THESE TERMS AND CONDITIONS TOGETHER WITH THE APPLICABLE ORDER FORM (“ORDER”) CONSTITUTE A LEGAL AGREEMENT WHICH CONTAINS THE ENTIRE AGREEMENT BETWEEN THE CUSTOMER DETAILED IN THE ORDER (“CUSTOMER”) AND MINIMUM LIMITED (“THE SUPPLIER”) (TOGETHER THE “AGREEMENT”). THE SUPPLIER AND CUSTOMER HEREBY AGREE AS FOLLOWS:
1. SCOPE OF SERVICES AND CUSTOMER OBLIGATIONS
1.1.
The Services shall be as set out in any Scope of Work agreed between the Customer (“you”) and the Supplier (“we” / “us”) during the Term, and these Terms and Conditions shall apply. In the event of any conflict between these Terms and Conditions and a Scope of Work, the Scope of Work shall prevail.
1.2.
We shall ensure that the Services are provided in accordance with the standard of skill and care which a competent and suitably qualified person performing the same services could reasonably be expected to exercise, and in accordance with all relevant legislative and statutory requirements in effect at the date on which the Services are performed.
1.3.
We reserve the right to amend the Services or any Scope of Work if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and we shall notify you in any such event.
1.4.
You agree to use all reasonable endeavours to: undertake the timely performance of your obligations as set out in these Terms and Conditions, and any Scope of Work; co-operate with the us in all matters relating to the Services and in a timely manner in order to enable us to provide the Services; and provide us with the access to your staff, premises and data we reasonably request in order for us to perform the Services.
1.5.
You shall promptly inform us of any matters of which you become aware which are likely to affect our ability to perform our obligations under the Agreement and/or to provide the Services.
1.6.
You warrant that all information provided to us in connection with the Services shall be true, complete, and accurate in all respects and not misleading and/or flawed in any way.
1.7.
We may require you to re-submit correct information in substitution for any information which is incorrect, inaccurate, misleading or flawed in any way. If any additional Services are required as a result of your provision of information which is incorrect, inaccurate, misleading or flawed in any way, we will inform you in advance and may charge you a reasonable additional Fee.
1.8.
If our performance of any of our obligations under this Agreement is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (“Customer Default”):
a)
without limiting or affecting any other right or remedy available to it, we shall have the right to suspend performance of the Services until you remedy the Customer Default, and to rely on the Customer Default to relieve us from the performance of any of our obligations in each case to the extent the Customer Default prevents or delays our performance of any of our obligations;
b)
we shall not be liable for any costs, damage, losses or expenses sustained or incurred by you arising directly or indirectly from our failure or delay to perform any of our obligations as set out in this clause 1 or in the provision of the Services. If there is likely to be any delay in the provision of the Services we will give you as much notice as is reasonably practicable; and
c)
you agree to reimburse us on written demand for any costs or losses sustained or incurred by us arising directly or indirectly from the Customer Default.
2. CONFIDENTIALITY; PROPRIETARY INFORMATION
2.1.
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of the Supplier includes non-public information regarding features, functionality and performance of the Services. Proprietary Information of Customer includes non-public data provided by Customer to the Supplier to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law or any regulatory authority.
2.2
Clause 2.1 shall not apply to the Proprietary Information of a party which is disclosed by the other where such Proprietary Information: was, by reasonable proof, already in the possession of the receiving party prior to the time of its receipt from the other party; is or becomes public knowledge other than by the default of the receiving party (or its officers, employees, secondees or advisers); or is lawfully obtained by the receiving party from a third party who is able to disclose it without being in breach of any confidentiality obligation.
2.3.
Customer shall own all right, title and interest in and to the Customer Data. The Supplier shall own and retain all right, title and interest in and to (a) the Services and software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Services or support, and (c), subject to clause 3, all intellectual property rights related to any of the foregoing.
2.4.
Notwithstanding anything to the contrary, the Supplier shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and the Supplier will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Supplier offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
2.5.
We and you shall each comply with our respective obligations under the Data Processing Agreement ("DPA") that form Part C to these Terms and Conditions. The DPA is in addition to, and does not relieve, remove, or replace, the obligations or rights under the Data Protection Legislation (as such term is defined in the DPA).
3. INTELLECTUAL PROPERTY
For the purposes of this clause, Intellectual Property Rights shall mean: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
3.1.
All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any Customer Data) shall be owned by the Supplier.
3.2.
The Supplier grants to the Customer or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence to copy and modify the deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Services and the deliverables in its business.
3.3.
The Customer shall not sub-license, assign or otherwise transfer the rights granted in clause 3.2.
3.4.
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 Term of the Agreement for the purpose of providing the Services to the Customer and in accordance with this Agreement.
4. FEES
4.1.
Customer will pay the Supplier the applicable fees described in the Order Form for the Services in accordance with the terms therein (the “Fees”).
4.2.
Full payment for invoices issued by the Supplier in any given month must be received by the Supplier thirty (30) days after the mailing date of the invoice.
