Framework Terms and Conditions for Infrastructure, Infrastructure Support, Applications and Applications Support (“the Services”)


1. Basis of contract

1.1       Together with the additional terms and conditions set out in each Order, these terms and conditions apply to all Orders for the supply of Services by us to you from the date of the first Order to which they are attached or referred (or the date on which they are first drawn to your attention if earlier).

1.2       In the event of any inconsistency, the terms set out in an Order (including its annexes) shall prevail over these terms and conditions. Your terms and conditions and any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing are expressly excluded.

1.3       Any samples, drawings, descriptive matter or advertising issued by us, and any descriptions or illustrations contained in our catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the services described in them. They shall not form part of any Order and you may not rely on any statement, representation, warranty or undertaking (whether negligent or innocent) made or given by us or on our behalf which is not set out in the relevant Order.

1.4       All of these terms and conditions shall apply to the supply of both Hardware and Services except where application to one or the other is specified. 

2. Supply of Services

2.1       The provision of Services in respect of each Order shall (where relevant) commence on the start date set out in it (Start Date) and, subject to earlier termination in accordance with these terms and conditions or the Order, shall continue for the period set out in the Order (Term) or (in the absence of such information) until completion of the Services.

2.2       We shall supply the Services to you at the address (or addresses) identified in the relevant Order in accordance (in all material respects) with any relevant specification and any Service Level Agreement set out, referred to in or annexed to any Order (Specification).

2.3       Any dates for delivery of the Services set out in the Order (including any implementation plan or timetable annexed to it) are estimates only and shall be varied to take account of any changes in the Services requested by you, your failure to perform any obligations set out in the Order or any circumstances beyond our control.

2.4       We have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement or which do not materially affect the nature or quality of the Services.

2.5       We warrant that:

(a)    the Services will be provided using reasonable skill and care in accordance with all applicable laws and regulations;

(b)    we have, and will continue to hold, all consents and regulatory approvals necessary to provide the Services;

(c)     we have, and will continue to have, all necessary rights in and to any of our software and our other intellectual property and materials which may form part of the Services;

(d)    we will comply with any security policy identified in the Order and will allocate sufficient resources to provide the Services in accordance with the terms of the Order;

(e)    we will make available to you the nominated representative identified in the Order and any other appropriate personnel to liaise with you in the provision of the Services; and

(f)     we will perform any tasks or make any specific preparation identified in the Order or any implementation plan or timetable annexed to it.

The warranties set out in clause 2.5 (and in clause 10.5 where it applies) are in lieu of and exclude all other terms, conditions or warranties implied by statute, law or otherwise in respect of the Services.

3. Supply of Hardware

3.1       Where we supply hardware, equipment or any other goods (Hardware) to you we shall have no liability to you whatsoever for any delays in the supply of such Hardware caused (in whole or in part) by a delay of our suppliers.

3.2       We shall provide you with the benefit of any warranty offered by our suppliers in respect of the Hardware but all other terms, conditions or warranties implied by statute, law or otherwise in respect of the Hardware are excluded.

4. Client’s obligations

4.1       You shall:

(a)    co-operate and provide us with all reasonable support and assistance in all matters relating to the Services;

(b)    provide us, our employees, agents, consultants and subcontractors, with access to your premises, office accommodation and other facilities as we reasonably require in order to supply the Services;

(c)     provide us with such information and materials as we may reasonably require in order to supply the Services, and ensure that such information is  complete and accurate in all material respects;

(d)    make available to us the nominated representative identified in the Order and any other appropriate personnel to liaise with us in the provision of the Services;

(e)    perform any tasks or make any specific preparation identified in the Order or any implementation plan or timetable annexed to it; and

(f)     in sufficient time to permit us to meet all our obligations under the Order, give us access to all (if any) of your data that is to be migrated as part of the Services. You shall be responsible for checking the accuracy and completeness of the migrated data and shall promptly give sufficient details to us of any inaccuracies or omissions in order to permit us to correct such inaccuracy or omission.

