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The Customer's attention is particularly drawn to the provisions of clause 8.
a. In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or a public holiday) when banks in London are open for business.
Commencement Date: has the meaning set out in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 11.8.
Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.
Customer: The person or company that purchases services from the Supplier.
Deliverables: the deliverables set out in Schedule 1.
DPA: the Data Protection Act 2018.
Force Majeure Event: clause 11.1(a).
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Term: this Contract; as agreed between the Customer and the Supplier. This could be a one off instruction or for a defined period.
The Parties: The Customer and the Supplier.
Services: the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Service Specification.
Service Specification: the description or specification for the Services provided in writing by the Supplier to the Customer.
Supplier: G4S Investigation Solutions (UK) Ltd trading as The Cotswold Group and registered in England and Wales with company number 03749819 whose registered office is 46 Gillingham Street, London, SW1V 1HU.
UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
b. In these Conditions, the following rules apply:
(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b) a reference to a Party includes its successors or permitted assigns;
(c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(d) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
(e) a reference to writing or written includes faxes and e-mails.
2. BASIS OF CONTRACT
2.1 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
2.2 With the exception of the Service Specification, any illustrations or descriptions of the Services contained in the Supplier's proposals, catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.3 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.4 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 60 days from its date of issue.
3. SUPPLY OF SERVICES
3.1 The Supplier shall provide the Services to the Customer in accordance with the Service Specification in all material respects.
3.2 The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in the Service Specification., but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services
3.3 The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
3.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
4. CUSTOMER'S OBLIGATIONS
4.1 The Customer shall:
(a) ensure that the information set out in Schedule 1 is complete and accurate;
(b) co-operate with the Supplier in all matters relating to the Services;
(c) provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Services;
(d) provide the Supplier with such data, information and materials as the Supplier may reasonably require to supply the Services, and ensure that such information is accurate in all material respects; and
(e) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start.
4.2 If the Supplier's performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 4.2; and
(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
5. CHARGES AND PAYMENT
5.1 The price for the Services shall be the price and rates set out in Schedule 1 or, if no price or rates are quoted, the price and rates set out in the Supplier's published price list as at the date of delivery of the Services.
5.2 The Supplier reserves the right to increase the price of the Services by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Services that is due to:
(i) any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(ii) any request by the Customer to change the type of Services ordered, or the Services Specification; or
(iii) any delay caused by any instructions of the Customer in respect of the Services or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Services.
5.3 The Customer shall pay each correct invoice submitted by the Supplier:
(a) within 30 days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by the Supplier, and
time for payment shall be of the essence of the Contract.
5.1 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax, goods and/or services tax or any other applicable indirect, sales or use tax chargeable from time to time (VAT) as stated by law in any relevant jurisdiction. For the avoidance of doubt, a “relevant jurisdiction” is not limited to jurisdictions where the Customer and/or Supplier are incorporated or have their tax residence, and may include, for example, a jurisdiction in which Services are provided. Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services. In the event that, due to a change of interpretation of law governing VAT by a relevant taxation authority, or a change of facts iimpacting the applicability of VAT in relation to Services, it becomes apparent that VAT has been incorrectly invoiced, Supplier shall be entitled to issue further invoices and/or credit notes in order to rectify the position.
5.2 Without limiting any other right or remedy of the Supplier, if the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (Due Date), the Supplier shall have the right to charge interest on the overdue amount at the rate of one per cent per annum above the then current Nat West Bank's base rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
5.3 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 Each Party shall retain all of its Intellectual Property Rights which exist at the Commencement Date or which arise or are developed after such date but independently of activities carried out pursuant to this Contract.
6.2 All Intellectual Property Rights arising out of or in connection with the Supplier’s provision of the Services shall be owned by the Supplier.
6.3 The Customer acknowledges that, in respect of any third party Intellectual Property Rights in the Services, the Customer's use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.
Either Party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other Party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party's business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party's obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 7 shall survive termination of the Contract.
