OnlyExcel Business Terms and Conditions (Feb 2020)
These Terms and Conditions (“Terms and Conditions”) shall apply to the provision of Services by CLARK BUSINESS DEVELOPMENT LIMITED trading as OnlyExcel, a company incorporated in Scotland (Registered number SC487274) and having its Registered Office at 196 Rose Street, Suite 54, Edinburgh, EH2 4AT (“OnlyExcel”) to you, (“the Client”).
In the event of conflict between these Terms and Conditions and any other terms and conditions (of the Client or otherwise), these Terms and Conditions shall prevail unless expressly otherwise agreed by OnlyExcel in writing.
- Definitions and Interpretation
- Scope of Agreement
- Work Statements
- Nature of Services
- Payment of Fees and Expenses
- Scope of Services
- Change Orders
- Term and Termination
- Effects of Termination
- The Client’s Responsibilities
- Delivery and Acceptance of Deliverables
- Rights in the Deliverables
- Representations, Warranties, Limitations and Indemnity
- Professional Indemnity Insurance
- Force Majeure
- Data Protection
- Assignment and Sub-contracting
- Nature of Agreement
- Notices and Service
- Applicable Law and Jurisdiction
1. Definitions and Interpretation
1.1 In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
“Affiliate” means in relation to a legal entity (1) its ultimate holding company (2) its subsidiaries and (3) all other subsidiaries of its ultimate holding company as the terms “subsidiary” and “holding company” are defined by Section 1159 of the Companies Act 2006 as amended;
“API” means application programming interface;
“Applicable Laws” means the laws of Scotland and the European Union and any other laws or regulations, regulatory policies, guidelines or industry codes which apply to the performance of the Services;
“Budget” means the information contained in a Work Statement detailing all projected costs and expenses for developing the Deliverables and hosting the Software in accordance with this Agreement;
“Change Order” means a written statement signed by the parties recording any (a) change in the details of a Work Statement, even if a fixed price Work Statement, or (b) change in the assumptions upon which the Work Statement is based (including, but not limited to, changes in an agreed starting date for a Project or suspension of the Project by the Client or (c) any changes in the budget and/or time lines;
“Code” means all computer programming code (both object and source, unless otherwise specified), as written, modified or enhanced from time to time by OnlyExcel, including, without limitation, all interfaces, navigational devices, menus, menu structures or arrangements, icons, help, operational instructions. script, commands, syntax HTML, design, templates, and the literal and non-literal expressions of ideas that operate, cause, create, direct, manipulate, access or otherwise affect the Content whether created or licensed from third parties by OnlyExcel including without limitation, any Intellectual Property Rights in such material;
“Commencement Date” means the date the date of the first Works Statement entered into between the parties;
“Confidential Information” means in relation to either party any information which is disclosed to that party by the other party (whether or not developed by the other) including, without limitation (a) the preparation and Specifications of the Deliverables, (b) pre-existing or new information that relates to all ideas, designs, methods, discoveries, improvements, products or other results of consulting services, (c) trade secrets, (d) product data, (e) proprietary rights, (f) business and financial affairs, (g) product developments, (h) customer and employee information and (i) Intellectual Property Rights;
“Content” means all text, graphics, animation, audio and/or digital video components and all other components of the Deliverables and the selection and arrangement thereof, other than Code, whether created by OnlyExcel or provided by the Client for purposes of developing the Deliverables, including without limitation any Intellectual Property Rights therein;
“Data Controller” has the meaning set out in the GDPR;
“Data Subject” has the meaning set out in the GDPR;
“Deliverables” means the specific Services relating to a Project specified in each Work Statement including (without prejudice to the foregoing generality) all Code, Content and other materials to be produced by OnlyExcel hereunder as more fully described in the relevant Work Statement;
“Final Project Acceptance Form” means a document signed and dated by the Client or an email from the client confirming that the work has been completed and tested and either delivered to their satisfaction (accepting the Project as a whole) or not delivered to their satisfaction (rejecting the Project as a whole or certain Deliverables);
“GDPR” means the General Data Protection Regulation (Regulation (EU) 2016/679) as amended, replaced, adopted or re-applied;
“OnlyExcel Personnel” means all employees, officers, staff, other workers, agents and consultants of OnlyExcel and of any Sub-contractors who are engaged in the performance of the Services from time to time;
“Intellectual Property Rights” means any patent, copyright, trademark and design rights (in either case registered or unregistered) format rights, topography rights, trade secrets, moral right, right of attribution or integrity right to confidentiality know-how, data base rights, algorithms or other intellectual or industrial property rights or proprietary rights arising under the laws of any jurisdiction (including, without limitation, all claims and causes of action for infringement, misappropriation or violation thereof and all rights in any registrations and renewals);
“Open Source Software” means computer software in which source code is released under a license in which the copyright holder grants users the rights to study, change, and distribute the software to anyone and for any purpose;
