1.1 Definitions:
Acceptance: the acceptance of the Site which shall automatically occur when the Site has passed the Acceptance Tests.
Acceptance Tests: tests run by the Supplier on the Site to check compliance with the Specification.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 10.
Commencement Date: has the meaning given in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 16.5.
Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Customer: the person or firm who purchases Services from the Supplier.
Customer Default: has the meaning set out in clause 4.2.
Deliverables: the deliverables set out in the Order produced by the Supplier for the Customer.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Materials: the branding, look and feel of and content to be provided by the Customer to the Supplier for incorporation into the Site in accordance with the Specification.
Order: the Customer's order for Services as set out in the signed Specification.
Server: means a computer server administered by Bold Identities Ltd.
Services: the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Specification.
Site: the website built by the Supplier as per the Specification.
Specification: the description or specification of the Services provided by the Supplier to the Customer.
Supplier: Bold Identities Ltd registered in England and Wales with company number 09777426.
Supplier Materials: has the meaning set out in clause 4.1(h).
Supplier’s Website: the website https://www.boldidentities.com/on-tap
1.2 Interpretation:
(a) reference to legislation or a legislative provision:
(i) is a reference to it as amended, extended or re-enacted from time to time; and
(ii) shall include all subordinate legislation made from time to time under that legislation or legislative provision.
(b) Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(c) A reference to writing or written includes email but not fax.
2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Customer returns the Specification duly signed to the Supplier and the Supplier then returns the Specification duly signed to the Customer at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier's catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.5 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 14 days from its date of issue.
3.1 The Supplier shall supply the Services to the Customer in accordance with the Specification in all material respects.
3.2 The Supplier shall use all reasonable endeavours to meet any performance dates specified in the Specification, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 The Supplier reserves the right to amend the Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
3.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
3.5 The Supplier shall host the Site from the Server.
3.6 The Supplier shall ensure that the Site will perform substantially in accordance with the Specification for a period of 3 months from the Commencement Date. If the Site does not so perform, the Supplier shall, for no additional charge, carry out any work necessary in order to ensure that the Site substantially complies with the Specification. The Supplier does not warrant that the Site will be entirely error free.
3.7 These terms set out the full extent of the Supplier’s obligations and liability in respect of the supply of Services. All conditions, warranties or other terms concerning the Services which might otherwise be implied with this agreement or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.
3.8 All Materials shall, while in the possession of the Supplier, be deemed to be held at the Customer's own risk and the Customer should arrange insurance accordingly.
4.1 The Customer shall:
(a) ensure that the terms of the Order and any information it provides in the Specification are complete and accurate;
(b) co-operate with the Supplier in all matters relating to the Services;
(c) provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation and other facilities as reasonably required by the Supplier;
(d) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects; v
(e) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
(f) keep all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer's premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier's written instructions or authorisation;
(g) provide all required content and information to the agreed timescales to ensure the Supplier can utilise the studio time and resource booked for the project. If there are any delays in providing the required content and information, then the project will be put on hold, and completed as and when studio time and resource is available; and
(h) comply with any additional obligations as set out in the Specification.
4.2 If the Supplier's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 4.2; and
(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
4.3 Time shall be of the essence in connection with the Customer's obligations under this Agreement.
5.1 Once the Supplier has completed the design and development of the Site in accordance with the Specification, the Supplier shall run Acceptance Tests.
5.2 Acceptance of the Site shall occur when the Site has passed the Acceptance Tests. The Supplier shall notify the Customer when the tests have been passed.
5.3 If any failure to pass the Acceptance Test results from a defect which is caused by an act or omission of the Customer, by any one of the Customer’s sub-contractors or agents for whom the Supplier has no responsibility, the Site shall be deemed to have passed the Acceptance Test. The Customer shall pay the Supplier in full for any such additional services and products required at the Supplier’s current fee and price structure as listed on the Supplier’s Website at the time that additional services are required.
