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Here are our terms and conditions, should you wish to check the small print.
1. DEFINITIONS AND INTERPRETATION
1.1 In this Contract, the following words and expressions have the following meaning unless the context otherwise requires:
Applicable Laws means, in relation to a Party, all applicable laws, enactments, regulations, regulatory policies, binding industry codes, regulatory permits and regulatory licences which are in force from time to time during the term of this Contract and that apply to the performance of that Party’s obligations pursuant to this Contract.
Business Day means a day other than a Saturday, Sunday or public holiday in England when banks are open for business.
Change means a change to the scope of the Services, as defined in clause 8.1.
Change Request is defined in clause 8.1.
Charges means the charges calculated in accordance with the terms of the applicable Contract payable by a Customer for the supply of the Services by m-hance and any charges payable in accordance with clause 10 of these MH Terms.
Confidential Information means:
Consultancy Services means the services described as such in the Quote.
Contract means the contract between m-hance and the Customer for provisions of the Services by m-hance and which consists of these MH Terms and the applicable Quote.
Contract Year means a period of one calendar year, with the first Contract Year commencing on the Commencement Date and each subsequent Contract Year on each anniversary of the Commencement Date.
Customer means the entity identified as such in the Quote.
Customer Representative means the individual identified as such in the Quote.
Customer Materials means all materials, equipment and tools, drawings, specifications and data supplied by or on behalf of the Customer to m-hance in relation to this Contract.
Data Protection Legislation means any applicable laws and regulations relating to privacy or the use or processing of data relating to natural persons, including: (a) the 2018 Data Protection Act (the DPA); (b) the Privacy and Electronic Communications (EC Directive) Regulations 2003; and (c) the General Data Protection Regulation (EU Regulation 2016/679) (GDPR); (d) at such time as the United Kingdom leaves the European Union and the GDPR no longer has direct effect in United Kingdom law, the GDPR as transposed into the national legislation of the United Kingdom by operation of section 3 of the European Union (Withdrawal) Act 2018 (“UK GDPR“) and (e) any laws or regulations ratifying, implementing, adopting, supplementing or replacing GDPR, UK GDPR or DPA and in each case as amended or replaced from time to time, together with any binding guidance and codes of practice issued from time to time by relevant supervisory authorities.
Dispute Resolution Procedure means the procedure for the resolution of Disputes specified in Clause 16.
Deliverables means the specific documents, configurations or computer programs developed by m-hance for the Customer pursuant to the Contract, including specifications and either identified as deliverables in the applicable Quote (if any) or agreed in writing between the Parties from time to time.
means the occurrence of any one or more of the following (whether at the same time or not):
Force Majeure Event means any event beyond the reasonable control of a Party and which is not caused by its own fault or negligence, including, without limitation, acts of God, riots, war, acts of terrorism, fire, flood, storm or earthquake and any disaster, but excluding in the case of m-hance any industrial dispute relating to m-hance, m-hance’s personnel or any other failure in the m-hance’s supply chain and includes any change in Applicable Laws arising out of such event.
Good Industry Practice means, at any time during the term of this Contract, the exercise of reasonable skill, care, prudence, efficiency, foresight and timeliness which would at that time be expected from a reasonably and suitably skilled, trained and experienced person providing services similar to the Services.
Group means, in respect of a Party, that Party, together with its parent undertaking and the subsidiary undertakings of its parent undertaking or a Party, its holding company, its subsidiaries, and the subsidiaries of that holding company.
Initial Term means the initial duration of this Contract as set out in the Quote.
Insolvency Event means in relation to a Party, the convening of a meeting of its creditors or if a proposal shall be made for a voluntary arrangement within Part I of the Insolvency Act 1986 or a proposal for any other composition scheme or arrangement with (or assignment for the benefit of) its creditors or if such Party is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or if a trustee receiver administrative receiver or similar officer is appointed in respect of its business or assets or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for its winding or for the making of an administration order (otherwise than for the purpose of a solvent amalgamation or reconstruction) or such Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
Intellectual Property Rights means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, rights to 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.
Licensed Software means the software identified as such in the applicable Quote.
Losses means claims, demands, actions, awards, judgments, settlements, costs, expenses, liabilities, damages and losses (including all interest, fines, penalties, management time and legal and other professional costs and expenses).
m-hance Representative means the individual identified as such in the Quote.
m-hance Materials means all materials, equipment and tools, drawings, specifications and data supplied by m-hance to the Customer in relation to the Services, excluding Deliverables.
MH Terms means these m-hance Terms and Conditions.
Party means m-hance or the Customer, as the case may be, and Parties shall mean both.
Personal Data has the meaning given to that term in the GDPR (or UK GDPR, as applicable).
Project Plan means the plan (if any) setting out the estimated timetable and responsibilities for the provision of the Services by m-hance in accordance with the Quote and agreed in writing between the Parties.
Quote means a document that sets out services that the Customer wishes to procure from m-hance at a quoted price, subject to these MH Terms.
Renewal Term means the extension of the duration of this Contract in accordance with the terms of that Contract.
Representatives means, together, the Customer Representative and the m-hance Representative.
Services means the services set out in the applicable Quote (including, to the extent applicable, the Support Services and/or the Consultancy Services), including any Deliverables to be provided as part of such services.
Support Services means the services described as such in the Annex.
Term is determined in accordance with the terms of clause 3.