5. Change Control

5.1       You may, by giving written notice to us at any time during the Term, request a change to the Services and/or any relevant Specification. Within seven working days of receipt of such notice, we shall, at our standard rates then in force, prepare for you a written estimate of any increase or decrease in the Charges and of any effect that the requested change would have on the provision of Services. Within 14 working days of your receipt of our written estimate, you shall inform us in writing of whether or not you wish the requested change to be made in which case a revised Order shall be agreed and the changes implemented on the date or dates specified in the revised Order. 

6. Documentation

6.1       We shall provide you (at such times as specified in the Order or in the absence of such information, at the Start Date) copies of the documentation identified in the Order. Where that documentation relates to software developed by us for you (Custom Software), the documentation will contain sufficient up-to-date information for its proper use and, where relevant, maintenance. Unless we expressly assign our rights in the documentation to you, you may make only such further copies of the documentation as are reasonably necessary for the use and, where relevant, maintenance and testing of the Custom Software and for training your personnel in its use and you shall not disclose the documents or any part of them to any third party without our written consent. 

7. Training

7.1       We shall provide you with the training (if any) specified in the Order at the location and for the Charges specified in the Order. Any additional training required by you shall be provided by us at our standard rates then in force.

8. Pre-Delivery and Acceptance Testing

8.1       We may, in our absolute discretion, before delivering any Services carry out tests to ensure that they are capable of meeting the Specification or other requirements of the Order. Additionally, where acceptance criteria have been specified in the relevant Order, we will carry out the necessary acceptance tests on the dates set out in the Order during normal working hours. You may observe all or any part of acceptance testing.

8.2       If any of the Services fail in any material respect to pass any relevant pre-delivery or acceptance tests (or any re-test) following our attempts to remedy the relevant defect(s), we shall confirm such failures to you in writing (specifying the defect) and you shall be entitled:

(a)    to permit the Service(s) to be installed subject to the defect (and the Specification shall be deemed to be amended accordingly); or

(b)    if we are unable to correct defects which render the Services inoperable for the principle purposes identified in the Specification within a period of 3 months from the start of the pre-delivery tests, to reject the Services in which case we shall refund to you any Charges you have paid in respect of those Services and our obligations to each other under the relevant Order shall immediately cease and we shall have no liability to you of any kind in relation to the Services.

9. Charges and payment

9.1       The charges payable by you (Charges) for the supply of Hardware or Services shall be as set out in the relevant Order and (unless we confirm otherwise in writing) shall be estimates only. Where the relevant Order does not specify charges for any Services we provide to you, they shall be provided at our standard rates from time to time. Any quotes or estimates given by us (whether by way of a draft Order or otherwise) are valid for 30 days from issue after which time they will automatically expire.

9.2       If any Order requires the provision of Services for a period of more than 12 months or more, we may increase the Charges for those Services on each anniversary of the relevant Order with reference to the Retail Price Index for the preceding 12 month period. We may also at any time by notice in writing increase any Charges to take account of any increased sub-contractor costs (including for the avoidance of doubt and without limitation any increased costs of Hardware or telecommunications infrastructure provision), any increase in the number of users of the Services and any change to the Services we may agree from time to time (in each case provided that the increase is proportionate).

9.3       We shall charge you for any expenses reasonably incurred by our personnel engaged in providing the Services to you including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties.

9.4       We shall invoice you at such times and in such amounts as set out in the relevant Order or (in the absence of such information) either on completion of the Services or monthly in arrears (at our sole discretion).

9.5       You shall pay each invoice submitted by us within 14 days of the date of the invoice and in full and in cleared funds by BACS to a bank account nominated in writing by us, and time for payment shall be of the essence.

9.6       All Charges are exclusive of value added tax and other taxes, duties or assessments which apply to the Services which you shall pay in addition to the Charges.

9.7       Without limiting any other right or remedy we have, if you fail to make any payment due to us in respect of any Order by the due date for payment, we shall have the right to charge interest on the overdue amount in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 both before and after judgment.

9.8       All sums payable in respect of each Order shall be paid in Sterling unless the relevant Order specifies otherwise.

10. Applications Services

10.1    The terms and conditions set out in this clause 10 apply where the Services consist of or include the provision of Custom Software, software owned by a third party (Third Party Software), the modification of any Third Party Software (Modified Software) and any support services relating to them.

