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ENVANTAGE LIMITED

Effective Date: 1st June 2020

GENERAL TERMS & CONDITIONS OF CONTRACT

  1. Definitions and Interpretation

1.1    The following definitions and rules of interpretation apply in this Contract:

Affiliate: any entity that directly or indirectly Controls, is Controlled by or is under common Control with, another entity.

Applicable Laws: all applicable laws, statutes, regulation and codes from time to time in force.

Authorised Persons: the individual managers appointed by Envantage and the Client in accordance with clause 4.6 and clause 5.2(b) respectively.

Available Procurement Services: the procurement services that Envantage is generally capable of providing as communicated to the Client by Envantage from time to time.

Bribery Laws: the Bribery Act 2010 and associated guidance published by the Secretary of State for Justice under the Bribery Act 2010.

Business Day: a day other than a Saturday, Sunday or bank or public holiday.

Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.

Change Services Document: has the meaning given in clause 7.1.

Client: the entity stated in the Proposal to which Envantage shall supply the Contracted Services pursuant to this Contract.

Client’s Equipment: any equipment, including tools, systems, cabling or facilities, provided by the Client, its agents, subcontractors or consultants which is used directly or indirectly in the supply of the Contracted Services.

Client Materials: all documents, information, items and materials in any form, whether owned by the Client or a third party, which are provided by the Client to Envantage in connection with the Contracted Services, including the items provided pursuant to clause 5.2(d).

Confidential Information: any commercial, financial or technical information, information relating to the Available Procurement Services and/or the Contracted Services, plans, know-how or trade secrets which is obviously confidential or has been identified as such, or which is developed by a party in performing its obligations under, or otherwise pursuant to the Contract.

Contract: this contract entered into between Envantage and the Client constituted by the Proposal, these general conditions of contract, and the Schedules.

Contracted Services: the Available Procurement Services procured by the Client pursuant to this Contract, as more particularly described in the Schedule of Contracted Services.

Control: means the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the management of the company, and the expressions Controlled and change of Control shall be construed accordingly.

Controller: has the meaning given to it in applicable Data Protection Laws from time to time.

Data Protection Laws: means, as binding on either party or the Contracted Services:

(a) the GDPR;

(b) the Data Protection Act 2018;

(c) any laws which implement any such laws; and

(d) any laws that replace, extent, re-enact, consolidate or amend any of the foregoing.

Data Subject: has the meaning given to it in applicable Data Protection Laws from time to time.

Deliverables: any output of the Contracted Services to be provided by Envantage to the Client as specified in a Schedule of Contracted Services and any other documents, products and materials provided by Envantage to the Client in relation to the Contracted Services (excluding Envantage’s Equipment).

Effective Date: the date of execution of this Contract.

Envantage’s Equipment: any equipment, including tools, systems, cabling or facilities, provided by Envantage to the Client and used directly or indirectly in the supply of the Contracted Services, including any such items specified in the Schedule of Contracted Services but excluding any such items which are the subject of a separate agreement between the parties under which title passes to the Client.

Force Majeure: an event or sequence of events beyond a party’s reasonable control (after exercise of reasonable care to put in place robust back-up and disaster recovery arrangements) preventing or delaying it from performing its obligations under the Contract including an act of God, fire, flood, lightning, earthquake or other natural disaster, war, riot or civil unrest, epidemic, interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service, or material required for performance of the Contract, strike, lockout or boycott or other industrial action including strikes or other industrial disputes involving Envantage’s or its suppliers’ workforce, but excluding the Client’s inability to pay or circumstances resulting in the Client’s inability to pay.

GDPR: the General Data Protection Regulation, Regulation (EU) 2016/679.

Initial Information: where available, full property and meter site list; copies of all bills and any consumption data for the previous 12 months; and copies of current supply contracts including information in respect of invoicing and payment terms.

Intellectual Property Rights: means copyright, patents, know-how, trade secrets, trademarks, trade names, design rights, rights in get-up, rights in goodwill, rights in confidential information, rights to sue for passing off, domain names and all similar rights and, in each case:

(a) whether registered or not;

(b) including any applications to protect or register such rights;

(c) including all renewals and extensions of such rights or applications;

(d) whether vested, contingent or future;

(e) to which the relevant party is or may be entitled, and

(f) in whichever part of the world existing.

Minimum Notice Period: the minimum period of 6 (six) months for the giving of written notice.

