REDWARE LIMITED STANDARD TERMS & CONDITIONS
The following definitions and rules of interpretation apply in these Conditions.
BREXIT: the UK ceasing to be a member state of the European Union on 31 January 2020 and ceasing to be subject to the transition or implementation arrangements provided for in the withdrawal agreement between the UK and the European Union.
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Charges: the charges payable by the Customer for the provision of Services by Redware as set out in the Order Form and in accordance with clause 5.
Conditions: these terms and conditions, as amended from time to time in accordance with clause 11.3.
Commencement Date: has the meaning given in clause 2.1.
Contract: the Order and these Conditions, which together form the contract between Redware and the Customer for the supply of Services in accordance with these Conditions. Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical measures: as defined in the Data Protection Legislation.
Customer: the person or firm who purchases Services from the Supplier as set out in the Order Form.
Data Protection Legislation: Data Protection Legislation: the UK and any other applicable European Union legislation relating to personal data (including, without limitation, the privacy of electronic communications).
Deliverables: the deliverables to be provided to the Customer, as specified in the Order Form.
Document: includes, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.
Initial Term: the initial period for which Redware will provide the Services to the Customer, as set out in the Order Form.
In-put Material: all Documents, information and materials provided by the Customer relating to the Services.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, 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.
Order: the Customer's order for Services as set out in the Customer's Order Form.
Order Form: the form on which the Customer’s Order is made, setting out the specific terms of service.
Pre-existing Materials: all Documents, information and materials provided by Redware relating to the Services which existed prior to the commencement of the Contract.
Redware: Redware Limited, the supplier of the Services.
Redware’s Equipment: any equipment, including tools, systems, cabling or facilities, provided by Redware or its subcontractors and used directly or indirectly in the supply of the Services which are not the subject of a separate agreement between the parties under which title passes to the Customer.
Services: the services to be provided by Redware under the Contract as set out in the Order Form, together with any other services which Redware provides or agrees to provide to the Customer.
Standard Contractual Clauses (SCC): the European Commission's Standard Contractual Clauses for the transfer of personal data from the European Union to processors established in third countries (controller-to-processor transfers).
Term: the Initial Term and any subsequent period for which Redware supplies the Services until termination or expiry of the Contract in accordance with these Conditions.
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
1.2 Unless the context otherwise requires, any reference to European Union law that is directly applicable or directly effective in the UK at any time is a reference to it as it applies in England and Wales from time to time including as retained, amended, extended, re-enacted, or otherwise given effect on or after 11pm on 31 January 2020.
1.3 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.4 A reference to writing or written includes faxes but not e-mail.
1.5 Any obligation in the Contract on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.
2. BASIS OF THE CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions. The Order Form, upon which the Order is made, must be signed by the Customer when the Order is made and shall be accepted once signed by Redware or, if not signed by Redware, be deemed to be accepted upon delivery of the Services, at which point and on which date the Contract shall come into existence (Commencement Date).
2.2 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 law, trade custom, practice or course of dealing.
2.3 Any quotation given by Redware shall not constitute an offer and is only valid for a period of 20 Business Days from its date of issue.
2.4 The Services supplied under the Contract shall be supplied for the Initial Term following which the Services will continue to be supplied unless the Contract is terminated in accordance with clause 10.
3. SUPPLY OF SERVICES
3.1 Redware shall, during the Term, provide the Services and deliver the Deliverables to the Customer on and subject to the terms of the Contract.
3.2 Redware shall use reasonable endeavours to meet any performance dates agreed between the parties, but any such dates shall be estimates only and time for performance by Redware shall not be of the essence of the Contract.
3.3 Redware 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 Redware shall notify the Customer in any such event.
3.4 Redware warrants to the Customer that the Services will be provided using reasonable care and skill.
4. CUSTOMER'S OBLIGATIONS
4.1 The Customer shall:
4.1.1 ensure that the terms of the Order are complete and accurate;
4.1.2 co-operate with Redware in all matters relating to the Services;
4.1.3 provide, for Redware, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Customer's premises, office accommodation, data and other facilities as reasonably required by Redware;
4.1.4 provide, in a timely manner, such In-put Material and other information as Redware may reasonably require, and ensure that it is accurate in all material respects;
4.1.5 be responsible (at its own cost) for preparing and maintaining the relevant premises for the supply of the Services;
4.1.6 inform Redware of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Customer's premises;
4.1.7 obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services, the installation of Redware's Equipment, the use of In-put Material and the use of the Customer's Equipment in relation to Redware's Equipment, in all cases before the date on which the Services are to start; and
4.1.8 keep and maintain Redware's Equipment at the Customer's premises in safe custody at its own risk, maintain Redware’s Equipment in good condition until returned to Redware, and not dispose of or use Redware’ s Equipment other than in accordance with Redware's written instructions or authorization.