10.2    Any Third Party Software is supplied strictly on the basis of and subject to the owner’s standard licence terms and is subject to the owner’s approval. Custom Software is supplied (as indicated in the Order) either on a licence basis (in which case the provisions of clause 10.3 apply) or will be assigned to you (in which case clause 10.4 will apply). For the avoidance of doubt, any software not assigned explicitly to you in the Order will be licensed to you. Modified Software will be assigned and subject to the provisions of clause 10.4.

10.3.1 Where Custom Software is licensed to you (Licensed Software) it will be licensed for the Term (or such other period indicated on the Order) and at the Charges identified in the relevant Order. Unless otherwise stated in the Order the licence is non-transferable and for use of the Licensed Software only on hardware identified in the relevant Order unless otherwise approved by us in writing. For the avoidance of doubt, if the relevant Order identifies that the basis of the licence is exclusive, we shall always be able to license or transfer to third parties or otherwise deal with the standard modules or standard sections of code embedded in the Licensed Software together with any Custom Software not specific to your business which we develop to interface with or execute in conjunction with your existing software.

10.3.2 The Licensed Software may be used only by the number of licensed users and for the proposed use indicated in the Order at the specified site or sites unless we agree otherwise in writing, such consent not to be unreasonably withheld. The licence may, with our prior written consent, be extended to additional users (and the Order amended accordingly subject to a proportionate increase in Charges).

10.3.3 You may make such copies of the Licensed Software as are reasonably necessary for your use in accordance with the Licence and for the purposes of backup and security. You have no right to make, or authorise the making of, any other copies of the Licensed Software.

10.3.4 We shall at all times own all copies of all or any part of the Licensed Software. You shall keep all copies of the Licensed Software in a secure place when not in use and in your possession or control. You shall not sub-license, rent, lend, assign or transfer the Licensed Software to any person without our prior written consent or allow access to it to any person who is not your employee or agent.

10.3.5 You may use the Licensed Software with other software but you may not make adaptations or variations of the Licensed Software without our prior written consent or disassemble, decompile, reverse translate or in any other manner decode the Licensed Software except as permitted by law.

10.3.6 On termination of the licence for any reason you shall either return to us or, at our option, destroy all copies of the Licensed Software (and related documentation) and shall ensure that any copies of the Licensed Software on hard discs or other storage means associated with any computer equipment owned or controlled by you are permanently deleted.

10.4    Where Custom Software is to be assigned to you we shall not assign or license it to any third party, provided that we shall always be able to license, transfer or otherwise deal with the standard modules or standard sections of code embedded in the Custom Software together with any Custom Software not specific to your business which we develop to interface with or execute in conjunction with your existing software.

10.5    In addition to the warranties set out at clause 2.5, we warrant that the Custom Software is proprietary to us and that we have the right to license or assign all rights in and to the Custom Software to you and that for three months after delivery to you it will perform in accordance with the Specification. Subject to clause 10.6, the sole remedy for breach of the warranty under this clause 10.5 shall be correction by us (or by a third party appointed or authorised by us at our cost) of any errors that cause the Custom Software to fail to operate substantially in accordance with the relevant Specification within a reasonable time from notification by you of the defect that constitutes such breach.

10.6    Subject to clause 10.9 and to your overriding duty to mitigate your loss, we shall defend, hold harmless and indemnify you against all loss, damage, claims, liabilities, fees, costs and expenses arising out of any action brought against you based on a claim that the Custom Software infringes any intellectual property right of any third party, provided that:

(a)    we are notified promptly in writing of any such claim;

(b)    you make no admission or settlement of such claim without our prior written consent;

(c)     we have sole control of the defence and any negotiations for compromise; and

(d)    you provide, at our expense, such assistance as we reasonably require.

10.7    If the Custom Software becomes or, in the opinion of qualified legal counsel, is likely to become the subject of any such claim, you will permit us:

(a)    to replace all or part of the Custom Software with functionally equivalent software without any charge to you; and/or

(b)    to modify the Custom Software as necessary to avoid such claim, provided that the Custom Software (as amended) functions in substantially the same way as the Custom Software before modification; and/or

(c)     to procure for you a licence from the relevant complainant to continue using the Custom Software.

