- 1 Definitions and Interpretation
Unless otherwise provided:
means the Customer signing the Proposal and at this point the Customer shall be deemed to have read, understood and agreed to the Proposal and this Agreement;
means the date of Acceptance by the Customer;
the placing of an order by the Customer to the Developer following a Proposal is an acceptance of these terms and conditions and forms the ‘Agreement’ together with the Proposal;
means a day other than Saturday, Sunday and public holidays in England;
‘Change control procedure’
means the procedure by which alterations to the Proposal or the Project are initiated and agreed between the Parties;
means the sums charged to the Customer, excluding VAT and other sales tax, as set out in the Proposal and these terms and conditions;
means a data centre facility in which the Developer and/or Customer rents space for servers and other computer hardware from the Developer;
means any information relating to the customers, suppliers, methods, products, plans, finances, trade secrets or otherwise to the business or affairs of the other Party or its Affiliates has been identified by the other Party as such (or which the receiving Party thought reasonably to have considered to be confidential), and any information developed by either Party in performing its obligations under, or in consequence of this Agreement;
means all text, graphics, images, sound, data, software, and materials used in the Site;
means any individual, firm, company or other party with whom the Developer contracts with pursuant to the Proposal
means any Content provided or made available by the Customer;
means Verve Graphic Design & Marketing Ltd, registered office Unit 1 Darwin Court, Oxon Business Park, Shrewsbury, Shropshire SY3 5AL (Company No. 07594248)
means any Content developed by the Developer either before or during the term of the Agreement and included in the Proposal;
means the date when the Agreement is concluded in accordance with the Proposal;
means an event or sequence of events beyond a Party’s reasonable control preventing or delaying it from performing its obligations. Force Majeure does not include for example ability to pay, mechanical difficulties, shortage or increase of price of materials or energy supply, over-commitment or market or other circumstances which may make the terms of this Agreement unattractive to a Party;
‘Intellectual Property Rights or IPR’
means copyright, patents, know-how, trade secrets, trademarks, trade names, design right, get-up, database right, chip topography rights, mask works, utility models, domain names and all other intellectual property rights and similar rights and, in each case:
(i) whether registered or not,
(ii) including any applications to protect or register such rights,
(iii) including all renewals and extensions of such rights or applications,
(iv) whether vested, contingent or future, and
(v) wherever existing;
means a calendar month;
means Developer and Customer jointly;
means the provision by the Developer of the Services as set out in this Agreement;
means the Proposal of the Developer and titled ‘Proposal’ and which include these Terms and Conditions by reference to a link on which they can be viewed;
means a period of three months ending on 31 March, 30 June, 30 September or 31 December;
means Services which are provided under monthly, quarterly or annual retainer;
means the Services to be provided by the Developer under the Agreement;
means the website to be serviced and supported by the Developer for the Customer in accordance with the Proposal;
means the date as agreed between the parties as the start date;
‘Third Party Content’
means any Content owned supplied or licensed by a third party either before or during the term of this Agreement as provided in the Proposal;
means value added tax or any equivalent tax chargeable;
means the company identified as the Developer definition above.
Unless otherwise expressly provided in writing:
1.2.1 any gender includes the other genders;
1.2.2 the singular includes the plural and vice versa;
1.2.3 references to clauses or Appendices are to clauses or Appendices of this Agreement;
1.2.4 references to persons include individuals, unincorporated bodies, government entities, companies and corporations;
1.2.5 including or similar expressions means including without limitation;
1.2.6 general words are not limited by example;
1.2.7 clause headings do not affect their interpretation;
1.2.8 a document is in agreed terms if initialled or signed or agreed electronically by the Parties;
1.2.9 all times, dates and periods in the Agreement will be calculated by reference to the UK time and calendar;
1.2.10 writing includes manuscript, telexes, facsimiles, emails, and other permanent forms.
- 2 Services
2.1 The Developer will provide the Services in accordance with the Proposal and subject to these terms and conditions and the Customer will comply with these terms and conditions.
2.2 The Services will start on the Start Date and conclude on the End Date.
2.3 The Parties will each appoint a manager suitably experienced and qualified to manage the Services who will liaise with the other manager promptly, regularly and reasonably to ensure the satisfactory and efficient completion of the Services.