Third Party means a party which is not a Party.
Third-Party Software means the software identified as such in the Quote.
User means an employee, agent, contractor, supporter, volunteer or supplier of the Customer.
1.1.1 any reference to a statute or statutory provision includes, unless the context otherwise requires, a reference to that statute or statutory provision as from time to time amended, consolidated, extended, re-enacted, or replaced and to all statutory instruments, orders, regulations or rules made pursuant to it;
1.1.2 references to the singular includes the plural and vice versa, references to any gender includes a reference to all genders and references to a person includes natural persons, firms, partnerships, bodies corporate, corporations, associations, organisations, governments, states, foundations and trusts (in each case whether or not incorporated and whether or not having separate legal personality);
1.1.3 unless the context otherwise requires, references to any clause, sub-clause or schedule is to a clause, sub-clause or schedule of or to these MH Terms;
1.1.4 if a period of time is specified and such period dates from a given day or the day of an act or event, it shall be calculated exclusive of that day;
1.1.5 all references to the Parties include their permitted successors and assigns;
1.1.6 any phrase introduced by the term “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and the words following any of those terms shall not limit the sense of the words preceding any of those terms;
1.1.7 Any reference to a document being “in the agreed form” means a document in a form agreed by the Parties and initialled by, or on behalf of, each of them for the purpose of identification;
1.2 The index and headings in these MH Terms are inserted for convenience only and shall not affect the construction or interpretation of these MH Terms.
1.3 Each of the Schedules to these MH Terms shall have effect as if set out in full in the body of these MH Terms.
1.4 If there is any conflict between the provisions of the clauses of these MH Terms and any provision in any Quote, then the provision in these MH Terms shall prevail to the extent required to resolve the conflict.
2. STRUCTURE OF CONTRACT AND QUOTES
2.1 The Contract is formed upon signature of the Quote by the Customer.
2.2 The terms and conditions of this Contract shall prevail over any inconsistent terms or conditions contained in any document presented by the Customer, including the Customer’s purchase order, confirmation of order, or specification, or implied by law or trade custom.
3. TERM AND TERMINATION RIGHTS
3.1 This Contract shall, subject to the terms of clauses 3.2 and 3.3 terminate after completion of the Services set out in the Quote.
3.2 Without prejudice to any other rights and remedies it might have, each Party shall have the right at any time to terminate this Contract by notice in writing to the other Party if:
3.2.1 the other Party is the subject of an Insolvency Event;
3.2.2 the other Party is in material breach of any of its obligations under this Contract and, if capable of remedy, such breach has not been remedied within thirty (30) days of a notice in writing requiring that it be remedied.
3.3 m-hance may, in addition, terminate a Service Contract on notice in writing to the Customer if the Customer fails to pay an undisputed amount due under the Service Contract by its due date within 14 days following receipt of a written notice from m-hance stating that the applicable amount is due and is unpaid.
3.4 Termination of this Contract shall not terminate or affect any rights, obligations or liabilities of the Parties, which have accrued under that Contract prior to the date of termination.
3.5 The following clauses shall survive termination of this Contract and shall continue with full force and effect: 1, 3.4, 3.5, 9, 10, 11, 12, 13, 15 and 17.
4.1 The day to day management of matters/issues arising out of the Contract shall be run by the Representatives.
4.2 The Customer may, acting reasonably, request that m-hance shall replace the m-hance Representative with another person, as long as the Customer can demonstrate that the then current m-hance Representative is not suitably qualified to carry out that role and/or has not performed that role with reasonable skill, care and diligence.
5. M-HANCE OBLIGATIONS AND SERVICES
5.1 m-hance shall:
5.1.1 provide the Services in accordance with the terms and conditions of this Contract from the date specified in the Quote or as otherwise agreed in writing between the Parties from time to time;
5.1.2 provide the Services using Good Industry Practice and in accordance with Applicable Laws; and
5.1.3 ensure that all personnel used to provide the Services are suitably qualified, trained and experienced to provide the relevant Services and have been vetted by m-hance in accordance with Applicable Laws;
5.1.4 subject to the terms of clause 7, m-hance shall use reasonable endeavours to meet the performance dates specified in any Project Plan, but any such dates shall be estimates only and time shall not be of the essence in relation to any obligation of m-hance, other than as agreed in writing.
5.2 Where the Parties agree in writing that the Customer shall provide m-hance with any access to its premises, facilities or systems in order for m-hance to provide the Services, such access shall occur during the Customer’s normal working hours and m-hance shall ensure that it directs all of its personnel who will be accessing the Customer’s premises, facilities or systems to:
5.2.1 comply with the Customer’s reasonable directions with regard to such access; and
5.2.2 comply with any written policies or procedures governing the conduct or security of such access, where such policies or procedures have been made available to such personnel in advance of the relevant access required.