Personal Data: has the meaning given to it in applicable Data Protection Laws from time to time.

processing: has the meaning given to it in applicable Data Protection Laws from time to time (and related expressions, including process, processing, processed, and processes shall be construed accordingly).

Processor: has the meaning given to it in applicable Data Protection Laws from time to time.

Proposal: Envantage’s proposal for the Contracted Services.

Protected Data: Personal Data received from or on behalf of the Client in connection with the performance of Envantage’s obligations under the Contract.

Schedule of Contracted Services: the Contracted Services to be delivered to the Client by Envantage under the terms of this Contract.

SoCS Charges: the sums, set out at Schedule 2 of this Contract, payable for the Contracted Services.

Term: the term of the Contract, as stated in the Proposal.

VAT: value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the sale of the Services.

1.2   Clause, Proposal, Schedule and paragraph headings shall not affect the interpretation of this Contract.

1.3   A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.4   The Proposal and the Schedules form part of this Contract and shall have effect as if set out in full in the body of this Contract subject to such Schedules being superseded in accordance with clause 2.4. Any reference to this Contract includes the Proposal and the Schedules.

1.5   A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.6   Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.7   Unless the context otherwise requires, a reference to one gender shall include a reference to the other gender.

1.8   This Contract shall be binding on, and enure to the benefit of, the parties to this Contract and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.

1.9   A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made from time to time under that statute or statutory provision.

1.10  A reference to writing or written includes email but not fax.

1.11   Any obligation on a party not to do something includes an obligation not to allow that thing to be done.

1.12  A reference to this Contract or to any other agreement or document referred to in this Contract is a reference of this Contract or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of this Contract) from time to time.

1.13  References to clauses and Schedules are to the clauses and Schedules of this Contract and references to paragraphs are to paragraphs of the relevant Schedule.

1.14  Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

  1. Commencement and duration

2.1   This Contract shall commence on the Effective Date and shall continue (unless terminated earlier in accordance with its terms) until either party gives to the other party written notice to terminate in accordance with clause 2.2.

2.2   Written notice to terminate shall be not less than the Minimum Notice Period and shall expire:

(a) at the end of the Term; or (if the Term has already expired),

(b) at the end of the term specified in the current Schedule of Contracted Services; or (if no such term is specified),

(c) on the next anniversary of this Contract following the expiration of the notice.

2.3   The parties shall not enter into any further Schedules of Contracted Services after the date on which notice to terminate is served under clause 2.1.

2.4   The parties may amend the Contracted Services procured from the Available Procurement Services by agreement of an updated Schedule of Contracted Services pursuant to clause 7.

2.5   The Contracted Services shall commence on the Effective Date.

  1. Agreement of Contracted Services

3.1   The parties agree that Envantage shall provide the Contracted Services as detailed within the Schedule of Contracted Services.

3.2   No amendment shall be made to the Schedule of Contracted Services except in accordance with clause 7 (Change of services) or clause 17 (Variation).

3.3   Any Schedule of Contracted Services duly amended in accordance with this Contract shall form part of this Contract.

  1. Performance

4.1   Envantage shall use reasonable endeavours to meet any performance dates agreed with the Client but any such dates shall be estimates only and time for performance of the Contracted Services shall not be of the essence of this Contract. The Contracted Services shall be deemed performed on completion of the performance of the Contracted Services as specified in the Schedule of Contracted Services.

4.2   Envantage warrants that, for a period of six months from performance, the Contract Services shall:

(a) conform in all material respects to their description and the Schedule of Contracted Services;

(b) be free from material defects;

(c) be supplied with reasonable skill and care within the meaning of the Supply of Goods and Services Act 1982, Part II s.13; and

(d) in the case of media on which the results of the Services are supplied, be of satisfactory quality within the meaning of the Sale of Goods Act 1979.

4.3   Envantage shall, at its option, remedy, re-perform or refund the Contracted Services that do not comply with clause 4.2, provided that:

(a) the Client serves a written notice on Envantage not later than five Business Days from performance in the case of defects discoverable by a physical inspection, or within a reasonable period of time from performance in the case of latent defects; and

(b) such notice specifies that some or all of the Contracted Services do not comply with clause ‎4.2 and identifies in sufficient detail the nature and extent of the defects; and

(c) the Client gives Envantage a reasonable opportunity to examine the claim of the defective Contracted Services.