- 3 Charges and payment
3.1 The Customer will pay the Charges set out in the Proposal.
3.2 The Customer will make payment of any invoice raised within 30 days of the date of the invoice.
3.3 The Developer accepts the following payment methods:
(i) Bank – HSBC
(ii) Account Name – Verve Graphic Design & Marketing Ltd
(iii) Account Number – 0214 4050
(iv) Sort Code – 40-41-30
(i) Made payable to ‘Verve’ and crossed a/c payee
3.3.3 Credit / Debit Card
(i) The Customer is to make contact with the Developer
3.4 All retainer invoices are to be paid by the Customer monthly in advance and must be paid by standing order.
3.5 Verve reserve the right to invoice the Customer any overage hours where a Retainer reaches in excess of 50% of the agreed Retainer value each month and a 30 day payment term will apply.
3.6 For websites, the Developer will provide a schedule of payment within the Proposal, which form part of the terms and conditions of this Agreement.
3.7 VAT will be charged on all Charges where eligible and will be payable by the Customer subject to provision by the Developer of a valid VAT invoice.
3.8 Payment of charges will be made by BACS, at the cost of the customer. The Developer may, without limiting its other rights charge interest on any sums due but not paid in full by the due date at 8 % a year above the base rate of HSBC from time to time in force, plus an administration charge of £40.00 (up to £999.99), £70.00 (£1000 to £9,999.99) or £100 (£10,000 or more).
3.9 Interest will accrue on a daily basis, and apply from the due date for payment until actual payment in full, whether before or after judgment
3.10 Any Agreement subsequently cancelled by the Customer will be charged at the full contract price.
3.11 Title to the Site (including all IPR embodied in the Site) shall pass from the Developer to the Customer upon the Charges relating to the development of the Site being paid in full.
3.12 No additional charges other than as set out in the Proposal or these terms and conditions will be payable unless they are approved by the Customer in writing before they are incurred.
3.13 The Customer will be liable to the Developer on an indemnity basis for all costs incurred in connection with pursuing the Customer for a breach of any of these terms and conditions, including but not limited to legal fees.
- 4 Developer responsibilities
4.1 The Developer will:
4.1.1 Provide the Service with all reasonable skill and care and deliver the works as specified in the Proposal at the time and in the manner required in the Proposal;
4.1.2 Respond promptly from time to time, at the cost of the Customer to the reasonable requests of the Customer for any additional information or assistance to ensure the successful provision of the Service.
4.1.3 Ensure that it has at all during the provision of the Services, all licences, permits, authorities and consents necessary to carry out the Services;
4.2 The Developer will build the Site to the latest browser versions. Should anything lower than the latest three versions of Internet Explorer, at the time of commissioning, be required there may be an additional charge to the Customer.
4.3 The Developer confirms it has full power and authority to enter into this Agreement and acceptance of the proposal shall be evidenced by the Developer signing the Proposal.
- 5 Customer responsibilities
5.1 The Customer will:
5.1.1 provide accurate and complete Customer Content to the Developer at the time and in the format required by the Proposal to enable the Developer to provide the Services;
(i) The Developer may reject any Customer Content which they deem unsuitable.
5.1.2 respond promptly from time to time to the reasonable requests of the Developer for any additional information or assistance to ensure the successful completion of the Project.
5.1.3 not request the Developer to produce works or provide services it knows to be of an illegal or libellous nature or an infringement of the rights of any third party.
5.1.4 accept responsibility for the acts or omissions of any third party engaged by the Customer to assist relating to this Agreement and who communicates with the Developer on behalf of the Customer insofar as this communication is authorised by the Customer, and which it accepts is a dispute with the third party not giving rise to any liability of the Developer.
5.2 The Customer confirms it has full power and authority to enter into this Agreement and acceptance of the Proposal by way of signature shall evidence this.
- 6 Intellectual property and licences
6.1 All Customer Content shall remain the property of the Customer and/or its licensors subject to a non-exclusive worldwide royalty-free licence to the Developer for the purposes of the Agreement.
6.2 The Customer confirms in entering this Agreement it has licence, permission, or the right to each and every IPR being utilised as content in the development and operation of the Site.
6.3 The Customer will indemnify and keep indemnified the Developer against all direct claims, losses, damages reasonable and properly incurred, costs and expenses arising from any claim that any Customer Content infringes the Intellectual Property Rights of any third party.
