supply of services terms and conditions

1. definitions

Agreement means these Terms and Conditions, together with any Supplier Documents.

Applicable Data Protection Laws means as applicable and binding on each Party: (a) the Data Protection Act 2018, the UK GDPR as defined in the Data Protection Act 2018, and the Privacy and Electronic Communications Regulations 2003; (b) the EU General Data Protection Regulation, Regulation (EU) 2016/679 (EU GDPR), EU Directive 2002/58/EC (Directive on privacy and electronic communications), and/or any corresponding or equivalent national laws or regulations; and (c) any applicable laws replacing, amending, extending, re-enacting, consolidating or implementing any of the above Data Protection Laws from time to time (whether or not before or after the date of this Agreement).

Charges means as defined and/or set out in the Supplier Documents.

Client means the client as named in the relevant Supplier Document.

Client Materials means all documents, information, items and materials in any form, whether owned by the Client or a third party, which are provided by the Client to the Supplier in connection with the Services excluding the Deliverables.

Deliverables means any output of the Services to be provided by the Supplier to the Client.

Intellectual Property Rights means 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, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how) 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.

Services means as defined in the relevant Supplier Documents.

Services Start Date means as defined in the Supplier Documents.

Supplier means VISARC LIMITED incorporated and registered in England and Wales with company number 03928815 whose registered office is at Unit 11 Connect 10, Ashford Business Park, Foster Road, Ashford, Kent, England, TN24 0FE.

Supplier Documents means any estimates, quotations, invoices and other Supplier documents provided by Supplier to Client from time to time.

Supplier Materials means all Intellectual Property Rights subsisting in any and all documents, information, items and materials in any form, owned by, or licensed to, the Supplier prior to commencement of the Services or which are otherwise authored, created, produced and/or developed by the Supplier independently of its performance of the Services, excluding in each case any Client Materials but including the Deliverables.

 

2. interpretation

This Agreement shall be binding on, and enure 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 writing or written includes email.

 

3. commencement and term

This Agreement shall commence on the date when the relevant Supplier Document(s) has/have been agreed in writing (meaning any worded or numbered expression electronically transmitted by email) by both Parties and shall continue, unless terminated in accordance with this Agreement or expiry of this Agreement. These Terms and Conditions apply to the extent that Client has not entered into a master services agreement with Supplier.

 

4. supply of services

The Supplier shall supply the Services to the Client from the Services Start Date in accordance with this Agreement. In supplying the Services, the Supplier shall perform the Services with reasonable care and skill, ensure that the Deliverables are of satisfactory quality and are fit for purpose and comply with all applicable laws, provided that the Supplier shall not be liable under this Agreement if, as a result of such compliance with applicable laws, it is in breach of any of its obligations under this Agreement.

 

5. client's obligations

The Client shall co-operate with the Supplier in all matters relating to the Services and provide, in a timely manner, such information as the Supplier may reasonably require, and ensure that it is accurate and complete in all material respects. If the Supplier'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, the Supplier shall not be liable for any costs, charges or losses sustained or incurred by the Client that arise directly or indirectly from such prevention or delay and be entitled to the payment of the Charges.

 

6. data protection

6.1

For the purposes of this Clause 6, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the Applicable Data Protection Laws. Both Parties will comply with all applicable requirements of Applicable Data Protection Laws. Without prejudice to this, the Supplier shall, in relation to personal data: (a) process such personal data only on documented instructions from Client, unless required to do otherwise by applicable law, in which case Supplier shall, unless legally prohibited from doing so, inform Client of such legal requirement; (b) ensure that persons authorized by it to process such personal data are subject to appropriate obligations of confidentiality; (c) taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing as well as the risk of varying likelihood and severity for the rights and freedoms of individuals, implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk and take steps to ensure that any individuals acting under its authority who have access to such personal data do not process them except on instructions from Client, unless they are required to do so by applicable law; (d) notify Client without undue delay on becoming aware of a personal data breach; (e) assist Client, at Client’s expense, with the fulfilment of Client’s obligation to respond to requests for exercising individuals rights under Applicable Data Protection Laws, together with Client’s obligations regarding data security, notification by Client of personal data breaches to the supervisory authority, communication by Client of personal data breaches to the affected individuals, data protection impact assessments, and prior consultation with the supervisory authority; (f) at the choice of Client, delete or return all such personal data after the end of the provision of services involving the processing of such data, and delete existing copies unless applicable law requires storage of such personal data; (g) make available to Client all information necessary to demonstrate compliance with this clause; (h) allow for and contribute to audits, including inspections, conducted by Client or another auditor mandated by Client provided that (i) Supplier shall be compensated for its costs and expenses in relation to such audit, (ii) reasonable advance notice shall be given in respect of any such audit, (iii) any such audit shall only be conducted during Supplier’s normal business hours, (iv) any such audit shall be conducted to cause minimal disruption to the Supplier’s business operations, (v) no access shall be given to Supplier’s confidential information or any information relating to Supplier’s other clients and/or financial data, and (vi) any third party auditor shall enter into confidentiality obligations directly with Supplier which are reasonably acceptable to Supplier; and (i) not transfer any such personal data outside of the UK or the European Economic Area without ensuring appropriate safeguards in respect of such transfer in accordance with Applicable Data Protection Laws.