10.8    If the Custom Software is determined in a court of law to be infringing and we are unable after commercially reasonable efforts to procure for you the right to continue using the Custom Software, or to provide you with functionally equivalent non-infringing software, our obligations to each other under the relevant Order shall immediately cease (and where relevant, any licence to use the Custom Software shall be terminated).

10.9    We shall have no liability for any claim:

(a)    caused by your use of the Custom or Modified Software in combination with software not supplied or approved in writing by us (other than the operating system of any of your hardware identified in the Order); or

(b)    resulting from any unauthorised modification to the Custom or Modified Software or where it has been used on hardware which has not been approved by us in writing; or

(c)     based on use of any version of the Custom or Modified Software other than the latest version later supplied by us, if such claim could have been avoided by the use of such supplied version; or

(d)    where the claim arises in respect of a feature of the Custom or Modified Software which was specified by you in the Specification.

10.10.1 Where we are to provide software support and/or maintenance services (Support Services) (whether or not in respect of the Custom, Licensed or Modified Software) they shall be on the basis of the Service Level Agreement attached to the relevant Order, the Term and Charges set out in the Order and these terms and conditions.

10.10.2 Our obligations in respect of the Support Services are subject to your proper use of the relevant software and the installation of any maintenance releases we deliver from time to time. We shall have no liability to rectify any particular defect if attempts to rectify it (other than recovery or diagnostic procedures) have been made by your personnel or third parties without our permission. We do not warrant or guarantee that we will be able to rectify all defects, nor that any defect which does not materially affect your operations will be corrected prior to the issue of the next software fix. 

11. Infrastructure/Infrastructure Support Services

11.1    Where it is necessary to establish the requirements and scope for the provision of the Services under any Order, an audit of your existing software, hardware, telecommunications networks, data, assets, equipment or other property that may be used in the provision of the Services (Client Assets) will be undertaken and annexed to the Order.

11.2    You are responsible at your own cost for maintaining and/or updating all of the Client Assets to the extent (in our reasonable opinion) necessary to ensure the efficient provision of the Services by us.  Unless otherwise set out in the Order you shall at your cost promptly replace each part of the Client Assets on the third anniversary of its delivery to you. All of our property (or that of our sub-contractors) located on your premises shall be at your sole risk and responsibility and (without limitation) you shall be liable for the loss of or damage to any of our property located on any of your premises whether or not due to your negligent act or omission.

11.3.1 Where in respect of any Order we have agreed to buy any Client Assets or take over any of your contracts (Assumed Contracts) each will be identified in the relevant Order or annexed to it and is sold on the basis of your full title guarantee.

11.3.2 The purchase price of any relevant Client Assets will be set out in the Order or annexed to it and unless otherwise specified, the price shall be offset from the Charges payable by you.

11.3.3 You shall use your best endeavours to assign, novate or transfer to us any relevant Assumed Contracts with effect from the Start Date. If any consent of any third party is required to the assignment, novation or transfer of an Assumed Contract and has not been obtained by the Start Date you shall hold it or them as our trustee and:

(a)    we shall (if sub-contracting is permissible and lawful under the Assumed Contract in question) as your sub-contractor, perform all your obligations under such Assumed Contract and where sub-contracting is not permissible, we shall perform such obligations as your agent; and

(b)    you shall (so far as you lawfully may) give all such assistance as we may reasonably require to enable us to enforce our rights under such Assumed Contract and (without limitation) shall provide access to all relevant books, documents and other information in relation to such Assumed Contract as we may reasonably require from time to time.

We shall have no liability for any interruption, delay or loss in the provision of the Services caused by the refusal of any third party to allow the assignment, transfer or novation of any Assumed Contract.

11.4.1 You hereby grant to us a royalty-free, non-exclusive, non-transferable licence to use any of your existing software required in the provision of the Services, your relevant documentation, processes and procedures and your data and any relevant database, including the right to grant sub-licences to our sub-contractors, provided that any relevant sub-contractor has entered into a confidentiality undertaking with us in a form reasonably acceptable to you. You warrant that you have such title, rights and interest as is necessary for such licence. The obligations in this clause to grant licences shall apply only to the extent that you have the legal or contractual right to grant such licences. Where the lack of such right(s) is reasonably likely to prevent or delay the delivery of the Services by us, you shall notify us prior to placing any Order.