“Pass-through Costs” means outlays such as salaries, platform/hardware/hosting costs, telecommunications costs, third party software licensing costs etc.;
“Personal Data” has the meaning set out in the GDPR;
“Pre-existing Work” means any pre-existing original works of authorship contained in the Content or Code as identified in a Work Statement which in respect of all Services shall be deemed to include (unless specified otherwise in a Work Statement):
- Graphical user interfaces;
- Any design styles such as colour palettes and fonts that are not provided by the Client;
- Third party API connections;
- Knowledge base / help section Content Management Systems;
- Ticketing system framework;
- Client Relationship Management framework;
- Email and notification management frameworks;
- Global search facility
- ORM and HTTP frameworks
“Privacy Legislation” means the GDPR, the Data Protection Act 2018, the Data Protection Directive (95/46/EC), the Regulation of Investigatory Powers Act 2000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699), the Electronic Communications Data Protection Directive (2002/58/EC), the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003) and all Applicable Laws and regulations relating to the processing of personal data and privacy, including where applicable the guidance and codes of practice issued by the Information Commissioner. (as amended or replaced from time to time);
“Project” means a specific piece of work which is the subject of a Work Statement;
“Proposal” means a written specification and quotation for Services made by OnlyExcel to the Client whether forming part of a Work Statement or as a stand-alone document which operates as a Work Statement;
“Relevant Period” means the period of three years from and after the Commencement Date;
“Schedule” means the schedule annexed;
“Services” means the services to be delivered by OnlyExcel which may be the subject of a Work Statement;
“Software” means software belonging to the Client from time to time;
“Specifications” means the requirements for the development of the Deliverables, including operational and functional capabilities and performance contained in a Work Statement;
“Sub-Contract” means any contract between OnlyExcel and a third party pursuant to which OnlyExcel agrees to source the performance of the Services (or any of them) from that third party;
“Sub-contractor” means those persons with whom OnlyExcel enters into a Sub-contract or its or their employees, officers, Sub-contractors or agents;
“Work Statement” means either a Proposal or a Work Statement, as revised by the parties from time to time, which Proposal or Work Statement will contain (i) a description of the Deliverables (including Specifications) to be delivered, and any services to be performed, including the hosting of Software (if applicable), by OnlyExcel for the Client, (ii) a Budget and (iii) a Work Programme. The Proposal and/or Work Statement may also include provisions for written and/or oral progress reports by OnlyExcel, detailed functional and technical specifications and standards for all services and Deliverables, including quality standards, documentation standards, lists of any special equipment to be procured by OnlyExcel or provided by the Client for use in performance of the work, test plans and scripts, and such other terms and conditions as may be mutually agreed by the parties;
“Work Programme” means the timetable for the development of the Deliverables as set out in the relevant Work Statement.
1.2 Unless the context otherwise requires, each reference in this Agreement to:
1.2.1 “writing”, and any cognate expression, includes a reference to any communication effected by electronic transmission, facsimile transmission or similar means;
1.2.2 a “working day” is a reference to any day other than Saturday or Sunday which is not a bank or public holiday in the territory of either party;
1.2.3 a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
1.2.4 “this Agreement” is a reference to this Agreement and each of the Schedules, Annexes or Exhibits as amended or supplemented at the relevant time;
1.2.5 “party” means either the Client or OnlyExcel as the case may be and “parties” shall mean both of them; and
1.2.6 a clause or paragraph is a reference to a Clause of this Agreement (other than the Schedules) or a paragraph of the relevant Schedule.
1.3 In this Agreement:
1.3.1 any reference to the parties includes a reference to their respective personal representatives, successors in title and permitted assignees;
1.3.2 any reference to a person includes any body corporate, unincorporated association, partnership or any other legal entity;
1.3.3 words importing the singular number include the plural and vice versa; and
1.3.4 words importing either gender include the other gender.
1.4 The headings in this Agreement are for convenience only and shall not affect its interpretation.
2. Scope of Agreement
2.1 As a “master” form of contract, this Agreement allows the parties to contract for single or multiple Projects through the issuance of Work Statements, without having to re-negotiate the basic terms and conditions contained herein. This Agreement covers the provision of Services by OnlyExcel and OnlyExcel’s Affiliates and, accordingly, this Agreement represents a vehicle by which the Client can efficiently contract with OnlyExcel and its Affiliates for a range of Services.
2.2 The contract between OnlyExcel and the Client for any particular Services will comprise:
2.2.1 the Work Statement and the acceptance thereof (whether in writing or by the actings of the parties);
2.2.2 these Terms and Conditions; and
2.2.3 any separate Proposal and the acceptance thereof (whether in writing or by the actings of the parties).
2.3 If there is any conflict between the terms of the Work Statement and these Terms and Conditions, then the terms of the Work Statement will prevail.
