1. Interpretation
“Business Day” means a day other than a Saturday, Sunday or public holiday in England
“Deliverables” means all documents, products and materials developed by the Supplier or its agents, subcontractors, consultants and employees in relation to the Services in any form
“Goods” shall mean those Goods identified in an Order Form or a specification accompanying the Order Form
“Group” means in relation to a company, that company, any subsidiary or holding company of that company, and any subsidiary of a holding company of that company
“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), 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
“Order Form” means the document identified as an order form or purchase order document provided by us, or where we decide to accept the Supplier’s order form, it shall mean the order form to which we allocate a purchase order number
“Pre-existing Materials” means all documents, information and materials provided by the Supplier relating to the Services which existed prior to the commencement of these Terms
“Services” shall mean those Services identified in an Order Form or a specification accompanying the Order Form
“Supplier” shall mean the person identified in the Order Form as the provider of Goods of Services to us.
“Terms” means the terms and conditions set out in this document.
1.1 In these Terms, unless the context otherwise requires:
1.1.1 words in the singular include the plural and vice versa and words in one gender include any other gender;
1.1.2 reference to a “person” includes any individual (and their personal representatives), firm, body corporate, association, partnership, government or state (whether or not having a separate legal personality);
1.1.3 reference to clauses and schedules are to clauses and schedules of these Terms;
1.1.4 reference to any provision of these Terms is to that provision as amended;
1.1.5 reference a “holding company” or a “subsidiary” means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006;
1.1.6 references to statutes and statutory provisions shall be construed as amended or replaced and as including any subordinate legislation made under them in any such case from time to time; and
1.1.7 any words following the terms “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.2 Except where expressly stated otherwise, no provision of these Terms shall govern or limit the extent or application of any other provision.
1.3 If a term of this terms
2. Commencement and duration
2.1 Where the Order Form identifies that there shall be a minimum duration for the Services, the Services shall commence on the date specified in the Order Form (“Commencement Date”) and shall continue for the period of time identified in the Order Form following which they will automatically terminate.
3. Provision of Goods & Services
3.1 The Supplier shall:
3.1.1 provide the Goods and/or Services in accordance with the terms of these Terms;
3.1.2 meet all performance dates specified in these Terms or in correspondence between the parties and time shall be of the essence in this respect;
3.1.3 observe, and ensure that the Supplier's team observe all health and safety rules and regulations and any other security requirements that apply at any of MIB's premises; and
3.1.4 comply with all applicable laws, statutes, regulations and codes, including those relating to anti-bribery and anti-corruption.
4. Quality
4.1 The Supplier warrants to MIB that:
4.1.1 the Supplier will perform the Services with the highest level of care, diligence and skill and in accordance with generally recognised commercial practices and standards in the industry for similar services;
4.1.2 the Services will conform with all descriptions and specifications provided to MIB by the Supplier, including the specifications (if any); and
4.1.3 the Services and Deliverables will be provided in accordance with all applicable legislation from time to time in force, and the Supplier will inform MIB as soon as it becomes aware of any changes in that legislation.
4.2 The Supplier warrants to MIB that:
4.2.1 the Goods shall conform at all times with their description and specification (if any) in all respects;
4.2.2 the Goods are, when delivered, and (unless a different time frame is provided in the Order Form) will be for a period of 12 months of a satisfactory quality and shall be and remain fit for the purpose for which they were supplied, including for any purposes held out to the Supplier by MIB.
4.3 MIB's rights under these Terms are in addition to the statutory terms implied in favour of MIB by the Supply of Goods and Services Act 1982 and any other statute.
4.4 The provisions of this clause 4 shall survive any performance, acceptance or payment pursuant to these Terms and shall extend to any substituted or remedial services provided by the Supplier.
5. Charges and Payment
5.1 The charges payable for the Goods and/or Services are set out in the Order Form.
5.2 MIB shall pay each undisputed invoice which is due and submitted to it by the Supplier, within 30 days after receipt, to a bank account nominated in writing by the Supplier.
6. Intellectual Property Rights
6.1 As between MIB and the Supplier, all Intellectual Property Rights and all other rights in the Goods, Deliverables shall be owned by MIB.
7. Data Protection
7.1 As between MIB and the Supplier, both parties acknowledge that they are independent controllers within the meaning set out in Article 4 of the General Data Protection Regulation 2016/679 (“GDPR”).
7.2 Each party shall observe and perform all duties and obligations set out in the GDPR as they apply to that party.
8. Indemnity
8.1 The Supplier shall indemnify and hold MIB harmless from all claims and all direct, indirect or consequential liabilities (including loss of profits, loss of business, depletion of goodwill and similar losses), costs, proceedings, damages and expenses (including legal and other professional fees and expenses) awarded against, or incurred or paid by, MIB as a result of or in connection with:
8.1.1 any alleged or actual infringement, whether or not under English law, of any third party's Intellectual Property Rights or other rights arising out of the use or supply of the Goods or the Services (including the Deliverables); or
8.1.2 any claim made against MIB in respect of any liability, loss, damage, injury, cost or expense sustained by MIB's employees or agents or by any customer or third party to the extent that such liability, loss, damage, injury, cost or expense was caused by, relates to or arises from the provision of the Goods, Services or the Deliverables as a consequence of a breach or negligent performance or failure or delay in performance of these Terms by the Supplier.
8.2 The provisions of this clause 8 shall survive termination of these Terms, however arising.
9. Confidentiality
9.1 Each party undertakes that it shall not at any time during these Terms and for a period of 3 years after termination disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of its group, including but not limited to information relating to a party's operations, processes, plans, product information, know-how, designs, trade secrets, software, market opportunities and customers (“Confidential Information”), except as permitted by clause 9.2.
