1.1 In the Agreement:
“Agreement” means these Terms of Business and the Order Form, as supplemented, amended, or replaced from time to time in accordance with its terms.
“Applicable Laws” means all applicable laws, regulations, regulatory requirements and codes of practice of any relevant jurisdiction, as amended and in force from time to time.
“Business Day” means any day which is not a Saturday, Sunday or public or bank holiday in England.
“Bribery” means fraud or giving or receiving any financial or other advantage that may be construed as a bribe, whether for the purpose of the Bribery Act 2010 or any other Applicable Law.
“Charges” means the charges to be paid by Customer for the Services calculated in accordance with Clause 4 (Charges ) and the Payment Terms.
“Commencement Date” means the date set out as such in the Order Form or, if no such date is specified, the date of the Agreement.
“Confidential Information” means all information, which might fairly be considered to be of a confidential nature, in the Discloser’s possession or control, whether such information was created before or after the date of the Agreement, whatever the format of such information, and whether or not such information is marked “confidential” in any way, but not including information which (a) is in the public domain at the time of disclosure or which subsequently comes into the public domain through no fault of the Recipient; (b) was already lawfully in the possession of the Recipient prior to its disclosure by the Discloser; (c) is subsequently disclosed to the Recipient by a third party who did not obtain it (directly or indirectly) from the Discloser or from someone owing a duty of confidence to the Discloser; or (d) is developed by any of the Recipient’s employees, officers, agents or subcontractors independently as a result of their own efforts, without access to, or use or knowledge of, the relevant part of the Discloser’s Confidential Information.
“Customer” means the customer identified in the Order Form.
“Deliverable” means the work products expressly identified as such in the Order Form made by or on behalf of ICS during the performance of the Services (whether individually or jointly with Customer).
“Discloser” means the party disclosing (or which has disclosed) the relevant Confidential Information to the Recipient or on whose behalf the relevant Confidential Information has been disclosed.
“Group” means a party, its parent undertaking and the subsidiary undertakings of its parent undertaking and its associated companies.
“Insolvency Event” means an event where the other party goes into liquidation, makes an arrangement with creditors, appoints a receiver or administrator, or has bankruptcy or insolvency proceedings brought against it; or suffers a similar event in any jurisdiction.
“Intellectual Property Rights” means all vested and future rights of copyright and related rights, design rights, database rights, patents, rights to inventions, trade marks and get-up (and goodwill attaching to those trade marks and that get up), domain names, applications for and the right to apply for any of the above, moral rights, goodwill (and the right to sue for passing off and unfair competition), rights in know-how, rights in confidential information, and any other intellectual or industrial property rights or equivalent forms of protection, whether or not registered or capable of registration, and all renewals and extensions of such rights, whether now known or in future subsisting in any part of the world.
“ICS” means ICS-DIGITAL LLP (company number OC349348), a limited liability partnership incorporated in England and Wales, with its registered office at The Scalpel 18th Floor, 52 Lime Street
“Order Form” means the document to which these Terms of Business are attached or are otherwise incorporated by reference.
“Payment Terms” means the payment terms (such as the timing and amount of payments) as set out in the Order Form.
“Recipient” means the party receiving (or which has received) the Discloser’s Confidential Information.
“Services” means the services set out in the Order Form.
“Special Terms” means the special terms set out as such in the Order Form.
“Term” means the period during which the Agreement is in force as set out in the Order Form.
“Termination” means the termination or expiry of the Agreement, howsoever occurring.
“VAT” means value added tax.
1.2 In the Agreement reference to:
(a) a statute or statutory provision includes a reference to:
(i) any statutory amendment, consolidation or re-enactment of it to the extent in force from time to time;
(ii) all orders, regulations, instruments or other subordinate legislation (as defined in section 21(1) of the Interpretation Act 1978) made under it to the extent in force from time to time; and
(iii) any statute or statutory provision of which it is an amendment, consolidation or re-enactment;
(b) the terms “holding company”, “subsidiary”, “parent undertaking” and “subsidiary undertaking” shall be interpreted in accordance with the Companies Act 2006, and the term “associated company” shall be interpreted in accordance with section 449 of the Corporation Tax Act 2010;
1.3 The headings in the Agreement are for ease of reference only and are to be ignored when interpreting the Agreement.
1.4 In the Agreement, the interpretation of general words shall not be restricted by words indicating a particular class or particular examples.
