In this Agreement the below terms shall have the following meanings:
“Applicable Laws”: all applicable laws, statutes, regulation and codes from time to time in force.
“Background IP Rights”: any and all IP Rights that are owned by or licensed to either Party or its sub-contractors and which are or have been developed independently of this Agreement;
“Client Materials”: any and all documents, artwork, software or other materials provided by the Client to Superco in order for Superco to deliver the Services.
“Contact”: contact people both from Superco’s and Client’s side for managing the requirements, project progress, day-to-day tasks, business analysis, resource allocation, resources planning and other non-technical duties during the Term.
“Controller”, “processor”, “data subject”, “personal data”, “personal data breach”, “processing and appropriate technical measures”: as defined in the Data Protection Legislation.
“Data Protection Legislation”: all applicable data protection and privacy legislation in force from time to time in connection with this Agreement including “EU GDPR”: the General Data Protection Regulation ((EU) 2016/679); and “UK GDPR” has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
“Deliverable”: any materials specifically listed in section 3 to be provided as part of the Services by Superco.
“Good Industry Practice”: in relation to any undertaking and any circumstances, the exercise of that degree of skill, diligence, integrity, efficiency, prudence and foresight which would reasonably be expected from a person engaged in the same type of undertaking and/or the same or similar circumstances.
“IP Rights”: includes any intellectual property right (including any copyright, database right, rights in inventions, patents, know-how designs, rights in trade names, rights in software and trademarks), whether registered or unregistered, including any right or applicable to register an intellectual property right, and any other rights equivalent or similar to any of the foregoing, wherever arising.
“Services”: the services to be provided by Superco as specified in section 3.
Clause, section and paragraph headings shall not affect the interpretation of this Agreement.
This Agreement shall be binding on, and ensure to the benefit of, the parties to this Agreement 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 and a reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
Unless the context otherwise requires, any reference to European Union law that is directly applicable or directly effective in the UK at any time is a reference to it as it applies in England and Wales from time to time including as retained, amended, extended, re-enacted or otherwise given effect.
A reference to “writing” or “written” includes email.
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.
Superco shall provide the Services in consideration of the Fees specified in this Agreement or otherwise agreed in writing by the Parties on the terms set out in this Agreement.
This Agreement shall commence on the Commencement Date and shall continue until the completion of all Services unless terminated in accordance with clause 14.
The Fees which Client pays to Superco for the provision of the Services are specified in section 3.
The Client shall pay each invoice submitted to it by Superco on receipt.
Without prejudice to any other right or remedy that it may have, if Client fails to pay Superco any sum due under this Agreement by the due date Client 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 will accrue each day at 8% a year above the Bank of England’s base rate from time to time, but at 8% a year for any period when that base rate is below 0%.
VAT or equivalent tax will be charged in addition to the Fees at the applicable rate at the time of invoicing.
The Parties agree that each Party shall appoint a Contact who shall have primary responsibility for the communication between Parties with respect to Services.
Although Parties may communicate via different means the only forms which shall be binding on the Parties shall be when it is agreed in writing by the Parties. In the case of email this is only when it has been agreed in writing between the respective Contacts otherwise it shall be in writing and signed by the Parties.
Unless otherwise agreed in writing by the Parties, the Parties hereby agree that all IP Rights created by Superco or any employee, agent or sub-contractor of Superco in the course of providing the Services for Client (the “Developed IP Rights”) shall vest in Client upon receipt of full payment for the same (including but not limited to any source code).
Superco shall obtain waivers of all moral rights in the Developed IP Rights to which any individual is now or may be at any future time entitled under Chapter IV of Part I of the Copyright Designs and Patents Act 1988 or any similar provisions of law in any jurisdiction.
Superco shall promptly do (or procure to be done) all such further acts and things and the execution of all such other documents as Client may from time to time require for the purpose of securing for Client the full benefit of the Agreement, including all right, title and interest in and to the IP Rights assigned to Client in accordance with this clause 6.
Without prejudice to the foregoing, Client hereby agrees that Superco or any employee, agent or sub-contractor of Superco, will retain ownership of all Superco Background IP Rights. Superco grants to Client a non-exclusive, non-transferable licence to use Superco Background IP to the extent necessary to receive the full benefit of the Services.