11.4.2 The licence granted in clause 11.4.1 is granted solely to the extent necessary for performing the Services in accordance with the Order. We shall not use the licensed materials for any other purpose. We shall not have any right to use any of your names, logos or trade marks on any of our products or services without your prior written consent.

11.4.3 In the event of the termination or expiry of the relevant Order, the licences referred to in clause 11.4.1 shall terminate automatically and we shall deliver to you all material licensed to us in our possession or control. 

12. Intellectual Property Rights

12.1.1 Unless otherwise expressly stated in the relevant Order or in these terms and conditions you shall not acquire any right, title or interest in or to our intellectual property rights or those of our licensors including the intellectual property rights relating to any Licensed Software or any of our other software to be used by either of us in the provision of the Services.

12.1.2 We shall not acquire any right, title or interest in or to your intellectual property rights or those of your licensors, including in relation to your existing software, documentation, processes, procedures, know-how or data.

12.2    Where either of us acquires, by operation of law, title to the intellectual property rights of the other referred to in clause 12.1 and this acquisition is inconsistent with the allocation of title set out in clause 12.1, such intellectual property rights shall be assigned by the acquiring party to the other party on demand.

13. Confidentiality and Publicity

13.1    Except to the extent set out in this clause 13, or as required or provided by law we shall each:

(a)  treat the other party’s confidential information (including without limitation confidential information embodied in any software or software documentation and confidential information in relation to the business, affairs, operations, customers, processes, budgets, pricing policies, product information, strategies, personnel and suppliers of the disclosing party, together with all information derived by the receiving party from any such information and any other information clearly designated by a party as being confidential to it (whether or not it is marked “confidential”), or which ought reasonably be considered to be confidential) (Confidential Information) as confidential; and

(b) (subject to clause 13.2) not without the owner’s prior written consent disclose the other party’s Confidential Information to any other person other than those of our employees who need to know the same for purposes relating to the Order (who for the avoidance of doubt shall be made aware of the confidential nature of the Confidential Information and of their duty of confidence to the owner).

13.2    Nothing in this clause 13 shall prevent either party from using any techniques, ideas or know-how gained during the performance of any Order in the course of its normal business to the extent that this use does not result in a disclosure of the other party’s Confidential Information or an infringement of intellectual property rights.

13.3    We may refer to you as being our client in our customer reference lists and sales presentations and shall be entitled to refer to you in any advertising or press release (in all cases subject to the terms of clause 13.1above). Where we request you provide a reference for us, you shall not unreasonably refuse such request.

14. Non-solicitation

14.1    Neither of us 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 your case) in the receipt of the Services at any time during the Term or for a further period of 12 months after the termination of the Order other than by means of a bona fide national advertising campaign open to all comers and not specifically targeted at any of the staff of the other party.

14.2    If either of us commits any breach of clause 14.1, 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.

15. Provision of Onsite Workers

15.1    Where the Services include the provision of personnel whose place of work during the Term is to be your premises (or the premises of your customers or associates) (Onsite Workers) we shall agree a plan of work for each Onsite Worker (Work Plan). We shall not be liable for any losses arising under or in connection with any Order, whether in contract, tort (including negligence), breach of statutory duty, or otherwise to the extent that such losses arise (whether wholly or partly) from any instructions given by you or your agents to the Onsite Workers which are not in accordance with the Work Plan.

15.2    Where any of the Onsite Workers are employed by our sub-contractors (Consultancies), you acknowledge that

(a)    the Onsite Workers and the Consultancies have opted out of the Conduct of Employment Agencies and Employment Business Regulations 2003 (Conduct Regulations);

(b)    the Conduct Regulations do not apply to any Order;

(c)     subject to clause 15.3, the relevant Consultancy shall be entitled to supply substitute equivalent employees as is necessary for the needs of its business; and

(d)    the relevant Consultancy shall determine how it provides the Services sub-contracted to it but shall comply with your reasonable operational requirements.