1.5 In the Agreement, unless otherwise stated, time shall not be of the essence for the performance of any obligation.
1.6 Any order forms or other correspondence that the parties may use for the fulfilment or ordering of any Services or otherwise for administering the Agreement shall be for administrative convenience only, and any terms and conditions included in such forms shall have no effect and shall not modify the Agreement (even if such forms or correspondence state otherwise).
1.7 To the extent of any conflict between the Special Terms, the Order Form and the remainder of the Agreement, the Special Terms shall prevail, then the Order Form and then the remainder of the Agreement.
2.1 The Agreement shall commence on the Commencement Date and shall (except as expressly provided otherwise in the Agreement) continue in force in accordance with the Term set out in the Order Form.
3.1 Customer appoints the ICS as a non-exclusive provider of the Services. ICS shall provide the Services from the Commencement Date and for the Term.
3.2 In performing the Services, ICS shall at all times:
(a) use reasonable skill and care;
(b) use reasonable endeavours to provide the Services in the timeframes set out in the description of the Services, or if no timeframe is indicated, promptly in accordance with good industry practice; and
(c) provide all tools, materials, software and equipment required to carry out the Services.
3.3 The provision of the Services is subject to any restrictions or dependencies set out in the Order Form. The Order Form sets out any tasks which Customer is required to fulfil. ICS’s ability to carry out the Services is dependent upon Customer carrying out those tasks. If Customer fails to comply with any of its obligations specified in the Order Form or fails to comply with such obligation by an agreed deadline (the failure or delay being referred to as a “Customer Default” then (i) ICS shall not be responsible for any failure to carry out or any delay in carrying out any of its obligations under the Agreement where that delay is caused by the Customer Default; and (b)Customer shall reimburse ICS for all reasonable additional costs incurred by ICS in providing the Services as a result of the Customer Default.
3.4 Any changes to the Services (including the addition of new services) must be set out in writing and signed by both parties.
4.1 Charges
The Charges are set out in the Order Form. In consideration of the ICS providing the Services, Customer shall pay ICS the Charges in accordance with the Payment Terms.
4.2 Expenses
Except as stated in the Order Form, in addition to the Charges Customer shall pay any expenses properly and reasonably incurred by ICS in providing the Services.
4.3 Taxes
The Charges are exclusive of VAT. Customer shall in addition to the Charges pay VAT at the rate and in the manner prescribed by law.
5.1 ICS shall invoice Customer the Charges in accordance with the Payment Terms (or monthly in arrears if the Payment Terms are not specific).
5.2 Unless the subject of a genuine dispute, Customer shall pay the Charges within 30 days of receipt of any invoice. If a genuine dispute exists in relation to part only of an invoice, Customer shall pay the undisputed amount. If Customer fails to pay any amount when due ICS may suspend the provision of any Services until payment is made in full.
5.3 If a party fails to pay in full on the due date any sum payable by it under or in connection with the Agreement, interest on the outstanding amount shall accrue on a daily basis from the due date until the date of payment (whether before or after judgment) at the rate of 4% per annum above the base rate of Barclays Bank PLC from time to time.
6.1 Each party represents and warrants that:
(a) it has the power and authority to enter into and perform the Agreement, which constitutes valid and binding obligations on it in accordance with its terms.
(b) in performing its obligations under the Agreement, it shall comply with all Applicable Laws.
7.1 General
7.1.1 The parties acknowledge that there shall be no change as a result of the Agreement in the ownership of Intellectual Property Rights in anything existing as at the Commencement Date, nor does the Agreement assign any Intellectual Property Rights which are created or developed by or on behalf of either party outside the Agreement.
7.2 Customer Data
7.2.1 Any data provided to ICS by Customer shall remain the property of Customer. ICS shall be permitted to use such data only for the purposes of carrying out the Services.