4.2 If Redware’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer, its agents, subcontractors, consultants or employees, or failure by the Customer to perform any relevant obligation (Customer Default):
4.2.1 without limiting or affecting any other right or remedy available to it, Redware shall 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 in each case to the extent the Customer Default prevents or delays Redware’s performance of any of its obligations;
4.2.2 Redware shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Redware’s failure or delay to perform any of its obligations as set out in this Clause 4.2 and as set out in the Order; and
4.2.3 the Customer shall reimburse Redware on written demand for any costs or losses sustained or incurred by Redware arising directly or indirectly from the Customer Default.
4.3 The Customer shall be liable to pay to Redware, on demand, all reasonable costs, charges or losses sustained or incurred by Redware (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy
resources elsewhere) that arise directly or indirectly from the Customer's fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to Redware confirming such costs, charges and losses to the Customer in writing.
4.4 The Customer shall not, without the prior written consent of Redware, at any time during the Term and until the expiry of 12 months after termination of the Contract, solicit or entice away from Redware or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of Redware in the provision of the Services.
4.5 Any consent given by Redware in accordance with clause 4.4 shall be subject to the Customer paying to Redware a sum equivalent to 50% of the then current annual remuneration of Redware's employee, consultant or subcontractor or, if higher, 50% of the annual remuneration to be paid by the Customer to that employee, consultant or subcontractor.
5. CHARGES AND PAYMENT
5.1 In consideration of the provision of the Services by Redware, the Customer shall pay the Charges.
5.2 The following provisions apply to calculation and payment of the Charges:
5.2.1 the Charges shall be calculated in accordance with Redware's standard daily fee rates, as set out in the Order Form;
5.2.2 Redware's standard daily fee rates for each individual person are calculated on the basis of an eight-hour day, worked between 8.00 am and 5.00 pm on weekdays (excluding public holidays);
5.2.3 all Charges quoted to the Customer shall be exclusive of VAT, which Redware shall add to its invoices at the appropriate rate;
5.2.4 Redware shall ensure that every individual whom it engages on the Services completes time sheets recording time spent on the Services, and Redware shall use such time sheets to calculate the Charges covered by each monthly invoice referred to in clause 5.2.5; and
5.2.5 Redware shall invoice the Customer monthly in advance for the Charges (together with VAT where appropriate) for the month concerned, calculated as provided in this clause 5.2.
5.2.6 The Charges exclude the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom Redware engages in connection with the Services, the cost of any materials and the cost of services reasonably and properly provided by third parties and required by Redware for the supply of the Services (“Expenses”).
5.3 Expenses shall be charged in accordance with Redware’s current expenses policy and invoiced by Redware in addition to the Charges.
5.4 Subject to clause 5.5, Redware reserves the right to increase its standard daily fee rates, provided that the Charges cannot be increased more than once in any 12-month period. Redware shall give the Customer written notice of any such increase three months before the proposed date of that increase. If such increase is not acceptable to the Customer, it may, within one month of such notice being received, terminate the Agreement by giving three months written notice to Redware.
5.5 Redware shall be entitled, at any time on 30 days’ notice to the Customer, to increase the Charges to reflect any increase in its costs in performing the Services due to BREXIT.
5.6 The Customer shall pay each invoice submitted to it by Redware, in full and in cleared funds, within 30 days of the date of the invoice to a bank account nominated in writing by Redware as set out in the Order Form. Time for payment shall be of the essence of the Contract.
5.7 All Charges and amounts stated or referred to in the Order Form and these Conditions shall be payable in pounds sterling and are exclusive of VAT and all and any additional taxes and duties which may be deemed payable, which shall be added to Redware’s invoice(s) at the appropriate rate.