6. CUSTOMER OBLIGATIONS
6.1 Without prejudice to any additional Customer obligations in a Quote, the Customer shall:
6.1.1 subject to clause 10.4.1 pay all sums due to m-hance under the Contract by the applicable due date and without any deduction or set off;
6.1.2 co-operate in all matters relating to the Contract with m-hance;
6.1.3 provide in a timely manner such information as m-hance may reasonably request and use reasonable endeavours to ensure that all such information is accurate in all material respects;
6.1.4 make available such facilities as m-hance shall reasonably require in order to discharge its obligations arising under the Services;
6.1.5 implement and enforce a policy prohibiting the use of any single User login by more than one person and notify m-hance as soon as the Customer becomes aware of a breach of this policy;
6.1.6 ensure that its network and systems comply with any required specifications agreed between the Parties in writing, no later than the Commencement Date or such other deadline agreed between the Parties in writing from time to time; and
6.1.7 be solely responsible for:
(a) procuring and maintaining its equipment, network connections and telecommunications links from the Customer’s systems to any data centres; and
(b) all problems, conditions, delays delivery failures and all loss or damage arising from or relating to the Customer’s equipment and/or the Customer’s network connections or telecommunications links.
6.1.8 acknowledge that the Licensed Software, the Third-Party Software and the m-hance Materials have not been developed to meet the individual requirements of the Customer.
6.2.1 The Consultancy Services may be booked for specified dates agreed in writing, by email and/or by telephone (“Booking”).
6.2.2 Bookings shall, unless otherwise agreed in writing, be for a minimum period of one (1) Business Day.
6.2.3 The cancellation of all or any part of any booking for Consultancy Services will require a minimum notice of five (5) Business Days;
6.2.4 Any cancellation with less than five (5) Business Days’ notice will be charged at 50% of the Charges payable in respect of the cancelled Consultancy Services; and
6.2.5 Any cancellation with less than one (1) Business Days’ notice will be charged at 100% of the Charges payable in respect of the cancelled Consultancy Services.
7. DELAYS AND EXCUSING EVENTS
7.1 To the extent that m-hance’s performance of its obligations i prevented or delayed by an Excusing Event, m-hance shall give written notice to the Customer as soon as practicable, such notice to contain available details of the Excusing Event and its potential or actual impact on the provision of the Services, as determined by m-hance acting reasonably.
7.2 Provided that written notification in accordance with clause 7.1 is given and to the extent such failure or delay arises as a result of such Excusing Event, the remaining terms of this clause 7 shall apply.
7.3 Such failure or delay by m-hance to perform the relevant obligation:
7.3.1 shall not constitute a breach of the relevant term(s) of that Contract by m-hance for the duration that such failure or delay arises as a result of the relevant Excusing Event; and
7.3.2 shall not be taken account of in measuring the performance of the Services which shall be deemed to have operated free from such adverse interference; and
7.4 In relation to any deadlines agreed between the Parties:
7.4.1 m-hance shall use reasonable endeavours to mitigate the impact of the Excusing Event(s);
7.4.2 m-hance shall be entitled to a reasonable extension in time taking into account the impact of the applicable Excusing Event;
7.4.3 the Project Plan and all relevant dates under this Contract shall be updated accordingly; and
7.4.4 where the Parties are unable to agree what that reasonable extension should be the matter shall be dealt with in accordance with the Dispute Resolution Procedure; and
7.4.5 in relation to the provision of all other Services, m-hance shall be entitled to payment under that Contract as if there had been no such failure or delay with the performance of the Services and m-hance shall not be liable to the Customer for any loss or damage, in each case to the extent that it arises out of such Excusing Event.
7.5 Without prejudice to the preceding terms of this clause 7, neither Party shall be liable to the other Party for any delay or non-performance of its obligations under this Contract arising directly from a Force Majeure Event, provided that the affected Party:
7.5.1 promptly notifies the other Party in writing of the cause of the delay or non-performance and the likely duration of the delay or non-performance; and
7.5.2 uses reasonable endeavours to limit or mitigate the effect of that delay or non-performance on the other Party.
7.5.3 In any such case, the performance of the affected Party’s obligations, to the extent affected by the cause, shall be suspended during the period that the cause persists.
7.6 If a Force Majeure Event occurs and m-hance has not materially restored Services within 72 hours, Customer shall not be required to pay, and m-hance shall not be entitled to charge, for Services affected by that Force Majeure Event for the duration of the period commencing on the date the Force Majeure Event first affected the relevant Service(s) and ending on the date Services are materially restored.
8. CHANGE CONTROL
8.1 If either Party wishes to request a Change, it shall submit details of the requested Change to the other in writing (Change Request). A “Change” includes (i) any new or additional services not initially forming a part of the Services, (ii) any modification or enhancement introducing new functionality to the Services not envisaged in the applicable Quote, (iii) any sustained and material change in volume of the Services and (iv) any material change in the Services as a result of a change in Applicable Laws. A Change does not include any clarification of, or any detailed development or implementation of a high-level description of, the Services.
8.2 If m-hance submits a Change Request, m-hance must include the following details with the Change Request:
8.2.1 the likely time required to implement the Change;
8.2.2 any variations to the Charges arising from the Change;
8.2.3 the likely effect of the Change on the Project Plan; and
8.2.4 any other impact of the Change on the terms of the relevant Contract.
8.3 If the Customer submits a Change Request, m-hance shall provide the Customer with the information set out in clause 8.2, within 10 Business Days of receipt of the Change Request.
8.4 If the Customer wishes m-hance to proceed with the Change on the basis of the information provided by m-hance pursuant to clause 8.2 or clause 8.3, m-hance has no obligation to do so unless and until the Parties have agreed in writing the necessary variations to the Charges, the Project Plan and any other relevant terms of the applicable Contract to take account of the Change and such written variation has been signed on behalf of each Party.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 Unless expressly agreed in writing between the Parties:
9.1.1 no Intellectual Property Rights shall transfer from, or be licensed by, one Party to the other Party as a result of entering into the Contract;
9.1.2 a Party shall not acquire any rights to use the other Party’s Intellectual Property Rights.