7.3 Deliverables
7.3.1 The Order Form may expressly identify certain Deliverables for which the Intellectual Property Rights are to be owned by Customer (“Customer-Owned Deliverables”). ICS assigns to Customer by present assignment of future rights the Intellectual Property Rights in the Customer-Owned Deliverables with full title guarantee. ICS shall at Customer’s cost execute such documents that Customer may reasonably require to perfect title in the Customer-Owned Deliverables.
7.3.2 In relation to all Deliverables that are not Customer-Owned Deliverables, ICS grants Customer a perpetual, non-exclusive, non-transferable licence to use the Deliverables for its own internal business purposes.
7.3.3 Nothing in the Agreement shall prevent ICS from retaining and using in its business any general concepts, ideas, know-how, methodologies, processes, techniques or algorithms that were developed or learned in the course of carrying out the Agreement.
7.4 IPR indemnity
7.4.1 Subject to Clause 10 (Conduct of claims ), ICS shall procure the defence or, at its option, the settlement of any claim brought against Customer, and pay any damages and costs finally awarded by a court, arising from any claim that the use of the Deliverables in accordance with the Agreement infringes the Intellectual Property Rights of any third party. ICS’s obligations under this clause shall not apply where any claim arises from any modification of the Deliverables by anyone other than ICS or its authorised representatives.
7.4.2 Subject to Clause 10 (Conduct of claims ), Customer shall procure the defence or, at its option, the settlement of any claim brought against ICS, and pay any damages and costs finally awarded by a court, arising from any claim that the use by ICS in accordance with the Agreement of any materials provided to ICS infringes the Intellectual Property Rights of any third party. Customer’s obligations under this clause shall not apply where any claim arises from any modification of the materials by ICS.
8.1 Each Party shall safeguard all Confidential Information as it would its own confidential information, and shall use, copy and disclose that Confidential Information only in connection with the proper performance of the Agreement.
8.2 Nothing in the Agreement shall be construed so as to prevent the Recipient from disclosing the Confidential Information where required to do so by a court or other competent authority, provided that, unless prevented by law, the Recipient promptly notifies the Discloser in advance and discloses only that part of the Confidential Information that it is compelled to disclose.
8.3 The Recipient shall, on request and on Termination, return to the Discloser all of the Confidential Information which is in a physical form and to the extent reasonably practicable destroy any other records containing Confidential Information.
8.4 The obligations in this Clause shall continue without limit in time.
9.1 Subject to Clause 9.3, the liability of each party under or in connection with the Agreement, whether arising from contract, negligence or howsoever else occurring, shall be limited in any 12 month period to 100% of the Charges paid in that 12 month period.
9.2 Subject to Clause 9.3 neither party shall be liable for (i) loss of business, revenue, contracts, savings or goodwill or (ii) any indirect or consequential loss.
9.3 The exclusions and limitation of liability set out in Clauses 9.1 to Clause 9.2 do not apply to:
(a) liability arising from death or injury to persons caused by negligence;
(b) either party’s liability arising as a result of a breach of its obligations under Clause 8 (Confidentiality );
(c) either party’s liability arising as a result of Bribery; and
(d) anything else which cannot be excluded or limited by Applicable Law.
10.1 The indemnified party (the “Indemnified Party”) shall notify the indemnifying party (the “Indemnifying Party”) promptly of any third party action, demand or claim under any indemnity set out in the Agreement (“Claim”) of which the Indemnified Party is aware and shall:
(a) give the Indemnifying Party express authority to conduct all negotiations and litigation, and settle all litigation, arising from the Claim;
(b) in relation to any claim which the Indemnifying Party conducts, provide the Indemnifying Party with all such available information and assistance as the Indemnifying Party may reasonably require, at the Indemnifying Party’s expense; and
(c) not make any admission as to liability in respect of any Claim.
11.1 Either party may terminate the Agreement with immediate effect by giving the other party written notice if:
(a) the other party commits a material breach of the Agreement which:
(i) is not capable of remedy; or
(ii) is capable of remedy, but which it fails to remedy within 30 days of receiving notice specifying the breach and requiring the breach to be remedied;
(b) the other party becomes subject to an Insolvency Event.