4.4   The provisions of this Contract shall apply to any Contracted Services that are remedied or re-performed with effect from performance of the remedied or re-performed Contracted Services.

4.5   Except as set out in this clause 4:

(a) Envantage gives no warranties and makes no representations in relation to the Contracted Services; and

(b) Envantage shall have no liability for its failure to comply with the warranty in clause 4.2 and all warranties and conditions (including the conditions implied by ss 12–16 of the Supply of Goods and Services Act 1982), whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.

4.6   Envantage shall appoint an Authorised Person in respect of the Contracted Services, as identified in the Schedule of Contracted Services. That person shall have authority to contractually bind Envantage on all matters relating to the relevant Contracted Services (including by signing Change Services Documents). Envantage shall use reasonable endeavours to ensure that the same person acts as its Authorised Person throughout the term of the Schedule of Contracted Services, but may replace that person from time to time where reasonably necessary in the interests of Envantage’s business.

  1. Client’s obligations

5.1   The Client warrants that it has provided Envantage with all relevant, full and accurate information as to the Client’s business and needs.

5.2   The Client shall:

(a) co-operate with Envantage in all matters relating to the Contracted Services;

(b) appoint an Authorised Person in respect of the Contracted Services, as identified in the Schedule of Contracted Services. That person shall have authority to contractually bind Envantage on all matters relating to the relevant Contracted Services (including by signing Change Services Documents). The Client shall use reasonable endeavours to ensure that the same person acts as its Authorised Person throughout the term of the Schedule of Contracted Services, but may replace that person from time to time where reasonably necessary in the interests of the Client’s business;

(c) provide, for Envantage, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Client’s premises, office accommodation, data and other facilities as reasonably required by Envantage including any such access as is specified in the Schedule of Contracted Services;

(d) without prejudice to the generality of clause 5.1, provide to Envantage in a timely manner the Initial Information and all documents, information, items and materials in any form (whether owned by the Client or a third party) reasonably required by Envantage in connection with the Contracted Services and ensure that they are accurate and complete in all material respects;

(e) inform Envantage of all health and safety and security requirements that apply at any of the Client’s premises; and

(f)  not, for the period from the date of this Contract up to its termination, contract with, instruct, permit or otherwise engage with any third party for the provision of services to the Client that are materially similar to the Contracted Services from time to time.

5.3   If Envantage’s performance of its obligations under this Contract is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees then, without prejudice to any other right or remedy it may have, Envantage shall be allowed an extension of time to perform its obligations equal to the delay caused by the Client.

5.4   The Client shall not use any opinions, advice or Deliverables provided by Envantage for investment purposes as defined by the Financial Conduct Authority.

  1. Non-solicitation

6.1   The Client shall not, without the prior written consent of Envantage, at any time from the date on which any Contracted Services commence to the expiry of 12 months after the completion of such Contracted Services, solicit or entice away from Envantage or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of Envantage in the provision of such Contracted Services.

6.2   Any consent given by Envantage in accordance with clause 6.1 shall be subject to the Client paying to Envantage a sum equivalent to 20% of the then current annual remuneration of Envantage’s employee, consultant or subcontractor or, if higher, 20% of the annual remuneration to be paid by the Client to that employee, consultant or subcontractor.

  1. Change of services

7.1   Either party may propose changes to the scope or execution of the Contracted Services but no proposed changes shall come into effect until a relevant Change Services Document has been signed by both parties in the form of the template at Schedule 3. The Change Services Document shall set out the proposed changes and the effect that those changes will have on:

(a) the Contracted Services;

(b) the SoCS Charges; and

(c) the timetable for the Contracted Services.

7.2   If Envantage wishes to make a change to the Contracted Services it shall provide a draft Change Services Document to the Client.

7.3   If the Client wishes to make a change to the Contracted Services:

(a) it shall notify Envantage and provide as much detail as Envantage reasonably requires of the proposed changes, including the timing of the proposed change; and

(b) Envantage shall, as soon as reasonably practicable after receiving the information at clause 7.3(a), provide a draft Change Services Document to the Client.

7.4   If the parties:

(a) agree to a Change Services Document, they shall sign it by their Authorised Persons and that Change Services Document shall amend the relevant Schedule of Contracted Services; or

(b) are unable to agree a Change Services Document, either party may require the disagreement to be dealt with in accordance with the dispute resolution procedure in clause 27.