2.4 The elements of the contract will have precedence as follows:
2.4.4 the Work Statement;
2.4.5 any separate Proposal;
2.4.6 these Terms and Conditions;
3. Work Statements
3.1 The specific details of each Project shall be separately negotiated and specified in a Work Statement. Each Work Statement will include, as appropriate, the scope of work, Work Programme, and Budget and payment schedule. Each Work Statement shall be subject to all of the terms and conditions of this Agreement, in addition to the specific details set forth in the Work Statement.
3.2 To the extent any terms or provisions of a Work Statement conflict with the terms and provisions of this Agreement, the terms and provisions of this Agreement shall prevail unless any Work Statement specifically states an intent to supersede the terms of this Agreement on a specific matter. All Work Statements shall be deemed to be incorporated herein by reference.
4. Nature of Services
4.1 The specific Services will be specified in relation to any Project in the relevant Work Statement.
5. Payment of Fees and Expenses
5.1 The Client will pay OnlyExcel for fees, expenses and Pass-through Costs in accordance with the Budget and payment schedule contained in each Work Statement. the Client agrees that the Budget and payment schedule for each Work Statement will be structured in an effort to maintain cash neutrality for OnlyExcel (with respect to the payment of professional fees, Pass-through Costs and otherwise).
5.2 The Client agrees that a prepayment may be necessary for OnlyExcel to maintain cash neutrality over the term of the Work Statement taking into account payment terms agreed upon between the parties. Unless otherwise agreed in a particular Work Statement, the following shall apply:
5.2.1 OnlyExcel will invoice the Client on completion of the relevant Work Statement for the fees, expenses and Pass-through Costs incurred in performing the Services; and,
5.2.2 The Client shall pay each invoice within the time scale specified in the invoice (for the purposes of this Clause 5.2.2 only, time is of the essence). If any portion of an invoice is disputed, then the Client shall pay the undisputed amounts as set forth in the preceding sentence and the parties shall use good faith efforts to reconcile the disputed amount as soon as practicable. The Client shall pay OnlyExcel interest in an amount equal to one percent (1%) per month of all undisputed amounts owing hereunder and not within the time scale specified in the invoice as aforesaid.
6. Scope of Services
6.1 OnlyExcel shall author, design, create, develop, test and produce the Deliverables, in accordance with the Work Statement. At any time during the term of this Agreement, the Client may request additional services to be performed by OnlyExcel. Such additional work shall be agreed upon in writing by the parties and shall be recorded in a Work Statement which Work Statement shall be subject to the terms of this Agreement and become effective upon execution, by authorised representatives of both parties.
6.2 OnlyExcel agrees to use all reasonable endeavours to complete the Deliverables in a timely manner according to the relevant Work Programme but the obligations with respect to meeting each Work Programme are subject to delays caused by Force Majeure. OnlyExcel agrees to notify the Client promptly of any event coming to its attention that may affect OnlyExcel’s ability to meet the requirements of a Work Statement, or that is likely to cause any material delay in delivery of the Deliverables. OnlyExcel shall not be in breach of this Agreement as a result of a reasonable delay in delivering the Deliverables caused by Force Majeure.
7. Change Orders
7.1 If the Client wishes to amend the scope of a Work Statement, the parties will use all reasonable endeavours to agree a Change Order. Each Change Order shall detail the requested changes to the applicable task, responsibility, duty, Budget, Work Programme or other matter. The Change Order will become effective upon the execution of the Change Order by both parties and will include a specified period of time (as agreed upon by the parties) within which OnlyExcel will implement the changes and any increase in price.
7.2 Both parties agree to act in good faith and promptly when considering a Change Order requested by the other party. OnlyExcel reserves the right to postpone effecting material changes in the Project’s scope until such time as the parties agree to and execute the corresponding Change Order.
8.1 If OnlyExcel quotes an unqualified and unconditioned price for Deliverables or particular services in the Work Statement, the amount quoted shall be deemed a fixed price. Unless the Work Statement provides for progress payments, deferral of payment after completion or some other form of payment schedule, the Client shall pay the full amount of the fixed price associated with the Deliverables and shall begin making payments for OnlyExcel’s hosting services upon delivery of final Deliverables.
8.2 Except as set forth in the Work Statement, OnlyExcel shall bear all of its own expenses arising from its performance of its obligations under this Agreement, including (without limitation) expenses for facilities, work spaces, utilities, management, clerical and reproduction services, supplies, and the like.
8.3 With respect to Deliverables, and other services for which the parties determine that payment on a fixed price basis is not appropriate, the Work Statement may provide for payment on the basis of time and materials, determined according to the hourly rates set for OnlyExcel’s employees by skill level in the schedule of rates forming Part 2 of the Schedule. The parties may agree on a maximum aggregate amount for a particular Project. OnlyExcel shall use all reasonable endeavours to complete the specified Services and/or Deliverables for no more than such aggregate amount. Should OnlyExcel determine at any time that it may be necessary to exceed such aggregate amount, OnlyExcel shall provide a written notice to the Client, indicating the estimated cost to complete the Project. Following receipt of such estimate, the Client shall immediately instruct OnlyExcel in writing to (i) halt work with respect to such Project, (ii) continue on a time and material basis, or (iii) suspend work pending further negotiation of a fixed price for completion.