8. LIMITATION OF LIABILITY: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
8.1 Nothing in these Conditions shall limit or exclude the Supplier's liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; or
(b) fraud or fraudulent misrepresentation.
8.2 Subject to clause 8.1:
(a) the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(b) the Supplier's total liability to the Customer in respect of any one incident of loss, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the aggregate value of the Services supplied by the Supplier pursuant to this Contract.
8.3 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
8.4 This clause 8 shall survive termination of the Contract.
9.1 Without limiting its other rights or remedies, each Party may terminate the Contract with immediate effect by giving written notice to the other Party if:
(a) the other Party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 30 days after receipt of notice in writing of the breach;
(b) the other Party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(c) the other Party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other Party with one or more other companies or the solvent reconstruction of that other Party;
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other Party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other Party with one or more other companies or the solvent reconstruction of that other Party;
(e) a creditor or encumbrancer of the other Party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(f) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other Party (being a company);
(g) a floating charge holder over the assets of the other Party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over the assets of the other Party or a receiver is appointed over the assets of the other Party;
(i) any event occurs, or proceeding is taken, with respect to the other Party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 9.1(b) to clause 9.1(h) (inclusive); or
(j) the other Party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business.
9.2 Without limiting its other rights or remedies, the Supplier may terminate the Contract:
(a) by giving the Customer one months' written notice;
(b) with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract within 7 days from receiving a reminder notice of the amount due.
9.3 Without limiting its other rights or remedies, the Supplier shall have the right to suspend the supply of Services under the Contract:
(a) the Customer fails to make pay any amount due under this Contract within 7 days from receiving a reminder notice of the amount due; or
(b) the Customer becomes subject to any of the events listed in clause 9.1(b) to clause 9.1(h), or the Supplier reasonably believes that the Customer is about to become subject to any of them.
10. CONSEQUENCES OF TERMINATION
On termination of the Contract for any reason:
(a) the Customer shall immediately pay to the Supplier all of the Supplier's correct outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the Customer shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
(c) the Supplier shall promptly return to the Customer all Customer material, other Customer confidential information, Protected Data or other records relating to the Customer or the provision of the Services.
(d) the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
(e) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
11.1 Force majeure:
(a) For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the either Party including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of that Party or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
(b) Each Party shall not be liable to the Other Party as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
(c) If the Force Majeure Event prevents the Supplier from providing any of the Services for more than 60 days, the Customer shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
11.2 Assignment and subcontracting:
(a) The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party and, subject to its obligations under clauses 7 and 12, may provide any such assignee or subcontractor any data furnished by the Customer to the extent required to enable such assignee or subcontractor to comply with its obligations.
(b) The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(a) Any notice or other communication required to be given to a Party under or in connection with this Contract shall be in writing and shall be delivered to the other Party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other Party's main fax number.
(b) Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at such addressor, if sent by prepaid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed, or if sent by fax, on the next Business Day after transmission.
(c) This clause 11.3 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, "writing" shall not include e-mails and for the avoidance of doubt notice given under this Contract shall not be validly served if sent by e-mail.
11.4 Waiver and cumulative remedies:
(a) A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a Party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
(b) Unless specifically provided otherwise, rights arising under the Contract are cumulative and to not exclude rights provided by law.
(a) If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
11.6 No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the Parties, nor constitute any Party the agent of another Party for any purpose. No Party shall have authority to act as agent for, or to bind, the other Party in any way.