7.5   Envantage may charge for the time it spends on preparing and negotiating Change Services Documents which implement changes proposed by the Client pursuant to clause 7.3 on a time and materials basis at Envantage’s daily rates specified in the Schedule of Contracted Services.

  1. Charges and payment

8.1   In consideration of the provision of the Contracted Services by Envantage, the Client shall pay the SoCS Charges.

8.2   Payment of the SoCS charges shall be made by either:

(a) direct collection by Envantage from the Client’s utility provider in accordance with the terms of the Client’s contract with its utility provider (and subject to the express agreement of the relevant utility provider); or

(b) by the Client made within 30 days of receipt of Envantage’s invoice.

8.3   Where the SoCS Charges are calculated on a time and materials basis:

(a) Envantage’s daily fee rates for each individual person as set out in the Schedule of Contracted Services are calculated on the basis of an eight-hour day, worked during Business Hours;

(b) Envantage shall be entitled to charge an overtime rate (to be agreed between the parties) of the daily fee rate on a pro-rata basis for any time worked by individuals whom it engages on the Contracted Services outside Business Hours; and

(c) Envantage shall ensure that every individual whom it engages on the Contracted Services completes time sheets to record time spent on the Contracted Services, and Envantage shall indicate the time spent per individual in its invoices.

8.4   Where the SoCS Charges are calculated on a fixed price basis, the amount of those charges shall be as set out in a Schedule of Contracted Services.

8.5   Envantage may charge for any expenses it incurs in carrying out any services in respect of this Contract at a location outside of Envantage’s premises.

8.6   Envantage may increase the SoCS Charges on an annual basis with effect from each anniversary of the date of this Contract in line with the percentage increase in the Retail Prices Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the date of this Contract and shall be based on the latest available figure for the percentage increase in the Retail Prices Index.

8.7   Envantage shall invoice the Client for the SoCS Charges at the intervals specified in the Schedule of Contracted Services. If no intervals are so specified, Envantage shall invoice the Client at the end of each month for Contracted Services performed during that month unless the SoCS Charges are collected in accordance with clause 8.2(a).

8.8   Without prejudice to any other right or remedy that Envantage may have, if the Client fails to pay Envantage any sum due under this Contract on or by the due date:

(a) Envantage may charge interest on such sums at 4% a year above the base rate of HSBC Bank plc from time to time in force; and

(b) Envantage may suspend part or all of the Contracted Services until payment has been made in full.

8.9   All sums payable to Envantage under this Contract:

(a) are exclusive of VAT, and the Client shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and

(b) shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

  1. Intellectual property rights

9.1   In relation to the Deliverables:

(a) Envantage and its licensors shall retain ownership of all Intellectual Property Rights in the Deliverables, excluding the Client Materials;

(b) Envantage grants the Client, or shall procure the direct grant to the Client of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of this Contract to copy and modify the Deliverables (excluding the Client Materials) for the purpose of receiving and using the Contracted Services and the Deliverables in its business; and

(c) the Client shall not sub-license, assign or otherwise transfer the rights granted in clause 9.1(b).

9.2   In relation to the Client Materials, the Client:

(a) and its licensors shall retain ownership of all Intellectual Property Rights in the Client Materials; and

(b) grants to Envantage a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Client Materials for the term of this Contract for the purpose of providing the Contracted Services to the Client.

9.3   Envantage:

(a) warrants that the receipt or use of the Contracted Services and the Deliverables by the Client shall not infringe the rights, including any Intellectual Property Rights, of any third party;

(b) shall, subject to clauses 9.5 and 12, indemnify the Client against all liabilities, costs, expenses, damages and losses suffered or incurred or paid by the Client arising out of or in connection with any claim brought against the Client for actual or alleged infringement of a third party’s Intellectual Property Rights, to the extent that the infringement or alleged infringement results from copying, arising out of, or in connection with, the receipt or use of the Contracted Services and Deliverables;

(c) shall not be in breach of the warranty at clause 9.3(a), and the Client shall have no claim under the indemnity at clause 9.3(b) to the extent the infringement arises from:

(i)     the use of Client Materials in the development of, or the inclusion of the Client Materials in, the Contracted Services or any Deliverable;

(ii)    any modification of the Contracted Services or any Deliverable, other than by or on behalf of Envantage; and

(iii)   compliance with the Client’s specifications or instructions, where infringement could not have been avoided while complying with such specifications or instructions and provided that Envantage shall notify the Client if it knows or suspects that compliance with such specification or instruction may result in infringement.