Client shall retain ownership of all Client Background IP Rights and hereby grants to Superco for the duration of this Agreement a non-exclusive, non-transferable, royalty-free licence to use the Client Background IP Rights solely to the extent necessary to provide the Services.
Client hereby grants to Superco a non-exclusive, non-transferable, royalty-free licence to use the Developed IP Rights until such Developed IP Rights are assigned to the Client under this clause 6, solely to the extent necessary to receive the Services.
Superco hereby indemnifies and will keep indemnified Client from and against any claim, action, liability, proceedings, costs (including reasonable legal costs and disbursements on a solicitor and client basis), damages and expenses raised against or incurred by Client however arising and which relate to any claim that use of Superco Background IP Rights or the Developed IP Rights, infringe the IP Rights of any third party.
In the event that any such claim alleging infringement is made or may be made, Superco may at its sole option and expense and without prejudice to other rights Client may have:
procure for Client the right to continue using any Services or infringing part thereof; or
modify or amend any Services or infringing part thereof so that the same becomes non-infringing; or
replace any Services or infringing part thereof by other non-infringing Services of similar capability.
Client hereby indemnifies and will keep indemnified Superco from and against any claim, action, liability, proceedings, costs (including reasonable legal costs and disbursements on a solicitor and client basis), damages and expenses raised against or incurred by Superco however arising and which relate to any claim that use of Client Background IP Rights infringe the IP Rights of any third party.
Each Party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customer, clients or suppliers or the other Party, except as permitted by clause 7.2.
Each Party may disclose the other Party’s confidential information:
to its employees, officers, representatives, contractors, subcontractors 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 this Agreement. Each Party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other Party’s confidential information comply with this clause 7; and
as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
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 this Agreement.
Superco shall provide the internal network and all hardware, connectivity and telephony required for the Services so that Superco’s personnel are able to execute its obligations with respect to Services.
Should Client require additional hardware or additional software for provision of the Services this shall be purchased by Client and provided to Superco or shall be purchased by Superco on behalf of Client (and the costs for such passed on to Client). Unless such additional software or hardware is specified in section 3 the Parties agree that Client does not require this.
Should during the performance of the Services Superco finds that particular software or particular hardware is needed in order for the Services to be provided and such software or hardware is not envisaged in section 3, Superco’s Contact shall contact Client’s Contact and discuss the issue. Any agreement to buy such software or hardware and the arrangements for the purchase will be made in writing by the Parties.
Superco represents and warrants that:
it has full capacity and authority to enter into and perform its obligations under this Agreement and that this Agreement is executed by a duly authorised representative of Superco.
it will provide the Services in accordance with section 3 and that the Services shall be provided with the highest level of care, skill and diligence and in line with Good Industry Practice;
it will cooperate with Client in all matters relating to the Services, and comply with Client’s reasonable instructions;
before the date on which the Services are to start, it will obtain and at all times, during the term of this Agreement, maintain all necessary licences and consents and comply with all Applicable Laws in relation to:
the Services; and
the installation and use of the Services;
it will hold all Client Materials in safe custody at its own risk and maintain the Client Materials in good condition until returned to the Client, and not dispose of or use the Client Materials other than in accordance with the Client’s written instructions or authorisations;
it will use reasonable endeavours to meet any performance dates specified in section 3 but any such dates shall be estimates only and time for performance by Superco shall not be of the essence of this agreement;
it will use reasonable endeavours to ensure that the same person acts as Superco’s Contact throughout the term, but may replace that person from time to time where reasonably necessary in the interests of Superco’s business.
Client represents and warrants that:
Client has full capacity and authority to enter into and perform its obligations under this Agreement and that this Agreement is executed by a duly authorised representative of Client;
it shall cooperate with Superco in all matters relating to the Client;
it shall provide Superco in a timely manner all documents, information, items and materials in any form (whether owned by the Client or a third party) as reasonably required by Superco in connection with the Services and ensure that they are accurate and complete in all material respects;
it shall obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable Superco to provide the Services, including in relation to the installation of any third party software, the use of all Client Materials in all cases before the date on which the Services are to start;
it shall ensure that all data exchanged by the parties as part of the provision of the Services is kept and transferred securely.
If Superco’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees then, without prejudice to any other right or remedy it may have, Superco shall be allowed an extension of time to perform its obligations equal to the delay caused by the Client.
