**CITY HIRE TERMS AND CONDITIONS**
**BY ENTERING INTO A CONTACT AND ACCEPTING THE SERVICES AND/OR THE DELIVERABLES OR BY OTHERWISE INDICATING CONSENT, THE CUSTOMER ACKNOWLEDGES AND AGREES THAT IT HAS READ AND AGREES TO BE BOUND BY THESE CONDITIONS.**
**1 Definitions and interpretation**
1.1 In these Conditions the following definitions apply:
Affiliate means any entity that directly or indirectly Controls, is Controlled by or is under common Control with, another entity;
Business Day means a day other than a Saturday, Sunday or bank or public holiday when banks generally are open for non-automated business in England;
Conditions means the Supplier’s terms and conditions for the supply of goods and services as set out in this document;
Confidential Information means any commercial, financial or technical information, information relating to the Deliverables, plans, know-how or trade secrets which is obviously confidential or has been identified as such, or which is developed by the Customer in performing its obligations under, or otherwise pursuant to the Contract;
Contract means the agreement between the Supplier and the Customer for the sale and purchase of the Deliverables incorporating these Conditions and the Order;
Control means the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the management of the company;
Controller shall have the meaning given in applicable Data Protection Laws from time to time;
Customer means the person who purchases the Deliverables from the Supplier and whose details are set out in the Order;
Data Protection Laws means, as binding on either party or the Services:
(a) the GDPR;
(b) the Data Protection Act 2018;
(c) any laws which implement any such laws; and
(d) any laws that replace, extend, re-enact, consolidate or amend any of the foregoing;
Data Subject shall have the meaning in applicable Data Protection Laws from time to time;
Deliverables means the Tools or Services or both as the case may be;
Force Majeure means an event or sequence of events beyond any party’s reasonable control (after exercise of reasonable care to put in place robust back-up and disaster recovery arrangements) preventing or delaying it from performing its obligations under the Contract including an act of God, fire, flood, lightning, earthquake or other natural disaster; war, riot or civil unrest; interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service; or material required for performance of the Contract; strike, lockout or boycott or other industrial action including strikes or other industrial disputes involving the Supplier’s or its suppliers’ workforce, but excluding the Customer’s inability to pay or circumstances resulting in the Customer’s inability to pay;
GDPR means the General Data Protection Regulation, Regulation (EU) 2016/679;
Intellectual Property Rights means copyright, patents, know-how, trade secrets, trade marks, trade names, design rights, rights in get-up, rights in goodwill, rights in confidential information, rights in software, rights to sue for passing off, domain names and all similar rights and, in each case:
(a) whether registered or not
(b) including any applications to protect or register such rights
(c) including all renewals and extensions of such rights or applications
(d) whether vested, contingent or future
(e) to which the relevant party is or may be entitled, and
(f) in whichever part of the world existing;
International Organisation has the meaning given in the applicable Data Protection Laws from time to time;
Location means the address(es) for delivery of the Tools and performance of the Services as set out in the Order;
Order means the Customer's order for the Services and/or Deliverables as submitted by the Customer and accepted by the Supplier whether in writing, orally or by conduct;
Personal Data has the meaning given in the applicable Data Protection Laws from time to time;
Personal Data Breach has the meaning given in the applicable Data Protection Laws from time to time;
Price has the meaning given in clause 3.1;
processing has the meaning given to it in applicable Data Protection Laws from time to time (and related expressions, including process, processed, and processes shall be construed accordingly);
Processor has the meaning given to it in applicable Data Protection Laws from time to time;
Protected Data means Personal Data received from or on behalf of the Customer in connection with the performance of the Supplier’s obligations under the Contract;
Services means the services set out in the Order or understood by the parties to be included in the Services and to be supplied by the Supplier to the Customer;
Specification means the description or specification of the Deliverables set out or referred to in the Order;
Sub-Processor means any agent, subcontractor or other third party (excluding its employees) engaged by the Supplier for carrying out any processing activities on behalf of the Customer in respect of the Protected Data;
Supplier means City Tool Hire Limited trading as City Hire a company incorporated in England and Wales with registered company number 07775730 and its registered office at 5-6 Boeing Way International Business Park, Southall, Middlesex, UB2 5LB;
Supplier Personnel means all employees, officers, staff, other workers, agents and consultants of the Supplier, its Affiliates and any of their sub-contractors who are engaged in the performance of the Services from time to time; and
Tools means the tools, equipment, accessories, spare parts, documentation and other physical material set out in the Order or understood by the parties to be included with the Tools and to be supplied by the Supplier to the Customer;
VAT means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the sale of the Deliverables.