6.4 In the case of the Developer IPRs this shall expressly include all present and future IPR of any nature including, but not limited to, any design rights, trademarks, domain names, titles, and any developed content or code other than the content or code developed for the Site and these shall remain the sole property of the Developer who may subject to this clause 6, grant usage rights to the Customer for the duration of this Agreement.
6.5 Subject to compliance of the Customer with these terms and conditions including payment of all Charges and other sums due, the Developer will:
6.5.1 indemnify and keep indemnified the Customer against all claims, losses, damages, costs and expenses arising from any claim or allegation other than under clauses 6.3 and 7.3.2 (ii) that the Project or the Site infringes the IPRs of any third party;
6.5.2 grant to the Customer an exclusive non-transferrable royalty free licence (unless exclusivity has been imposed by a third party) to use the Developer Content in accordance with this Agreement;
6.5.3 grant to the Customer an exclusive non-transferrable royalty free licence (unless exclusivity has been imposed by a third party) to use the third party Content in accordance with these terms and conditions. The Developer confirms in entering this Agreement it has licence, permission or the right to each and every third party Content being utilised as content in the development and operation of the Site;
6.5.4 assign to the Customer any Content created or obtained by the Developer exclusively for the Customer. (unless exclusivity has been imposed by a third party).
6.6 Unless expressly stated otherwise, any licence or sub-licence granted by the Developer under these terms and conditions will be on terms that:
6.6.1 in the case of software it shall be a licence of object code only unless otherwise expressly provided;
6.6.2 in the case of third party Content it shall be on such terms as the Developer may grant in accordance with the terms;
6.6.3 shall be to the extent and for the purpose only of using and maintaining the Project.
6.7 Unless expressly stated otherwise, any licence or sub-licence granted by the Developer under these terms and conditions in respect of the Developer Content will not include rights to:
6.7.1 make copies other than for backup purposes; or
6.7.2 modify or develop; or
6.7.3 copy and distribute; or
6.7.4 make derivative works.
6.8 The Developer shall be entitled to state its development of any site on that site and may use its own IPR to identify itself as the Developer, unless expressly requested by the Customer in writing.
6.9 The Customer warrants to the Developer that the Customer will use all reasonable endeavours to ensure the site shall contain no sound, text, music, literature, slogans, strap lines, banners, banner headlines, scream lines or images or any nature of any other material or reference which impinges on the IPLs of any third party or which is defamatory, offensive, obsence or which could reasonably be construed by completing the Customer’s request to have brought the Developer into disrepute.
6.10 In the case of claims or potential claims to which the indemnities in this Agreement may apply:
6.10.1 the party indemnified must give prompt notice in writing of any claim or potential claim to the indemnifying party;
6.10.2 the party indemnified must comply promptly and accurately respond to all reasonable requests for information and assistance at the cost of the indemnifier;
6.10.3 the party indemnified must make no admission of liability or settlement without the prior written consent of the indemnifying party;
6.10.4 the party indemnified must permit the indemnifier to have full control of any proceedings or negotiations including any defence or settlement.
- 7 Warranties and limitation of liability
7.1 Each of the Parties warrants that it has all power and authority to enter into the Agreement and to perform its obligations.
7.2 The Developer warrants that it will provide the Services with reasonable skill and care in accordance with best industry practice. The Developer further warrants that it has all rights and licences in relation to the provision of the Services and to develop the Site.
7.3 The Customer warrants that:
7.3.1 it has all rights and licences to provide the Customer Content and to grant all necessary licences to the Developer to provide the Services and to develop the Site;
7.3.2 any Customer Content will not:
(i) be dishonest, fraudulent, defamatory, libellous, threatening or harassing, obscene, indecent or pornographic or breach any acceptable use policy of the Developer;
(ii) infringe any intellectual property rights of the Developer or any third Parties;
(iii) contain any viruses or other harmful or intrusive programs or other code;
(iv) breach any laws, statute, regulations standards, or codes of practice of any relevant authority.
7.4 The Customer’s property and all property supplied to the Developer by or on behalf of the Customer will be held, worked on and carried at the Customer’s risk. The Developer agrees that the Customer’s acknowledgment under this clause is only given on the basis that the Developer has appropriate safeguards in place to protect the Customer’s property.