5.4 Acceptance of the Site shall be deemed to have taken place upon the occurrence of any of the following events:
(a) the Customer uses any part of the Site for any revenue-earning purposes or to provide any services to third parties other than for test purposes; or
(b) the Customer unreasonably delays the start of the relevant Acceptance Tests or any retests for a period of seven working days from the date on which the Supplier is ready to commence running such Acceptance Tests or retests.
6.1 Videos/Images – the Supplier has a full license to use Adobe Stock for all stock imagery. Images are included within the Charges, however videos are charged additionally. Any external images, or images from any other Stock Image Supplier are chargeable.
6.2 Icons – the Supplier has a full license to use the FlatIcon suite, and these icons are included in the Charges. Icons from other Suppliers / custom icons are chargeable.
6.3 Fonts – the Supplier uses Google WebFonts and Adobe Typekit for fonts. These are included in the Charges. Fonts from other Suppliers / custom fonts are chargeable.
6.4 Illustrations - some illustrations are available on Adobe Stock, and those are included in the Charges. Custom illustrations are chargeable.
6.5 The Supplier does not provide FTP or cPanel details to Customers.
6.6 The Supplier’s bespoke development process accommodates for bespoke HTML/CSS responsive layouts. If the Customer requires complex jQuery / visual effects then these may be chargeable at the discretion of the Supplier.
6.7 During a bespoke design process, the Customer is entitled to a maximum of 3 different design concepts. If, however, the Customer requests that the Supplier makes amendments / refinements to any single concept, and the Supplier spends time on these amendments, then any further concepts will be chargeable at the Supplier’s daily fee rate as listed on the Supplier’s Website at the time that additional services are required.
6.8 In the event that the Customer shall require any changes, modifications or variations to the Site once Acceptance has taken place ("Additional Works") then the Supplier and the Customer shall work together to agree a new Specification (“Additional Work Specification”) and the Charges for such Additional Works prior to any work commencing. Any maintenance or minor modifications shall be carried out after Acceptance in accordance with the Supplier’s daily fee rate as listed on the Supplier’s Website at the time that additional services are required in accordance with a timetable agreed with the Supplier. If no hosting or maintenance agreement is in place with the Supplier, then there will be a minimum charge of £150.00 plus VAT to investigate any issues which may arise at any point in the future.
6.9 When the Contract comes into existence between the Supplier and the Customer, the Customer is deemed to have given the Supplier permission to showcase the project in its portfolio and for credit to the Supplier to be visible on the live Site. The Site credits will mention the Supplier – e.g. "Made with love by Bold". Should the Customer request that the credits be removed from the Site, the Supplier shall be entitled to charge a fixed fee in accordance with the current fee and price structure as listed on the Supplier’s Website at the time of removal.
7.1 Whilst the Supplier’s data centre offers a 100% uptime service-level agreement, if (for any reason) there is any downtime, payments are still due in full.
8.1 During the logo design process, the Supplier will accommodate for 2 sets of 3 logos. Once these have been presented, the Supplier will then accommodate for 2 rounds of amendments to the Customer’s chosen preferred design. Further variations will be chargeable.
9.1 Whilst the Supplier will accommodate wherever possible for required amendments, the nature of the pre-built options is that they are a much quicker solution for customers. With this in mind, any changes outside of scope (text, imagery, colours) may be chargeable at the discretion of the Supplier.
10.1 The Charges for the Services shall be calculated on the following basis:
(a) the Supplier shall charge the Customer as outlined in the Specification;
(b) should extra work not included in the Specification be requested by the Customer, the Supplier shall be entitled to charge an hourly rate as outlined in the Supplier’s current fee and price structure as listed on the Supplier’s Website at the time that additional services are required; and
(c) the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials.
10.2 Once the Contract comes into existence between the Supplier and the Customer, resource is allocated to the project and therefore the full amount of the Charges are due based on the payment terms agreed in the Order.
