ADAVIRTUAL Business Support’s Terms & Conditions
Provision of Services
- The Supplier shall provide the Services to the Client on the terms and conditions of this Agreement from the Effective Date and as set out in Schedule 1.
- The Services will be provided by the Supplier either:
- on an on-going basis; and/or
- in response to each request from the Client from time to time as specified in Schedule 1.
- The Agreement begins on the Effective Date and will continue until either party serves notice to terminate under the clause below (Termination).
- The Supplier shall provide the Services (including any Deliverables) in accordance with the Specification in all material respects. Time is of the essence for any dates for delivery of the Services under this Agreement, unless specifically stated otherwise in any schedule.
- The Supplier shall perform the Services with reasonable care and skill, in accordance with:
- generally recognised commercial practices and standards in the applicable industry; and
- all laws and regulations applicable to the Services, including all laws and regulations related to (i) anti-bribery and corruption, and (ii) data protection.
- The Client must:
- co-operate with the Supplier in all matters relating to the Services;
- provide, in a timely manner, any materials and any information as the Supplier may reasonably require.
- obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services before the date on which the Services are to start;
- The Supplier shall promptly notify the Client of:
- any delays or problems from time to time in the provision of the Services of which the Supplier becomes aware;
- any circumstances from time to time which may prevent the Supplier from providing the Services in accordance with this Agreement together with (where practicable) recommendations as to how such circumstances can be avoided; and
- any complaint (whether written or not) or other matter which comes to its attention and which it reasonably believes may give rise to any loss by or claim against the Client or which may result in any adverse publicity for the Client.
- The Client shall, without limiting any right or remedy of the Client, promptly report to the Supplier any defects in the Supplier’s performance of the Services as soon as reasonably practicable after any such defect comes to the attention of the Client.
- Where any defect in the provision of the Services is reported to the Supplier by the Client or otherwise comes to the attention of the Supplier, the Supplier shall, without limiting any other right or remedy of the Client, use its reasonable endeavours to provide such further services as are necessary in order to rectify the default as soon as is reasonably practicable.
Charges, Payment and Time Records
- In consideration of the provision of the Services by the Supplier, the Client shall pay the Service Charges as set out in Schedule 2 which specifies whether the charges are on a time and materials basis, a fixed price basis, an hourly basis or any combination. Time is of the essence for the payment of the Service Charges.
- All charges quoted to the Client are exclusive of VAT.
- Where Services are provided on a time and materials basis:
- the charges payable for the Services shall be calculated in accordance with the Supplier’s standard daily fee rates for each individual person and are calculated on the basis of an eight-hour day, worked between 9am and 5pm on Working Days and otherwise by arrangement between the parties;
- the Supplier will ensure that every individual whom it engages in relation to the Services completes time sheets recording time spent on the Services or Deliverables; and
- the Supplier will invoice the Client monthly in arrears for its charges for time, expenses and materials (together with VAT where appropriate) for the month concerned, accompanied by any relevant receipts for any Equipment, materials and expenses as incurred in accordance with the clause below.
- Where Services are provided for a fixed price, the total price for the Services is set out in Schedule 2. Upon completion of the Services or when an agreed instalment is due, the Supplier shall invoice the Client for the charges that are then payable, together with any Equipment, materials and expenses, which have not been expressly included in the fixed price and VAT.
- The Client shall pay each invoice submitted to it by the Supplier, in full and in cleared funds, within 28 days of receipt (which shall be determined in accordance with the section below (Notices)) to a bank account nominated in writing by the Sub-contractor (the Due Date).
- Without prejudice to any other right or remedy that it may have, if the Client fails to pay the Supplier on the Due Date:
- the Supplier may suspend all Services until payment has been made in full.
- All sums payable to the Supplier under this Agreement shall become due immediately on its termination, despite any other provision.
- The Supplier and the Client shall pay all amounts due under this Agreement in full without any deduction except as required by law and neither party shall be entitled to assert any credit, set-off or counterclaim against the other in order to justify withholding payment of any amount due, in whole or in part.
- In this Agreement, Data Protection Legislation means all applicable data protection legislation for the time being in force in the United Kingdom or any part of it including the Data Protection Act 1998, the General Data Protection Regulation (Regulation 2016/679) (“GDPR”) and national legislation implementing or supplementing it in the United Kingdom);
- Each party shall:
a) at all times during the Term of this Agreement, comply with the Data Protection Legislation; and
b) to the extent applicable under the Data Protection Legislation, obtain and maintain all appropriate registrations required in order to allow that party to perform its obligations under this Agreement.