8.4 The hourly rates prescribed by the schedule of rates, shall be in lieu of compensation or reimbursement for any costs or burden incurred by OnlyExcel except as specifically set out in the Work Statement. Rates quoted by OnlyExcel in the schedule of rates are subject to change upon sixty (90) days’ advance notice, provided that any such change shall have no effect upon rates or charges for work already rendered or scheduled to be rendered within thirty (30) days of the issue of such notice.
9. Term and Termination
9.1 This Agreement shall commence on the Commencement Date and shall continue for the Relevant Period, or until terminated by either party in accordance with Clause 9.2 or 9.3 below.
9.2 After the Relevant Period, the Agreement will automatically renew each year thereafter for a period of one year, unless either party notifies the other party in writing at least 30 days prior to the renewal date that it does not want to renew the Agreement.
9.3 Either party may terminate this Agreement by giving written notice to the other party if:
9.3.1 any sum owing to that party by the other party under any of the provisions of this Agreement is not paid within 30 days of the due date for payment;
9.3.2 the other party commits any other material breach of any of the provisions of this Agreement and, if the breach is capable of remedy, fails to remedy it within 30 days after being given written notice giving full particulars of the breach and requiring it to be remedied;
9.3.3 a creditor takes possession, or (where the other party is a company) a receiver, administrator or liquidator or the relevant equivalent is appointed, of any of the property or assets of that other party;
9.3.4 the other party makes any voluntary arrangement with his or its creditors or (being a company) becomes subject to an administration order (within the meaning of the Insolvency Act 1986) or the equivalent;
9.3.5 the other party (being an individual or firm) has a bankruptcy order made against him or it or (being a company) goes into liquidation (or the equivalent) (except for the purposes of amalgamation or re-construction and in such a manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on that other party under this Agreement);
9.3.6 anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the other party;
9.3.7 the other party ceases, or threatens to cease, to carry on business; or
9.3.8 control of the other party is acquired by any person or connected persons not having control of that other party on the date of this Agreement.
9.4 For the purposes of Clause 9.3.2 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 the time of performance is not of the essence).
9.5 The rights to terminate this Agreement given by this Clause 9 shall not prejudice any other right to remedy of either party in respect of the breach concerned (if any) or any other breach.
10. Effects of Termination
Upon the termination of this Agreement for any reason:
10.1 (other than in respect of material breach by OnlyExcel) any sum owing by the Client to OnlyExcel under any of the provisions of this Agreement shall be immediately payable and the Client will pay OnlyExcel for all unpaid invoices and uncompensated staff time and expenses up to the date of termination; provided, however, that if the Deliverables are being provided on a fixed price billing basis, all staff time and expenses shall be paid as if on a time and material billing basis;
10.2 each party shall forthwith cease to use, either directly or indirectly, any Confidential Information, and shall forthwith return to the other party any documents in its possession or control which contain or record any Confidential Information;
10.3 any provision of this Agreement which is expressed to continue in force after termination shall continue in full force and effect; and
10.4 subject as provided in this Clause 10, and except in respect of any accrued rights, neither party shall be under any further obligation to the other.
11. The Client’s Responsibilities
11.1 The Client shall (i) furnish information requested by OnlyExcel acting reasonably, (ii) provide adequate access to personnel of the Client, and (iii) maintain the accessibility and operability of any Software to the extent reasonably necessary for OnlyExcel to fulfil its responsibilities under this Agreement. Any delays attributable to the Client’ failure to respond to reasonable requests by OnlyExcel will extend any and all deadlines for an amount of time equal to the Client’ delay. the Client reserves the right to make any necessary equipment or software upgrades, changes or modifications.
11.2 The Client shall maintain such rights in the property described in Clause 13 and any third party software during the Relevant Period as necessary to carry out the purposes of this Agreement.
12. Delivery and Acceptance of Deliverables
12.1 OnlyExcel shall deliver the Deliverables at the times and in the manner specified in the relevant Work Statement.
12.2 The procedure for acceptance of any Deliverable shall be as follows:
12.2.1 The Client shall have the time shown in the Work Statement to inspect and test each such Deliverable when received. Upon completion of such testing, the Client shall issue to OnlyExcel a Final Project Acceptance Form indicating acceptance or rejection of the Deliverables (provided that, in any event unless the Client has notified OnlyExcel of its rejection of any Deliverables within ten working days following delivery thereof, the same shall conclusively be deemed accepted).
12.2.2 The Client may only reject Deliverables for material failure to comply with the applicable Specifications. In the event of rejection, the Client shall give its reasons for rejection to OnlyExcel in reasonable detail. OnlyExcel shall then have the time allotted in the Work Statement to use commercially reasonable efforts to correct any deficiencies or non-conformities from the applicable Specifications and resubmit the rejected items as promptly as reasonably possible until the Deliverables are accepted; provided, however, that upon the third and subsequent rejection the Client may terminate this Agreement by thirty (30) days’ notice unless the Deliverables are accepted during the notice period.