10. CHARGES, INVOICING AND PAYMENTS
10.1 The Customer shall pay m-hance the Charges. The Charges shall be paid in British Pounds Sterling, unless otherwise agreed in writing and in accordance with the payment schedule set out in the applicable Quote.
10.2 Each invoice shall include all reasonable supporting information to verify the accuracy of the invoice and m-hance shall invoice the Customer:
10.2.1 on or before the Commencement Date, the Charges payable for the Licensed Software and for the Support Services for the Initial Term;
10.2.2 subject to clause 2.1, at least 30 days prior to the expiry of the then current Initial Term or Renewal Term (as applicable), the Charges payable for the Licensed Software and for the Support Services in respect of the next Renewal Term; and
10.2.3 monthly in arrears in respect of the Consultancy Services.
10.3 Unless otherwise agreed in writing, the Customer shall reimburse to m-hance, in addition to the Charges, all reasonable expenses necessarily incurred by m-hance’s employees, subcontractors and agents in the course of providing the Services, including the cost of hotel, subsistence, travelling and any other ancillary expenses. m-hance shall submit its invoices for expenses to the Customer monthly in arrears.
10.4 The Customer shall pay each invoice submitted to it by m-hance within 30 days of receipt, to a bank account nominated in writing by m-hance. In the event that the Customer, acting reasonably, wishes to dispute the accuracy of an invoice, the Customer shall:
10.4.1 notify m-hance in writing within ten (10) Business Days of receipt of the applicable invoice, such notice to state the reason(s) for the disputed amounts and any supporting documentation the Customer is able to provide; and
10.4.2 pay the undisputed amount of the applicable invoice in accordance with the provisions of this clause 6.5
10.5 m-hance shall respond to the Customer’s notice pursuant to clause 10.4.1 within ten (10) Business Days of receipt of the notice, stating whether or not m-hance accepts the Customer’s reasons for the dispute. If m-hance does, then m-hance shall supply with the response a replacement valid invoice. If m-hance does not, then the matter shall be dealt with in accordance with the Dispute Resolution Procedure.
10.6 All Charges are exclusive of value added tax chargeable for the time being (“VAT”). Where any taxable supply for VAT purposes is made under this Contract by m-hance to the Customer, the Customer shall, on receipt of a valid VAT invoice from m-hance, pay to m-hance 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.
10.7 If the Customer fails to make any payment due to m-hance under this Contract by the due date for payment, then, without limiting m-hance’s remedies pursuant to that Contract or under Applicable Law, m-hance shall have the right to charge interest on the overdue amount at the rate of 4% per annum above Barclays Bank plc’s base rate from time to time. The Customer shall pay the interest together with the overdue amount.
10.8 In relation to payments disputed in in accordance with clause 10.4, interest under clause 10.7 is payable only after the Dispute is resolved, on sums found or agreed to be due, from the due date until payment.
10.9 All amounts due under this Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax to the extent required by Applicable Laws).
11. REGULATORY COMPLIANCE
11.1 Each Party shall comply with Applicable Laws in the exercise of its rights and the compliance with its obligations pursuant to this Contract. Without prejudice to the generality of the foregoing:
11.1.1 Anti-Bribery Compliance: In performing its obligations under this Contract, m-hance will:
(a) comply with all applicable anti-bribery and corruption laws, including the Bribery Act 2010 (“Bribery Act”); and
(b) provide such information, explanations, assistance and access to records and take such action as the Customer reasonably requires to verify compliance with this clause 11.1.1 within 60 days of any written request by the Customer to do so; and
11.1.2 Eradicating Modern Slavery Compliance: In performing its obligations under this Contract, m-hance will:
(a) comply with sections 1, 2 and 4 and (where applicable) 54 of the UK Modern Slavery Act 2015 (“MSA”); and
(b) provide such information, explanations, assistance and access to m-hance’s records as the Customer reasonably requires in order to verify compliance with this clause 11.1.2 within 60 days of any written request by the Customer to do so.
11.2 m-hance shall:
11.2.1 maintain records of, and supporting documentation relating to the Services and the Charges;
11.2.2 subject to at least 14 days’ written notice in advance and once every calendar year during regular business hours, allow the Customer (or its professional advisers, subject to agreeing written confidentiality terms) to conduct an inspection and/or audit of its premises, operations, procedures, systems, personnel and relevant records, but only to the extent that these relate to the provision of the Services;
11.2.3 co-operate and provide reasonable assistance in relation to any audit conducted in accordance with the terms of this clause 11.2; and
11.2.4 following any audit conducted in accordance with the terms of this clause 11.2, the Customer will discuss its observations with m-hance and the Parties shall implement any preventative and/or corrective actions, which must be mutually agreed in accordance with clause 8
12. LIMITATION OF LIABILITY
12.1 Nothing in this Contract excludes or limits either Party’s liability for:
12.1.1 death or personal injury caused by that Party’s negligence, fraud (including fraudulent misrepresentation) and other losses which cannot be excluded by law;
12.1.2 any wilful default or fraudulent act or omission; and/or
12.1.3 any liability expressed to be unlimited in the applicable Contract.