9.2 Each party may disclose the other party’s Confidential Information:
9.2.1 to its employees, officers, agents, consultants or subcontractors (“Representatives”) who need to know such information for the purposes of carrying out the party’s obligations under these Terms, provided that the disclosing party takes all reasonable steps to ensure that its Representatives comply with the confidentiality obligations contained in this clause 9 as though they were a party to these Terms. The disclosing party shall be responsible for its Representatives’ compliance with the confidentiality obligations set out in this clause; or
9.2.2 if the Confidential Information enters the public domain without a breach of this clause by the other party; or
9.2.3 if the Confidential Information is independently developed by it without reference to the Confidential Information of the other party; or
9.2.4 as required by law, a court of competent jurisdiction, any governmental, regulatory authority or the rules of any generally recognised stock exchange.
9.3 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party’s Confidential Information other than those expressly stated in these Terms are granted to the other party or to be implied from these Terms. In particular, no licence or assignment is hereby granted directly or indirectly under any patent, invention, discovery, copyright or other intellectual property right held, made, obtained or licensable by either party now or in the future except for the licence under clause 6.1.
10. Limitation of Liability
10.1 Nothing in these Terms limits or excludes either party’s liability for:
10.1.1 death or personal injury caused by its negligence; or
10.1.2 fraud or fraudulent misrepresentation.
10.2 Subject to clause 8 and clause 10.1, neither party shall be liable to the other, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with these Terms for:
10.2.1 loss of profits;
10.2.2 loss of sales or business;
10.2.3 loss of agreements or contracts;
10.2.4 loss of anticipated savings;
10.2.5 loss of or damage to goodwill; or
10.2.6 any indirect or consequential loss.
10.3 Subject to clauses 8, 10.1 and clause 10.2, a party’s total liability to the other, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with these Terms shall be limited to:
10.3.1 £100,000 per claim; and
10.3.2 in respect of all claims (connected or unconnected) in any consecutive 12 (twelve) month period, the equivalent of 200% of the total charges paid by MIB in that period.
11. Termination
11.1 Either party may terminate these Terms for any reason by giving three months’ prior written notice to the other, such notice not to expire prior to the end of the minimum term if a minimum term is set out in the Order Form.
11.2 Without affecting any other right or remedy available to it, either party may terminate these Terms with immediate effect by giving written notice to the other party if:
11.2.1 the other party commits a material breach of its obligations under these Terms and (if such breach is remediable) fails to remedy that breach within a period of 30 days after receipt of notice in writing requiring it to do so; or
11.2.2 an order is made or a resolution is passed for the dissolution or winding-up of the other party; or
11.2.3 an order is made for the appointment of an administrator to manage the affairs, business and property of the other party or such an administrator is appointed or documents are filed with the court for the appointment of an administrator or notice of intention to appoint an administrator is given by the other party or its trustees, officers, directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule 1B to the Insolvency Act 1986); or
11.2.4 a receiver and/or manager or administrative receiver is appointed in respect of all or any of the other party’s assets or undertaking or circumstances arise which entitle the Court or a creditor to appoint a receiver and/or manager or administrative receiver or which entitle the Court to make a winding-up or bankruptcy order; or
11.2.5 the other party takes or suffers any similar or analogous action as set out in clauses 11.2.1to 11.2.4 in consequence of debt.
11.3 Termination of these Terms shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of these Terms which existed at or before the date of termination.
12. Assignment and Other Dealings
12.1 The Supplier shall not at any time assign, transfer, mortgage, charge or deal in any other manner with any or all of its rights and obligations under these Terms without the prior written consent of the Supplier, such consent not to be unreasonably withheld. MIB may assign, transfer or sub-contract the benefit and burden of these Terms.
13. Notices
13.1 Any notice or other communication under these Terms shall be in writing and shall be delivered personally, or sent by prepaid first-class post or recorded delivery to the address stated in these Terms, and shall be deemed to have been received on the Business Day after posting or sending.
14. General
14.1 Save in relation to where there is an existing written contract in place between the parties in relation to the provision of the Goods or Services (“Contract”), the terms and conditions of these Terms shall be the entire agreement between the parties with regard to their subject matter and no other terms, conditions, warranties or statements (unless fraudulent) will apply. Each party acknowledges that in entering into these Terms it does not do so on the basis of, and does not rely on any representation, unless made fraudulently, warranty or other provision not expressly contained in these Terms.
14.2 In the event of any inconsistency between the terms of the Order Form, any Contract and these Terms, the inconsistency shall be resolved by giving precedence in the following order: (1) the Order Form, (2) the Contract, and (3) these Terms.
14.3 Any variation to these Terms must be in writing and signed on behalf of both parties.
14.4 If a court decides that any part of these Terms cannot be enforced, that particular part of these Terms will not apply, but the rest of these Terms will.
14.5 A waiver by a party of a breach of any provision shall not be deemed a continuing waiver or a waiver of any subsequent breach of the same or any other provisions. Failure or delay in exercising any right under these Terms shall not prevent the exercise of that or any other right.
14.6 No person other than a party to these Terms shall have any rights to enforce any terms of these Terms.
14.7 Nothing in these Terms shall create (or be deemed to create) a partnership or agency between the parties.
15. Governing Law and Jurisdiction
15.1 These Terms and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales and the parties submit to the non-exclusive jurisdiction of the courts of England and Wales to settle any such dispute or claim.