12.2.3 Upon acceptance of the Deliverables by the Client, the Specifications for such Deliverables shall automatically be deemed to be amended to conform to the Deliverables as accepted by the Client.
13. Rights in the Deliverables
13.1 All Deliverables and other items and materials delivered by OnlyExcel to the Client hereunder, and all Intellectual Property Rights associated with any of the foregoing other than third party rights and OnlyExcel’s Pre-existing Work, shall be owned exclusively by the Client.
13.2 Without prejudice to the terms of Clause 13.1. OnlyExcel (in so far as it can competently do so) hereby transfers to the Client by way of present and future assignment/assignation all the Intellectual Property Rights in the Deliverables:
13.2.1 anywhere in the world;
13.2.2 in any sector and for any purpose;
13.2.3 for the full term of such rights and any renewals;
13.2.4 including (with effect from their creation) all Intellectual Property Rights in Works created or developed in future by you in respect of the Services.
13.3 For Deliverables in respect of which Intellectual Property Rights are assigned to the Client pursuant to this Clause 13 OnlyExcel will waive its, and will procure the waiver by all third parties of their, moral rights in such Deliverables, under the Copyright, Designs and Patents Act 1988 (and all analogous legislation worldwide) to the extent permitted by law.
13.4 At the Client’ expense, OnlyExcel shall: (a) co-operate with the Client in its efforts to obtain available protection for the Deliverables under domestic and foreign laws and to secure such certifications registrations, or licenses as may be appropriate for the better protection of the same in the United Kingdom and/or the United States or any foreign country; and (b) take such further action as the Client may reasonably request (including, without limitation, execution of affidavits and other documents) to effect, perfect or confirm the Client’ ownership interests as set forth in this Clause 13.
13.5 In relation to Pre-existing Works owned by OnlyExcel, OnlyExcel will grant the Client an irrevocable worldwide, royalty free perpetual license (including an ability to grant sub-licences) to use the Pre-existing Works which form part of the Deliverables, unless any specific licencing terms applicable to Pre-existing Works are included in the relevant Work Statement.
13.6 OnlyExcel hereby warrants to the Client that the Deliverables shall not contain any third party software or any Open Source software or other software which when used in the Deliverables will be modified in such a manner as will require free sharing of the Deliverables or any part thereof with others.
13.7 In the event that any such Open Source Software or similar software is used in the Deliverables and will be modified in such a manner as will require free sharing of the Deliverables or any part thereof with others:
13.7.1 OnlyExcel agrees forthwith to rewrite all such sections of the Deliverables free of charge in Code which when used in the Deliverables will not be modified in such a manner as will require free sharing of the Deliverables or any part thereof with others. To deliver and install all such rewritten Code and to assign all rights in all such rewritten Code to the Client.
13.7.2 Nothing in these sub clauses 13.7.1 and 13.7.2 shall prevent the Client from taking such other action as it may think fit including legal action in respect of any damage or loss it may sustain as a result of OnlyExcel’s inclusion of any such Third Party Software.
14.1 Each party undertakes that, except as provided in Clause 14.2 or as authorised in writing by the other party, it shall, at all times during the continuance of this Agreement and for five years after its termination:
14.1.1 keep confidential all Confidential Information;
14.1.2 not disclose any Confidential Information to any other person;
14.1.3 not use any Confidential Information for any purpose other than as contemplated by and subject to the terms of this Agreement;
14.1.4 not make any copies of, record in any way or part with possession of any Confidential Information; and
14.1.5 ensure that none of its directors, officers, employees, agents or advisers does any act which, if done by that party, would be a breach of the provisions of 14.1.1 to 14.1.4 above.
14.2 Either party may:
14.2.1 disclose any Confidential Information to:
a) any sub-contractor or supplier of that party;
b) any governmental or other authority or regulatory body; or
c) any employee or officer of that party or of any of the aforementioned persons or bodies;
to such extent only as is necessary for the purposes contemplated by this Agreement, or as required by law, and in each case subject to that party first informing the person in question that the Confidential Information is confidential and (except where the disclosure is to any such body as is mentioned in (ii) above or any employee or officer of any such body) obtaining and submitting to the other party a written undertaking from the person in question, as nearly as practicable in the terms of this Clause, to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made; and
14.2.2 use any Confidential Information for any purpose, or disclosure it to any other person, to the extent only that it is at the date of this Agreement, or at any time after that date becomes, public knowledge through no fault of that party, provided that in doing so that party does not disclose any part of that Confidential Information which is not public knowledge.
14.3 The provisions of this Clause 14 shall continue in force in accordance with their terms, notwithstanding the termination of this Agreement for any reason.
15. Representations, Warranties, Limitations and Indemnity
The following representations and warranties are provided solely for the benefit of the parties to this Agreement, and no other person or entity.