15.3    We shall, at your request, allow you a reasonable opportunity to interview and approve Onsite Workers. You shall not unreasonably withhold or delay your approval of such personnel and any objection shall be provided to us in writing. You shall not subsequently revoke such approval without reasonable grounds which shall be provided to us in writing.

15.4    We warrant that:

(a)    the Onsite Workers will have the necessary skills and experience to carry out the Services;

(b)    the Onsite Workers shall comply with any reasonable health and safety, security or other policy in respect of your premises which you bring to their attention;

(c)     we shall not replace the Onsite Workers without your consent (which shall not be unreasonably withheld or delayed) unless such replacement is required for the reasonable needs of our business or by matters beyond our reasonable control; and

(d)    where we are unable to provide an Onsite Worker to you (whether through illness, scheduled holiday or otherwise) we shall use our reasonable efforts to provide you with a substitute Onsite Worker. The sole remedy for a breach of this warranty shall be the provision of a credit note in respect of the relevant number of hours of absence.

15.5    You acknowledge that the Onsite Workers are not under your supervision, direction or control and they are not agency workers as defined under the Agency Workers Regulations 2010. 

16. Limitation of liability & insurance

16.1    Nothing in these terms and conditions shall limit or exclude our liability for death or personal injury caused by our negligence, or the negligence of our employees, agents or subcontractors, fraud or fraudulent misrepresentation or breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).

16.2    Subject to clause 16.1, we shall not be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or for any special, indirect or consequential loss, loss of goodwill, loss of business, loss of anticipated savings, loss of goods, loss of use, any destruction or corruption of data, damage, costs or expenses (whether or not such losses were in the contemplation of either of us at the date of the Order) arising under or in connection with the Services.

16.3    Our total liability to you in respect of all losses arising under or in connection with any Order, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed the Charges paid by you in respect of the Services under the Order during the previous 12 months (or anticipated to be paid where the Services have not yet been provided for 12 months).

16.4    We shall maintain in force the following insurance policies:

(a)   a public liability insurance policy with a limit of at least £5,000,000 per claim;

(b)   employer’s liability insurance with a limit of at least £25,000,000 for claims arising from a single event or series of related events in a single calendar year; and

(c)    professional indemnity insurance with a limit of at least £5,000,000.

Notwithstanding and without prejudice to any other provisions in these terms and conditions our entire aggregate liability to you in respect of any losses falling under the above categories of insurance shall be limited to the amounts set out above against the relevant category.

16.5    You shall ensure that you have in place adequate public liability insurance with a limit of at least £5,000,000 before we or our personnel enter your premises. This insurance must cover any injury suffered by our personnel at your premises.

16.6    We shall have no liability to you for any loss, damage, costs, expenses or other claims arising from information, equipment, software or any other thing supplied or provided by you to us. 

17. Termination

17.1    If (and only if) a Break Date is specified in any Order then you may terminate that Order on that Break Date provided that you provide us with at least 3 months’ written notice and compensate us for any losses incurred resulting from the Services provision ending on a Break Date and not on the expiry of the Term (Termination Payment). Where we have agreed an estimate of those losses, a break charge will be identified in the Order and shall be the Termination Payment.

17.2    Without limiting any other rights or remedies, either of us may terminate any Order (or suspend Services under it) with immediate effect by giving written notice to the other party if:

(a)    the other party commits a material breach of the Order and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or

(b)    the other party becomes unable to pay its debts or enters into compulsory or voluntary liquidation (other than for the purpose of effecting a reconstruction or amalgamation in such manner that the company resulting from such reconstruction or amalgamation if a different legal entity shall agree to be bound by and assume the obligations of the other party under the Order) or compounds with or convenes a meeting of its creditors or has a receiver or manager or an administrator appointed of its assets or ceases for any reason to carry on business or takes or suffers any similar action which in the opinion of the party giving notice means that the other may be unable to pay its debts; or

(c)    the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or

(d)    the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.