- In this clause, the terms “personal data“, “personal data breach“, “process” and “processor” shall have the meanings given in the GDPR. The client shall, be responsible for providing to ADAVIRTUAL a description of the personal data to be processed under this agreement and any further details required pursuant to ensuring compliance with the Data Protection Legislation. In relation to all personal data provided or made available to ADAVIRTUAL by or on behalf of the Client, the parties agree that ADAVIRTUAL:
- acts only as a processor;
- shall only process such personal data in accordance with this Agreement and the Client’s instructions issued from time to time (which the Client shall ensure are compliant with the Data Protection Legislation);
- shall implement and operate, and shall procure that any permitted sub-processor implements and operates, appropriate technical and organisational measures to ensure a level of security appropriate to the risks that are presented by any processing of such personal data, in particular protection from accidental loss or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed by ADAVIRTUAL pursuant to this Agreement; and
- shall not, without the prior written consent of the Client, transfer any such personal data to a country or territory outside the European Economic Area unless adequate contractual or other assurances have first been put in place such as will enable each party to comply with the requirements of the Data Protection Legislation.
- take reasonable steps to ensure the reliability of any of its staff who will have access to the personal data and ensure that anyone who accesses it shall respect and maintain all due confidentiality;
- as soon as reasonably practicable upon becoming aware, notify the Client of any actual or alleged incident of unauthorised or accidental disclosure of or access to any Personal Data by any of its staff, sub-processors or any other identified or unidentified third party (“Security Breach”);
- as soon as reasonably practicable following, and in any event within ninety (90) days of, termination or expiry of this Agreement or completion of the Services, the Supplier will delete or return to the Client (at the Client’s direction) all Personal Data (including copies thereof) processed pursuant to this Agreement;
- provide such assistance as the Client reasonably requests (taking into account the nature of processing and the information available to the Supplier) to the Client in relation to the Client’s obligations under the Data Protection Legislation with respect to:
- responding to requests from any data subject seeking to exercise its rights under Chapter III of the GDPR where the Client is unable to respond to a request itself;
- data protection impact assessments (as such term is defined in the GDPR);
- notifications to the supervisory authority under the Data Protection Legislation and/or communications to data subjects by the Client in response to any personal data breach; and
- the Client’s compliance with its obligations under the GDPR with respect to the security of processing,
- The Client grants a general authorisation to ADAVIRTUAL to appoint third party data centre operators and outsourced support providers, as sub-processors to support the performance of the Services.
- ADAVIRTUAL shall, in accordance with the Data Protection Legislation, make available to the Client such information in ADAVIRTUAL’s possession or control as the Client may reasonably request with a view to demonstrating ADAVIRTUAL’s compliance with the obligations of data processors under the Data Protection Legislation in relation to its processing of personal data.
- ADAVIRTUAL shall ensure that any person it engages to provide services on its behalf in connection with this Agreement does so only on the basis of a written contract which imposes on such person terms equivalent to those imposed on the Supplier.
- The Client may at any time during the term of this Agreement request an increase or decrease in the volume of the Services, a change in the Specification, or the addition of new Services (Change Request) by notifying the Supplier in writing of its requirements.
- The Supplier shall give due consideration to any Change Request from Client and shall, within 5 Working Days of receiving a Change Request from the Client:
- confirm its acceptance of the Change Request, without any further variation to the terms of the Agreement, in which case the parties shall execute a variation to the Agreement as soon as reasonably practicable and the Supplier shall implement the Change Request accordingly.
- if the Supplier believes it is not reasonably practicable to accept the Change Request, with or without any such variation, provide the Client with a written statement of its reasons for doing so.
- The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, provided that the Supplier gives the Client reasonable notice of such changes and that such changes do not materially affect the nature/scope of the Services or the Service Charges.
Liability and Insurance
- 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, sub-contractors, 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.
- Nothing in this Agreement limits or excludes either party’s liability for:
- death or personal injury caused by its negligence;
- 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); or
- any other liability which cannot be limited or excluded by applicable law.
- Subject to the above clause and the clause above (Indemnity), neither party shall have any liability to the other party, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement for: loss of profits; loss of sales or business; loss of agreements or contracts; loss of anticipated savings; loss of or damage to goodwill; loss of use or corruption of software, data or information; any indirect or consequential loss.
- During this Agreement, the Supplier and the Client shall each maintain in force with a reputable insurance company, insurance sufficient to indemnify risks for which they may be responsible, including for their respective sub-contractors, agents and employees, in connection with the Services and shall, on either parties’ request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium.
Confidentiality & Non Disclosure
- Each party will only use Confidential Information to perform its obligations under the Agreement and will not cause or allow the information to be disclosed except:
- where required by law, court order or any governmental or regulatory body;
- to any of its employees, officers, sub-contractors, representatives or advisers who need to know the information in order to discharge its obligations under the Agreement and agree only to use the information for that purpose and not to cause or allow disclosure of that information;
- where the information has become generally available to the public (other than as a result of disclosure in breach of the Agreement by the party or any of its employees, officers, sub-contractors, representatives or advisers);
- where the information was available or known to it on a non-confidential basis before being disclosed under the Agreement; or
- where the information was developed by or for it independently of the Agreement and is received by persons who are not the disclosing party.