11.7 Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
11.8 Variation: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by both Parties.
11.9 Governing law and jurisdiction: This Contract, 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, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
12. GDPR & DATA PROTECTION
12.1 In this clause 12;
(a) the definition of Controller has the meaning given to the term in the DPA;
(b) Data Protection Legislation means, as applicable, the DPA, UK GDPR, any laws which implement the DPA or UK GDPR and all applicable laws which replace the foregoing, together with all other laws relating to processing of personal data and privacy that may exist in any relevant jurisdiction;
(c) Protected Data means data that is Personal Data and Special Category Data that is received from or on behalf of the Customer as part of the performance of the Supplier’s obligations under this Contract;
(d) the definitions of Personal Data, Data Subject, Personal Data Breach, Special Category Data and processing (and related expressions, including process, processed, and processes shall be construed accordingly) each has the meaning given to that term in the applicable Data Protection Legislation;
12.2 The Supplier and the Customer agree that where the Supplier is providing the Service which includes processing Protected Data, each Party is a separate Controller in respect of the Protected Data it holds and the provisions of this clause 12 shall apply.
12.3 The Supplier agrees that data will not be transferred outside of the United Kingdom other than to return the data to the Customer upon completion of the Services.
12.4 The Supplier shall indemnify the Customer from and against any and all direct loss (including reasonable costs) incurred by the Customer to the extent such loss is as a direct result of the Supplier’s and/or its employees or representatives or Affiliates unauthorised and/or unlawful processing, or accidental loss, disclosure, destruction or damage to any Personal Data obtained from (or held by the Supplier or its personnel on behalf of the Customer) save where such loss, disclosure, destruction or damage was carried out or incurred at the Customer’s request.
12.5 Without prejudice to the generality of clause 12.10 below, the Supplier agrees to be bound by the Principles of applicable EU Data Protection legislation as represented by UK GDPR.
12.6 Principles referred to within clause 12.6 are defined as
c. Article 5 - Principles relating to processing of personal data
d. Article 6 - Lawfulness of processing
e. Article 7 - Conditions for consent
f. Article 8 - Conditions applicable to child’s consent in relation to information society services
g. Article 9 - Processing of special categories of personal data
h. Article 10 - Processing of personal data relating to criminal convictions and offences
12.7 The Parties agree that should data protection legislation be amended in either the EU or United Kingdom during the term of this Contract that such amendments will be reviewed collectively and any amendments to this clause 12 shall be jointly agreed based upon a guiding principle of adherence to the highest data protection standard
12.8 The Supplier shall:
(a) only process Protected Data in connection with providing the Service;
(b) advise the Customer promptly of any Personal Data Breach that involves Protected Data;
(c) not disclose Protected Data to any third party except where the Supplier sub-contracts for the purposes of delivering the Service or if it is legally required to do so;
(d) ensure that all the Supplier personnel authorised by the Supplier or any sub-processor to process Protected Data are reliable and:
(i) adequately trained on compliance with Data Protection Legislation as applicable to the processing;
(ii) informed of the confidential nature of the Protected Data and that they must not disclose Protected Data; and
(iii) are subject to a binding and enforceable written contractual obligation to keep the Protected Data confidential.
12.9 Each Party shall comply with Data Protection Legislation (including maintaining all appropriate notifications) and neither Party shall cause the other to be in breach of the same, including but not limited to:
(a) taking appropriate security measures as are required to enable it to process all Protected Data (as defined by the Data Protection Legislation) lawfully; and
(b) taking appropriate technical and organisational measures to prevent unlawful or unauthorised processing, accidental or unlawful destruction, accidental loss, alteration, unauthorised disclosure or access and adequate security procedures to ensure that unauthorised persons will not have access to the Protected Data or to the equipment used to process the Protected Data.
12.10 Where a Party has been informed by a Data Subject that Protected Data disclosed to it is inaccurate, that Party shall promptly advise the other of the details of the alleged inaccuracy and amend the inaccuracy immediately.
12.11 The Parties shall co-operate fully with each other with any:
(a) subject access requests and complaints from a Data Subjects;
(b) required data protection impact assessments; and or
(c) enquiries made or investigation or assessment of processing initiated by the Information Commissioner’s Office.
12.12 Nothing in this clause 12 shall relieve either Party of any liability for the acts or omissions of its agents and approved subcontractors in relation to Protected Data processed under this Contract.