10.3 If the Specification states that payment is due on completion, this shall be the time that the Supplier informs the Customer that all work by the Supplier has been completed. For avoidance of doubt, this is irrespective of whether the Customer has uploaded content to the Site.
10.4 Where the Contract is structured to enable the Customer to recover part or the whole of the Charges through third party grants or funding and the Customer fails to provide the Materials in accordance with the Specification then the Customer acknowledges that they will pay the full amount of the Charges in accordance with the Order.
10.5 The Supplier reserves the right to increase fixed or ongoing monthly costs at any point in time. The Supplier also reserves the right to automatically increase any ongoing monthly costs by way of direct debit with prior written notice.
10.6 The Supplier shall invoice the Customer as per the agreed terms in the signed Specification. If the Customer has set up a direct debit, the Supplier shall take payments via direct debit in accordance with invoices issued.
10.7 The Customer shall pay each invoice submitted by the Supplier:
(a) on receipt or in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Customer; and
(b) in full and in cleared funds to a bank account nominated in writing by the Supplier, and
time for payment shall be of the essence of the Contract
10.8 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
10.9 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier's remedies under clause 14, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 10.8 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
10.10 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier's remedies under clause 14, the Supplier shall be entitled to invoice the Customer for all amounts due under the Contract irrespective of whether the Services outlined in the Specification have been completed in full.
10.11 If the Customer fails to make a payment due to the Supplier under the Contract or under a separate Contract with the Supplier by the due date, then, without limiting the Supplier’s remedies under clause 14, the Supplier shall be entitled to suspend hosting services to the Customer’s Site.
10.12 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
10.13 The Customer and the signatory of all contracts and proposals on behalf of the Customer shall be liable for the Charges on a joint and several basis.
11.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any Materials provided by the Customer) shall be owned by the Supplier.
11.2 The Supplier grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to copy the Deliverables (excluding Materials provided by the Customer) for the purpose of receiving and using the Services and the Deliverables in its business.
11.3 The Customer shall not sub-license, assign or otherwise transfer the rights granted in clause 11.2.
11.4 The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any Materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Services to the Customer.
11.5 The Customer shall indemnify the Supplier against all damages, losses and expenses arising as a result of any action or claim that the Materials infringe the Intellectual Property Rights of a third party.
The parties shall comply with their data protection obligations as set out in Schedule 1.
13.1 The Supplier has obtained insurance cover in respect of its own legal liability for individual claims not exceeding £2,000,000 per claim. The limits and exclusions in this clause reflect the insurance cover the Supplier has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss.
13.2 References to liability in this clause 13 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
13.3 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
13.4 Nothing in this clause 13 shall limit the Customer's payment obligations under the Contract.
13.5 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
13.6 Subject to clause 13.3 (No limitation in respect of deliberate default), and clause 13.5 (Liabilities which cannot legally be limited), the Supplier's total liability to the Customer for all loss or damage shall not exceed the price paid to the Supplier under this Contract.
13.7 The caps on the Supplier's liabilities shall be reduced by:
(a) payment of an uncapped liability; and
(b) amounts awarded by a court or arbitrator, using their procedural or statutory powers in respect of costs of proceedings or interest for late payment.
13.8 Subject clause 13.3 (No limitation in respect of deliberate default), clause 13.4 (No limitation of customer's payment obligations) and clause 13.5 (Liabilities which cannot legally be limited), this clause 13.8 sets out the types of loss that are wholly excluded:
(a) loss of profits.
(b) loss of sales or business.
(c) loss of agreements or contracts.
(d) loss of anticipated savings.
(e) loss of use or corruption of software, data or information.
(f) loss of or damage to goodwill; and (g) indirect or consequential loss.