7.5 The Developer’s liability under this Agreement is as set out below:
7.5.1 the Developer expressly excludes liability for any errors not corrected by the Customer when proofs / visuals / artwork are submitted to the Customer for approval.
7.5.2 the Developer expressly excludes liability for any defects and/or breaches caused in full or in part by defects and/or the unsuitability of Customer Content.
7.5.3 the Developer expressly excludes liability for any indirect, special, incidental or consequential loss or damage, or for loss of data, loss of actual or anticipated profit, business, revenue, goodwill or anticipated savings, whether or not foreseeable or advised to the customer.
7.5.4 if any exclusion in these terms and conditions is invalid for any reason and the Developer is liable for loss or damage that may lawfully be limited, the aggregate liability of the Developer for any and all claims of any nature (excluding those expressly dealt with under 7.5.3 above) will be limited to 50% of the Charges.
7.5.5 the Developer does not exclude or limit liability for fraudulent misrepresentation or for death or personal injury which arises as a result of the negligence of the Developer, or which is otherwise not excludable or limitable by law.
- 8 Change control procedure
8.1 The Developer will amend visuals until the Customer has approved the same, either orally or in writing. Once approved any changes to the approved visuals will be subject to additional charges.
8.2 On all Desktop Publishing Projects the estimated charges include two sets of amendments.
- 9 Non-solicitation
9.1 Without the other’s prior written consent, neither Party will, during or for twelve months from expiry or termination of the Agreement, directly or indirectly:
9.1.1 approach, employ or solicit; or
9.1.2 enter into an agreement for the provision of services, on a self-employed basis, with, any person who has, during the previous 12 months, been an employee of or supplier of services to the other and who was in communication with the other Party due to the Agreement; or
9.1.3 approach or solicit any Customer of the other with whom it came in contact in the previous 12 months as a result of the Agreement.
9.2 If either Party breaches this clause, it will pay to the other a referral fee equal to 12 months’ gross payment offered or contracted under the new contract between such Party and the person, Customer concerned. The Parties acknowledge that this represents a genuine pre- estimate of the loss likely to be suffered through breach of this clause.
9.3 If the periods stated in this clause are held by a court or tribunal of competent jurisdiction to be void or unenforceable, but would be valid and enforceable if certain words were deleted or the length of the period reduced, such provisions will apply with such modification as required to make them valid and enforceable.<
- 10 Dispute resolution
10.1 Any dispute arising between the Parties shall first be referred to the project managers of the Parties. If the project managers cannot resolve the dispute within 21 Business Days of such referral, either project manager may refer the dispute to the Managing Directors of the Parties. If the Parties cannot amicably resolve any dispute within 21 Business Days of such referral, it may be referred by either Party to expert determination as provided by this clause.
10.1.1 The Parties will agree the appointment of a suitably qualified expert and failing such agreement within ten Business Days the expert will be appointed at the request of either Party by the President for the time being of the British Computer Society. The person appointed will act as expert and not as arbitrator.
10.1.2 The expert will use reasonable endeavours to obtain all relevant information and to give a determination within 20 Business Days after receipt of such information. The decision of the expert will be final and binding on the Parties.
10.1.3 The Parties will cooperate fully with the requirements of the expert and will bear equally the costs and expenses of the expert.
- 11 Term and termination
11.1 The Agreement will start on the Start Date and will terminate on the End Date unless agreed otherwise between the Parties or terminated earlier as provided below.
11.2 Either Party may terminate the Agreement immediately by notice to the other Party if following breach by the other Party of these terms and conditions, and in the case of a breach capable of remedy, the other Party fails to remedy such breach within 21 Business Days after receipt of notice of the breach giving details of the breach and the remedy required.
11.3 Either Party may terminate the Agreement immediately by notice to the other Party if:
11.3.1 (otherwise than for solvent reorganisation) a resolution for winding up is passed by the other Party, or a court order is made for winding up of the other party, or a petition is presented for winding up of the other Party;
11.3.2 an encumbrancer takes possession or a receiver is appointed over any of the property or assets of that other Party;
11.3.3 the other Party makes any voluntary arrangement with its creditors or becomes subject to an administration order;
11.3.4 the other Party goes into liquidation (except for the purposes of amalgamation or reconstruction and in such manner that the successor effectively agrees to be bound by or assume the obligations imposed on the other Party under this Agreement);
11.3.5 anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to that other Party; or that other Party ceases, or threatens to cease, to carry on business.