9.4   The Client:

(a)   warrants that the receipt and use in the performance of this Contract by Envantage, its agents, subcontractors or consultants of the Client Materials shall not infringe the rights, including any Intellectual Property Rights, of any third party; and

(b)   shall indemnify Envantage against all liabilities, costs, expenses, damages and losses  suffered or incurred or paid by Envantage arising out of or in connection with any claim brought against Envantage, its agents, subcontractors or consultants for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the receipt or use in the performance of this Contract of the Client Materials.

9.5   If either party (Indemnifying Party) is required to indemnify the other party (Indemnified Party) under this clause 9, the Indemnified Party shall:

(a)   notify the Indemnifying Party in writing of any claim against it in respect of which it wishes to rely on the indemnity at clause 9.3(b) or clause 9.4(b) (as applicable) (IPRs Claim);

(b)   allow the Indemnifying Party, at its own cost, to conduct all negotiations and proceedings and to settle the IPRs Claim, always provided that the Indemnifying Party shall obtain the Indemnified Party’s prior approval of any settlement terms, such approval not to be unreasonably withheld;

(c)   provide the Indemnifying Party with such reasonable assistance regarding the IPRs Claim as is required by the Indemnifying Party, subject to reimbursement by the Indemnifying Party of the Indemnified Party’s costs so incurred; and

(d)   not, without prior consultation with the Indemnifying Party, make any admission relating to the IPRs Claim or attempt to settle it, provided that the Indemnifying Party considers and defends any IPRs Claim diligently, using competent counsel and in such a way as not to bring the reputation of the Indemnified Party into disrepute.

  1. Compliance with laws, anti-bribery, anti-slavery and data processing

10.1  In performing their obligations under this Contract, each Party shall comply with the Applicable Laws.

10.2 Changes to the Contracted Services required as a result of changes to the Applicable Laws shall be agreed via the change of services procedure set out in clause 7 (Change of services).

10.3 For the purposes of this clause 10 the expressions ‘adequate procedures’ and ‘associated with’ shall be construed in accordance with the Bribery Act 2010 and legislation or guidance published under it.

10.4 Each party shall comply with applicable Bribery Laws including ensuring that it has in place adequate procedures to prevent bribery and ensure that:

(a)   all of that party’s personnel;

(b)   all others associated with that party; and

(c)   all of that party’s sub-contractors;

involved in performing the Contract so comply.

10.5 Without limitation to clause 10.4, neither party shall make or receive any bribe (as defined in the Bribery Act 2010) or other improper payment, or allow any such to be made or received on its behalf, either in the United Kingdom or elsewhere, and shall implement and maintain adequate procedures to ensure that such bribes or payments are not made or received directly or indirectly on its behalf.

10.6 The Client undertakes, warrants and represents that it shall comply with the Modern Slavery Act 2015.

10.7 The parties agree that the Client is a Controller and that Envantage is a Processor for the purposes of processing Protected Data pursuant to the Contract. The Client shall at all times comply with all Data Protection Laws in connection with the processing of Protected Data. The Client shall ensure all instructions given by it to Envantage in respect of Protected Data (including the terms of the Contract) shall at all times be in accordance with Data Protection Laws. Nothing in this Contract relieves the Client of any responsibilities or liabilities under any Data Protection Laws.

10.8 Envantage shall process Protected Data in compliance with the obligations placed on it under Data Protection Laws and the terms of the Contract.

10.9 The Client shall indemnify and keep indemnified Envantage against all losses, claims, damages, liabilities, fines, sanctions, interest, penalties, costs, charges, expenses, compensation paid to Data Subjects, demands and legal and other professional costs (calculated on a full indemnity basis and in each case whether or not arising from any investigation by, or imposed by, a supervisory authority) arising out of or in connection with any breach by the Client of its obligations under clause 10.7.

10.10 Each party shall immediately notify the other as soon as it becomes aware of a breach of any of the requirements in this clause 10.

  1. Confidentiality

11.1   Each party undertakes that it shall not at any time during this Contract, and for a period of three years after termination of this Contract, disclose to any person any Confidential Information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 11.2(a).

11.2  Each party may disclose the other party’s Confidential Information:

(a)    to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s Confidential Information comply with this clause 11; and

(b)   as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

11.3  No party shall use the other party’s Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Contract.

11.4  Each party consents to the other to use the other party’s identity and branding (including logo) within their public marketing material.