15.1 OnlyExcel warrants that (i) the Deliverables shall perform as stated in the Specifications and (ii) it will perform all work called for in the Work Statement in a good and workmanlike manner in compliance with applicable law.
15.2 OnlyExcel warrants that the Deliverables:
15.2.1 will be original and will not infringe on any patent, copyright, trade secret or other proprietary rights of others; and
15.2.2 will not be defamatory to any third party or violate any third parties rights of privacy or publicity.
15.2.3 will not breach any third party’s Intellectual Property Rights.
15.3 The Client warrants that no part of its Pre-existing Works, including all related materials and Content provided by the Client in the production of the Deliverables:
15.3.1 infringes on any Intellectual Property Rights of others;
15.4 The Client warrants that it is the owner of all rights in or has obtained any written permission necessary to authorise OnlyExcel’s use pursuant to this Agreement of, any part of its Pre-existing Works.
15.5 The parties shall defend, indemnify and hold one another harmless from all liability and expenses (including, but not limited to attorneys fees) arising from a breach of warranty under this Agreement.
15.6 Each party has full power to enter into this Agreement, to carry out its obligations under this Agreement and to grant the rights described herein to the other party.
15.7 The entire liability of either party under this Agreement shall be limited to £500,000.
16. Professional Indemnity Insurance
16.1 Without prejudice to its other obligations under this Agreement or otherwise at law, OnlyExcel shall maintain with a reputable insurance company carrying on business in the European Union, from the date hereof and for a period expiring no earlier than 5 years after Completion (and notwithstanding the termination for any reason of OnlyExcel’s engagement under this Agreement), employer’s liability, third party liability, product liability and professional indemnity insurance (without unusual or onerous conditions or excesses) to cover each and every liability which he may incur under this Agreement and otherwise relating to the Project, with a limit of indemnity of not less than FIVE HUNDRED THOUSAND POUNDS STERLING (£500,000) in aggregate in any insurance year, PROVIDED ALWAYS that such insurance continues to be available in the European Union market upon reasonable terms and at commercially reasonable rates. Any increased or additional premium required by insurers as a result of OnlyExcel’s own claims record or other acts, omissions, matters or things particular to OnlyExcel shall be deemed to be within reasonable terms and commercially reasonable rates.
16.2 OnlyExcel shall forthwith notify the Client if such insurance ceases to be available upon reasonable terms or at commercially reasonable rates or if for any other reason OnlyExcel is unable to continue to maintain such insurance.
16.3 As and when he is reasonably required to do so by the Client, OnlyExcel shall produce for inspection by the Client documentary evidence that the insurance required by Clause 16.1 is being properly maintained.
16.4 OnlyExcel’s obligation to maintain such insurance shall in no way negate or limit any or all of its obligations or duties hereunder nor its liability in respect of any breach or non-performance of the same.
16.5 OnlyExcel shall not compromise, settle, or waive any claim which they may have under such insurance in respect of any liability which they may incur under this Agreement without the prior written consent of the Client.
16.6 Any liability of OnlyExcel arising in respect of this Agreement for loss or damage sustained by the Client or others, whether in contract, delict or otherwise (except for death and personal injury arising through the negligence of OnlyExcel or any of its employees while acting in the course of their employment, which liability shall be unlimited) shall be limited in aggregate total of the higher of the sum insured for in terms of Clause 16.1.
17. Force Majeure
17.1 For the purposes of this Agreement “Force Majeure” means in relation to either party, any circumstances beyond the reasonable control of that party (including, without limitation, acts of god, industrial action, civil disturbances, disruption of telecommunications power or other utilities or interruption or termination of security the Internet access provider being used by OnlyExcel to link its services to the Internet).
17.2 If any Force Majeure occurs in relation to either party which affects or may affect the performance of any of its obligations under this Agreement, it shall forthwith notify the other party as to the nature and extent of the circumstances in question.
17.3 Neither party shall be deemed to be in breach of this Agreement, or shall otherwise be liable to other, by reason of any delay in performance, or the non-performance, of any of its obligations under, to the extent that the delay or non-performance is due to any Force Majeure of which it has notified the other party, and the time for performance of that obligation shall be extended accordingly.
17.4 If the performance by either party of any of its obligations under this Agreement is prevented or delayed by Force Majeure for a continuous period in excess of six months, the other party shall be entitled to terminate this Agreement by giving written notice to the party so affected.
18.1 At all times, OnlyExcel shall ensure that:
18.1.1 each of OnlyExcel’s Personnel is suitably qualified, adequately trained and capable of performing the applicable Services in respect of which they are engaged;
18.1.2 there is an adequate number of OnlyExcel Personnel to perform the Services properly; and
18.1.3 each of the OnlyExcel Personnel complies with the Client’ policies and procedures notified to OnlyExcel in writing when working on the Client’ sites.
18.2 Should any of OnlyExcel’s Personnel seek to recover any Employment Costs from the Client or otherwise claim any Employee Liabilities from the Client, OnlyExcel shall indemnify the Client without limit in relation to the same.