11.4 The Customer shall pay the Developer the balance of any sums due which have accrued and/or are payable to the expiry or termination date subject to any claim which either party may have for any breach or non-performance or out of which such termination shall have arisen shall not be affected or prejudices and no set off is permitted by the Customer.
11.5 Paid Retainer hours can only be used during the lifetime of the Retainer and cannot be used once the Retainer is terminated by either Party.
11.6 Upon termination of the Agreement, any overage hours will be agreed with the Customer and invoiced accordingly and a 30 day payment term will apply.
- 12 Consequences of termination
12.1 Termination of the Agreement for whatever reason will not affect the accrued rights and liabilities of the Parties arising from these terms and conditions at the date of termination or any provisions of these terms and conditions which are expressed, or by their context intended, to survive termination.
12.2 On the termination of this Agreement by the Developer under clause 11.3 any licences granted by the Developer under the Agreement shall immediately terminate.
- 13 Hosting
13.1 The Developer will charge a hosting fee as mentioned within the Proposal. If the Customer chooses to host their website with a third party the Customer will be liable for moving charges. These will be quoted separately upon request.
Both parties shall provide one months’ written notice to terminate any hosting of a website, said notice is invalid prior to one month before the expiry of the hosting contract; whether this be a monthly, annual or on-going contract. Where Developer hosts the customer’s website or domains, renewals are automatic and no notice will be given for the renewal. It is the Customer’s responsibility to ensure that they are aware of the renewal dates. The Developer will only give renewal notice if a notification is required for a change of service or cost. Renewal dates are available from the Developer upon request at all times.
13.2 Pursuant to Clause 11.4, where website hosting is arranged annually no monies will be reimbursed to the Customer in the event of early termination.
13.3 The Developer is permitted to change the terms and conditions of any hosting agreement upon written notice to the Customer.
- 14 Confidential Information
14.1 Neither Party will for the term of this Agreement and at all times after, without the other’s prior consent, disclose Confidential Information of the other Party.
14.2 Neither Party will use the other’s Confidential Information except to perform the Services required as detailed within the Proposal.
14.3 Disclosure of Confidential Information may be made to a Party’s:
14.3.3 professional advisers; and
14.3.4 consultants and other agents,
provided that the recipient is subject to no less obligations of confidentiality than the disclosing Party and the Party disclosing is responsible for compliance with the same.
14.4 Confidential Information does not include information which:
14.4.1 is or becomes public other than by breach of these terms and conditions;
14.4.2 was known to the other party before the Agreement without breach of confidence;
14.4.3 is independently developed by or becomes available to the other Party; or
14.4.4 is required to be disclosed by law or regulatory authority. In the case of such disclosure the Party subject to such requirement shall first notify the other Party of the actual or potential requirement to disclose and will comply with the reasonable requests of the other Party as to the manner of such disclosure.
14.5 On termination of the Agreement all Confidential Information, including copies of the same, relating to or supplied by a Party and which is or should be in the other’s possession will be returned by the other or (at the first Party’s option) destroyed.
- 15 GDPR and Data Protection
15.1 From the 25 May 2018 the General Data Protection Regulation (EU) 2016/679 (“GDPR”) applies in the EEA replacing Directive 95/46/EC and its local implementing legislation in the UK, the Data Protection Act 1998 (“DPA 1998”). Accordingly, the parties can no longer rely on compliance with the DPA 1998 in the UK as being sufficient for controlling, processing or protecting data.
15.2 This Agreement therefore contains GDPR provisions relating to the obligation and rights of the Parties.
- 16 Data Processing
16.1 For the purposes of this Agreement the following defined terms shall have the following meanings:
“Data Protection Law” shall mean Data Protection Act 2018 and the General Data Protection Regulation (EU) 2016/679 (“GDPR”), read in conjunction with and subject to any applicable guidance from the Information Commissioners Office (ICO) on the application of the legislation as may be issued from time to time.
“personal data”, “controller”, “processor“, “data subject” and “processing” (and other parts of the verb ‘to process’) shall have the meaning set out in the Data Protection Law.
