CIRCDATA TERMS OF BUSINESS FOR THE PROVISION OF SERVICES
(effective 14th May 2018)
1.1 ‘Assignment’ means the services to be provided by Circdata to the Client for the period agreed therein.
1.2 ‘Authorised Representative’ means the person authorised by the Client to act on behalf of the Client in all matters relating to the Circdata Contract.
1.3 ‘Client’ means the person, firm or corporate body together with any subsidiary or associated company as defined by section 256 of the Companies Act 2006 to whom Circdata is delivering the Assignment.
1.4 ‘Circdata’ means Circdata Ltd, a company incorporated in England with company number 04599812 whose registered office is at Unit K, Venture House, Bone Lane, Newbury, RG14 5SH
1.5 ‘Circdata Contract’ comprises these Terms of Business and the Project Schedule.
1.6 ‘Project Schedule’ shall specify amongst other things, the Assignment, schedule for completion of the Assignment and fees to be charged by Circdata, together with any expenses, frequency of invoices to be issued and other relevant information.
1.7 ‘Terms of Business’ means these terms of business for the delivery of the Assignment to the Client.
1.8 ‘Data Protection Act’ means the Data Protection Act 1998 and the Data Protection Act 2018 and the General Data Protection Regulation (Regulation (EU) 2016/679) and all applicable laws
1.9 ‘Data Controller’, ‘Personal Data’ and ‘Processing’ and ‘Data Processor’ have the same meanings as set out in the Data Protection Act.
1.10 ‘New Data’ means any data or information (including Personal Data) collected or generated during the delivery of the Assignment by Circdata or the Client.
1.11 ‘Client Data’ means all data supplied by the Client or otherwise made available to Circdata within the terms of this Circdata Contract (including Personal Data and New Data).
1.12 ‘Confidential Information’ means all information concerning the other’s business customers, suppliers or Affiliates including all data in accordance with the Data Protection Act, client lists, addresses computer programmes technical business and similar information relating to the Services including all readable or computer or other machine readable data, logic, logic diagrams, flow charts, orthographic representations, coding sheets, coding, source or object codes, listings, test data, test routines, diagnostic programs or other material supplied other than Client Data;
1.13 ‘Regulations’ means the Privacy and Electronic Communications (EC Directive) 2003.
2.1 The headings in these Terms of Business are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of any of the Terms of Business.
2.2 Reference to any statute or statutory provision includes a reference to:
2.2.1 such statute or statutory provision as from time to time amended extended re-enacted or consolidated; and
2.2.2 all statutory instruments or orders made pursuant to such statute or statutory provision.
2.2.3 Words denoting the singular shall include the plural and vice versa.
2.3 Words denoting any gender include all genders and words denoting persons shall include firms and corporations and vice versa.
3 CONFIRMATION OF ASSIGNMENT
3.1 Prior to the commencement of the Assignment by Circdata, Circdata will send to the Client written confirmation of the Assignment in the form of the Circdata Contract. The Circdata Contract will be deemed accepted by the parties when the confirmation is sent by Circdata in accordance with this clause 3.
4 DELIVERY OF ASSIGNMENT
4.1 Circdata will co-operate fully with the Client in so far as is reasonably practicable to complete the Assignment in accordance with the Project Schedule. The Client agrees to assist Circdata in the delivery of the Assignment by making available to Circdata all relevant information and executive time as required, time being of the essence.
4.2 Fees to be charged by Circdata have been calculated on the basis of information supplied by the Client. If the information supplied is incomplete or misleading or if the Client’s plans are subsequently amended, leading to an increase in the work required in the delivery of the Assignment, Circdata reserves the right to increase the fees accordingly in these circumstances subject to the Client’s approval.