18.3 Should the Client, acting reasonably, consider that any member of OnlyExcel Personnel should be removed from the provision of the Services OnlyExcel shall have one month to provide a replacement member of OnlyExcel Personnel who is reasonably acceptable to the Client.
19. Data Protection
19.1 Each party agrees that, in the performance of their respective obligations under this Agreement, it shall comply with the provisions of the Privacy Legislation to the extent it applies to each of them.
19.2 In so far as OnlyExcel processes any Personal Data (including name, postal address, email address, mobile/telephone details, and other contact or personal details) relating to individuals which is acquired or collected by OnlyExcel in connection with this Agreement, OnlyExcel shall:
a) process the Personal Data on behalf of the Client (or, if so directed by the Client, an Affiliate or Affiliates of the Client), only for the purposes of performing this Agreement and only in accordance with instructions contained in this Agreement or provided to OnlyExcel by the Client from time to time;
b) not otherwise modify, amend or alter the contents of the Personal Data or disclose or permit the disclosure of any of the Personal Data to any third party unless specifically authorised in writing by the Client;
c) at all times comply with the provisions of the Privacy Legislation and all other Applicable Laws and implement appropriate technical and organisational measures to protect the Personal Data against unauthorised or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure;
d) ensure that only those OnlyExcel Personnel who need to have access to the Personal Data are granted access to such data and only for the purposes of the performance of this Agreement and ensure that all of OnlyExcel Personnel required to access the Personal Data are informed of the confidential nature of the Personal Data and comply with the obligations set out in this clause
e) obtain prior written consent from the Client before transferring Personal Data to any Sub-contractor and, if such consent is given, include in all contracts with such Sub-contractor provisions in favour of the Client which are equivalent to those in this Clause 19 and enforce these obligations at the Client’ request;
f) not publish, disclose or divulge any of the Personal Data to any third party (including the Data Subject) unless directed to do so in writing by the Client;
19.3 OnlyExcel shall notify the Client within five Business Days if it:
19.3.1 becomes aware of any breach of this Clause 19 by it or its Sub-contractors;
19.3.2 receives a request from a Data Subject to have access to that person’s Personal Data;
19.3.3 receives a complaint or request relating directly or indirectly to the processing of any Personal Data in connection with this Agreement; and
19.3.4 receives any other communication relating directly or indirectly to the processing of any Personal Data in connection with this Agreement;
19.4 OnlyExcel shall:
19.4.1 permit the Client or its external advisers (subject to reasonable and appropriate confidentiality undertakings) to inspect and audit OnlyExcel’s data processing activities and comply with all reasonable requests or directions by the Client to enable the Client to verify and procure that OnlyExcel is in full compliance with its obligations under this Agreement;
19.4.2 at no additional cost, provide such information to the Client as the Client may reasonably require, and within the timescales reasonably specified by the Client, to allow the Client to comply with the rights of Data Subjects, including Data Subject-access rights, or with notices served by the Information Commissioner or any other law enforcement authority; and
19.4.3 not transfer Personal Data outside the European Economic Area without the prior written consent of the Client and, where the Client consents to such transfer, to comply with:
a) the obligations on Data Controllers under the Eighth Data Protection Principle set out in of the Privacy Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
b) any reasonable instructions notified to it by the Client.
19.5 OnlyExcel shall, at all times during and after the Relevant Period, indemnify the Client and keep the Client indemnified against all losses, damages, costs or expenses and other liabilities (including legal fees) incurred by, awarded against or agreed to be paid by the Client arising from any breach of OnlyExcel’s obligations under this Clause 19 except and to the extent that such liabilities have resulted directly from the Client’ instructions.
19.6 All Personal Data relating to individuals which is acquired or collected by OnlyExcel in connection with this Agreement shall belong exclusively to the Client which hereby grants to OnlyExcel and, to the extent necessary, to OnlyExcel Personnel, or shall use commercially reasonable endeavours to procure the grant of, a royalty-free, non-exclusive licence (or, where relevant, an appropriate sub-licence) to use the same solely in relation to the performance of the Services as contemplated in this Agreement.
20. Assignment and Sub-contracting
20.1 Subject to Clause 20.2, OnlyExcel shall not be entitled to assign, novate or otherwise dispose of any or all of its rights and obligations under this Agreement without the express written consent of the Client.
20.2 OnlyExcel may Sub-contract all or part of its obligations under this Agreement to a competent third party.
20.3 Despite its right to Sub-contract pursuant to this Clause 20, OnlyExcel shall remain responsible for all acts and omissions of all Sub-contractors and the acts and omissions of all those employed or engaged by the Sub-contractors as if they were its own. An obligation on OnlyExcel under the provisions of this Agreement to do, or refrain from doing, any act or thing shall include an obligation on OnlyExcel to procure that its employees, officers, staff, other workers, agents and consultants each Sub-contractor and each of the Sub-contractors’ employees, officers, staff, other workers, agents and consultants also do, or refrain from doing, such act or thing.