16.2 Each party shall comply at all times with Data Protection Law and shall not perform its obligations under this Agreement in such a way as to cause the other to breach any of its applicable obligations under Data Protection law.
16.3 In the context of this Agreement, Verve will act as “processor” to the Controller who may act as either “processor” or “controller” with respect to the personal data. Notwithstanding the foregoing, the parties acknowledge that:
16.3.1 Where Verve only provides Colocation Services under the Agreement Verve will not be a Processor; and
16.3.2 Where personal data is not accessible to Verve it shall not be a Processor, and therefore, in either case, the obligations of clause 16.7 shall not apply to Verve.
16.4 The Controller represents and warrants to Verve that with respect to any personal data processed pursuant to this Agreement:
16.4.2 Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, the Controller has implemented appropriate technical and organisational measures to ensure a level of security appropriate to the risk to the personal data;
16.4.3 The Controller has obtained all the necessary consents from data subjects to process the personal data and to outsource the processing of any personal data to Verve and the Controller covenants that it shall notify Verve in writing if there are any material changes to these consents or to the personal data that Verve processes under this Agreement; and
16.4.4 It is not aware of any circumstances likely to, and will not instruct Verve to process the personal data in a manner that is likely to, to give rise to a breach of the Data Protection Law (or any other applicable data protection or privacy laws).
16.5 The Controller acknowledges and agrees that pursuant to its obligation under Article 28(1) of the GDPR to only appoint processors providing sufficient guarantees to implement appropriate technical and organisational measures to meet the requirements of the GDPR, it has assessed Verve’s applicable technical and organisational measures and considers them to be sufficient, taking into account the nature, scope, context and purpose of the processing undertaken pursuant to the Agreement.
16.6 Controller acknowledges and agrees that it is responsible for ensuring the compliance of any of its businesses, affiliates or subsidiaries located in a territory outside the EEA with Data Protection Law in relation to transfers of personal data from Verve to Controller.
16.7 Where Verve processes personal data on behalf of Controller, with respect to such processing, Verve shall:
16.7.1 Process the personal data only in accordance with the Agreement and the written instructions of the Controller given from time to time. The Controller acknowledges that Verve is under no duty to investigate the completeness, accuracy or sufficiency of such instructions and any additional instructions outside the scope of this Agreement require prior written approval between Verve and Controller (including agreement on any fees payable by Controller to Verve for carrying out such instructions);
16.7.2 Only permit the personal data to be processed by person who are bound by enforceable obligations of confidentiality and take steps to ensure such persons only act on Verve’s instructions in relation to the processing;
16.7.3 Protect the personal data against unauthorized or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure. These measures shall be appropriate to the harm and risk which might result from any unauthorised or unlawful processing, accidental loss, destruction or damage to the personal data and having regard to the nature of the personal data which is to be protected (and the Controller shall notify Verve immediately if the nature of such personal data changes in a material way);
16.7.4 Remain entitled to appoint third party sub-processors. Where Verve appoints a third party sub-processor, it shall, with respect to data protection obligations:
a) Ensure that the third party is subject to, and in writing contractually bound by, at least the same obligations as Verve; and
b) Remain fully liable to the Controller for all acts and omissions of the third party,
And all sub-processors engaged by Verve as at the effective date GDPR shall be deemed authorised.