12.2 Subject to clauses 12.1,12.3 and 12.4, the total aggregate liability of each Party to the other Party shall be limited for all liability arising under or in connection with a Contract, including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise, to 100% of the Charges paid or payable by the Customer under that Contract.
12.3 In addition to the aggregate liability caps set out in clause 12.1, the aggregate liability of:
12.3.1 m-hance to the Customer arising under clause 13.8 shall be limited to 100% of the Charges paid by the Customer under the applicable Contract; and
12.3.2 the Customer to m-hance arising under clause 13.7 shall be limited to 100% of the Charges paid by the Customer under the applicable Contract.
12.4 Subject to clause 12.1, neither Party shall be liable to the other Party (whether in relation to a breach of contract, negligence, under any indemnity or otherwise) for any:
12.4.1 special damages;
12.4.2 consequential losses;
12.4.3 consequential damages;
12.4.4 indirect loss or damage;
12.4.5 loss of business;
12.4.6 loss of revenue;
12.4.7 loss of profits;
12.4.8 loss of anticipated savings; or
12.4.9 loss of goodwill.
12.5 Under no circumstances shall m-hance be liable for any Losses arising out of or related to an unauthorised disclosure (including a disclosure in breach of Data Protection Laws) of Personal Data to m-hance by the Customer or by a User.
12.6 Nothing in this clause 12 shall in any way reduce or affect each Party’s general duty to mitigate loss suffered by it.
12.7 The Parties agree that they have negotiated this clause 12 and that it represents a fair and equitable position.
13. DATA PROTECTION
13.1 Each Party shall comply and shall procure that any of its staff involved in the activities under this Service Contract (as applicable) shall comply with the provisions imposed on them by the Data Protection Laws. This clause 13 is supplemental to and does not relieve, remove or replace, a Party’s obligations under the Data Protection Laws
13.2 Each Party shall maintain records of all its Personal Data processing operations relating to this Contract under its responsibility such that these records contain at least the minimum information required by the Data Protection Laws and each Party shall make such information available to the applicable regulator on request.
13.3 The Parties acknowledge that for the purposes of the Data Protection Laws, the intention of the Parties is that the Customer is the controller and m-hance is the processor. The Quote sets out details of the processing of Personal Data to be undertaken by m-hance in connection with this Contract, the types of Personal Data, categories of Data Subjects, and nature and purposes of processing. Such processing shall take place throughout the duration of this Service Contract.
13.4 To the extent that m-hance processes any Personal Data on behalf of the Customer pursuant to this Contract, m-hance shall:
13.4.1 process such Personal Data only in accordance with the Customer’s written instructions from time to time (including those set out in this Contract, save for processing which m-hance is required to do pursuant to any Applicable Law.
13.4.2 take reasonable steps to ensure that
(a) access to such Personal Data is limited to its personnel who need to access it in order to meet m-hance’s obligations under this Contract;
(b) in the case of access by its personnel, access to such Personal Data is limited to such part or parts of the Personal Data as is strictly necessary for performance of that member of personnel’s own duties; and
(c) any personnel who have access to such Personal Data are subject to binding obligations of confidentiality when processing such Personal Data;
13.4.3 implement and maintain technical and organizational measures and procedures to ensure an appropriate level of security for such Personal Data, including protecting such Personal Data against the risks of accidental, unlawful or unauthorized destruction, loss, alteration, disclosure, dissemination or access;
13.4.4 inform the Customer if any such Personal Data is (while within m-hance’s possession or control) subject to a personal data breach (as defined in Article 4 of GDPR or UK GDPR, as applicable) without undue delay after becoming aware;
13.4.5 not disclose any such Personal Data to any Data Subject or to a Third Party other than at the written request of the Customer, in order to comply with a requirement of a regulator having authority over m-hance, or as expressly provided for in that Contract;
13.4.6 at the written request of the Customer, return or delete (subject to paying additional charges at the Customer’s then applicable time and material rates in circumstances where the Customer can carry out these tasks itself)) all such Personal Data on termination or expiry of that Contract, and not make any further use of such Personal Data (except to the extent that Applicable Laws or the Customer’s administrative and regulatory requirements requires continued storage of any such Personal Data by m-hance);
13.4.7 provide to the Customer and any regulator (at the Customer’s cost and at m-hance’s then time and material rates for any repeat requests) all records, information and assistance necessary to demonstrate or ensure compliance with the obligations in this clause 13.2;
13.4.8 no more than once every calendar year and subject to m-hance having the right to do so, permit the Customer or its representatives (at the Customer’s cost at m-hance’s then time and material rates) to access any relevant premises, personnel or records of m-hance on reasonable notice (but being no less than fifteen (15) Business Days) to audit and otherwise verify compliance with this clause 13.2) unless such audit is required by a regulator or in circumstances where m-hance has reported a personal data breach in which case it can be carried out as necessary and with as much notice as the Customer is able reasonably to give;
13.4.9 take such steps as are reasonably required to assist the Customer (at the Customer’s cost at m-hance’s then time and material rates for any onerous or repeat requests) to comply with the Customer’s obligations under Articles 30 to 36 (inclusive) of the GDPR (or UK GDPR, as applicable) as they relate to m-hance’s obligations under that Contract;
13.4.10 notify the Customer within seven (7) Business Days if it receives a request from a Data Subject to exercise its rights under the Data Protection Laws in relation to that person’s Personal Data;
13.4.11 provide the Customer with its reasonable co-operation and assistance in relation to any request made by a Data Subject to exercise its rights under the Data Protection Laws in relation to that person’s Personal Data. m-hance shall not charge for such requests unless such request is manifestly unjust or excessive, in which case m-hance shall reserve the right to charge the Customer a reasonable administration fee; and
13.4.12 not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained, not to be unreasonably withheld or delayed, and one of the following conditions has been fulfilled under the applicable Data Protection Laws:
(a) the transfer is to a country or territory which provides an adequate level of protection;
(b) the transfer is made subject to appropriate safeguards; or
(c) a relevant derogation exists.