20.4 the Client shall be entitled to assign this Agreement to any of its Affiliates at any time.
21. Nature of Agreement
21.1 Each party shall be entitled to perform any of the obligations undertaken by it and to exercise any rights granted to it under this Agreement through any other Affiliate, provided that any act or omission of that other Affiliate shall, for all the purposes of this Agreement, be deemed to be the act or omission of the party in question.
21.2 Subject to Clause 20 this Agreement is personal to the parties and neither party may assign, mortgage or charge (otherwise than by floating charge) or sub-license any of its rights hereunder, except with the written consent of the other party.
21.3 Nothing in this Agreement shall create, or be deemed to create, a partnership, or the relationship of principal and agent, between the parties.
21.4 This Agreement contains the entire agreement between the parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorised representatives of the parties.
21.5 Each party acknowledges that, in entering into this Agreement, it does not rely on any representation, warranty or other provision except as expressly provided in this Agreement, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
21.6 No failure or delay by either party in exercising any of its rights under this Agreement shall be deemed to be a waiver of that right, and no waiver by either party of a breach of any provision of this Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
21.7 If any provision of this Agreement is held by any court or other competent authority to be invalid or unenforceable in whole or in part, this Agreement shall continue to be valid as to its other provisions and the remainder of the affected provision.
22. Notices and Service
22.1 Any notice or other information required or authorised by this Agreement to be given by either party to the other shall be given by:
22.1.1 delivering it by hand;
22.1.2 sending it by pre-paid registered post; or
22.1.3 sending it by electronic transmission, facsimile transmission or comparable means of communication;
22.1.4 to the other party at the address given in the preamble.
22.2 Any notice or information given by post in the manner provided by Clause 22.1 which is not returned to the sender as undelivered shall be deemed to have been given to the second day after the envelope containing it was so posted; and proof that the envelope containing any such notice or information was properly addressed, pre-paid, registered and posted, and that it has not been so returned to the sender, shall be sufficient evidence that the notice or information has been duly given.
22.3 Any notice or information sent by electronic transmission, facsimile transmission or comparable means of communication shall be deemed to have been duly given on the date of transmission.
22.4 Service of any document for the purposes of any legal proceedings concerning or arising out of this Agreement shall be effected by either party by causing it to be delivered to the other party at its registered or principal office, or to such other address as may be notified to it by the other party in writing from time to time.
23.1 This Agreement shall not be deemed to constitute an agency, partnership or joint venture between the parties. Neither party shall act or describe itself as the agent of the other party nor shall either party have or represent that it has any authority to make commitments on behalf of the other.
23.2 This Agreement constitutes the entire express agreement and understanding between the parties and supersedes and prior agreement or understanding between the parties.
23.3 The parties acknowledge that in entering into this Agreement they do not rely on any statement, representation (other than a fraudulent misrepresentation), warranty, course of dealing, custom or understanding except for those expressly set out in this Agreement.
23.4 The parties irrevocably and unconditionally waive any rights and/or remedies they may have to the fullest extent permitted by law (including without limitation the right to claim damages and/or to rescind this Agreement) in respect of any misrepresentation other than one which is expressly set out in this Agreement or which is made fraudulently.
23.5 The terms and conditions hereof shall not be capable of variation except by instrument in writing signed by the duly authorised representative of each party hereto.
23.6 Any invalid provision hereof shall be severed and of no effect, and the remaining provisions shall continue in full force and effect as if the invalid provisions had never been contained herein.
23.7 No person who is not a party to this Agreement (other than the Client’ Affiliates) has any right to rely on or enforce any part of it.
23.8 Each party shall from time to time (both during the continuance of this Agreement and after its termination) do all such acts and execute all such documents as may be reasonably necessary in order to give effect to the provisions of this Agreement.
23.9 The parties shall bear their own costs of and incidental to the preparation, execution and implementation of this Agreement.
23.10 Neither party shall make or procure or permit any other person to make any press or other public announcement concerning any aspect of this Agreement without first obtaining the agreement to the other party to the text of that announcement.
23.11 This Agreement may be executed in a number of counterparts and shall come into force once each party has executed such a counterpart in identical form once each party has executed such a counterpart in identical form and exchanged the same with the other party.
24.1 The parties shall comply at all times with the provisions of the United Kingdom Anti-terrorism, Crime and Security Act 2001, and the United Kingdom Bribery Act 2010 and where applicable, the United States Foreign Corrupt Practices Act.
25. Applicable Law and Jurisdiction
25.1 The laws of Scotland shall apply to the whole of this Agreement.
25.2 Any question arising out of this Agreement as to the construction or effect of any Intellectual Property shall be decided in accordance with the laws of the country in which the Intellectual property in question has been granted or filed or exists.
25.3 The parties hereby agree to submit to the non-exclusive jurisdiction of the Scottish courts.