 

6.2

The Client hereby provides its general authorisation for Supplier to engage other processors to carry out processing activities on behalf of Client. Supplier shall notify the Client of any intended changes concerning the addition or replacement of such other processors. If, within five (5) business days of receipt of such notice, Client notifies Supplier in writing of any objections on reasonable grounds to the proposed addition or replacement: (a) Supplier shall take reasonable steps to address the objections raised by Client; and (b) if Client nevertheless objects to the addition or replacement, Supplier shall not proceed with the addition or replacement with respect to the processing of any personal data on Client’s behalf, and may, at Client’s cost, propose the engagement of a different processor in accordance with this clause and if Supplier is or may be prevented from providing the associated services to Client, Client agrees and acknowledges that Supplier shall have no liability to Client in respect of its inability to provide all, or part of, such services. Where Supplier engages another processor for carrying out specific processing activities on behalf of Client, materially equivalent data protection obligations as set out herein shall be imposed on that other processor and where that other processor fails to fulfil its data protection obligations, Supplier shall remain fully liable to Client, subject to the limitations and exclusions of liability set out herein, for the performance of that other processor's obligations.

 

7. intellectual property

7.1

The Supplier and its licensors shall retain ownership of all Supplier Materials and Deliverables, unless stated otherwise in the relevant Supplier Documentation. The Client and its licensors shall retain ownership of all Intellectual Property Rights in the Client Materials.

 

7.2

The Supplier grants the Client, or shall procure the direct grant to the Client of, a non-exclusive, non-transferable, perpetual, worldwide, royalty-free licence to use the Supplier Materials and Deliverables solely to the extent the Supplier Materials are incorporated in the Deliverables (and not independently of the Deliverables) and so that the Client may use the Deliverables as set out in the Supplier Documents and/or as otherwise agreed between the Parties. The Client grants the Supplier a fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable licence to copy and modify the Client Materials for the term of this Agreement for the purpose of providing the Services to the Client in accordance with this Agreement.

 

7.3

The Supplier shall indemnify the Client in full against any sums awarded by a court against the Client arising out of or in connection with any claim brought against the Client for infringement of a third party's rights (including any Intellectual Property Rights) arising out of or in connection with the receipt or use of the Services by the Client. The Client shall indemnify the Supplier in full against any sums awarded by a court against the Supplier arising of or in connection with any claim brought against the Supplier for infringement of a third party's rights (including any Intellectual Property Rights) arising out of, or in connection with, the receipt or use of the Client Materials by the Supplier.

 