1.2 In these Conditions, unless the context otherwise requires:
1.2.1 a reference to the Contract includes these Conditions, the Order, and their respective schedules, appendices and annexes (if any);
1.2.2 any clause, schedule or other headings in these Conditions are included for convenience only and shall have no effect on the interpretation of these Conditions;
1.2.3 a reference to a ‘party’ means either the Supplier or the Customer and includes that party’s personal representatives, successors and permitted assigns;
1.2.4 a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;
1.2.5 a reference to a ’company’ includes any company, corporation or other body corporate, wherever and however incorporated or established;
1.2.6 a reference to a gender includes each other gender;
1.2.7 words in the singular include the plural and vice versa;
1.2.8 any words that follow 'include', 'includes', 'including', ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
1.2.9 a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form (including email);
1.2.10 a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time except to the extent that any such amendment, extension or re-enactment would increase or alter the liability of a party under the Contract; and
1.2.11 a reference to any English action, remedy, method of judicial proceeding, court, official, legal document, legal status, legal doctrine, legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English equivalent in that jurisdiction.
**2 Application of these Conditions**
2.1 These Conditions apply to and form part of the Contract between the Supplier and the Customer. They supersede any previously issued terms and conditions of purchase or supply.
2.2 No terms or conditions endorsed on, delivered with, or contained in the Customer's purchase conditions, order, confirmation of order, specification or other document shall form part of the Contract except to the extent that the Supplier otherwise agrees in writing.
2.3 No variation of these Conditions or to an Order or to the Contract, shall be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of the Customer.
2.4 Each Order by the Customer to the Supplier shall be an offer to purchase the Deliverables subject to these Conditions.
2.5 An Order may be withdrawn or amended by the Customer at any time before acceptance by the Supplier. If the Supplier is unable to accept an Order, it shall notify the Customer promptly.
2.6 The offer constituted by an Order shall remain in effect and capable of being accepted by the Supplier until withdrawn by the Customer.
2.7 The Supplier may accept or reject an Order at its discretion. An Order shall not be accepted, and no binding obligation to supply any Deliverables shall arise, until the earlier of:
2.7.1 the Supplier’s written acceptance of the Order; or
2.7.2 the Supplier delivering or performing the Deliverables or notifying the Customer that they are ready to be delivered or performed (as the case may be).
2.8 Rejection by the Supplier of an Order, including any communication that may accompany such rejection, shall not constitute a counter-offer capable of acceptance by the Customer.
2.9 The Supplier may issue quotations to the Customer from time to time. Quotations are invitations to treat only. They are not an offer to supply Deliverables and are incapable of being accepted by the Customer.
2.10 Marketing and other promotional material relating to the Deliverables are illustrative only and do not form part of the Contract.
3.1 The price for the Deliverables shall be as set out in the Order or, in default of such provision, shall be calculated in accordance with the Supplier's scale of charges in force from time to time (Price). The Price shall include all chargeable time including Saturdays, Sundays and Bank Holidays.
3.2 The Prices are exclusive of:
3.2.1 packaging, delivery, insurance and any other relevant elements of the services which are not included in the standard price which shall be charged in addition at the Supplier’s standard rates, and
3.3 The Customer shall pay any applicable VAT to the Supplier on receipt of a valid VAT invoice.
3.4 The Supplier may increase the Prices at any time without notice.
3.5 Notwithstanding clause 3.4, the Supplier may increase the Prices with immediate effect by written notice to the Customer where there is an increase in the direct cost to the Supplier of supplying the relevant Deliverables which is due to any factor beyond the control of the Supplier.
3.6 The Customer shall not be charged for any period during which the Tools cannot be used due to breakdown caused by the Tools having an inherent fault and/or reasonable wear and tear, provided that the Supplier is informed of such breakdown as soon as reasonably practicable. The Customer shall be charged for the Tools up to and including the date of notification of such breakdown.
4.1 The Supplier shall invoice the Customer for the Deliverables at any time after delivery or performance (as the case may be) of the Deliverables.
4.2 Where the Customer has a credit facility available (i.e. a ‘credit customer’ or an ‘account customer’), the Customer shall pay all invoices:
4.2.1 in full without deduction or set-off in cleared funds within 30 days of the date of each invoice (except where the parties have agreed otherwise in writing in advance); and
4.2.2 to the bank account nominated by the Supplier.
4.3 Where the Customer has no credit facility available (i.e. a ‘cash customer’), the Customer shall pay all invoices:
4.3.1 in full without deduction or set-off in cleared funds immediately upon receipt each invoice; and
4.3.2 to the bank account nominated by the Supplier.
4.4 Time of payment is of the essence. Where sums due under these Conditions are not paid in full by the due date:
4.4.1 the Supplier may, without limiting its other rights, charge interest on such sums at 4% a year above the base rate of the Bank of England from time to time in force, and
4.4.2 interest shall accrue on a daily basis, and apply from the due date for payment until actual payment in full, whether before or after judgment.
4.5 The Customer shall be liable for any costs or expenses reasonably incurred by the Supplier in connection with the recovery of the Tools and/or any sums due under or in connection with Contract.