13.9 The Supplier has given commitments as to compliance of the Services with relevant specifications in clause 3. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
13.10 Unless the Customer notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire 3 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
13.11 This clause 13 shall survive termination of the Contract.
14.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach 14 days of that party being notified in writing to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
14.2 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer fails to pay any amount due under the Contract on the due date for payment; or
(b) there is a change of control of the Customer.
14.3 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services under the Contract or any other contract between the Customer and the Supplier if:
(a) the Customer fails to pay any amount due under the Contract on the due date for payment;
(b) the Customer becomes subject to any of the events listed in clause 14.1(c) or clause 14.1(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them; and
(c) the Supplier reasonably believes that the Customer is about to become subject to any of the events listed in clause 14.1(b).
15.1 On termination or expiry of the Contract:
(a) the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the Customer shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract;
(c) on termination by the Customer pursuant to clause 14.2, the Supplier shall return all Materials to the Customer and shall provide to the Customer an electronic copy of the Site (including all content of the Site). The Supplier shall provide such assistance as is reasonably requested by the Customer in transferring the hosting of the Site to the Customer or another service Supplier, subject to the payment of the Supplier’s fees charged at an hourly rate in accordance with the current fee and price structure as listed on the Supplier’s Website at the time that additional services are required. The Supplier shall not be liable for any issues relating to the Site once hosting has been transferred to another Supplier.
15.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
15.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
16.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
16.2 Assignment and other dealings.
(a) The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
(b) The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.
16.3 Confidentiality.
(a) Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 16.3(b). For avoidance of doubt, confidential information includes all information, whether technical or commercial (including all specifications, drawings and design, disclosed in writing, on disc, orally or by inspection of documents or pursuant to discussions between the parties), where the information is
(i) identified as confidential at the time of disclosure; or
(ii) ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.
(b) Each party may disclose the other party's confidential information:
(i) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 16.3; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.
16.4 Entire agreement.
(a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
(c) Nothing in this clause shall limit or exclude any liability for fraud.
16.5 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
16.6 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
16.7 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. If any provision or part-provision of this Contract deleted under this clause 16.7 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
16.8 Notices.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by email to the address specified in the Order.
(b) Any notice or communication shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address;
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
(iii) if sent by email at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 16.8(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
(c) This clause 16.8 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
16.9 Third party rights.
(a) Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
(b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
16.10 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.
16.11 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
Schedule 1 Data protection
Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the Information Commissioner or other relevant regulatory authority and applicable to a party.
Domestic Law: the law of the United Kingdom or a part of the United Kingdom.
EU Law: the law of the European Union or any member state of the European Union.
UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
16.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This Schedule 1 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.
16.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller and the Supplier is the Processor.
16.3 Without prejudice to the generality of clause 16.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Supplier for the duration and purposes of this agreement.
16.4 Without prejudice to the generality of clause 16.1, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under this agreement:
(a) process that Personal Data only on the documented written instructions of the Customer unless the Supplier is required by Domestic Law to otherwise process that Personal Data. Where the Supplier is relying on Domestic Law as the basis for processing Personal Data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Domestic Law unless the Domestic Law prohibits the Supplier from so notifying the Customer;
(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
(d) not transfer any Personal Data outside of the UK unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
(i) the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(iv) the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
(e) assist the Customer, at the Customer's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify the Customer without undue delay on becoming aware of a Personal Data Breach;
(g) at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Domestic Law to store the Personal Data; and
(h) maintain complete and accurate records and information to demonstrate its compliance with this Schedule 1 and allow for audits by the Customer or the Customer's designated auditor and immediately inform the Customer if, in the opinion of the Supplier, an instruction infringes the Data Protection Legislation.
16.5 The Customer does not consent to the Supplier appointing any third party processor of Personal Data under this agreement.
16.6 Either party may, at any time on not less than 30 (thirty) days’ notice, revise this Schedule 1 by replacing it with any applicable controller to processor standard clauses or similar terms adopted under the Data Protection Legislation or forming part of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).