13.5 If either Party receives any complaint, notice or communication which relates directly or indirectly to the processing of Personal Data by the other Party or to either Party’s compliance with the Data Protection Laws, it shall promptly notify the other Party and it shall provide the other Party with reasonable co-operation and assistance in relation to any such complaint, notice or communication.
13.6 Where the Customer or a User transfers Personal Data to m-hance, whether as part of the Service or otherwise, the Customer warrants to m-hance that it has secured a lawful data processing ground, in accordance with and in compliance with applicable Data Protection Laws, to process such Personal Data and to share such Personal Data with m-hance.
13.7 The Customer hereby indemnifies m-hance for any Losses incurred as a result of:
13.7.1 a claim by a data subject whose Personal Data has been provided by or on behalf of the Customer to m-hance pursuant to this Contract , that there is no lawful basis of processing that Personal Data in accordance with the terms of that Contract; and/or
13.7.2 a breach of a data subject’s rights under Data Protection Laws, arising out of any written instructions provided by or on behalf of the Customer to m-hance pursuant to this Addendum or otherwise relating to Personal Data; and/or
13.7.3 a breach by the Customer of its warranty in clause 13.6.
13.8 m-hance hereby indemnifies the Customer for any Losses incurred solely as a result of a breach by m-hance of its obligations pursuant to:
13.8.1 clause 13.4.1
13.8.2 clause 13.4.2; and
13.8.3 clause 13.4.4.
13.9 m-hance may subcontract its processing of Personal Data on behalf of the Customer for the sole purpose of providing a part of the Services or enabling m-hance to provide the Services. m-hance shall procure that any such sub-contractors enter into a written contract with m-hance which contains obligations for the protection of Personal Data which are no less onerous than those set out in this clause 13. As between the Customer and m-hance, m-hance shall remain fully liable for all acts and omissions of any sub-contractor appointed by it pursuant to this clause 13.
13.10 m-hance’s current list of sub-contractors (Current Sub-Contractors) which are used to undertake processing of any Personal Data on behalf of the Customer will be provided to the Customer on written request. By entering into this Contract, the Customer approves the use of the Current Sub-Contractors. The rights afforded to the Customer in clauses 13.11, 13.12 and
3.13 shall not apply in relation to Current Sub-Contractors.
13.11 Following the date of this Contract, m-hance shall notify the Customer of its appointment of a new sub-contractor in respect of processing of Personal Data on behalf of the Customer (which is not a Current Sub-Contractor).
13.12 If the Customer wishes to object to m-hance’s use of such sub-contractor notified in accordance with clause 13.11:
13.12.1 Customer must notify m-hance in writing within 10 Business Days of the notification from m-hance pursuant to clause 13.11; and
13.12.2 Customer’s objection to the relevant appointment must be on the basis that the relevant appointment would result in a breach of the Customer’s ability to comply with its obligations under Data Protection Laws as a result of the relevant appointment.
13.13 If the Customer objects to any new sub-contractor in accordance with clause 13.12, m-hance will use reasonable efforts to make available to the Customer an alternative solution or arrangement to avoid the processing by the relevant sub-contractor of any Personal Data provided by the Customer, provided that:
13.13.1 m-hance shall not be required to implement an alternative solution or arrangement which unreasonably burdens m-hance; and
13.13.2 m-hance shall be entitled to make a reasonable additional charge to cover the costs of implementing and operating the alternative solution or arrangement.
13.14 If m-hance is unable to make available an alternative solution or arrangement within a reasonable period of time (which shall not exceed ninety (90) days) or if the Customer is unwilling to pay any charge by m-hance to cover the costs of implementing and operating the alternative solution or arrangement, the Customer may, by written notice to m-hance terminate the Contract, in which case, the Customer shall be entitled to receive a pro rata refund of any prepaid fees and other applicable charges for the period following the effective date of termination.
14.1 m-hance shall, for the duration of a Contract, maintain insurance policies which are sufficient to cover any Losses arising out of m-hance’s obligations under this Contract.
14.2 m-hance shall, upon the Customer’s written request, provide to the Customer adequate proof of its insurance cover required under this clause 14 at any time.
15. CONFIDENTIAL INFORMATION
15.1 Subject to clauses 15.2 and 15.3, each Party agrees that it shall:
15.1.1 keep any Confidential Information disclosed by the other Party strictly confidential;
15.1.2 not use (save as is necessary in order to perform its obligations and/or exercise its rights under this Contract) any Confidential Information for its own benefit
15.1.3 not disclose any Confidential Information to any Third Party; and
15.1.4 ensure that no Third Party shall have access to it.