**5 Credit limit**
The Supplier may set and vary credit limits from time to time and withhold all further supplies if the Customer exceeds such credit limit.
**6 Delivery and performance**
6.1 The Price is exclusive of and the Customer shall be liable for any costs or expenses reasonably incurred by the Supplier in connection with the delivery of the Tools. Where the Supplier quotes for costs and expenses associated with delivery, these include only the time required to load or unload the Tools alongside the Supplier’s vehicle at the address specified by the Customer. The Customer shall be liable for any additional time or attendance by the Supplier including any attempt by the Supplier to carry out the Customer’s pre-arranged delivery instructions which are unsuccessful due to the acts or omissions of the Customer.
6.2 The Tools shall be delivered by the Supplier to the Location on the date(s) specified in the Order. The Tools shall be deemed delivered by the Supplier only on arrival of the Tools at the Location.
6.3 The Services shall be performed by the Supplier at the Location on the date(s) specified in the Order. The Services shall be deemed delivered by the Supplier on completion of the performance of the Services at the Location.
6.4 The Supplier may deliver or perform the Deliverables in instalments. Any delay in performance or defect in an instalment shall not entitle the Customer to cancel any other instalment.
6.5 Each delivery or performance of the Deliverables shall be accompanied by a delivery note stating:
6.5.1 the date of the Order;
6.5.2 the relevant Customer and Supplier details;
6.5.3 if Tools, the product numbers and type and quantity of Tools in the consignment;
6.5.4 if Services, the category, type and quantity of Services performed;
6.5.5 any special instructions, handling and other requests; and
6.5.6 in the case of Tools, whether any packaging material is to be returned.
6.6 Time is not of the essence in relation to the performance or delivery of the Deliverables. The Supplier shall use its reasonable endeavours to meet estimated dates for delivery and performance, but any such dates are approximate only.
6.7 The Supplier shall not be liable for any delay in or failure of performance caused by:
6.7.1 the Customer's failure to: (i) make the Location available, (ii) prepare the Location in accordance with the Supplier's instructions or as required for the Deliverables or (iii) provide the Supplier with adequate instructions for performance or delivery or otherwise relating to the Deliverables;
6.7.2 Force Majeure.
6.8 The Customer shall be responsible for loading and unloading the Deliverables at the Delivery Location. The Customer shall also be responsible for arranging for the return of the Deliverables to the Supplier and for the loading and unloading the Deliverables at the Supplier’s premises where the Deliverables are transported by the Customer or its agent.
6.9 Where the Supplier provides the Services and/or delivers the Deliverables to the Customer in accordance with the specific instructions of the Customer, the persons providing such Services and/or delivering such Deliverables (including any person supplied by the Supplier to assist with the loading and unloading of the Deliverables at the Delivery Location) shall be deemed to be acting under the direction and control of the Customer. The Customer shall be solely responsible for any such instruction, direction, guidance and/or advice and for any loss or damage which arises as a result of such instruction, direction, guidance and/or advice (other than loss or damage arising from the negligence of the he persons providing such Services and/or delivering such Deliverables).
6.10 The Customer shall permit the Supplier to enter any land or premises of the Customer for the purpose of inspecting or recovering the Deliverables.
**7 Title and Risk**
7.1 Risk in the Tools shall pass to the Customer on delivery and shall remain with the Customer until they have been returned to the Supplier and the Supplier has confirmed safe and unqualified receipt of the Tools.
7.2 Title to the Tools shall not pass to the Customer.
7.3 While the Tools are in the possession of the customer the Customer, the Customer shall:
7.3.1 return the Tools to the Supplier upon demand at any time until the Price has been paid;
7.3.2 hold the Tools as bailee for the Supplier and shall not sell or part with control of the Tools;
7.3.3 take all reasonable care of the Tools, keep them in the condition in which they were delivered, not tamper with or attempt to repair the Tools, and only use the Tools in accordance with their issued safety instructions;
7.3.4 ensure that, where the Tools require electricity, fuel, water, oil or any other inputs or additives, the correct voltage or other inputs or additives are used and that any such installation or maintenance is carried out by a competent person;
7.3.5 ensure that the Tools are not removed from the site to which they were originally delivered, or any other site or location approved by the Supplier in writing in advance, except with the prior written consent of the Supplier;
7.3.6 insure the Tools from the date of delivery with a reputable insurer against all risks;
7.3.7 not remove or alter any names, marks or signs on the Tools or their packaging;
7.3.8 inform the supplier immediately in the event of any breakdown or unsatisfactory working or performance of the Tools or in the event of any accident or injury involving the Tools and any other property or any person;
7.3.9 inform the Supplier immediately if it becomes subject to any of the events or circumstances set out in clauses 15.1.1 to 15.1.4 or 15.2.1 to 15.2.11; and
7.3.10 on reasonable notice permit the Supplier to inspect the Tools during the Customer’s normal business hours and provide the Supplier with such information concerning the Tools as the Supplier may request from time to time.