16.7.5 In addition to the sub-processors engaged pursuant to paragraph 16.7.4 (above), be entitled to engage additional or replacement sub-processors, subject to:
a)The provisions of paragraph 16.7.4(a) and 16.7.4(b) being applied; and
b) Verve notifying the Controller of the additional or replacement sub-processor,
And where Controller objects to the additional or replacement sub-processor, the parties shall discuss the objection in good faith;
16.7.6 Notify Controller without undue delay after becoming aware that it has suffered a personal data breach;
16.7.7 At Controller’s cost and not more than once in any 12 month period permit Controller (subject to reasonable and appropriate confidentiality undertakings), to inspect and audit (during business hours and on reasonable notice) Verve’s data processing activities to enable Controller to verify and/or procure evidence of the fact that Verve is complying with its obligations under clause 16.2 Controller shall ensure that it adheres to any applicable Verve site and security policies in the performance of such audit or inspection;
16.7.8 On Controller’s reasonable request and at Controller’s cost, assist Controller to respond to requests from data subjects who are exercising their rights under the Data Protection Law (insofar as it is reasonable for Verve to do so);
16.7.9 Save where such countries have been deemed by the European Commission to be providing an adequate level of protection pursuant to the relevant provisions of Data Protection Law, not process personal data outside the EEA without the prior written consent of Controller and, where Controller consents to such transfer, to comply with any reasonable instructions notified to Verve by it. Notwithstanding the foregoing, Verve is expressly permitted to and instructed by Controller that it may transfer personal data to any Verve subsidiary and any Verve subcontractor, subject to first ensuring that adequate protections are in place to protect the personal data consistent with the requirements of Data Protection Law;
16.7.10 On Controller’s reasonable request and at Controller’s cost, assist (insofar as it is reasonable to do so, taking into account the nature of the information available to the Verve and any restrictions on disclosing the information, such as confidentiality) Controller to comply with the Controller’s obligations pursuant to Articles 32-36 of the GDPR (or such corresponding provisions of the Data Protection Law), comprising (if applicable): a) notifying a supervisory authority that Controller has suffered a personal data breach; b) communicating a personal data breach to an affected individual; c) carrying out an impact assessment, engaging in prior consultation with a supervisory authority; and
16.7.11 Unless applicable law requires otherwise, upon termination of the Agreement delete or return all personal data provided by Controller to Verve (except to the extent this is not reasonably technically possible or prohibited by law).
16.8 Verve has appointed a Data Policy Manager whose details can be found in the Privacy Notice on its website.
- 17 Indemnity
17.1 Controller shall indemnify and hold harmless on demand Verve for any loss, damage, liabilities, penalties, expenses or fines incurred (whether foreseeable or unforeseeable or direct or indirect)) (“Losses”) as a result of:
17.1.1 The Controller breaching its obligations under clause 16 (Data Processing);
17.1.2 Any unsuccessful claim by a data subject when such claim holds both Controller and Verve as jointly and severally liable under the Data Protection laws.
17.2 Where under Data Protection Law (including without limitation Article 82 of the GDPR) Verve and Controller incur joint and several liability (as Controller and Processor with any other person) and, as such, Verve incurs Losses (other than for damage caused by processing where it has not complied with obligations under Data Protection Law, specifically directed to Processors or where it has acted outside or contrary to Controller’s lawful instructions under the Agreement), Controller shall indemnify Verve on demand against all such Losses, save for such liability as corresponds directly to Verve’s breach of the obligations of Data Protection Law or under this Agreement.
17.3 The Controller warrants that it has not and will not change the use of data to any purpose incomparable with the lawful reason for collection without express prior notice to the data subject.
17.4 The Controller warrants that it shall not require Verve as Processor to undertake any action which breaches Data Protection Law and in the event of an inadvertent breach shall notify Verve within 24 hours of discovery of such breach.
- 18 Limitation of Liability
18.1 Neither party excludes or limits liability to the other party for any matter for which it would be unlawful for the parties to exclude liability.
18.2 Subject to Clause 18.1, with respect to any claim relating to a breach of Data Protection Law, Verve shall not in any circumstances be liable to the Controller whether in contract, tort (including for negligence and breach of statutory duty howsoever arising), misinterpretation (whether innocent or negligent), restitution or otherwise, for:
18.2.1 Any loss (whether direct or indirect) of profits, business, business opportunities, revenue, turnover, reputation or goodwill; and
18.2.2 Any loss or corruption (whether direct or indirect) of personal data or information;
18.3 Subject to Clause 18.1, Verve’s total aggregate liability to the Controller in contract, tort (including negligence and breach of statutory duty howsoever arising), misinterpretation (whether innocent or negligent), restitution or otherwise, arising in connection with a breach of Data Protection Laws or any collateral contract shall in all circumstances be limited to the greater of:
18.3.1 The Charges paid or payable by Controller to Verve under the relevant Agreement; or
18.3.2 The total Charges paid or payable by the Controller to Verve under the relevant Agreement in the contract year concerned.
- 19 General provisions
All times, dates or periods set out in this Agreement are estimates only and contingent upon the Customer meeting all its obligations under this Agreement.
The Parties are independent businesses and not partners, principal and agent, or employer and employee, or in any other relationship of trust to each other.
