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 a Contract and that apply to the performance of that Party’s obligations pursuant to a Contract.
Business Day: 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 7.1.
Change Request: is defined in clause 7.1.
Charges: 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 5.5 of these MH Terms.
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.
Customer: the entity identified as such in the Quote.
Customer Representative: the individual identified as such in the Quote.
Customer Materials: all materials, equipment and tools, drawings, specifications and data supplied by a Customer to m-hance in relation to a Contract.
Data Protection Legislation: means any laws and regulations in the UK relating to privacy or the use or processing of data relating to natural persons, including: (a) the 2018 Data Protection Act (the DPA) and the Privacy and Electronic Communications (EC Directive) Regulations 2003; and (b) EU Regulation 2016/679 (GDPR); and (c) any laws or regulations ratifying, implementing, adopting, supplementing or replacing GDPR or DPA and in each case as amended or replaced from time to time.
Dispute Resolution Procedure: means the procedure for the resolution of Disputes specified in Clause 16.
Deliverables: means the specific documents developed by m-hance, including without limitation computer programs, and specifications and either identified as deliverables in the applicable Quote (if any) or agreed in writing between the Parties from time to time.
Excusing Event: means the occurrence of any one or more of the following (whether at the same time or not):
(a) a Third-Party preventing m-hance from providing the Services;
(b) a breach by the Customer of its obligations pursuant to a Contract, including without limitation those set out in clause 5; or
(c) m-hance acting in accordance with the Customer’s written instructions (other than an instruction which automatically flows from the Project Plan and/or Development Schedule).
Good Industry Practice: means, at any time during the term of a 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 a Party, 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.
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 the other shall be 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 an amalgamation or reconstruction).
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks 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.
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: the individual identified as such in the Quote.
m-hance Materials: all materials, equipment and tools, drawings, specifications and data supplied by m-hance to the Customer in relation to the Services.
MH Terms: these m-hance Terms and Conditions.
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.
Term: is determined in accordance with the terms of clause 3.
Party: 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.
Project Plan: 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 a Contract in accordance with the terms of that Contract.
Services: the services set out in the applicable Quote, including any Deliverables to be provided as part of such services.
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 both Parties.
2.2 The terms and conditions of a 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 A 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 a 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 a 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 Contract if the Customer fails to pay an undisputed amount within 14 days following receipt of a written notice from m-hance stating that the amount is due and is unpaid.
3.4 Termination of a 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 a Contract and shall continue with full force and effect: 1, 3.4, 3.5, 9, 10, 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 m-hance and the Customer Representatives, which are identified in the applicable Quote.
5. M-HANCE OBLIGATIONS AND SERVICES
5.1 m-hance shall:
5.1.1 provide the Services 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 subject to the terms of clause 6, 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.
6. CUSTOMER OBLIGATIONS
6.1 Without prejudice to any additional Customer obligations in an Quote, the Customer shall:
6.1.1 pay all sums due to m-hance under the Contract on the 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 reasonable information as m-hance may 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 Customer becomes aware of a breach of this policy;
6.1.6 ensure that its network and systems comply with any required and agreed specifications, 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 third Party’s data centres;
(b) the selection of the Licensed Software and the Third-Party Software and acknowledges 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;
(c) 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.
7. DELAYS AND EXCUSED EVENTS
7.1 To the extent that m-hance’s performance of its obligations are prevented or delayed by an Excusing Event, m-hance shall give notice to the Customer as soon as practicable and to the extent such failure arises as a result of such Excusing Event, the terms of clauses 6.2, 6.3 and 6.4 shall apply.
7.2 Such failure or delay by m-hance to perform the relevant obligation shall not constitute a breach of the relevant term(s) of that Contract by m-hance.
7.3 Such failure or delay 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 agreed deadlines:
7.4.1 m-hance shall be entitled to a reasonable extension in time taking into account the impact of the Excusing Event;
7.4.2 the Project Plan and all associated dates under this agreement shall be updated accordingly; and
7.4.3 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
7.4.4 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 arising out of such Excusing Event.