15.2 Each Party shall be entitled to disclose Confidential Information to its employees, or to the employees of a member of its Group, to the extent that those employees have a genuine need to know the same to enable the Parties to perform their obligations or exercise their rights under this Contract, provided always such employees are informed of the confidential nature of the information and are aware of the obligations set out in this clause 15. A Party disclosing the Confidential Information to the employees of a member of its Group shall be liable for the acts and omissions of such employees as if those acts or omissions were the acts or omissions of that Party.
15.3 The restrictions in clause 15.1 shall not apply to any Confidential Information which:
15.3.1 the recipient can prove is already known to it at the time of disclosure;
15.3.2 is public knowledge at the time of disclosure to the recipient or which subsequently becomes public knowledge through no fault of the recipient;
15.3.3 is subsequently disclosed to the recipient (other than subject to conditions of confidentiality and without any restriction on disclosure) by a Third Party which is itself not subject to any restriction on disclosure; or
15.3.4 is required to be disclosed as a matter of law or by the rules of a recognised stock exchange provided the recipient notifies the disclosing Party as soon as possible following any relevant demand or request for disclosure.
15.4 Each Party shall, if so requested by the other Party following termination of this Contract, deliver up to the other Party or destroy all documents and (save to the extent that the same shall have been incorporated into the formal records of that Party) other material in its possession or control which include or incorporate any Confidential Information of the other Party provided that each Party shall be entitled to retain one copy of all or any part of the other Party’s Confidential Information which may be required to meet any requirements under Applicable Laws. For the avoidance of doubt, the obligation to deliver up or destroy Confidential Information shall not cover Confidential Information that is maintained on routine computer system backup tapes, disks or other backup storage devices. All such incorporated or retained confidential information shall remain subject to the obligations set out in the preceding provisions of this clause 15.
15.5 The obligations in the preceding provisions of this clause 15 shall survive the expiry or termination of this Contract until, in respect of any particular item of Confidential Information, such time as that item of Confidential Information becomes public knowledge through no fault of the recipient.
16.1 Further Assurance: Each Party shall and shall, if applicable, procure that each member of its Group shall, at its own cost, promptly execute and deliver all such documents, and do all such things, as the other Party may from time to time reasonably require for the purpose of giving full effect to the provisions of this Contract and to secure for the other Party the full benefit of the rights, powers and remedies conferred upon it under that Contract.
16.2 Entire Agreement:
16.2.1 This Contract sets out the entire agreement between the Parties relating to its subject matter and, save to the extent expressly set out in that Contract, supersede and extinguish any prior drafts, agreements, undertakings, representations, warranties, promises, assurances and arrangements of any nature whatsoever, whether or not in writing, relating thereto.
16.2.2 Neither Party has entered into this Contract in reliance upon, nor shall either Party have any claim or remedy in respect of, any statement, representation, warranty, undertaking, assurance, promise, understanding or other provision made by or on behalf of the other Party, any of its representatives or any other person which is not expressly set out in this Contract.
16.2.3 This clause 16.2 (Entire Agreement) shall not exclude any liability for or remedy in respect of fraudulent misrepresentation.
16.3 Waiver and Variation:
16.3.1 A failure or delay by a Party to exercise any right or remedy provided under this Contract or by Applicable Laws, whether by conduct or otherwise, shall not constitute a waiver of that or any other right or remedy, nor shall it preclude 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 this Contract or by Applicable Laws, whether by conduct or otherwise, shall preclude or restrict the further exercise of that or any other right or remedy.
16.3.2 A waiver of any right or remedy under this Contract shall only be effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A Party that waives a right or remedy provided under this Contract or by Applicable Laws in relation to another Party does not affect its rights in relation to any other Party.
16.3.3 No variation or amendment of this Contract shall be valid unless it is in writing and duly executed by or on behalf of all of the Parties. Unless expressly agreed, no variation or amendment shall constitute a general waiver of any provision of this Contract, nor shall it affect any rights or obligations under or pursuant to this Contract which have already accrued up to the date of variation or amendment and the rights and obligations under or pursuant to this Contract shall remain in full force and effect except and only to the extent that they are varied or amended.
16.4 Invalidity: Where any provision of this Contract is or becomes illegal, invalid or unenforceable in any respect under the Applicable Law of any jurisdiction then such provision shall be deemed to be severed from this Contract and, if possible, replaced with a lawful provision which, as closely as possible, gives effect to the intention of the Parties and, where permissible, that shall not affect or impair the legality, validity or enforceability in that, or any other, jurisdiction of any other provision of this Contract.
16.5 Assignment and Subcontracting:
16.5.1 Subject to clause 16.5.2, neither party shall assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Contract without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.
16.5.2 m-hance may, after having given prior written notice to the Customer:
(a) assign its rights under this Contract to any person to which it transfers that part of its business to which that Contract relates, provided that the assignee undertakes in writing to the Customer to be bound by m-hance’s obligations under that Contract; or
(b) subcontract its contractual obligations, provided that it remains primarily liable to the Customer for any act or omission of a sub-contractor in respect of the sub-contracted services; or
(c) assign or novate this Contract to a purchaser of the whole or substantially the whole of the business of m-hance.
16.6 No Partnership or Agency: Nothing in this Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties, constitute any Party the agent of another Party, or authorise any Party to make or enter into any commitments for or on behalf of any other Party.