7.4 If, at any time before the return of the Tools to the Supplier, the Customer informs the Supplier, or the Supplier reasonably believes, that the Customer has or is likely to become subject to any of the events specified in clauses 15.1.1 to 15.1.4 or 15.2.1 to 15.2.11, the Supplier may:
7.4.1 require the Customer to re-deliver the Tools to the Supplier; and
7.4.2 if the Customer fails to do so promptly, enter any premises where the Tools are stored and repossess them.
8.1 The Supplier warrants that, while the Deliverables are in the Customer’s possession or for a period of 6 months from delivery (whichever is shorter) (the Warranty Period), the Deliverables shall:
8.1.1 conform in all material respects to any sample, their description and to the Specification;
8.1.2 be free from material defects in design, material and workmanship;
8.1.3 if Tools, be of satisfactory quality within the meaning of the Sale of Goods Act 1979;
8.1.4 if Services, be supplied with reasonable care and skill within the meaning of the Supply of Goods and Services Act 1982; and
8.1.5 be fit for purpose and any purpose held out by the Supplier.
8.2 The Customer warrants and undertakes that:
8.2.1 it has provided the Supplier with all relevant, full and accurate information as to the Customer’s business and needs;
8.2.2 it shall be liable for the actions of omissions of any of its employees, agents, servants and subcontractors under the Contract;
8.2.3 any persons using the Tool will be properly instructed in the safe and correct use of the Tools and that such persons will be supplied with all instructions relating to the Tools provided by the Supplier.
8.2.4 it shall ensure that the Tools are not abused or misused.
8.3 The Supplier shall, at its option, correct, repair, remedy, re-perform or refund the Deliverables that do not comply with clause 8, provided that the Customer:
8.3.1 or a recipient acting on behalf of the Customer receives and unloads the Deliverables and checks the quantity and condition of the presence of the carrier;
8.3.2 serves a written notice on Supplier not later than three Business Days from delivery or performance in the case of any shortages or defects;
8.3.3 such notice specifies that some or all of the Deliverables do not comply with clause 8.1 and identifying in sufficient detail the nature and extent of the shortages or defects;
8.3.4 ceases using the Deliverables after any defects have become apparent or suspected to/by the Customer or should reasonably have become apparent or suspected to/by the Customer;
8.3.5 gives the Supplier a reasonable opportunity to examine the claim of the shortage or the defective Deliverables; and
8.3.6 gives the Supplier a reasonable opportunity to remedy any shortage or defective Deliverables and the Supplier shall have no liability to the Customer in respect of any costs, expenses, losses or liabilities incurred by the Customer should the Customer remedy any shortage or defective Deliverables without giving the Supplier such reasonable opportunity.
8.4 The provisions of these Conditions shall apply to any Deliverables that are corrected, repaired, remedied or re-performed with effect from delivery or performance of those Deliverables.
8.5 Except as set out in this clause 8 the Supplier:
8.5.1 gives no warranty and makes no representations in relation to the Deliverables; and
8.5.2 shall have no liability for their failure to comply with the warranty in clause 8.1,
and all warranties and conditions (including the conditions implied by ss 12–16 of the Supply of Goods and Services Act 1982 and ss 13–15 of the Sale of Goods Act 1979), whether express or implied by statute, common law or otherwise are excluded to the extent permitted.
**9 Indemnity and insurance**
9.1 The Customer shall indemnify, and keep indemnified, the Supplier from and against any losses, damages, liability, costs (including legal fees) and expenses incurred by the Supplier as a result of or in connection with the Customer’s breach of any of the Customer’s obligations under the Contract.
9.2 Without prejudice to the generality of clause 9.1 the Customer shall indemnify, and keep indemnified, the Supplier from and against any losses, damages, liability, costs (including legal fees) and expenses incurred by the Supplier as a result of or in connection with any Tools which are lost or stolen or damaged during the hire period or returned unclean at the end of the hire period. The Customer expressly acknowledges and agrees that it shall pay the cost and expenses (as determined by the Supplier) of replacing, repairing and/or cleaning any such Tools which are lost or stolen or damaged during the hire period or returned unclean at the end of the hire period. The Customer expressly acknowledges and agrees that it shall pay for any financial loss suffered by the Supplier until such replacement, repair and/or cleaning is complete.
9.3 The Customer shall have in place contracts of insurance with reputable insurers incorporated in the United Kingdom to cover its obligations under the Contract. On request, the Customer shall supply so far as is reasonable evidence of the maintenance of the insurance and all of its terms from time to time applicable. The Customer expressly acknowledges and agrees that any funds paid to it pursuant to a contract of insurance as a result of any Tools which are lost or stolen or damaged beyond economic repair during the hire period shall be held on trust for the Supplier and to the Supplier upon demand.