4.3 Any request by the Client to amend or halt any plans or to cancel work in progress in connection with Circdata’s delivery of the Assignment, shall be implemented by Circdata as far as this is possible within the terms of its contractual obligations to suppliers. The Client shall be responsible for any costs or expenses incurred by Circdata (including labour costs) or to which Circdata is committed prior to, or as a result of, the cancellation or amendment and which cannot be recovered by Circdata. The Client shall pay the Circdata’s fees covering the cancelled or amended Assignment, as well as any charges raised by third parties arising from the cancellation or amendment.
4.4 Where the Client requests Circdata to halt or delay the delivery of the Assignment (for whatever reason) Circdata reserves the right to review and increase the costs of the Assignment as contained in the Project Schedule provided to the Client in respect of such Assignment.
5 . INVOICES AND PAYMENTS
5.1 Circdata will render invoices on completion of the Assignment or as set out in the Project Schedule or in accordance with any agreement between the parties for staged payments. Value Added Tax or other taxes payable in respect of the provision of the services shall be added to the invoices at the prevailing rate at the date of issue and shall be payable by the Client.
5.2 Circdata shall be entitled to charge for all expenses incurred in the delivery of the Assignment and which have been included in the Circdata Contract.
5.3 The Client shall pay all invoices in full within 7 days of the date of each invoice.
5.4 Time for payment shall be of the essence.
5.5 No payment shall be deemed to have been received until Circdata has received cleared funds.
5.6 All sums payable under the Circdata Contract shall be paid in full without deduction, withholding or set-off.
5.7 The failure by the Client to settle invoices within 7 days shall entitle Circdata at its discretion to claim interest at a rate of 6% above the base rate of Lloyds Bank plc. Interest shall accrue on a daily basis from the date of delivery of the invoice until Circdata has received payment of the overdue amount together with all accrued interest. The Client agrees to indemnify Circdata against all costs and expenses incurred in recovering monies due to Circdata by the Client.
5.8 Circdata reserve the right to exercise a lien over all funds, documents, records (including Client Data) and property belonging to the Client in its possession relating to all Assignments on behalf of the Client until all outstanding fees and disbursements are paid in full. Circdata also reserves the right to suspend the provision of its services to the Client.
6 INTELLECTUAL PROPERTY
6.1 Where the Assignment includes the use of software owned and operated by Circdata for the purpose of conducting the Assignment on behalf of the Client that software and the intellectual property rights and any copyright subsisting in it shall be owned by Circdata.6.2 Where the Client provides Circdata with any Personal Data and/or where New Data is acquired the intellectual property rights and any copyright subsisting in that data are owned by the Client and the Client grants to Circdata an irrevocable royalty free non-exclusive licence to use that Personal Data and New Data.6.3 Circdata shall be under no obligation to provide the Client with a copy of any software or computer programmed information or any part thereof. In such circumstances that Circdata at its absolute discretion allows the Client to have access to any such software Circdata reserves the right to limit the content and extent of the software available for viewing by the Client and in any event only a summary of the software shall be provided. For the avoidance of doubt any computer programmed information contained in the software, including the software itself, shall be the confidential information and intellectual property of Circdata and the provisions of clause 7 shall apply.
7 CONFIDENTIAL INFORMATION
7.1 The parties agree to treat as secret and confidential and not at any time for any reason during or after the termination of the Assignment to disclose or permit to be disclosed or made use of any confidential information concerning the other’s business customers, suppliers or associated companies which they may acquire in the course of the Assignment or any other information expressly identified as confidential information in these Terms of Business.
7.2 For the avoidance of doubt, the restrictions in this clause 7 shall not prevent:
7.2.1 the disclosure or use of information in the proper performance of Circdata’s duties;
7.2.2 the disclosure of information if required by law; or
7.2.3 the disclosure of information which is already in the public domain otherwise than through unauthorised disclosure by Circdata or the Client.
7.3 Nothing in the Circdata Contract shall prevent Circdata from using the name of the Client in any list of clients used by Circdata for its own promotional purposes unless the Client has notified Circdata in writing that it is unwilling for its name to be so used.