19.3 Force Majeure
19.3.1 A Party will not be liable if delayed in or prevented from performing its obligations hereunder due to Force Majeure, provided that it:
(i) promptly notifies the other of the Force Majeure event and its expected duration; and
(ii) uses reasonable endeavours to minimise the effects of that event.
19.3.2 If, due to Force Majeure, a Party:
(i) is or is likely to be unable to perform a material obligation; or
(ii) is or is likely to be delayed in or prevented from performing its obligations for a continuous period of more than 20 Business Days,
the Parties will, within 20 Business Days, renegotiate the Agreement to achieve, as nearly as possible, its original commercial intent.
The unenforceability of any part of these terms and conditions will not affect the enforceability of any other part. In the case of any provision which is found to be unenforceable, the Parties will promptly and in good faith negotiate a replacement provision consistent with the intent of this Agreement.
19.5.1 Unless otherwise agreed, no delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
19.5.2 Consent by a Party, where required, will not prejudice their future right to withhold similar consent.
19.6.1 Notices under these terms and conditions will be in writing. They may be given, and will be deemed received:
(i) by first-class post: two Business Days after posting;
(ii) by airmail: seven Business Days after posting;
(iii) by hand: on delivery;
(iv) by facsimile: on receipt of a successful transmission report from the correct number; and
(v) by email: 24 hours from delivery if no notice of delivery failure is received
Any sums due under this Agreement shall be paid in full without any deduction or withholding other than as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Developer in order to justify withholding payment of any such amount in whole or in part.
19.8 Further assurance
Each Party will, at its own cost, do all further acts and execute all further documents necessary to give effect to the Agreement.
19.9 Rights of third Parties
This Agreement is not enforceable by any third party under the Contracts (Rights of Third Parties) Act 1999.
19.10 Assignment and subcontracting
19.10.1 The Customer may not, without the Developer’s prior written consent, assign or subcontract any right or obligation under these terms and conditions, in whole or in part, such consent not to be unreasonably withheld or delayed.
19.10.2 The Developer may not without the Customer’s prior written consent, assign or subcontract any right or obligation under these terms and conditions, in whole or in part, such consent not to be unreasonably withheld or delayed.
19.11 Entire agreement
This Agreement contains the whole agreement between the Parties relating to its subject matter and supersedes any prior agreements, representations or understandings between them unless expressly incorporated by reference in this Agreement.
The Developer shall be permitted to vary these terms and conditions at any time upon written notice to the Customer. Such notice shall take effect on the date specified.
19.13 Governing law and jurisdiction
This Agreement is governed by the law of England and the Parties submit to the exclusive jurisdiction of the English courts.
Each Party is responsible for its legal and other costs in relation to the preparation and performance of the Agreement.
- 20 Development and Acceptance of Site
20.1 Once the Developer has completed the design and development of the Site in accordance with the Proposal, the Developer shall invite the Customer to attend Acceptance Tests. The procedure set out in this clause 18 shall be repeated in respect of any further development works agreed by the Parties from time to time.
20.2 The Acceptance Tests shall test compliance of the Site with the Proposal and any other details agreed between the Parties. The form and detail of such tests will be at the Customer’s discretion (acting reasonably) from time to time.
20.3 Acceptance of the Site shall occur when the Site has passed the Acceptance Tests. The Customer shall sign the Acceptance Certificate in respect of the Site and return it to the Developer as soon as reasonably practicable following Acceptance.
20.4 In the event that any Acceptance Tests are not passed, the failures that cause the relevant tests to be failed (Defects) shall be promptly drawn up and documented by the Developer and presented to the Customer for discussion as to how best to rectify such Defects.
20.5 The Developer shall remedy any Defects promptly in order to ensure that the Site passes the Acceptance Tests on a retest.
20.6 If such a retest demonstrates that the Site is still not in accordance with the Proposal and other terms agreed between the Parties, the Customer may, by written notice to the Developer, elect at its sole option:
(a) to fix (without prejudice to its other rights and remedies) a new date for carrying out further Tests in the Site on the same terms and conditions as the retest (except that all reasonable costs which the Customer may incur as a result of carrying out such tests shall be reimbursed by the Developer). If the Site fails such further tests, the Customer shall be entitled to proceed under clause 18.6(b); or
(b) to accept the Site subject on an abatement of the Charges, such abatement to be an amount that is reasonable, taking into account the circumstances.