**10 Limitation of liability**
10.1 The extent of the parties’ liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 10.
10.2 Subject to clauses 10.5 and 10.6, the Supplier’s total liability under the Contract shall not exceed 200% of the Price.
10.3 Subject to clauses 10.5 and 10.6, the Supplier shall not be liable for consequential, indirect or special losses.
10.4 Subject to clauses 10.5 and 10.6, the Supplier shall not be liable for any of the following (whether direct or indirect):
10.4.1 loss of profit;
10.4.2 loss or corruption of data;
10.4.3 loss of use;
10.4.4 loss of production;
10.4.5 loss of contract;
10.4.6 loss of opportunity;
10.4.7 loss of savings, discount or rebate (whether actual or anticipated);
10.4.8 harm to reputation or loss of goodwill.
10.5 The limitations of liability set out in clauses 10.2 to 10.4 shall not apply in respect of any indemnities given by either party under the Contract.
10.6 Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of the following:
10.6.1 death or personal injury caused by negligence;
10.6.2 fraud or fraudulent misrepresentation;
10.6.3 any other losses which cannot be excluded or limited by applicable law;
10.6.4 any losses caused by wilful misconduct.
**11 Intellectual property**
11.1 The Supplier shall indemnify the Customer from and against any losses, damages, liability, costs and expenses (including reasonable professional fees) incurred by it as a result of any action, demand or claim that use of the Deliverables infringes the Intellectual Property Rights of any third party (IPR Claim), provided that the Supplier shall have no such liability if the Customer:
11.1.1 does not notify the Supplier in writing setting out full details of any IPR Claim of which it has notice as soon as is reasonably possible;
11.1.2 makes any admission of liability or agrees any settlement or compromise of the relevant IPR Claim without the prior written consent of the Supplier;
11.1.3 does not let the Supplier at its request and own expense have the conduct of or settle all negotiations and litigation arising from the IPR Claim at its sole discretion;
11.1.4 does not take all reasonable steps to minimise the losses that may be incurred by it or by any third party as a result of the IPR Claim;
11.1.5 does not, at the Supplier's request, provide the Supplier with all reasonable assistance in relation to the IPR Claim (at the Customer’s expense) including the provision of prompt access to any relevant premises, officers, employees, contractors or agents of the Customer.
11.2 If any IPR Claim is made or is reasonably likely to be made, the Supplier may at its option:
11.2.1 procure for the Customer the right to continue receiving the benefit of the relevant Deliverables; or
11.2.2 modify or replace the infringing part of the Deliverables so as to avoid the infringement or alleged infringement, provided the Deliverables remain in material conformance to their Specification.
11.3 The Supplier's obligations under clause 11.1 shall not apply to Deliverables modified or used by the Customer other than in accordance with the Contract or the Supplier’s instructions. The Customer shall indemnify the Supplier against all losses, damages, liability, costs and expenses (including reasonable legal fees) incurred by the Supplier in connection with any claim arising from such modification or use.
**12 Confidentiality and announcements**
12.1 The Customer shall keep confidential all Confidential Information of the Supplier and of any Affiliate of the Supplier and shall only use the same as required to perform the Contract. The provisions of this clause shall not apply to:
12.1.1 any information which was in the public domain at the date of the Contract;
12.1.2 any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract or any related agreement;
12.1.3 any information which is independently developed by the Customer without using information supplied by the Supplier or by any Affiliate of the Supplier; or
12.1.4 any disclosure required by law or a regulatory authority or otherwise by the provisions of the Contract.
except that the provisions of clauses 12.1.1 to 12.1.3 shall not apply to information to which clause 12.4 relates.
12.2 This clause shall remain in force in perpetuity.
12.3 The Customer shall not make any public announcement or disclose any information regarding the Contract, except to the extent required by law or regulatory authority.
12.4 To the extent any Confidential Information is Protected Data such Confidential Information may be disclosed or used only to the extent such disclosure or use does not conflict with any provisions of clause 13.
**13 Processing of personal data**
13.1 The parties agree that the Customer is a Controller and that the Supplier may be a Processor for the purposes of processing Protected Data pursuant to the Contract. The Customer shall at all times comply with all Data Protection Laws in connection with the processing of Protected Data. The Customer shall ensure all instructions given by it to the Supplier in respect of Protected Data (including the terms of the Contract) shall at all times be in accordance with Data Protection Laws. Nothing in this Agreement relieves the Customer of any responsibilities or liabilities under any Data Protection Laws.
13.2 The Supplier shall process Protected Data in compliance with the obligations placed on it under Data Protection Laws and the terms of the Contract.
13.3 The Customer shall indemnify and keep indemnified the Supplier against all losses, claims, damages, liabilities, fines, sanctions, interest, penalties, costs, charges, expenses, compensation paid to Data Subjects, demands and legal and other professional costs (calculated on a full indemnity basis and in each case whether or not arising from any investigation by, or imposed by, a supervisory authority) arising out of or in connection with any breach by the Customer of its obligations under this clause 13.