11.2 ICS may terminate the Agreement if Customer fails to pay any amount when due under the Agreement and Customer does not remedy the non-payment within 14 days of receipt of notice of the breach being given by ICS (a “Final Demand”). The Agreement will terminate immediately upon service of a second notice by ICS which may be served at any time after 30 days from service of the Final Demand.
11.3 For the purposes of this Clause 11 (Termination ) a breach shall be considered capable of remedy if the party in breach can comply with the provision in question in all respects other than as to the time of performance (provided that time of performance is not of the essence).
12.1 Immediately after receipt (or service) of notice to terminate the Agreement (other than termination for Customer’s breach of the Agreement) and subject to Customer having paid all outstanding amounts under the Agreement, ICS shall:
(a) provide all reasonable assistance to Customer to ensure an orderly handover of the Services to Customer; and
(b) return any Customer materials to Customer.
13.1 Customer agrees that it shall not, in any capacity, without the prior written consent of ICS, at any time during the Term and for a period of one year from the Termination Date:
(a) solicit or entice, or seek to solicit or entice, away from the employment of ICS;
(b) employ or engage; or
(c) offer to employ or engage; or
(d) induce the breach of contract of employment of,
any officer, employee, agent or consultant of ICS.
Each party shall comply with all Applicable Laws, regulations, and sanctions relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 ("Anti-Corruption Laws"). Each party has and shall maintain in place its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the Anti-Corruption Laws and each party agrees to enforce them where appropriate. Each party agrees it will not do or omit to do or permit anything to be done which is an offence or which may be deemed to be an offence under the Anti-Corruption Laws and it will notify the other immediately upon becoming aware or upon becoming reasonably suspicious that an activity related to the Agreement has contravened or may contravene the Anti-Corruption Laws.
Each party shall comply with all Applicable Laws relating to anti-slavery and human trafficking (including the Modern Slavery Act 2015) (“Anti-Slavery Laws”). Each party shall maintain in place its own policies and procedures to ensure compliance with the Anti-Slavery Laws and each party agrees to enforce them where appropriate. Each party shall notify the other party as soon as it becomes aware of any actual or suspected breach of Anti-Slavery Laws in any supply chain which has a connection with this Agreement.
Neither party shall engage in any activity, practice or conduct which would constitute either a UK tax evasion facilitation offence under section 45(5) of the Criminal Finances Act 2017 or a foreign tax evasion facilitation offence under section 46(6) of the Criminal Finances Act 2017. Each party shall maintain in place its own policies and procedures to ensure compliance with the Criminal Finances Act 2017 and to prevent the facilitation of tax evasion by another person (including its employees). Each party shall promptly report to the other party any request or demand from a third party to facilitate the evasion of tax (within the meaning of Part 3 of the Criminal Finances Act 2017) made in connection with the performance of the Agreement.
17.1 The terms in this Clause apply only where one party (the "Controller") provides Personal Data for processing by the other party (the "Processor") during the course of ICS providing its services.
17.2 In this Clause:
(a) “Data Subject”, “Personal Data”, “processing” and “international organisation” and “Personal Data Breach” shall have the meanings given to them in the Data Protection Laws;
(b) “Data Protection Laws” means all laws applicable to any personal data processed under or in connection with the Agreement including (as applicable) the UK Data Protection Act 2018, the EU GDPR, the UK GDPR and the Privacy and Electronic Communications Directive 2002/58/EC, and any laws which implement any such laws, and any laws that replace, extend, re-enact, consolidate or amend any of the foregoing;
(c) “EU GDPR” means the General Data Protection Regulation (EU) 2016/679;
(d) “Protected Data” means Personal Data received from or on behalf of the Controller in connection with the performance of the Processor's obligations under the Agreement; and
(e) “Sub-Processor” means any third party engaged by the Processor to carrying out any processing activities on behalf of the Controller in respect of the Protected Data
(f) “UK GDPR” means the UK GDPR (as defined in the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019/419.