  1. Limitation of liability

12.1  The extent of the parties’ liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 12.

12.2  Subject to clauses 12.5 and 12.6, Envantage’s total liability shall not exceed the total of the SoCS Charges paid by the Client to Envantage in the preceding calendar year (pro-rated if and to the extent necessary).

12.3  Subject to clauses 12.5 and 12.6, Envantage shall not be liable for consequential, indirect or special losses.

12.4  Subject to clauses 12.5 and 12.6, Envantage shall not be liable for any of the following (whether direct or indirect):

(a)   loss of profit;

(b)   loss or corruption of data;

(c)   loss of use;

(d)   loss of production;

(e)   loss of contract;

(f)    loss of opportunity;

(g)    loss of savings, discount or rebate (whether actual or anticipated);

(h)   harm to reputation or loss of goodwill.

12.5  The limitations of liability set out in clauses 12.2 to 12.4 shall not apply in respect of any indemnities given by either party under the Contract.

12.6  Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of the following:

(a)   death or personal injury caused by negligence;

(b)   fraud or fraudulent misrepresentation; and

(c)   any other losses which cannot be excluded or limited by Applicable Laws.

 

  1. Termination

13.1  Without affecting any other right or remedy available to it, either party may terminate this Contract with immediate effect by giving written notice to the other party if:

(a)    the other party commits a material breach of any term of this Contract and such breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;

(b)   the other party repeatedly breaches any of the terms of this 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 this Contract;

(c)    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 or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;

(d)   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 any of its creditors other than (being 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;

(e)    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 that other party (being a company) other than 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;

(f)    an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other party (being a company);

(g)    the holder of a qualifying floating charge over the assets of that 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 all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;

(i)     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 the other party’s assets and such attachment or process is not discharged within 14 days;

(j)     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 13.1(c) to clause 13.1(i) (inclusive); or

(k)    the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

13.2  Without affecting any other right or remedy available to it, Envantage may terminate this Contract with immediate effect by giving written notice to the Client if:

(a)    the Client fails to pay any amount due under this Contract on the due date for payment and remains in default not less than 21 days after being notified in writing to make such payment;

(b)   there is a change of Control of the Client; or

(c)    any consent, licence or authorisation held by the Client is revoked or modified such that the Client is no longer able to comply with its obligations under the Contract or receive any benefit to which it is entitled.

  1. Consequences of termination

14.1  On termination or expiry of this Contract:

(a)    the Contracted Services shall terminate automatically;

(b)   the Client shall immediately pay to Envantage all of Envantage’s outstanding unpaid invoices and interest and, in respect of the Contracted Services supplied but for which no invoice has been submitted, Envantage may submit an invoice, which shall be payable immediately on receipt;

(c)    the Client shall, within a reasonable time, return all of Envantage’s Equipment. If the Client fails to do so, then Envantage may enter the Client’s premises and take possession of Envantage’s Equipment. Until Envantage’s Equipment has been returned or repossessed, the Client shall be solely responsible for its safe keeping;

(d)   Envantage shall on request return any of the Client Materials not used up in the provision of the Contracted Services; and

(e)    the following clauses shall continue in force: clause 1 (Definitions and Interpretation), clause 6 (Non-solicitation), clause 9 (Intellectual property rights), clause 11 (Confidentiality), clause 12 (Limitation of liability), clause 14 (Consequences of termination), clause 18 (Waiver), clause 20 (Severance), clause 22 (Conflict), clause 27 (Multi-tiered dispute resolution procedure), clause 28 (Governing law) and clause 29 (Jurisdiction).

14.2  Termination or expiry of this Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, 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.

  1. Force majeure

15.1  A party shall not be liable if delayed in or prevented from performing its obligations due to Force Majeure, provided that it:

(a)   promptly notifies the other of the Force Majeure event and its expected duration; and

(b)   uses best endeavours to minimise the effects of that event.

15.2  The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the affected party.

15.3  If, due to Force Majeure, a party:

(a)   is or shall be unable to perform a material obligation; or

(b)   is delayed in or prevented from performing its obligations for a continuous period exceeding 30 days or a total of more than 60 days in any consecutive period of 120 days;

the other party may, within 30 days, terminate the Contract on immediate notice.