7.5 Without prejudice to the preceding terms of this clause 6, 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 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 restored full and uninterrupted 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 occurred and ending on the date full and uninterrupted Services are resumed.
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 regulatory change. 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 7.2, 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 7.2 or clause 7.3, m-hance has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to the Charges, the Project Plan and any other relevant terms of the applicable Contract to take account of the change.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 Unless expressly agreed in writing between the Parties:
9.1.1 no Intellectual Property Rights shall transfer from 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 In consideration for the provision of the Services, 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) for the Software licence and Support Fees payable 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 expenses reasonably 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 9.4.1 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 a 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. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
10.8 In relation to payments disputed in in accordance with clause 9.4, interest under clause 9.7 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 a 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).
11. REGULATORY COMPLIANCE
11.1 Each Party shall comply with Applicable Law in the exercise of its rights and the compliance with its obligations pursuant to a Contract.
12. LIMITATION OF LIABILITY
12.1 Nothing in a 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; or
12.1.2 any wilful default or fraudulent act or omission;
12.1.3 pursuant to any indemnity in relation to Intellectual Property Rights in the applicable Contract;
12.1.4 any liability expressed to be unlimited in the applicable Contract.
12.2 Subject to clauses 11.1,11.3 and 11.4, the total aggregate liability of each Party to the other Party for all claims under a Contact shall be limited to 100% of the Charges paid by the Customer under that Contract.
12.3 In addition to the aggregate liability caps set out in clause 11.1, the aggregate liability of:
12.3.1 m-hance to the Customer arising under clause 12.8 shall be 100% of the Charges paid by the Customer under the applicable Contract; and
12.3.2 the Customer to m-hance arising under clause 12.7 shall be 100% of the Charges paid by the Customer under the applicable Contract.
12.4 Subject to clause 11.1, 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 Nothing in this clause 11 shall in any way reduce or affect each Party’s general duty to mitigate loss suffered by it.
12.6 The Parties agree that they have negotiated this clause 11 and that it represents a fair and equitable position.
13. DATA PROTECTION
13.1 Each Party shall comply with the provisions imposed on them by the Data Protection Laws.
13.2 Each Party shall maintain records of all processing operations relating to a Contract under its responsibility that contain at least the minimum information required by the Data Protection Laws and shall make such information available to the applicable Regulator on request.
13.3 To the extent that m-hance processes any Personal Data on behalf of the Customer pursuant to a Contract, m-hance shall:
13.3.1 subject to any agreement between the Parties to the contrary, process such Personal Data only for the following purposes:
(a) processing for the purpose of contract administration (invoicing and renewals);
(b) processing for the purpose, and to the extent required, for the purpose of fulfilling m-hance’s obligations pursuant to a Contract; and
(c) processing which m-hance is required to do pursuant to any Applicable Law;
13.3.2 take reasonable steps to ensure that any personnel who have access to such Personal Data are subject to binding obligations of confidentiality when processing such Personal Data;
13.3.3 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;
13.3.4 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) without undue delay after becoming aware;
13.3.5 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 DP Regulator, or as expressly provided for in that Contract;
13.3.6 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) 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 applicable law or the Customer’s administrative and regulatory requirements requires continued storage of any such Personal Data by m-hance);
13.3.7 provide to the Customer and any DP Regulator (at the Customer’s cost and at m-hance’s then time and material rates) all information and assistance necessary to demonstrate or ensure compliance with the obligations in this clause 12.4;
13.3.8 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 12.4);
13.3.9 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) in ensuring compliance with the Customer’s obligations under Articles 30 to 36 (inclusive) of the GDPR as they relate to m-hance’s obligations under that Contract;
13.3.10 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; and
13.3.11 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.
13.4 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.
13.5 Where the Customer transfers Personal Data to m-hance, whether as part of the Service or otherwise, the Customer warrants to m-hance that:
13.5.1 it has the right to transfer such Personal Data to m-hance; and
13.5.2 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; and
13.5.3 that it shall not transfer any Personal Data to m-hance unless the Customer is a Data Controller or a joint Data Controller in respect of the applicable Personal Data.
