in jeopardy; or
      4. if the other Party gives notice to any of its creditors that it has suspended or is about to suspend payment or if it shall be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or an order is made or a resolution is passed for the winding-up of the other Party or an administration order is made or an administrator is appointed to manage the affairs, business and property of the other Party or a receiver and/or manager or administrative receiver is appointed in respect of all or any of the other Party's assets or undertaking or circumstances arise which entitle the court or a creditor to appoint a receiver and/or manager or administrative receiver or administrator or which entitle the court to make a winding-up or bankruptcy order, or the other Party takes or suffers any similar or analogous action in consequence of debt in any jurisdiction.
    4. Termination of this Agreement (or a Schedule) shall be without prejudice to any accrued rights or remedies of either Party.
    5. On termination of this Agreement (or a Schedule) for any reason:
      1. we shall cease to provide the Services under this Agreement (or that Schedule);
      2. any licence granted to you (and subsequently granted by you) shall automatically cease; and
      3. you shall pay to us all amounts owing to us under this Agreement (or that Schedule), whether invoiced or not.
    6. Any provision of this Agreement (or a Schedule) that expressly or by implication is intended to come into or continue in force on or aftertermination of this Agreement (or that Schedule) shall remain in full force and effect.
    7. On termination of this Agreement, all Schedules shall automatically terminate. Termination of any Schedule shall not affect any other Schedule or this Agreement.
  14. Force Majeure
    1. Subject to Clause 12.2, neither Party shall have any liability for any breach, hindrance or delay in performance of its obligations under this Agreement which is caused by an Event of Force Majeure, regardless of whether the circumstances in question could have been foreseen. An "Event of Force Majeure" means any cause outside of the Party's reasonable control, including act of God, actions or omissions of third parties (including hackers, suppliers, couriers, governments, quasi-governmental, supra-national or local authorities), insurrection, riot, civil war, civil commotion, war, hostilities, threat of war, warlike operations, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions, national emergencies, terrorism, nuclear, chemical or biological contamination or sonic boom, piracy, arrests, restraints or detainments of any competent authority, blockade, strikes or combinations or lock-out of workmen, epidemic, fire, explosion, storm, flood, drought, adverse weather conditions, loss at sea, earthquake, natural disaster, accident, collapse of building structures, failure of plant machinery or machinery or third party computers or third party hardware or vehicles, failure or problems with public utility supplies (including general: electrical, telecoms, water, gas, postal, courier, communications or Internet disruption or failure), shortage of or delay in or inability to obtain supplies, stocks, storage, materials, equipment or transportation.
    2. Each Party agrees to inform the other Party upon becoming aware of an Event of Force Majeure, such information to contain details of the circumstances giving rise to the Event of Force Majeure.
    3. The performance of each Party's obligations shall be suspended during the period that the circumstances persist and such Party shall be granted an extension of time for performance equal to the period of the delay.
    4. Each Party shall bear its own costs incurred by the Event of Force Majeure.
    5. If the performance of any obligations is delayed under Clause 14, each Party shall nevertheless accept performance as and when the other Party shall be able to perform.
    6. If the breach, hindrance or delay caused by the Event of Force Majeure as set out in Clause 14.1 continues without a break for more than 1 month, either Party may terminate this Agreement immediately by notice to the other Party, in which event neither Party shall have any liability (subject to Clause 12.2) to the other Party by reason of such termination.
    7. If we have contracted to provide identical or similar services to more than one customer and we are prevented from fully meeting our obligations to you due to an Event of Force Majeure, we may decide at our absolute discretion which contracts we will perform and to what extent.
  15. Notices
    1. Any notice given to either Party under or in connection with this Agreement shall be in writing, addressed to the relevant Party at its registered office or such other address as that Party may have specified to the other Party in writing, and shall be delivered personally, sent by pre-paid first-class post, recorded delivery, commercial courier or by email
    2. A notice shall be deemed to have been received: if delivered personally, when left at the address referred to in Clause 15.1; if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or if delivered by email, at the time of transmission provided that a confirmatory copy is sent to the other Party by first class post or recorded delivery on the first Business Day following transmission.
    3. The provisions of this Clause 15 shall not apply to the service of any proceedings or other documents in any legal action.
  16. Assignment

    You may not assign, transfer, charge or otherwise encumber, create any trust over, or deal in any manner with, this Agreement or any right, benefit or interest under it, nor transfer, novate or sub-contract any of its obligations under it, without our prior written consent (such consent not to be unreasonably withheld or delayed).

  17. Severance
    1. If any court or competent authority finds that any provision of this Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected.
    2. If any invalid, unenforceable or illegal provision of this Agreement would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
  18. Waiver and remedies
    1. A waiver of any right or remedy under this Agreement is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
    2. Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
  19. Third party rights

    A person who is not a Party shall not have any rights under or in connection with this Agreement.

  20. Change Control
    1. In the event that we or you need to change this Agreement, you may at any time request, and we may at any time recommend, such Change only in accordance with this Clause 20.
    2. Until such time as a Change is made in accordance with this Clause 20, we and you shall, unless otherwise agreed in writing, continue to perform this Agreement in compliance with its terms prior to such Change.
    3. Any discussions which may take place between us and you in connection with a request or recommendation before the authorisation of a resultant Change shall be without prejudice to the rights of either Party.
    4. Discussion between us and you concerning a Change shall result in any one of the following:
      1. no further action being taken; or
      2. a request to change this Agreement by you; or
      3. a recommendation to change this Agreement by us.
    5. Where we receive a written request for a Change from you, we shall, unless otherwise agreed between us and you, submit a draft Change Control Note to you within 3 weeks of the date of the request.
    6. A recommendation of a Change by us shall be submitted by us directly to you in the form of a draft Change Control Note. You shall give your response to the draft Change Control Note within three weeks of receipt.
    7. A "Change Control Note" means the written record of a Change agreed or to be agreed by us and you, as per the template annexed to these Terms and Conditions, and shall contain:
      1. the title of the Change;
      2. the originator and date of the request or recommendation for the Change;
      3. the reason for the Change;
      4. full details of the Change, including any specifications;
      5. the impact on Fees, if any, of the Change;
      6. a timetable for implementation, together with any proposals for acceptance of the Change;
      7. a schedule of payments if appropriate;
      8. details of the likely impact, if any, of the Change on other aspects of this Agreement including:
        • (a) the timetable for the provision of the Change;
        • (b) the Personnel to be provided;
        • (c) the Fees; and
        • (d) other contractual issues;
      9. the date of expiry of validity of the Change Control Note; and
      10. provision for signature by us and you.
    8. For each Change Control Note submitted to you by us, you will, within the period of the validity of the Change Control Note:
      1. allocate a sequential number to the Change Control Note; and
      2. evaluate the Change Control Note and, as appropriate:
        • (e) request further information; or
        • (f) arrange for two copies of the Change Control Note to be signed by or on behalf of you and return one of the copies to us; or
        • (g) notify us of the rejection of the Change Control Note.
    9. A Change Control Note signed by us and you shall constitute an amendment to this Agreement.
  21. No partnership

    Nothing in this Agreement shall constitute a partnership or employment or agency relationship between the Parties.

  22. Governing law and jurisdiction
    1. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England.
    2. The Parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation.