Terms and Conditions
IMPORTANT – PLEASE READ
Terms and Conditions for the Supply of Services
1.1 In these Conditions the following definitions apply:
“Associate” means in relation to either CDS DS or the Customer a company which is a subsidiary or a holding company of it for the time being, or any company which is a subsidiary for the time being of any such holding company and “holding company” and “subsidiary” shall have the meanings given to them in section 1159 of the Companies Act 2006 as amended from time to time;
“Background Intellectual Property” means Intellectual Property Rights (i) subsisting in any and all works and materials existing before the Commencement Date or (ii) which are developed, written or prepared at any time during the Contract Term other than specifically for the purposes of, or specifically in the course of, providing the Services;
"CDS DS" means CDS Defence Support (Company No. 10459658) whose registered office is at The Bramery, 44 Alstone Lane, Cheltenham, GL51 8HE.
“Charges” means the charges for the Services calculated in accordance with clause 8.1 and described in the Proposal;
“Commencement Date” means the date the Contract starts as stated in the Proposal;
“Conditions” means the terms and conditions for the supply of Services set out in this document;
“Confidential Information” means all information in respect of the business of either party disclosed or obtained in connection with the Contract and which is either marked as confidential or should reasonably be understood to be confidential including, without prejudice to the generality of the foregoing, any business methods; finance; business, financial, or manpower plans; client lists or details;, and information concerning either party’s relationships with actual or potential clients, customers or suppliers;
“Contract” means the contract between CDS DS and the Customer for the provision of Services, which consists of the Proposal and these Conditions. If there is any inconsistency between the documents comprising the Contract, the Conditions shall take precedence over the Proposal;
“Contract Managers” means the individuals named as such on the Proposal or their replacements from time to time;
“Contract Term” means the contract term for the provision of the Services stated in the Proposal or, if no contract term is stated, the timescale to complete the tasks which comprise the Services;
“Customer” means the person whose details are set out in the Proposal;
“Customer Input” means any data, design, information, documentation, materials or any other input provided or procured to be provided by the Customer or specified by the Customer to be used in the provision of the Services irrespective of its mode of presentation;
“Foreground Intellectual Property” means all Intellectual Property Rights in works or materials developed, written or prepared by CDS DS (or its subcontractors), whether individually, collectively or jointly with the Customer, specifically for the purposes of, or specifically in the course of, providing the Services;
“Intellectual Property Rights” means all copyrights and other intellectual property rights, however arising and in any media whether or not registered, including copyright, patents, trade marks, service marks, trade names, registered and unregistered designs and any applications for the protection or registration of those rights and renewals and extensions of them throughout the world;
"Proposal" means the proposal submitted by CDS DS to the Customer which sets out further details in relation to the Contract;
“Rates” means the rates set out in the Proposal or if no such rates are provided, CDS DS’ standard daily rates from time to time;
“Services” means the services set out in the Proposal;
2.1 In these Conditions the following rules of interpretation apply:
2.1.1 a reference to a singular item includes the plural and vice versa;
2.1.2 the expression ‘person’ includes any individual, firm, body corporate, unincorporated association, or partnership;
2.1.3 the headings to the clauses are for convenience only and do not affect the construction or interpretation of the Conditions;
2.1.4 references to a statute or statutory provision include, unless the context otherwise requires, a reference to that statute or statutory provision as amended, modified, extended, re-enacted or consolidated together with all statutory instruments made under that statute at any time; and
2.1.5 the term "including" (and variants of it) is not to be construed as being exhaustive.
3. BASIS OF SUPPLY
3.1 The Customer agrees to deal with CDS DS on these Conditions to the exclusion of all other terms, conditions, warranties or representations except for those which are set out in the Proposal. For the avoidance of doubt, where CDS DS starts performing the Services prior to the parties accepting the Proposal (whether orally or in writing), these Conditions apply in relation to such work.
3.2 The Contract contains all the terms which the parties have agreed in relation to the subject matter of the Contract, and supersedes any prior written or oral agreements, representations or understandings between the parties in relation to such subject matter.
3.3 The Customer acknowledges that it has not entered into the Contract wholly or partly in reliance on, nor has CDS DS given, any warranty, statement, promise or representation other than as expressly set out in the Contract. To the extent that any such warranties, statements, promises or representations have been given, the Customer unconditionally and irrevocably waives any claims, rights or remedies which it may have had in relation to them.
3.4 No variation of these Conditions and/or the Contract will be binding upon either party unless it is in writing and is signed by the parties to the Contract. Any changes to these Conditions must be approved by a Director of CDS DS prior to signature of the Proposal. No other person is authorised to agree any changes on behalf of CDS DS.
3.5 For the avoidance of doubt, the Proposal forms part of the Contract. If there is any inconsistency between the Proposal and these Conditions, these Conditions take precedence.
4.1 The Contract commences on the Commencement Date and shall continue for the Contract Term unless or until terminated in accordance with these Conditions.
4.2 Unless CDS DS has specifically agreed that the Customer is entitled to terminate the Contract prior to the expiry of the Contract Term, the Customer is committed to purchasing the entirety of the Services for the duration of the Contract Term.
5. CDS DS’ DUTIES
5.1 In return for the Customer paying the Charges, CDS DS will perform the Services in accordance with these Conditions.
5.2 CDS DS will use its reasonable endeavours to deliver the Services by the due dates set out in the Proposal (if any) subject always to any other provisions of the Contract and any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
5.3 CDS DS will:
5.3.1 ensure that its employees use reasonable skill and care in the performance of the Services; and
5.3.2 comply with all applicable regulations or other legal requirements relating to the performance of the Services which are in force as at the Commencement Date; and
5.3.3 ensure that its employees have the necessary skill and expertise to provide the Services as required by the Contract; and
5.3.4 ensure that where any employees who are providing the Services are replaced that such replacement shall be of equivalent skill and status.
5.4 CDS DS will 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 CDS DS shall notify the Customer in any such event.
6. CUSTOMER OBLIGATIONS
6.1 The Customer will:
6.1.1 ensure that its employees and other independent contractors provide such co-operation to CDS DS and its employees as it may require to enable it to perform the Services; and
6.1.2 upon reasonable request from CDS DS, promptly provide CDS DS with the Customer Inputs and any such other documents or information as CDS DS may reasonably request for the proper performance of its obligations under the Contract and the Customer shall ensure that all such information provided is accurate in all material respects.
6.2 To the extent that the Customer does not comply with clause 6.1, CDS DS may invoice the Customer for any additional costs and expenses (based on the Rates) reasonably incurred by CDS DS arising out of such failure.
6.3 CDS DS shall not have any liability in respect of any failure or delay in CDS DS performing its obligations to the extent that and for so long as this is due to the failure or delay by the Customer in performing (or procuring to be performed) any of its obligations under the Contract.
6.4 Where the Customer fails to provide the Customer Inputs referred to in clause 6.1, within one (1) month of a request by CDS DS, then CDS DS may terminate the Contract immediately by giving written notice to the Customer and may also charge for any outstanding Charges or sums due under or in connection with the Contract (including those due under clause 6.2) by reference to the Contract Term.
6.5 Where the applicable regulations or other legal requirements relating to the performance of the Services change from those which are in force as at the Commencement Date the Customer must, in good faith, agree to any changes required and/or recommended by CDS DS to the Services in order to allow CDS DS to comply with the changes in applicable regulations and legal requirements. CDS DS shall be entitled to revise the Charges to account for any additional costs reasonable incurred by CDS DS in complying with the changes in applicable regulations and legal requirements but where the change affects CDS DS' business generally, the additional costs payable by the Customer shall be a fair and proportionate allocation having regard to CDS DS’ wider need to comply with the change.
7.1 The Customer must allow (or must obtain permission for) CDS DS and any of its employees, agents or sub-contractors to have such access to its premises as may be necessary for CDS DS to perform the Services and must ensure that such premises are safe for such people.
7.2 The Customer must at its own cost and expense provide (or obtain the provision of) free of charge appropriate accommodation, heating, air conditioning, electrical, telephone lines, office furniture and equipment and other facilities reasonably required by CDS DS, its employees, agents and sub-contractors to perform the Services.
7.3 CDS DS will ensure that its employees, agents and sub-contractors shall comply with any reasonable rules or requirements that may apply at the Customer's premises which the Customer has notified CDS DS of.
8. PRICES AND PAYMENT
8.1 All Charges under the Contract shall be calculated in accordance with the Proposal.
8.2 The Customer will reimburse CDS DS for all reasonable travelling, subsistence and out-of-pocket expenses incurred in performing the Services (“the Expenses”).
8.3 Unless otherwise agreed in writing between the parties CDS DS will invoice the Customer monthly in arrears in respect of the Charges and the Expenses.
8.4 All sums due under the Contract must be paid by the Customer within 30 days of the date of an invoice.
8.5 If any sum payable to CDS DS under the Contract is in arrears for more than 14 days after the due date, CDS DS may, without prejudice to any other right or remedy:
8.5.1 charge interest on the overdue sum on a day to day basis from the original due date until paid in full at a rate of 4% above Lloyds TSB Bank plc base lending rate in force from time to time; and/or
8.5.2 suspend the provision of the Services on 3 days’ prior written notice.
8.6 The Charges and Expenses do not include VAT or any similar sales tax, import or customs duties and similar surcharges, which will be paid additionally by the Customer at the applicable prevailing rate.
8.7 CDS DS shall be entitled to vary the Charges in the event that the Customer requests a variation to the scope of the Services from that set out in the Proposal. CDS DS will inform the Customer of the new Charges within 15 days of a request by the Customer to vary the Services.
8.8 CDS DS shall be entitled to revise its Rates annually to reflect:
8.8.1 any change in its costs;
8.8.2 any changes in indexation; and
8.8.3 any changes in legislation, including employment or tax legislation.
8.9 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 CDS DS in order to justify withholding payment of any such amount in whole or in part. CDS DS may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by CDS DS to the Customer.