4.3.
The Fees are payable in the currency detailed in the Order. The fee is stated exclusive of value added tax and all other levies, duties and taxes (“VAT”), which shall be added to the Supplier’s invoice(s) at the appropriate rate.
4.4.
Unless otherwise stated in the Order Form, the Supplier reserves the right to increase the Fees on an annual basis with effect from each anniversary of the Effective Date in line with the percentage increase in the Retail Prices Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Effective Date.
4.5.
If the Customer fails to make a payment due to the Supplier by the due date, then, without limiting the Supplier’s remedies under clause 5 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 4.5 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
4.6.
All amounts due under the Agreement 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).
5. TERMINATION
5.1.
Without affecting any other right or remedy available to it, either party may terminate this agreement without notice if the other party materially breaches any of the terms or conditions of this Agreement and, in the case of the Supplier, if such a breach is remediable, the Supplier fails to remedy that breach within 14 days of being notified to do so. Customer will pay in full for the Services up to and including the deliverables completed by the Supplier, as set out in any Scope of Work.
5.2.
Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:
a)
the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
b)
the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
c)
the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Agreement has been placed in jeopardy.
5.3.
Without affecting any other right or remedy available to it, the Supplier may terminate the Agreement with immediate effect by giving written notice to the Customer if:
a)
the Customer fails to pay any amount due under the Agreement on the due date for payment; or
b)
there is a change of control of the Customer.
5.4.
Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services under the Agreement or any other contract between the Customer and the Supplier if:
a)
the Customer fails to pay any amount due under the Agreement on the due date for payment; or
b)
the Customer becomes subject to any of the events listed in clause 5.2, or the Supplier reasonably believes that the Customer is about to become subject to any of them.
5.5.
On termination or expiry of the Agreement:
a)
the Supplier will be entitled to delete the Customer Data not less than 90 days after such termination or expiry;
b)
the Supplier will delete the Customer Data within 90 days, on receipt of a written request from the Customer to delete such Customer data; and
c)
the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt.
5.6.
Termination or expiry of the 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 the Agreement which existed at or before the date of termination or expiry.
5.7.
All sections of this Agreement which expressly, or by implication should survive termination, or is intended to come into or continue in force on or after termination or expiry will survive termination and shall remain in full force and effect, including, without limitation, accrued rights to payment, confidentiality obligations, and limitations of liability.
6. LIMITATION OF LIABILITY - THE CUSTOMER’S ATTENTION IS DRAWN TO THIS CLAUSE
6.1.
Neither party nor its suppliers (including but not limited to all equipment and technology suppliers), officers, affiliates, representatives, contractors and employees shall be responsible or liable with respect to any subject matter of this agreement or terms and conditions related thereto under any contract, negligence, strict liability, tort, misrepresentation, restitution or otherwise. Subject to clauses 6.2, 6.3 and 6.4 below, both parties’ liability under this Agreement shall not exceed the fees paid by Customer to the Supplier for the services under this Agreement in the 12 months prior to the act that gave rise to the liability, in each case, whether or not the other party has been advised of the possibility of such damages.
6.2.
Nothing in this clause 6 shall limit the Customer’s payment obligations under the Agreement.
6.3.
Nothing in the Agreement limits any liability which cannot legally be limited, including but not limited to liability for:
a)
death or personal injury caused by negligence;
b)
fraud or fraudulent misrepresentation; and
c)
breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
6.4.
Subject to clauses 6.2 and 6.3, types of loss wholly excluded from this Agreement include but are not limited to:
a)
loss of profits.
b)
loss of sales or business.
c)
loss of agreements or contracts.
d)
loss of anticipated savings.
e)
loss of use or corruption of software, data or information.
f)
loss of or damage to goodwill; and
g)
indirect or consequential loss.
6.5.
The Supplier has given commitments as to compliance of the Services with relevant specifications in clause 1. In view of these commitments, the terms implied by sections 3 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Agreement.
6.6.
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 6 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
7. FORCE MAJEURE
Neither party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control.
8. MISCELLANEOUS
8.1.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
8.2.
This Agreement is not assignable, transferable or sublicensable by Customer except with the Supplier’s prior written consent. The Supplier may transfer and assign any of its rights and obligations under this Agreement without consent.
8.3.
This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
8.4.
The parties may, by agreement in writing, amend the Services. Any such amendment shall form part of the Order and be subject to these Terms.
8.5.
No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind the Supplier in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
8.6.
All notices under this Agreement will be in writing and will be deemed to have been duly given:
a)
when received, if personally delivered;
b)
when receipt is electronically confirmed by read receipt, if transmitted by e-mail;
c)
the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and
d)
upon receipt, if sent by certified or registered mail, return receipt requested.
8.6.
This clause 8.6 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
8.7.
A waiver of any right or remedy under the Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the 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 the Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
8.8.
Unless it expressly states otherwise, the Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
8.9.
This Agreement 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.
8.10.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Agreement or its subject matter or formation.
8.11.
The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with the Supplier to serve as a reference account upon request.