5.8 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay Redware by the due date for payment (Due Date) Redware may:
5.8.1 charge interest on such sum from the Due Date at the annual rate of 4% above the base rate from time to time of Barclays Bank plc accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment; and
5.8.2 suspend all Services until payment has been made in full.
5.9 All sums payable to Redware under the Contract shall become due immediately on its termination, despite any other provision. This clause 5.9 is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
5.10 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 Redware in order to justify withholding payment of any such amount in whole or in part.
6. DATA PROTECTION
6.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.
6.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller and Redware is the processor.
6.3 Without prejudice to the generality of clause 6.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Redware for the duration and purposes of the Contract.
6.4 If a transfer of personal data between the Customer and Redware requires execution of SCC in order to comply with the Data Protection Legislation (where the Customer is the entity exporting personal data to Redware outside the EEA), the parties will complete all relevant details in, and execute the SCC, and take all other actions required to legitimise the transfer.
6.5 If the Customer consents to appointment by Redware located within the EEA of a subcontractor located outside the EEA in compliance with the provisions of clause 8, then the Customer authorises Redware to enter into the SCC contained with the subcontractor in the Customer’s name and on its behalf. Redware will make the executed SCC available to the Customer on request.
6.6 In accordance with the requirements of the Data Protection Legislation, Redware shall, where necessary, process personal data belonging to the Customer in order to perform its obligations under, and for the duration of the Contract, unless otherwise required by law. The processing activity undertaken by Redware may consist of the collection, storage, alteration, consent recording, anonymisation and erasure of personal data, the categories
of which will include name, address, date of birth, gender and email address of the Customer’s clients, employees and other third-party users.
6.7 Without prejudice to the generality of clause 6.1, Redware shall, in relation to any personal data processed in connection with the performance by Redware of its obligations under the Contract:
6.7.1 process that personal data only on the documented written instructions of the Customer unless Redware is required by applicable laws to otherwise process that personal data;
6.7.2 ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data;
6.7.3 ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
6.7.4 assist the Customer, at the Customer's cost, in responding to any request from data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
6.7.5 notify the Customer without undue delay on becoming aware of a personal data breach;
6.7.6 at the written direction and cost of the Customer, delete or return personal data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the personal data; and
6.7.7 maintain complete and accurate records and information to demonstrate its compliance with this clause and allow for a maximum of one audit in each twelve month period by the Customer or the Customer's designated auditor of Redware’s relevant systems and immediately inform the Customer if, in the opinion of Redware, an instruction infringes the Data Protection Legislation.
6.8 The Customer consents to Redware appointing third-party processors (subcontractors) of personal data under this agreement for the provision of the Services provided the Customer is provided with an opportunity to object to the appointment of a subcontractor within 3 Business Days after Redware supplies the Customer with details regarding each new Subcontractor. Redware confirms that it has entered or (as the case may be) will enter with each third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 6 and, in either case, which Redware confirms reflect and will continue to reflect the requirements of the Data Protection Legislation. Redware shall provide to the Customer a list of subcontractors upon request.
6.9 Redware may, at any time on not less than 30 days' notice, revise this clause by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).
7. INTELLECTUAL PROPERTY RIGHTS
7.1 As between the Customer and Redware, all Intellectual Property Rights and all other rights in the Deliverables and the Pre-existing Materials shall be owned by Redware. Subject to clause 7.2, Redware licenses all such rights to the Customer free of charge and on a nonexclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Deliverables and the Services. If the Contract is terminated, this licence will automatically terminate.
7.2 The Customer acknowledges that, where Redware does not own any of the Pre-existing Materials, the Customer's use of rights in Pre-existing Materials is conditional on Redware obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle Redware to license such rights to the Customer.
8. CONFIDENTIALITY AND REDWARE'S PROPERTY
8.1 The Customer 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 Customer by Redware, its employees, agents, consultants or subcontractors and any other confidential information concerning Redware's business or its products which the Customer may obtain.
8.2 The Customer may disclose such information:
8.2.1 to its employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out the Customer's obligations under the Contract; and
8.2.2 as may be required by law, court order or any governmental or regulatory authority.
8.3 The Customer shall ensure that its employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such information comply with this clause 8.