13.6 The Customer hereby indemnifies m-hance for any Data Protection Loss incurred as a result of:
13.6.1 a claim by a data subject whose Personal Data has been provided by or on behalf of the Customer to m-hance pursuant to a Contract , that there is no lawful basis of processing that Personal Data in accordance with the terms of that Contract; and/or
13.6.2 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
13.6.3 a breach by the Customer of its warranty in clause 12.6.
13.7 m-hance hereby indemnifies the Customer for any Data Protection Losses incurred solely as a result of a breach by m-hance of its obligations pursuant to:
13.7.1 clause 12.4.1;
13.7.2 clause 12.4.2; and
13.7.3 clause 12.4.3.
13.8 m-hance may subcontract its processing of Personal Data on behalf of the Customer. 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 Schedule 2.
13.9 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 a Contract, the Customer approves the use of the Current Sub-Contractors. The rights afforded to the Customer in clauses 12.11, 12.12 and 12.13 shall not apply in relation to Current Sub-Contractors.
13.10 Following the date of a 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).
13.11 If the Customer wishes to object to m-hance’s use of such sub-contractor in accordance with clause 12.11:
13.11.1 Customer must notify m-hance in writing within 10 Business Days of the notification from m-hance pursuant to clause 12.11; and
13.11.2 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.
13.12 If the Customer objects to any new sub-contractor in accordance with clause 12.12, 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:
13.12.1 m-hance shall not be required to implement an alternative solution or arrangement which unreasonably burdens m-hance; and
13.12.2 m-hance shall be entitled to make a reasonable additional charge to cover the costs of implementing and operating the alternative solution or arrangement.
13.13 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 the losses arising out of m-hance’s obligations under a Contract.
14.2 m-hance shall, upon the Customer’s written request, provide adequate proof of its insurance cover required under this clause 13 at any time.
15. CONFIDENTIAL INFORMATION
15.1 Each Party agrees that it shall keep any information designated as confidential or which is otherwise clearly confidential in nature (“confidential information”) received by it from the other before or during the term of a Contract and which relates to the business, assets, affairs, financial results, plans, customers and suppliers of the other Party or a member of its Group or of any third Party strictly confidential and that it shall not use (save as is necessary in order to perform its obligations and/or exercise its rights under a Contract) any such confidential information for its own benefit or disclose any such confidential information to any third Party and that it shall ensure that no third Party shall have access to it. Notwithstanding the foregoing, 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 a Contract.
15.2 The restrictions in clause 14.1 shall not apply to any confidential information which:
15.2.1 the recipient can prove is already known to it at the time of disclosure of the confidential information to it;
15.2.2 is public knowledge at the time of disclosure of the confidential information to the recipient or which subsequently becomes public knowledge through no fault of the recipient;
15.2.3 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 imposed by the disclosing Party hereunder; or
15.2.4 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.
15.3 Each Party shall, if so requested by the other Party following termination of a 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 the recipient of such request shall be entitled to retain one copy of all or any part of such confidential information which may be required to meet any statutory requirements or regulatory. All such incorporated or retained confidential information shall remain subject to the obligations set out in the preceding provisions of this clause 14.
15.4 The obligations in the preceding provisions of this clause 14 shall survive the termination of a 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 procure that each of its Affiliates 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 a 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 A 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 a 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 a 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 a Contract or by Law, 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 a Contract or by Law, 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 a 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 a Contract or by Law in relation to another Party does not affect its rights in relation to any other Party.
16.3.3 No variation or amendment of a 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 a Contract, nor shall it affect any rights or obligations under or pursuant to a Contract which have already accrued up to the date of variation or amendment and the rights and obligations under or pursuant to a 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 a 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 a 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 a Contract.
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 a 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 a 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) assign or novate a 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 a 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 a 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 a 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 SLSA may not enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999.
17.1 Any dispute shall be referred for resolution by either Party first to the Parties’ Representatives for resolution.
17.2 If the dispute cannot be resolved by the Representatives within 10 Business Days after referral of the dispute 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 a 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 A Contract 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 to the exclusive jurisdiction of the English courts.