7.4 The provisions of this clause 7 shall survive the expiry or termination of the Assignment.
8 EXCLUSION AND LIMITATION OF LIABILITY
8.1 Circdata shall have no liability to the Client for any loss, damage, costs, expenses or other claims for compensation arising from any information or instructions supplied by the Client which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other fault of the Client.
8.2 Except in respect of death or personal injury caused by Circdata’s negligence, or as expressly provided in these Terms of Business and to the fullest extent permitted by law, Circdata shall:
8.2.1 not be liable to the Client by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at Common Law, for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the delivery of the Assignment; and
8.2.2 only be liable in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Assignment to an amount limited to the fees stated in the Project Schedule.
8.3 Where Circdata supplies, in connection with the delivery of the Assignment, any goods or services supplied by a third party, Circdata does not give any warranty, guarantee or other term as to their quality, fitness for purpose or otherwise, but shall, where possible, assign to the Client the benefit of any warranty, guarantee or indemnity given by the third party supplying the goods or services to Circdata.
8.4 Circdata shall not be liable for any loss, damage, costs, expenses or other claims for compensation arising from the Client’s beach of the Data Protection Act.
8.5 Circdata shall not be liable for any loss, damage, costs, expenses or other claims for compensation arising from the Client’s or its employee’s breach of the Regulations.
8.6 The Client shall indemnify and keep indemnified Circdata from and against any and all damage, loss, costs, expenses (including legal costs and expenses) and liability whether civil or criminal which Circdata may incur or suffer resulting from any act, omission, neglect or default of the Client or its agents, employees or licensees, or the infringement of the Regulations and the Data Protection Act or the infringement of any copyright and intellectual property rights of Circdata or any third party or any successful claim for defamation, provided that such liability was not incurred by Circdata through any default in performing its obligations.
8.7 The provisions of this clause 8 shall survive the expiry or termination of the Circdata Contract.
9 DATA PROTECTION AND COMPLIANCE
9.1 Any New Data (including Personal Data) and any intellectual property rights subsisting in it acquired and collected by Circdata solely for the purpose of delivering the Assignment to the Client shall remain at all times the property of the Client and the Client shall act as the Data Controller for such data.
9.2 Subject to clause 6 any data including Personal Data and any intellectual property rights subsisting in it provided by the Client to Circdata solely for purpose of enabling Circdata to deliver the Assignment to the Client shall remain at all times the property of the Client and the Client shall act as the Data Controller for such data.
9.3 Any New Data and any intellectual property rights subsisting in it collected for the sole purpose of delivering the Assignment to the Client shall be owned by the Client and Circdata hereby assigns with full title guarantee to the Client all intellectual property rights in the New Data.
9.4 Circdata shall have a royalty-free non-exclusive license from the Client to process Personal Data for the purpose of delivering the Assignment.
9.5 For the purposes of any Personal Data processed during the delivery of the Assignment Circdata shall be the Data Processor of that Personal Data and the Client shall be the Data Controller.
9.6 Circdata will only act on the written instructions of the Client in accordance with 3. Above.
9.7 Circdata will only engage a third party or sub-processor of Personal Data with the prior consent of the Client and with a written contract between Circdata and the sub-processor.
9.8 Circdata will ensure that all people who are directly under its control will be subject to a duty of confidence whilst processing all Client Data and Personal Data.
9.9 Circdata shall inform the Client of the subject matter and duration of the processing, its nature and its purpose, including the type of personal data, its categories of data subject and the Client’s obligations and rights as a data controller.
9.10 Circdata shall provide the Client with reasonable assistance in providing it with subject access requests, the notification of personal data breaches and data protection impact assessments. The Data Controller must provide Circdata with 10 days’ notice of any subject access requests. Circdata shall be entitled to charge the Client all reasonable fees for the assistance in providing these subject access requests.
9.11 Circdata shall notify the Client without undue delay after becoming aware of a personal data breach and where feasible no later than 72 hrs after having been made aware of it.