13.4 The Supplier shall:
13.4.1 only process (and shall ensure Supplier Personnel only process) the Protected Data in accordance with the schedule and the Contract (including when making any transfer to which clause 13.8 relates), except to the extent:
(a) that alternative processing instructions are agreed between the parties in writing; or
(b) otherwise required by applicable law (and shall inform the Customer of that legal requirement before processing, unless applicable law prevents it doing so on important grounds of public interest); and
13.4.2 without prejudice to clause 13.1, if the Supplier believes that any instruction received by it from the Customer is likely to infringe the Data Protection Laws it shall be entitled to cease to provide the relevant Services until the parties have agreed appropriate amended instructions which are not infringing.
13.5 Taking into account the state of technical development and the nature of processing, the Supplier shall implement and maintain the technical and organisational measures set out in Part B of the schedule to protect the Protected Data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure or access.
13.6 The Supplier shall:
13.6.1 not permit any processing of Protected Data by any agent, subcontractor or other third party (except its or its Sub-Processors’ own employees in the course of their employment that are subject to an enforceable obligation of confidence with regards to the Protected Data) without the authorisation of the Customer;
13.6.2 prior to the relevant Sub-Processor carrying out any processing activities in respect of the Protected Data, appoint each Sub-Processor under a written contract containing materially the same obligations as under this clause 13 (including those relating to sufficient guarantees to implement appropriate technical and organisational measures) that is enforceable by the Supplier and ensure each such Sub-Processor complies with all such obligations;
13.6.3 remain fully liable to the Customer under the Contract for all the acts and omissions of each Sub-Processor as if they were its own; and
13.6.4 ensure that all persons authorised by the Supplier or any Sub-Processor to process Protected Data are subject to a binding written contractual obligation to keep the Protected Data confidential.
13.7 The Supplier shall (at the Customer's cost):
13.7.1 assist the Customer in ensuring compliance with the Customer’s obligations pursuant to Articles 32 to 36 of the GDPR (and any similar obligations under applicable Data Protection Laws) taking into account the nature of the processing and the information available to the Supplier; and
13.7.2 taking into account the nature of the processing, assist the Customer (by appropriate technical and organisational measures), insofar as this is possible, for the fulfilment of the Customer’s obligations to respond to requests for exercising the Data Subjects’ rights under Chapter III of the GDPR (and any similar obligations under applicable Data Protection Laws) in respect of any Protected Data.
13.8 The Supplier shall not process and/or transfer, or otherwise directly or indirectly disclose, any Protected Data in or to countries outside the United Kingdom or the European Economic Area or to any International Organisation without the prior written consent of the Customer.
13.9 The Supplier shall, in accordance with Data Protection Laws, make available to the Customer such information that is in its possession or control as is necessary to demonstrate the Supplier's compliance with the obligations placed on it under this clause 13 and to demonstrate compliance with the obligations on each party imposed by Article 28 of the GDPR (and under any equivalent Data Protection Laws equivalent to that Article 28), and allow for and contribute to audits, including inspections, by the Customer (or another auditor mandated by the Customer) for this purpose (subject to a maximum of one audit request in any 12 month period under this clause 13.9).
13.10 The Supplier shall notify the Customer without undue delay and in writing on becoming aware of any Personal Data Breach in respect of any Protected Data.
13.11 On the end of the provision of the Services relating to the processing of Protected Data, at the Customer’s cost and the Customer’s option, the Supplier shall either return all of the Protected Data to the Customer 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 Supplier to store such Protected Data. This clause 13 shall survive termination or expiry of the Contract.
**14 Force Majeure**
14.1 A party shall not be liable if delayed in or prevented from performing its obligations due to Force Majeure, provided that it:
14.1.1 promptly notifies the other of the Force Majeure event and its expected duration; and
14.1.2 uses best endeavours to minimise the effects of that event.
14.2 If, due to Force Majeure, a party:
14.2.1 is or shall be unable to perform a material obligation; or
14.2.2 is delayed in or prevented from performing its obligations for a continuous period exceeding 14 days,
the parties shall, within 30 days, renegotiate the Contract to achieve, as nearly as possible, the original commercial intent.
15.1 The Supplier may terminate the Contract or any other contract which it has with the Customer at any time by giving notice in writing to the Customer if:
15.1.1 the Customer commits a material breach of the Contract and such breach is not remediable;
15.1.2 the Customer commits a material breach of the Contract which is not remedied within 14 days of receiving written notice of such breach;
15.1.3 the Customer has failed to pay any amount due under the Contract on the due date and such amount remains unpaid within 30 days after the Supplier has given notification that the payment is overdue; or
15.1.4 any consent, licence or authorisation held by the Customer is revoked or modified such that the Customer is no longer able to comply with its obligations under the Contract or receive any benefit to which it is entitled.