16.7 Costs: Except as otherwise provided in this Contract, each Party shall bear its own costs arising out of or in connection with the preparation, negotiation and implementation of that Contract.
16.8 Counterparts: This Agreement may be executed in any number of counterparts. Each counterpart shall constitute an original of this Contract, but all the counterparts together shall constitute but one and the same instrument.
16.9 Third Party Rights: A person who is not a Party to this Contract may not enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999.
16.10 Cumulative Remedies: Except as expressly provided in this Contract, the rights and remedies provided under this Contract are in addition to, and not exclusive of, any of its rights or remedies provided by Applicable Laws.
16.11.1 Any notices to be given under this Contract shall either be delivered personally or sent by pre-paid post or email as follows:
(a) to the Customer: to the e-mail address and/or postal address stated in the Quote; and
(b) m-hance: sent by email to email@example.com (save for any notice relating to service of proceedings, which must be served to: Sovereign House, Stockport Road, Cheadle, SK8 2EA, FAO Chief Executive Officer).
16.11.2 A notice shall be deemed to have been served if delivered by hand to the other Party to the address specified above on signature of a delivery receipt or if delivered by pre-paid post to the other Party at the address specified above, on the second Business Day after posting or if by e-mail if sent by email, at the time sent unless returned undelivered.
17.1 Any dispute relating to this Contract shall be referred for resolution by either Party first to the Representatives for resolution. If the Representatives are unable to resolve the dispute within 10 Business Days after referral of the dispute to the Representatives, the dispute shall then be referred to the CEO (or equivalent position) of each Party for resolution.
17.2 If the dispute cannot be resolved by the Representatives in accordance with clause 17.1 (Initial DR Period), the Parties agree that the applicable dispute shall be dealt with in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure. Unless otherwise agreed between the Parties within 10 Business Days of expiry of the Initial DR Period, the mediator will be nominated by CEDR. To initiate the mediation a Party must give notice in writing (ADR Notice) to the other Party to the dispute, referring the dispute to mediation. A copy of the referral should be sent to CEDR.
17.3 If there is any point on the logistical arrangements of the mediation, other than nomination of the mediator, upon which the Parties cannot agree within 10 Business Days from the date of the ADR Notice, where appropriate, in conjunction with the mediator, CEDR will be requested to decide that point for the Parties having consulted with them.
17.4 Unless otherwise agreed, the mediation will start not later than 20 Business Days after the date of the ADR Notice. No Party may commence any court proceedings or arbitration proceedings in relation to any dispute arising out of this Contract until it has attempted to settle the dispute by mediation and either the mediation has terminated or the other Party has failed to participate in the mediation, provided that the right to issue proceedings is not prejudiced by a delay.
17.5 This clause 17 is without prejudice to either Party’s right to seek interim relief against the other Party (such as an injunction) through the English courts to protect its rights and interests, or to enforce the obligations of the other Party.
18. GOVERNING LAW
18.1 This Contract, together with any non-contractual obligations arising under it, shall be governed by, construed and interpreted in accordance with English law and the Parties hereby agree, for the purposes of that Contract only and subject to the provisions of clause 17, to submit themselves and any claim or matter arising under or in connection with that Contract, together with any non-contractual obligations arising under it, shall to the exclusive jurisdiction of the English courts.
Annex – Support Services
1.1 1.1 m-hance shall provide the Support Services in relation to the Licensed Software and the Third Party Software as follows:
1.1.1 m-hance shall categorise each reported error within 4 (four) Working Hours of an error being reported by the Customer by (i) using the telephone help-line (during business hours); (ii) email or (iii) by using m-hance’s portal, all as further described in m-hance’s then current support guidelines document (as may be amended from time to time).
1.1.2 Prioritisation shall be in accordance with the following table:
1.1.3 m-hance shall provide identification and resolution, obviation and/or mitigation (including provision of a temporary workaround) of bugs or errors reported by the Customer in the then current version of the applicable software in accordance with the following estimated target timescales PROVIDED ALWAYS that the applicable software is unaltered and subject to any limitations imposed by contractual restrictions of any Third Party:
1.1.4 At its sole discretion, m-hance shall make available such Updates for the applicable software as m-hance sees fit and, for the avoidance of doubt, nothing in this Service Contract shall oblige m-hance to make any specific Update to the applicable software; and
1.1.5 m-hance shall provide telephone advice and assistance on the Use of the Licensed Software and the Third Party Software between the hours of 09.00 and 17.30 hours, Mondays to Fridays (bank holidays excluded) (Working Hours). Working Hours may be extended, subject to the Customer paying additional Charges.
1.2 For any errors relating to Third Party Software, m-hance shall liaise with the applicable Third Party and make available to the Customer any remedies/work-arounds or updates provided by that Third Party in relation to that error.
1.3 m-hance shall have no obligation to provide the Support Services where errors arise from:
1.3.1 damage to the applicable software for any reason, including for the avoidance of doubt the failure or fluctuation of electrical power;
1.3.2 use of the Licensed Software or Third Party Software in combination with any equipment or software not provided by m-hance or not designated by m-hance in writing for use with any part of the Licensed Software or Third Party Software or any fault in any such equipment or software;
1.3.3 any breach of the Customer’s obligations under this Service Contract howsoever arising; and/or
1.3.4 User error.