17.3    Without limiting our other rights or remedies, we may terminate any Order (or suspend Services under it) with immediate effect by giving written notice to you if you fail to pay any amount due under it or any other Order on the due date for payment or if you repeatedly fail to implement the advice given in respect of the Services or interfere with the Services, whether or not such interference is performed by a third party under your instruction or if your staff are abusive or behave unreasonably to our staff.

18. Consequences of termination

18.1    On termination of an Order for any reason:

(a)    you shall immediately pay to us all of our outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, we shall submit an invoice, which shall be payable by you immediately on receipt;

(b)   the accrued rights, remedies, obligations and liabilities of either of us as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of an Order which existed at or before the date of termination or expiry; and

(c)    clauses which expressly or by implication have effect after termination shall continue in full force and effect.

18.2    At the end of the Term of any Order (but not if it has been terminated earlier under the provisions of clauses 17.2 and 17.3) we will provide any transitional services which are expressly set out in or annexed to the Order.

19. Data Protection

19.1    We shall each (and we shall procure that each of our sub-contractors shall) comply at all times with the Data Protection Act 1998 (DPA) and any other applicable data protection legislation and neither of us shall perform our obligations under the Order in such a way as to cause either party to breach any of its obligations under such data protection legislation. We shall immediately notify you in the event that we become aware of any breach of such data protection legislation by us or any of our sub-contractors in connection with the Order.

19.2    You acknowledge that we are reliant on you alone for direction as to the extent we are entitled to use and process any of your personal data. Consequently, we shall be entitled to be indemnified in respect of any losses, costs, expenses or damages in circumstances where a data subject (as defined in the DPA) makes a claim or complaint with regards to our actions to the extent that such actions directly or indirectly result from instructions received from you.

19.3    You shall be responsible for informing us of the requirements of any relevant data protection legislation in respect of any of your personal data and of all your contractual obligations relating to such personal data.

20. General

20.1    Neither of us shall be liable to the other as a result of any delay or failure to perform our obligations under any Order as a result of any event beyond our reasonable control including (without limitation) strikes, lock-outs or other industrial disputes (whether involving our employees or the employees of any other relevant party), failure of a utility service, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, failure of suppliers or subcontractors, accident, fire, flood and epidemics (Force Majeure Event). In the event that either of us is delayed or prevented from performing our obligations under the Order, that party shall:

(a)    give notice in writing of such delay or prevention to the other party as soon as reasonably possible, stating the effective date and extent of such delay or prevention, the cause thereof and its estimated duration;

(b)    use reasonable endeavours to mitigate the effects of such delay or prevention of performance of its obligations under the Order; and

(c)    resume performance of its obligations under the Order as soon as reasonably possible after the removal of the cause of the delay or prevention.

20.2    You shall pay all amounts due in respect of each Order  in full without any deduction or withholding except as required by law and you shall not be entitled to assert any credit, set-off or counterclaim against us in order to justify withholding payment of any such amount in whole or in part. We may, without limiting our other rights or remedies, set off any amount owing to us by you against any amount payable by us to you.

20.3    Any notice to be served in respect of any Order must be in writing and must be served by hand or registered post or recorded delivery and in the case of a company must be served at its registered office for the time being. Notices to us must also be sent to our trading address from time to time. In any other case notice may be served at any address for the time being of the person to be served. Service shall take effect, if given by hand, on the date of delivery. If given by post, it shall take effect 2 days after posting.

20.4    Our waiver of any right under the Order is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by us in exercising any right or remedy under the Order or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise.

20.5    If a court or any other competent authority finds that any provision of an Order (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Order shall not be affected. If any invalid, unenforceable or illegal provision of the Order 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.

20.6    Nothing in any Order is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between us, nor constitute either of us the agent of another party for any purpose. Neither of us shall have authority to act as agent for, or to bind, the other in any way. You will indemnify us against any liability we incur under the Transfer of Undertakings (Protection of Employment) Regulations 2006, the Agency Workers Regulations 2010 or the Conduct Regulations as a consequence of the provision of Services.

20.7    No Order will create nor be construed as creating, any right under the Contracts (Rights of Third Parties) Act 1999 which is enforceable by any person who is not a party to the Order.

20.8     All Orders, and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.