9.12 Circdata will take reasonable and appropriate steps to ensure that it’s processing of Personal Data will be secure pursuant to Article 32 of the GDPR and the Data Protection Act in general.
9.13 Circdata and the Client undertake jointly and severally to comply with all relevant laws and legislation in all applicable jurisdictions and any Personal Data and New Data provided to Circdata to enable and assist Circdata in its provision of the Services and to be processed for that purpose has been obtained in accordance with and in compliance with Data Protection Act and all other applicable laws, enactments, regulations, orders, standards and other similar instruments.
9.14 For the purposes of the Data Protection Act and Regulations any relevant Assignment delivered by Circdata shall be conducted on behalf of the Client and thereby instigated by the Client for the purposes of the Data Protection Act and Regulations.
9.15 The Client warrants that:
9.15.1 it has in place all procedures for the provision of information to Data Subjects about the processing of their Personal Data to ensure compliance with Data Protection legislation it obtains all the necessary consents required by Data Protection legislation for the processing of Personal Data in accordance with the Agreement;
9.15.2 it has and maintains at all times any notification that may be required under the Data Protection Act and that such notification covers all data processing contemplated through the provision of the Services;
9.16 The provisions of this clause 9 shall survive the expiry or termination of the Circdata Contract.
10 FORCE MAJEURE
10.1 Neither party shall be liable to the other in respect of anything which, apart from this provision, may constitute breach of this Circdata Contract arising by reason of force majeure, namely circumstances beyond the control of either party which shall include (but shall not be limited to) acts of God, perils of the sea or air, fire, flood, drought, earthquake explosion, sabotage, embargo, riot, civil commotion or civil authority, including acts of local government, parliamentary and judicial authority, internet failure, server crashes and virus attacks on equipment.
10.2 Immediately upon becoming aware of any event of force majeure, the affected party shall notify the other party of the manner and extent to which its obligations are likely to be prevented or delayed, and the dates of performance of any obligations affected shall be postponed for so long as is made necessary by the event of force majeure.
11.1 No variation or alteration of the Circdata Contract shall be valid unless approved in writing by a Director of Circdata or a duly authorised officer.
12 THIRD PARTY
12.1 No third party shall have any rights under the Contracts (Right of Third Parties) Act 1999 to enforce the Circdata Contract.
13 ENTIRE AGREEMENT
13.1 The Circdata Contract contains the entire agreement between the parties save that nothing in this Circdata Contract shall supersede or in any way dilute the rights and obligations of the parties to any existing agreement between them still being in force.
13.2 Unless otherwise agreed in writing by a director of Circdata, the Circdata Contract prevails over any terms of business or purchase conditions put forward by the Client.
13.3 In the event that there is a conflict between these Terms of Business and the Project Schedule then the Project Schedule will prevail.
13.4 No failure of either party to enforce at any time or for any period any term or condition of the Circdata Contract shall constitute a waiver of such term or of that party’s right later to enforce all terms and conditions of the Circdata Contract.
14.1 If any limitation or provision contained in the Circdata Contract shall be determined invalid, unlawful or unenforceable it shall be deemed severed from the remainder of the terms, which shall continue to be valid to the extent permitted by law.
15.1 The Client may not assign, sub-licence or otherwise transfer any agreement governed by the Circdata Contract or any rights or obligations hereunder whether in whole or in part without the prior written consent of Circdata (such consent shall not be unreasonably withheld or delayed). Circdata acknowledges that such assignment shall not affect the liability of Circdata to fulfil its obligations in its delivery of the Assignment.
16 ENGLISH LAW
16.1 The Circdata Contract is governed by, and should be construed in accordance with the English law. Each party agrees that the courts of England will have exclusive jurisdiction in relation to any claim, dispute or difference concerning this engagement letter and any matter arising from it. Each party irrevocably waives any right to object to any action being brought in those Courts, to claim that the action has been brought in an inappropriate forum, or to claim that those Courts do not have jurisdiction.
Updated 14th May 2018