  1. Assignment and other dealings

The Client shall not assign, transfer, subcontract or encumber any of its rights and obligations under this Contract, in whole or in part, without Envantage’s prior written consent.

  1. Variation

Subject to clause 7 (Change of services), no variation of this Contract shall be valid or effective unless it is in writing and is duly signed or executed by, or on behalf of, the parties (or their Authorised Persons).

  1. Waiver

18.1  A waiver of any right or remedy under this Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

18.2  A failure or delay by a party to exercise any right or remedy provided under this Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.

  1. Rights and remedies

Save where expressly stated, the rights and remedies provided under this Contract are in addition to, and not exclusive of, any rights or remedies provided by law.

  1. Severance

20.1 If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Contract shall not be affected.

20.2 If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.

  1. Entire agreement

21.1  This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

21.2  Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Contract.

  1. Conflict

If there is an inconsistency between any of the provisions of these conditions (including the Proposal) and the provisions of the Schedules, the provisions of these conditions (including the Proposal) shall prevail.

  1. No partnership or agency

The parties are independent persons and are not partners, principal and agent or employer and employee and the Contract does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. None of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party’s behalf.

  1. Third party rights

24.1  Unless it expressly states otherwise, this Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract.

24.2 Any Affiliate of Envantage shall be entitled under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract. The consent of any such Affiliate is not required in order to rescind or vary the Contract or any provision of it.

  1. Notices

25.1  Any notice given by a party under this Contract shall:

(a)   be in writing and in English;

(b)   be signed by, or on behalf of, the party giving it (except for notices sent by email); and

(c)   be sent to the relevant party at the address set out in the Contract.

25.2 Notices may be given, and are deemed received:

(a)   by hand: on receipt of a signature at the time of delivery;

(b)   by Royal Mail Recorded Signed For post: at 9.00 am on the second Business Day after posting;

(c)   by Royal Mail International Tracked & Signed or Royal Mail International Signed post: at 9.00 am on the fourth Business Day after posting; and

(d)   by email to the correct address: on receipt (in the absence of a notification of failed delivery).

25.3 Any change to the contact details of a party as set out in the Contract shall be notified to the other party in accordance with this clause 25.

25.4 All references to time are to the local time at the place of deemed receipt.

25.5 This clause does not apply to notices given in legal proceedings or arbitration.

  1. Counterparts

26.1  This Contract may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one Contract.

26.2 Transmission of an executed counterpart of this Contract (but for the avoidance of doubt not just a signature page) by (a) fax or (b) email (in PDF, JPEG or other agreed format) shall take effect as delivery of an executed counterpart of this Contract. If either method of delivery is adopted, without prejudice to the validity of the agreement thus made, each party shall provide the others with the original of such counterpart as soon as reasonably possible thereafter.

26.3 No counterpart shall be effective until each party has executed and delivered at least one counterpart.

  1. Multi-tiered dispute resolution procedure

27.1  If a dispute arises out of or in connection with this Contract or the performance, validity or enforceability of it (Dispute) then the parties shall follow the procedure set out in this clause:

(a)   either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, the Authorised Persons of the Client and of Envantage shall attempt in good faith to resolve the Dispute;

(b)   if the Authorised Persons are for any reason unable to resolve the Dispute within 7 days of service of the Dispute Notice, the Dispute shall be referred to the director (or equivalent) of the Client and director of Envantage who shall attempt in good faith to resolve it; and

(c)   if the directors (or equivalent) are for any reason unable to resolve the Dispute within 7 days of it being referred to them, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator shall be nominated by CEDR. To initiate the mediation, a party must serve notice in writing (ADR notice) to the other party to the Dispute, requesting a mediation. A copy of the ADR notice should be sent to CEDR. The mediation will start not later than 21 days after the date of the ADR notice.

27.2 No party may commence any court proceedings under clause 29 in relation to the whole or part of the Dispute until 30 days after service of the ADR notice, provided that:

(a)   the right to issue proceedings is not prejudiced by a delay; and

(b)   either party may at any time seek urgent interim relief from the courts.

27.3 If the Dispute is not resolved within 30 days after service of the ADR notice, or either party fails to participate or to continue to participate in the mediation before the expiration of the said period of 30 days, or the mediation terminates before the expiration of the said period of 30 days, the Dispute shall be finally resolved by the courts of England and Wales in accordance with clause 29.

  1. Governing law

This Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

  1. Jurisdiction

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.

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