8. charges and payment

In consideration for the provision of the Services, the Client shall pay the Supplier the Charges in accordance with this Clause 8. All amounts payable by the Client exclude amounts in respect of value added tax (VAT), which the Client shall additionally be liable to pay to the Supplier at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice. All amounts due under this Agreement from the Client to the Supplier shall be paid by in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). The Supplier shall invoice the Client for the Charges. Subject to as otherwise agreed in the relevant Supplier Documents, the Client shall pay each invoice submitted to it by the Supplier within the terms stated on the invoice to a bank account nominated in writing by the Supplier from time to time. Standard terms are 30 days from date of invoice, however if the Supplier incurs related up front costs, immediate payment will be required. Client shall reimburse Supplier for reasonable out-of-pocket travel expenses, including but not limited to transportation, lodging, mileage, and meals incurred in rendering the Services (Expenses). Supplier shall obtain Client's prior written authorisation before incurring any such Expense insofar as such Expense exceeds £250.00. All Expenses not paid directly by Client shall be paid within thirty (30) days of receipt of Supplier’s invoice. All Expense reimbursements shall be made at Supplier’s direct out-of-pocket costs, with ten (10) percent markup for overhead, administrative costs, or otherwise. Without prejudice to any other right or remedy that it may have, if the Client fails to pay the Supplier any sum due under this Agreement on the due date: (a) the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment and interest under this clause 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%; and (b) the Supplier may suspend part or all of the Services until payment has been made in full.

 

9. limitation of liability

9.1

Nothing in this Clause 9 shall limit the Client's payment obligations under this Agreement or the Client's liability, whether in contract, tort (including negligence), misrepresentation, restitution or otherwise under Clause 7.3. Nothing in this Agreement limits any liability whether in contract, tort (including negligence), misrepresentation, restitution or otherwise 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).

 

9.2

Subject to Clause 9.1, the following types of losses, whether arising in contract, tort (including negligence), misrepresentation, restitution or otherwise are excluded: loss of profits; loss of sales or business; loss of agreements or contracts; loss of anticipated savings; loss of use or corruption of software, data or information; loss of or damage to goodwill; and indirect or consequential loss.

 

9.3

Subject to Clauses 9.1 and 9.2, and save as for Client’s liability under Clause 7.3, the Parties’ total liability arising in connection with this Agreement whether arising in contract, tort (including negligence), misrepresentation, restitution or otherwise shall be limited to 100% of the Charges in relation to the relevant Supplier Document in the 12 months preceding the claim for any one event or series of connected events.

 

10. termination

10.1

Without affecting any other right or remedy available to it, either Party to this Agreement may terminate it with immediate effect by giving written notice to the other Party if the other Party commits a material breach of any term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so. Without affecting any other right or remedy available to it, either Party may terminate this Agreement on giving not less than 30 days’ written notice to the other.

 

10.2

On termination of this Agreement for whatever reason, the Client 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 may submit an invoice, which shall be payable immediately on receipt and termination or expiry of this Agreement shall not affect any of the 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.

 

11. general

11.1

Marketing. Client hereby grants the Supplier the right to use Client’s name and service marks in Supplier’s marketing materials or other oral, electronic, or written promotions, which shall include naming Client as a client of the Supplier and a brief scope of Services provided. Either party may elect to issue a press release and or case study related to the Services provided under this Agreement provided that any such press release or case study is approved by the other party, such approval not to be unreasonably withheld.

 

11.2

Force majeure. Neither Party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control.

 

11.3

Assignment and other dealings. The Client shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Agreement without the Supplier's prior written consent. The Supplier may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under this Agreement.

 

11.4

Confidentiality. Each Party undertakes that it shall not at any time, and for a period of two years after termination or expiry of this Agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other Party, except that each Party may disclose the other Party's confidential information: (a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the Party's obligations under this Agreement and such employees, officers, representatives, contractors, subcontractors or advisers shall comply with this Clause 11.3; and (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority. Neither Party shall use any other Party's confidential information for any purpose other than to perform its obligations under this Agreement.

 

11.5

Entire agreement and variation. 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. In the event of any conflict between the terms of these Terms and Conditions and any Supplier Documents, the terms of these Terms and Conditions shall prevail. Defined terms in any Supplier Documents shall have the same meaning as defined under the Terms and Conditions. Supplier reserves the right to vary this Agreement from time to time.

 

11.6

Waiver. A waiver of any right or remedy under this 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 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.

 

11.7

Severance. 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 11.7 shall not affect the validity and enforceability of the rest of this Agreement.

 

11.8

Notices. Any notice or other communication given to a Party under or in connection with this Agreement shall be in writing and shall be sent to the email address of the relevant representative as stated in the relevant Supplier Document. This Clause 11.8 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

 

11.9

Third party rights. 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.

 

11.10

Governing law and jurisdiction. 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. 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 this Agreement or its subject matter or formation.

 

Last updated on 28/03/2023.