15.2 The Supplier may terminate the Contract at any time by giving notice in writing to the Customer if the Customer:
15.2.1 stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;
15.2.2 is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if the Supplier reasonably believes that to be the case;
15.2.3 becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;
15.2.4 has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;
15.2.5 has a resolution passed for its winding up;
15.2.6 has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it;
15.2.7 is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within seven days of that procedure being commenced;
15.2.8 has a freezing order made against it;
15.2.9 is subject to any recovery or attempted recovery of items supplied to it by a supplier retaining title in those items;
15.2.10 is subject to any events or circumstances analogous to those in clauses 15.2.1 to 15.2.9 in any jurisdiction;
15.2.11 takes any steps in anticipation of, or has no realistic prospect of avoiding, any of the events or procedures described in clauses 15.2.1 to 15.2.10 including for the avoidance of doubt, but not limited to, giving notice for the convening of any meeting of creditors, issuing an application at court or filing any notice at court, receiving any demand for repayment of lending facilities, or passing any board resolution authorising any steps to be taken to enter into an insolvency process.
15.3 The Supplier may terminate the Contract at any time by giving not less than four weeks’ notice in writing to the Customer if the Customer undergoes a change of Control or if it is realistically anticipated that it shall undergo a change of Control within two months.
15.4 The right of the Supplier to terminate the Contract pursuant to clause 15.2 shall not apply to the extent that the relevant procedure is entered into for the purpose of amalgamation, reconstruction or merger (where applicable) where the amalgamated, reconstructed or merged party agrees to adhere to the Contract.
15.5 If the Customer becomes aware that any event has occurred, or circumstances exist, which may entitle the Supplier to terminate the Contract under this clause 15, it shall immediately notify the Supplier in writing.
15.6 Termination or expiry of the Contract shall not affect any accrued rights and liabilities of the Supplier at any time up to the date of termination.
15.7 Subject to the performance of all its outstanding payment and other obligations under or in connection with this Contract, the Customer may terminate may terminate the Contract by returning the Tools to the Supplier where no fixed hire period has been agreed in the Contact.
**16 Dispute resolution**
16.1 Any dispute arising between the parties out of or in connection with the Contract shall be dealt with in accordance with the provisions of this clause 16.
16.2 The dispute resolution process may be initiated at any time by either party serving a notice in writing on the other party that a dispute has arisen. The notice shall include reasonable information as to the nature of the dispute.
16.3 The parties shall use all reasonable endeavours to reach a negotiated resolution through the following procedures:
16.3.1 Within seven days of service of the notice, the contract managers of the parties shall meet to discuss the dispute and attempt to resolve it.
16.3.2 If the dispute has not been resolved within seven days of the first meeting of the contract managers, then the matter shall be referred to the chief executives (or persons of equivalent seniority). The chief executives (or equivalent) shall meet within seven days to discuss the dispute and attempt to resolve it.
16.4 The specific format for the resolution of the dispute under clause 16.3.1 and, if necessary, clause 16.3.2 shall be left to the reasonable discretion of the parties, but may include the preparation and submission of statements of fact or of position.
16.5 If the dispute has not been resolved within 14 days of the first meeting of the chief executives (or equivalent) under clause 16.3.2 then the matter shall be referred to mediation in accordance with the London Court of International Arbitration Mediation Rules (unless the parties agree otherwise in writing).
16.6 Until the parties have completed the steps referred to in clauses 16.3 and 16.5, and have failed to resolve the dispute, neither party shall commence formal legal proceedings or arbitration except that either party may at any time seek urgent interim relief from the courts or emergency arbitrator relief.
17.1 Any notice given by a party under these Conditions shall:
17.1.1 be in writing and in English;
17.1.2 be signed by, or on behalf of, the party giving it (except for notices sent by email); and
17.1.3 be sent to the relevant party at the address set out in the Contract
17.2 Notices may be given, and are deemed received:
17.2.1 by hand: on receipt of a signature at the time of delivery;
17.2.2 by Royal Mail Recorded Signed For post: at 9.00 am on the second Business Day after posting;
17.2.3 by Royal Mail International Tracked & Signed OR Royal Mail International Signed post: at 9.00 am on the fourth Business Day after posting; and
17.2.4 by fax: on receipt of a transmission report from the correct number confirming uninterrupted and error-free transmission; and
17.2.5 by email provided confirmation is sent by first class post: on receipt of a delivery receipt email from the correct address.
17.3 Any change to the contact details of a party as set out in the Contract shall be notified to the other party in accordance with clause 17.1 and shall be effective:
17.3.1 on the date specified in the notice as being the date of such change; or
17.3.2 if no date is so specified, two Business Days after the notice is deemed to be received.