Compliance with Data Protection Laws
17.3 The Controller shall at all times comply with all Data Protection Laws in connection with the processing of Protected Data. The Controller shall ensure all instructions given by it to the Processor in respect of Protected Data shall at all times be in accordance with Data Protection Laws. The Processor shall process Protected Data in compliance with the obligations placed on it under Data Protection Laws and the terms of the Agreement.
Instructions
17.4 The Processor shall only process the Protected Data in accordance with the Controller's written instructions except where otherwise required by Applicable Law (and shall inform the Controller of that legal requirement before processing, unless Applicable Law prevents it doing so on important grounds of public interest). If the Processor believes that any instruction received by it from the Controller is likely to infringe the Data Protection Laws it shall promptly inform the Controller.
17.5 The Controller warrants that it has obtained all necessary consents required to enable the transfer of the Protected Data to the Processor and to permit the processing envisaged by the Agreement.
Processor's Personnel
17.6 The Processor shall ensure that persons authorised to process the Protected Data are under an obligation of confidentiality in respect of the Protected Data.
Security
17.7 The Processor shall implement and maintain appropriate technical and organisational measures to protect the Protected Data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure or access.
Sub-processing
17.8 The Processor shall not permit any processing of Protected Data by a Sub-Processor without prior notification to the Controller and the Processor must appoint any Sub-Processor under a written contract containing materially the same obligations as under this Clause.
Assistance
17.9 The Processor shall (at the Controller's cost):
(a) assist the Controller in ensuring compliance with the Controller's obligations pursuant to Articles 32 to 36 of the GDPR taking into account the nature of the processing and the information available to the Processor; and
(b) taking into account the nature of the processing, assist the Controller (by appropriate technical and organisational measures), insofar as this is possible, for the fulfilment of the Controller's obligations to respond to requests for exercising the Data Subjects' rights under Chapter III of the GDPR in respect of any Protected Data.
Audits and processing
17.10 The Processor shall make available to the Controller all information as is necessary to demonstrate the Processor's compliance with the obligations placed on it under this Clause and allow for and contribute to audits, including inspections, conducted by the Controller (or another auditor mandated by the Controller) for this purpose.
International transfers
17.11 The Processor shall not process and/or transfer, or otherwise directly or indirectly disclose, any Protected Data in or to countries outside the UK or EEA or to any international organisation except where permitted by the Data Protection Laws.
Breach
17.12 The Processor shall notify the Controller without undue delay and in writing on becoming aware of any Personal Data Breach in respect of any Protected Data.
Deletion/return
17.13 At the end of the provision of the services relating to the processing of Protected Data, at the Controller's cost and the Controller's option, the Processor shall either return all of the Protected Data to the Controller or securely dispose of the Protected Data (and thereafter promptly delete all existing copies of it) except to the extent that any Applicable Law requires the Processor to store such Protected Data.
Termination shall not affect either of the parties’ accrued rights or liabilities, or affect the coming into force or the continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after such Termination.
19.1 Assignment
19.1.1 Subject to Clause 19.1.2, neither party may without the written consent of the other (which may be granted or withheld in its absolute discretion) assign, transfer, grant any security interest over or hold on trust any of its rights or obligations under the Agreement or any interest in them.
19.1.2 ICS may assign or transfer the Agreement to any member of its Group or to any purchaser of any part of the assets of ICS.
19.2 Third parties
19.2.1 The parties do not intend any third party to have the right to enforce any provision of the Agreement under the Contracts (Rights of Third Parties) Act 1999 or otherwise, except where such third party is an assignee of rights under the Agreement and such assignment is in accordance with Clause 17.1 (Assignment).
19.2.2 The parties may terminate or vary the Agreement without the consent of any third party.
19.3 Entire agreement
19.4 The Agreement is the entire agreement between the parties, and replace all previous agreements and understandings between them relating to its subject matter. Each party acknowledges and agrees that in entering into the Agreement:
(a) it is not relying upon (and shall have no remedy in respect of) any statement, representation, warranty, promise or assurance made or given by any other party or any other person (whether negligently or innocently made), whether or not in writing, at any time prior to the execution of the Agreement that is not expressly set out in the Agreement; and
(b) its only remedy in respect of any untrue statement, representation, warranty, promise or assurance expressly set out in the Agreement shall be for breach of contract.