8.4 The Customer shall not use any such information for any purpose other than to perform its obligations under the Contract.
8.5 All materials, equipment and tools, drawings, specifications and data supplied by Redware to the Customer (including Pre-existing Materials and Redware's Equipment) shall, at all times, be and remain the exclusive property of Redware, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to Redware, and shall not be disposed of or used other than in accordance with Redware's written instructions or authorisation.
9. LIMITATION OF LIABILITY
9.1 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for: (i) death or personal injury caused by negligence; (ii) fraud or fraudulent misrepresentation; and (iii) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
9.2 Subject to clause 9.1, Redware shall not be liable for any of the following heads of loss: (i) loss of profits; (ii) loss of sales or business; (iii) loss of agreements or contracts; (iv) loss of anticipated savings; (v) loss of use or corruption of software, data or information; (vi) loss of or damage to goodwill; and (vii) indirect or consequential loss.
9.3 Subject to clause 9.1 and clause 9.2, Redware’s total aggregate liability to the Customer (whether in contract, tort (including negligence), breach of statutory duty or otherwise) arising under or in connection with the Contract shall not exceed the total Fees payable under the Contract in the 12 month period preceding the date on which the liability arose.
9.4 The restrictions on liability in this clause 9 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
9.5 This clause 9 shall survive termination of the Contract.
10.1 Following expiry of the Initial Term, either party may terminate the Contract by giving the other party three months’ written notice of termination.
10.2 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other immediately on giving notice to the other if:
10.2.1 the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
10.2.2 the other party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract;
10.2.3 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
10.2.4 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
10.2.5 the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
10.3 Without affecting any other right or remedy available to it, Redware may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
10.4 On termination of the Contract for any reason:
10.4.1 the Customer shall immediately pay to Redware all of Redware's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Redware may submit an invoice, which shall be payable immediately on receipt;
10.4.2 the Customer shall return all of Redware's Equipment, Pre-existing Materials and Deliverables. If the Customer fails to do so, then Redware may enter the Customer's premises and take possession of them. Until they have been returned or repossessed, the Customer shall be solely responsible for their safe keeping;
10.4.3 the accrued rights, remedies, obligations and liabilities 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; and
10.4.4 clauses which expressly or by implication have effect after termination shall continue in full force and effect, including the following clauses: clause 7 (Intellectual property rights), clause 8 (Confidentiality and Redware's property), clause 9 (Limitation of liability), clause 10.4, clause 11.9 (Notices), clause 11.10 (Governing law and jurisdiction).
11.1 Audit rights:
Redware shall have the right from time to time to conduct an audit to review the Customer’s use of the Deliverables and compliance with its obligations under the Contract. For such purpose, Redware shall be entitled during normal working hours to have access to the premises where the Deliverables are being used on giving reasonable notice to the Customer.
11.2 Force Majeure:
11.2.1 For the purposes of the Contract, Force Majeure Event means an event beyond the reasonable control of Redware including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of Redware 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 Consultants or subcontractors.
11.2.2 Redware shall not be liable to the Customer as a result of any delay or failure to perform its obligations under the Contract as a result of a Force Majeure Event.
11.2.3 If the Force Majeure Event prevents Redware from providing any of the Services for more than 6 weeks, either party shall, without limiting its other rights or remedies, have the right to terminate the Contract immediately by giving written notice to the other party.
No variation of the Contract shall be valid unless it is in writing and signed by or on behalf of each of the parties.
11.4.1 A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law 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.
11.4.2 No single or partial exercise of any right or remedy provided under the Contract or by law shall preclude or restrict the further exercise of any such right or remedy.
11.5.1 If any court or 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 to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
11.5.2 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 Assignment and sub-contracting: The Customer shall not, without the prior written consent of Redware, assign, transfer, charge, mortgage, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
11.7 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.
11.8 Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
11.9.1 Any notice or other communication required to be given to a party under or in connection with the 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.
11.9.2 Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid 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.
11.9.3 For the purposes of this clause, "writing" shall not include e-mails and for the avoidance of doubt notice given under the Contract shall not be validly served if sent by e-mail.
11.10 Governing Law and Jurisdiction: The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes parties irrevocably submit to the exclusive of the courts of England and Wales