Neither Party shall (except with the prior written consent of the other Party) directly or indirectly solicit or entice away (or attempt to solicit or entice away) from the employment of the other Party any person employed or engaged by such other Party in the provision of the Services or, in the case of Client, in the receipt of the Services at any time during this Agreement or for a further period of 6 months after the termination of this Agreement other than by means of a national advertising campaign open to all comers and not specifically targeted at any of the staff of the other Party.
If either Party commits any breach of clause 11.1, the breaching Party shall, on demand, pay to the claiming Party a sum equal to one year’s basic salary or the annual fee that was payable by the claiming Party to that employee, worker or independent contractor plus the recruitment costs incurred by the claiming Party in replacing such person.
Except as expressly and specifically provided in this Agreement:
Superco shall have no liability for any damage caused by errors or omissions in any Client Materials provided to Superco by the Client in connection with the Services, or any actions taken by Superco at the Client’s direction;
all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
the Services and Developed IP are provided to the Client on an “as is” basis.
Nothing in this Agreement excludes the liability of a party:
for death or personal injury caused by that party’s negligence; or
for fraud or fraudulent misrepresentation.
Subject to clauses 12.1, 12.2 and 12.3 , Superco’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to 50% of the total fees paid by the Client to Superco in the previous 12 months pursuant to this Agreement.
Subject to clauses 12.1, 12.2and 12.3, Superco shall not in any circumstances be liable whether in contract, tort (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for:
any loss (whether direct or indirect) of profits, business, business opportunities, revenue, turnover, reputation or goodwill;
any loss or corruption (whether direct or indirect) of data or information;
loss (whether direct or indirect) of anticipated savings or wasted expenditure (including management time); or
any loss or liability (whether direct or indirect) under or in relation to any other contract.
Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 13 is addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the controller and Superco is the processor.
Without prejudice to the generality of clause 13.1, Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Superco for the duration and purposes of this Agreement.
Without prejudice to the generality of clause 13.1, Superco shall, in relation to any personal data processed in connection with the performance by Superco of its obligations under this Agreement:
process that personal data only on the documented written instructions of Client unless Superco is required by Applicable Laws to otherwise process that personal data. Where Superco is relying on the laws of a member of the European Union or European Union Law as the basis for processing personal data, Superco shall promptly notify Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Superco from so notifying Client;
ensure that it has in place appropriate technical and organisational measures, reviewed and approved by Client, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymisation and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
not transfer any personal data outside of the European Economic Area unless the prior written consent of Client has been obtained and the following conditions are fulfilled:
Client or Superco has provided appropriate safeguards in relation to the transfer;
the data subject has enforceable rights and effective legal remedies;
Superco complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
Superco complies with reasonable instructions notified to it in advance by Client with respect to the processing of the personal data;
assist Client, at Client’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
notify Client without undue delay on becoming aware of a personal data breach;
at the written direction of Client, delete or return personal data and copies to Client on termination or expiry of this Agreement unless required by Data Protection Legislation to store the personal data; and
maintain complete and accurate records and information to demonstrate its compliance with this clause and allow for audits by Client or Client’s designated auditor of such records and information and immediately inform Client if, in the opinion of Superco, an instruction infringes the Data Protection Legislation.
Client consents to Superco appointing third party processors of personal data in connection with this Agreement provided that SuperCo confirms that it has entered or (as the case may be) will enter with the third party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 13 and in either case which Superco undertakes reflect and will continue to reflect the requirements of the Data Protection Legislation. As between Client and Superco, Superco shall remain fully liable for all acts or omissions of any third party processor appointed by it pursuant to this clause 13.
Each Party is entitled to terminate this Agreement at any time upon 30 days’ written notice. In order to be deemed valid the termination written notice shall be made in writing to the address specified in the notice clause at clause 16.6.
Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other Party if:
the other Party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 60 days after being notified in writing to make such payment;
the other Party commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 15 days after being notified in writing to do so;
the other Party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
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;
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;
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;
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;
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; or
the other Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
On the termination of this Agreement for whatever reason:
all rights and obligations of the Parties under this Agreement shall automatically terminate except for such rights of action as shall have accrued prior to such termination and any obligations which expressly or by implication are intended to come into or continue in force on or after such termination;
Client shall pay Superco for all due, unpaid Fees not the subject of bona fide dispute accrued up to the date of termination, and ensure the return of any property, including materials and equipment, belonging to Superco;
Superco shall immediately: (i) return all property of Client including any confidential information, deliverables (in the format and on the media reasonably specified by Client) and the Client Materials; (ii) destroy all copies (electronic or otherwise) of the same, so that nothing belonging to Client which is not intended for use by Superco outside/after this Agreement is retained; and (iii) confirm in writing that all the above actions have been carried out. On providing reasonable grounds for further investigations, Client may, on giving reasonable notice, request permission for a physical audit to be carried out on Superco premises for the purposes of verifying the content of Superco signed statement. In so doing, Client shall specify which records or aspects Client has cause to inspect and shall agree the same with Client before such inspection.
Superco will provide termination services as reasonably necessary to allow the provision of the Services to continue without interruption or disruption and to facilitate the orderly and complete transfer of the Services to Client or a Replacement Provider with the minimum of disruption to Client’s business. Superco shall use its best endeavours to agree an appropriate plan, co-operate with and support Client to achieve a seamless transfer. Superco shall also comply with all relevant employment legislation applicable to all staff affected. For the avoidance of doubt, Client has no obligation to take the termination services from Superco.
Any clauses which expressly or by implication survive termination of this Agreement shall continue in full force and effect.
Termination or expiry of this Agreement 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 this Agreement which existed at or before the date of termination or expiry.
Neither Party shall be under any liability to the other for any delay or failure in performing its obligations under this Agreement to the extent that the failure or delay is caused or contributed to by any circumstance beyond its reasonable control, including but not limited to any act of God, war, civil commotion, epidemic, riot, strike, lockout, trade dispute (except where involving its own employees), breakdown, failure, accident or any other happening or event whatsoever (whether or not of a kind similar to those mentioned before). Any such delayed Party shall be entitled to a reasonable extension of time for the performance of its obligations.
If a force majeure event affecting this Agreement continues for a period of more than fourteen (14) business days, the affected Party may terminate this Agreement by giving not less than 1 month’s written notice to the other Party.
This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Nothing in this clause shall limit or exclude liability for fraud.
Assignment and other dealings.
Neither party may assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Agreement without the prior written consent of the other Party.
Except as set out in this Agreement, no variation of this Agreement shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).
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 right or remedy. A failure or delay by a party to exercise any right or remedy provided under this Agreement 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 this Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
If this Agreement does not state otherwise with respect to the Services notice shall be
by email, where the email is sent to the relevant Party’s Contact.
either delivered by hand to such Party at its address as set out above, or sent by postage prepaid certified mail (return receipt requested), or by reputable overnight courier to such Party at the above address and shall be effective on the date of receipt. No notice to a Party shall be deemed received on a day that is not a business day in the jurisdiction in which notices are to be addressed to such Party. Any such notice shall not be effective until the next business day in such jurisdiction.
The Parties shall ensure they notify the other Party of any change in the details above.
Third party rights.
Unless it expressly states otherwise, this Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
If a dispute arises out of or in connection with this Agreement or the performance, validity or enforceability of it (“Dispute”) then except as expressly provided in this Agreement, the Parties shall follow the procedure set out in this clause:
either Party shall give to the other written notice of the Dispute, setting out its nature and full particulars (“Dispute Notice”), together with relevant supporting documents. On service of the Dispute Notice, the Contacts shall attempt in good faith to resolve the Dispute;
if for any reason the Dispute is unable to be resolved within 30 days of service of the Dispute Notice, the Dispute shall be referred to director level who shall attempt in good faith to resolve it;
if for any reason the Dispute is unable to be resolved within 14 days of it being referred to them, the Parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator shall be nominated by CEDR. To initiate the mediation, a Party must serve notice in writing (ADR notice) to the other Party to the Dispute, requesting a mediation. A copy of the ADR notice should be sent to CEDR. The mediation will start not later than 14 days after the date of the ADR notice; and
The commencement of mediation shall not prevent the Parties commencing or continuing court proceedings in relation to the Dispute.]
Governing Law and Jurisdiction.
This Agreement shall be construed and enforced in accordance with, and shall be governed by English law and under the exclusive jurisdiction of the English courts.
This Agreement may be signed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.