19.5 Relationship of the parties
The Agreement constitutes a contract for the provision of services and not a contract of employment, and nothing in the Agreement shall be deemed to imply that the relationship between Customer and ICS is that of employer and employee. Nothing in the Agreement is intended to or shall operate to create a partnership or joint venture of any kind between the parties. No party shall have the authority to bind the other party or to contract in the name of, or create a liability against, the other party in any way or for any purpose.
19.6 Waiver
A failure or delay in exercising any right or remedy under the Agreement shall not constitute a waiver of that right or remedy. A single or partial exercise of any right or remedy shall not prevent the further exercise of that right or remedy. A waiver of a breach of the Agreement shall not constitute a waiver of any other breach.
19.7 Variations
No variation of the Agreement shall be effective unless it is in writing and signed by or on behalf of each party.
19.8 Invalidity
19.8.1 The illegality, invalidity or unenforceability of any provision of the Agreement shall not affect or impair the legality, validity or enforceability of the rest of the Agreement.
19.8.2 If any provision of the Agreement is held to be illegal, invalid or unenforceable, the parties shall negotiate in good faith to agree any revision necessary to make the provision legal, valid and enforceable so as best to give effect to the intention of the parties as recorded in the Agreement.
19.9 Force Majeure
“Force Majeure Event” means an event beyond the reasonable control of a party (the “Affected Party”) which is not attributable to its fault or negligence, including acts of God, diseases or other public health emergencies, expropriation or confiscation of facilities, any form of government intervention, war, hostilities, terrorist activity, local or national emergency, sabotage or riots, and floods, fires, explosions or other catastrophes.
17.9.1 Neither party shall be responsible for any failure to carry out any of its duties under the Agreement to the extent that the failure is directly caused by a Force Majeure Event.
17.9.2 The Charges for the Services affected by a Force Majeure Event shall be reduced or waived by a reasonable amount to be agreed between the parties to reflect the extent and standard to which the affected Services are being provided during the period that the Force Majeure Event continues.
17.9.3 If the Force Majeure Event prevents the Affected Party from materially complying with its obligations under the Agreement for more than 20 Business Days, either party may terminate the Agreement with immediate effect and without liability by giving the other party written notice.
19.10 Further assurance
Each party shall at its own cost execute any document and do anything else that the other party reasonably requires to give effect to the Agreement and the transactions intended to be effected by it and procure that any relevant third party does the same.
19.11 Cumulative rights
The rights and remedies expressly conferred by the Agreement are cumulative and additional to any other rights or remedies a party may have.
19.12 Costs
Each party shall bear its own costs and expenses incurred by it in connection with the preparation and execution of the Agreement.
19.13 Counterparts
The Agreement may be executed in any number of counterparts, which shall each constitute an original and together constitute one agreement. If the Agreement is executed in counterpart, it shall not be effective unless each party has executed at least one counterpart.
19.14 Communications
Communications under the Agreement shall be in writing and delivered by email, by hand or sent by recorded delivery post to the relevant party at its address as set out in the Agreement. Without evidence of earlier receipt, communications are deemed received: if delivered by hand, at the time of delivery; if sent by recorded delivery, at 9.00 am on the second Business Day after posting, and in the case of post it shall be sufficient to prove that the communication was properly addressed and posted.
19.15 Governing law and jurisdiction
19.15.1 The Agreement and any non-contractual obligations arising in connection with it shall be governed by and construed in accordance with English law.
19.15.2 Subject to Clause 19.15.4, the English courts have exclusive jurisdiction to determine any dispute arising in connection with the Agreement, including disputes relating to any non-contractual obligations.
19.15.3 Each party irrevocably waives any objection which it may now or later have to proceedings being brought in the English courts (on the grounds that the English courts are not a convenient forum or otherwise).
19.15.4 Nothing in the Agreement (or, unless provided otherwise, any document entered into in connection with it) shall prevent a party from applying to the courts of any other country for injunctive or other interim relief.