- Subject to the clause below, the Supplier reserves all Intellectual Property Rights (if any) which may subsist in any Deliverables, or in connection with, the provision of the Services. The Supplier reserves the right to take such action as may be appropriate to restrain or prevent the infringement of such Intellectual Property Rights.
- The Supplier licenses all such rights to the Client free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Client to make reasonable use of the Deliverables and the Services.
- If this Agreement is terminated, this licence will automatically terminate.
- Each party warrants and represents that it has made, and undertakes that at all times during the term of this Agreement it will maintain, any notification and registration required under the Data Protection Act 1998 (DPA) that relate to the performance of its obligations under this Agreement.
- Each party undertakes that in the performance of this Agreement it will comply with the DPA, and in particular the Data Protection Principles set out in the DPA, and with any guidance issued from time to time by the Information Commissioner.
Circumstances beyond the control of either party
- Neither party shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that party.
- Such causes include, but are not limited to: power failure, Internet Service Provider failure, acts of God, epidemic, pandemic, civil unrest, fire, flood, droughts, storms, earthquakes, collapse of buildings, explosion or accident, acts of terrorism, acts of war, governmental action, any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or any other event that is beyond the control of the party in question.
- The party affected by a circumstance beyond its control shall use all reasonable endeavours to mitigate the effect of the force majeure upon the performance of its obligations.
- The corresponding obligations of the other party will be suspended to the same extent as those of the party affected by a force majeure event.
- If the delay continues for a period of 90 days, either party may terminate or cancel the Services to be carried out under this Agreement.
- Either party may terminate this Agreement by giving the other party 4 weeks’ prior written notice.
- A party may terminate the Agreement immediately by giving written notice to the other party if that other party:
- does not pay any sum due to it under the Agreement within 30 days of the due date for payment;
- commits a material breach of the Agreement which, if capable of remedy, it fails to remedy within 30 days after being given written notice specifying full particulars of the breach and requiring it to be remedied);
- persistently breaches any term of the Agreement;
- is dissolved, ceases to conduct substantially all of its business or becomes unable to pay its debts as they fall due;
- is a company over any of whose assets or property a receiver is appointed;
- makes any voluntary arrangement with its creditors or (if a company) becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
- (if an individual or firm) has a bankruptcy order made against it or (if a company) goes into liquidation;
- undergoes a change of control (within the meaning of section 1124 of the Corporation Tax Act 2010); or
- (if an individual) dies or as a result of illness or incapacity becomes incapable of managing his or her own affairs.
Consequences of Termination
- On termination or expiry of this Agreement:
- 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;
- the Client shall, within a reasonable time, return all of the Supplier’s Equipment and any relevant Deliverables remaining the property of the Supplier. Until they have been returned or repossessed, the Client shall be solely responsible for their safe keeping.
- Termination or expiry of the Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
- Other than as set out in the Agreement, neither party shall have any further obligation to the other under the Agreement after its termination.
- This Agreement contains the whole agreement between the parties relating to its subject matter and supersedes all prior discussions, arrangements or agreements that might have taken place in relation to the Agreement. Nothing in this clause limits or excludes any liability for fraud or fraudulent misrepresentation.
- No party may assign, transfer or sub-contract to any third party the benefit and/or burden of the Agreement without the prior written consent (not to be unreasonably withheld) of the other party.
- No variation of the Agreement will be valid or binding unless it is recorded in writing and signed by or on behalf of both parties.
- The Contracts (Rights of Third Parties) Act 1999 does not apply to the Agreement and no third party has any right to enforce or rely on any provision of the Agreement.
- Unless otherwise agreed, no delay, act or omission by a party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
- A provision which by its intent or terms is meant to survive the termination of the Agreement will do so.
- If any court or competent authority finds that any provision (or part) of the Agreement is invalid, illegal or unenforceable, that provision or part-provision will, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Agreement will not be affected.
- Unless specifically provided by the parties, nothing in the Agreement will establish any employment relationship, partnership or joint venture between the parties, or mean that one party becomes the agent of the other party, nor does the Agreement authorise any party to enter into any commitments for or on behalf of the other party.
- Any notice (other than in legal proceedings) to be delivered under the Agreement must be in writing and delivered by pre-paid first class post to or left by hand delivery at the other party’s registered address or place of business, or sent by email to the other party’s main business email address as notified to the sending party. Notices:
- sent by post will be deemed to have been received, where posted from and to addresses in the United Kingdom, on the second Working Day and, where posted from or to addresses outside the United Kingdom, on the tenth Working Day following the date of posting;
- delivered by hand will be deemed to have been received at the time the notice is left at the proper address; and
- sent by email will be deemed to have been received on the next Working Day after sending.
Governing law and jurisdiction
- This Agreement shall be governed by and interpreted according to the law of England and Wales and all disputes arising under the Agreement (including non-contractual disputes or claims) shall be subject to the exclusive jurisdiction of the English and Welsh courts.