17.4 All references to time are to the local time at the place of deemed receipt.
17.5 This clause does not apply to notices given in legal proceedings or arbitration.
18.1 Cumulative remedies. The rights and remedies provided in the Contract for the Supplier only are cumulative and not exclusive of any rights and remedies provided by law.
18.2 Time. Unless stated otherwise, time is of the essence for any date or period specified in the Contract in relation to the Customer’s obligations only.
18.3 Further assurance. The Customer shall at the request of the Supplier, and at the Customer’s own cost, do all acts and execute all documents which are necessary to give full effect to the Contract.
18.4 Entire agreement. The parties agree that the Contract and any documents entered into pursuant to it constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter. Each party acknowledges that it has not entered into the Contract or any documents entered into pursuant to it in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Contract or any documents entered into pursuant to it. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Contract. Nothing in these Conditions purports to limit or exclude any liability for fraud.
18.5 Variation. No variation of the Contract shall be valid or effective unless it is in writing, refers to the Contract and these Conditions and is duly signed or executed by, or on behalf of, the Supplier.
18.6 Assignment. The Customer may not assign, subcontract or encumber any right or obligation under the Contract, in whole or in part, without the Supplier’s prior written consent, such consent not to be unreasonably withheld or delayed. Notwithstanding the foregoing, the Customer may perform any of its obligations and exercise any of its rights granted under the Contract through any Affiliate provided that it gives the Supplier prior written notice of such subcontracting or assignment including the identity of the relevant Affiliate. The Customer acknowledges and agrees that any act or omission of its Affiliate in relation to the Customer’s rights or obligations under the Contract shall be deemed to be an act or omission of the Customer itself.
18.7 Set off. The Supplier shall be entitled to set-off under the Contract any liability which it has or any sums which it owes to the Customer under the Contract or under any other contract which the Supplier has with the Customer. The Customer shall pay all sums that it owes to the Supplier under the Contract without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
18.8 No partnership or agency. The parties are independent persons and are not partners, principal and agent or employer and employee and the Contract does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. None of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party’s behalf.
18.9 Equitable relief. The Customer recognises that any breach or threatened breach of the Contract may cause the Supplier irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to the Supplier, the Customer acknowledges and agrees that the Supplier is entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.
18.10 Severance. If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Contract shall not be affected. If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.
18.11 Waiver. No failure, delay or omission by the Supplier in exercising any right, power or remedy provided by law or under the Contract shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy. No single or partial exercise of any right, power or remedy provided by law or under the Contract by the Supplier shall prevent any future exercise of it or the exercise of any other right, power or remedy by the Supplier. A waiver of any term, provision, condition or breach of the Contract by the Supplier shall only be effective if given in writing and signed by the Supplier, and then only in the instance and for the purpose for which it is given.
18.12 Compliance with law. The Customer shall comply with all laws, enactments, regulations, regulatory policies, guidelines and industry codes applicable to it and shall maintain such authorisations and all other approvals, permits and authorities as are required from time to time to perform its obligations under or in connection with the Contract.
18.13 Conflicts within contract. If there is a conflict between the terms contained in the Conditions and the terms of the Order, schedules, appendices or annexes to the Contract, the terms of the Conditions and Part A and Part B of the schedule shall prevail.
18.14 Costs and expenses. The Customer shall pay its own costs and expenses incurred in connection with the negotiation, preparation, signature and performance of the Contract (and any documents referred to in it).
18.15 Third party rights. Except as expressly provided for in this clause, a person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract. Any Affiliate of the Supplier shall be entitled under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract. The consent of any such Affiliate is not required in order to rescind or vary the Contract or any provision of it.
18.16 Governing law. The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
18.17 Jurisdiction. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims).
Data processing details
Processing of the Protected Data by the Supplier under the Contract shall be for the subject-matter, duration, nature and purposes and involve the types of personal data and categories of Data Subjects set out in this Part A of the schedule.
1 Subject-matter of processing:
Processing in connection with the provision of the Deliverables to the Customer.
2 Duration of the processing:
Processing for the duration of the Services.
3 Nature and purpose of the processing:
Processing in the nature of and for the purpose of providing the Deliverables to the Customer including the following processing activities:
3.1 Maintaining contact records for personnel relating to the Customer; and
3.2 Contacting Customer personnel in connection with the provision of the Services.
4 Type of Personal Data:
Name, email address, phone number and job title.
5 Categories of Data Subjects:
Personnel relating to the Customer.
Technical and organisational security measures
1.1 In accordance with the Data Protection Laws, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing of the Protected Data to be carried out under or in connection with the Contract, as well as the risks of varying likelihood and severity for the rights and freedoms of natural persons and the risks that are presented by the processing, especially from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the Protected Data transmitted, stored or otherwise processed, the Supplier shall implement appropriate technical and organisational security measures appropriate to the risk, including as appropriate those matters mentioned in Articles 32(1)(a) to 32(1)(d) (inclusive) of the GDPR.