9. GOOD FAITH
9.1 The Customer shall procure that they shall not during and for a period of 6 months following termination of this Contract for whatever reason that termination is effected perform a similar service other than via CDS DS either directly or indirectly or alone or jointly with another person full time or part time by contract or otherwise for:
9.1.1 CDS DS’ end-client for this contract; or
9.1.2 any person on whose site the Customer has performed services under this Contract.
9.2 In the event of breach of clauses 9.1 the Customer shall pay to CDS DS as agreed liquidated damages a sum equal to CDS DS’ profit per week multiplied by the number of weeks the Customer works in breach of clause 9.
9.3 The Customer shall not communicate with the CDS DS’ end-client for this contract following termination of this Contract for a period of 6 months other than via CDS DS.
Both parties agree:
10.1.1 not to make or publish any statement relating to, or disclose to any person any Confidential Information (whether written or oral) of the other which it has obtained or received as a result of the discussions leading up to or the entering into, or obtains or receives in performance of, the Contract;
10.1.2 not to make or publish any statement relating to, or disclose any Confidential Information of the other in whole or in part to any other person without the other’s written consent, except to those of its employees, agents and sub-contractors involved in the provision of the Services or implementation of the Contract and who have a need to know the same;
10.1.3 to use the Confidential Information of the other solely in connection with the performance of the Contract and not otherwise or for the benefit of any third party.
10.2 Each party must ensure that its employees, agents, and sub-contractors will maintain the Confidential Information of the other in strict confidence and do not use such information at any time for any purpose except in performance of their obligations under the Contract.
10.3 Each party must, at its own expense, take all reasonable and appropriate steps to enforce any duty of confidence owed to it by any employee, agent or sub-contractor insofar as such enforcement appears to be necessary for the protection of the confidentiality of the Confidential Information of the other.
10.4 The provisions of clause 8.1 will not apply to Confidential Information (or any part of it) which is:
10.4.1 lawfully obtained after the Commencement Date free of any duty of confidentiality otherwise than directly or indirectly from the other party to the Contract;
10.4.2 already in the other party’s possession other than as a result of a breach of this clause 9 as can be clearly demonstrated to the other party with written material;
10.4.3 which the parties can demonstrate is in the public domain (other than as a result of a breach of this clause 9);
10.4.4 necessarily disclosed pursuant to a statutory obligation, including any requirements for disclosure under the FOIA or the EIR under clause 14;
10.4.5 disclosed to the professional advisers, lawyers, auditors and bankers of each party under terms of confidentiality and those professional advisers, lawyers, auditors and bankers are bound by a duty of confidence; or
10.4.6 disclosed with prior written consent of the other party.
10.5 The restrictions contained in this clause 9 will continue to apply for five (5) years following the termination of the Contract.
11. INTELLECTUAL PROPERTY RIGHTS AND INDEMNITY
11.1 Ownership of the Customer’s Background Intellectual Property (including the Customer Inputs) shall remain vested in the Customer (or its third party licensor(s) as appropriate).
11.2 Ownership of CDS DS' Background Intellectual Property shall remain vested in CDS DS (or its third party licensor(s) as appropriate).
11.3 The Customer shall ensure that CDS DS has the right to use any third party Intellectual Property Rights provided to it by the Customer (as part of the Customer's Background Intellectual Property or otherwise) as CDS DS may require in performing the Services in accordance with the Contract.
11.4 All Foreground Intellectual Property shall be owned by and vest in CDS DS absolutely. If any Foreground Intellectual Property, by operation of law or otherwise, vests in the Customer then it shall immediately assign the same to CDS DS.
11.5 Subject to payment in full of the Charges, CDS DS hereby grants (or shall ensure that the relevant third party licensor grants) the Customer a non-exclusive, non-transferable, licence to use CDS DS’ Background Intellectual Property during the Contract Term to the extent necessary for the Customer to receive the Services.
11.6 Subject to payment in full of the Charges, CDS DS hereby grants the Customer a perpetual, non-exclusive, non-transferable licence to use:
11.6.1 the Foreground Intellectual Property for its own internal business purposes only; and
11.6.2 such CDS DS Background Intellectual Property (other than that licensed to CDS DS by a third party) as forms an integral and fundamental part of the relevant Foreground Intellectual Property.
11.7 The Customer shall indemnify CDS DS against all costs and damages awarded under any final judgment by a court of competent jurisdiction (or which are agreed by the Customer in settlement) in respect of any claim that the use of the Customer’s Background Intellectual Property (including the Customer Inputs) or the use of the Customer’s contribution to the Foreground Intellectual Property or the provision of the Services in accordance with the Customers requirements or instructions infringes the Intellectual Property Rights of any third party.
12. LIMITATION OF LIABILITY
12.1 The Charges are calculated on the basis of the following limitations and exclusions of liability.
12.2 Notwithstanding anything to the contrary in these Conditions, CDS DS’ liability to the Customer:
12.2.1 for death or personal injury caused by the negligence of CDS DS, its employees, agents or sub-contractors; and
12.2.2 for damage suffered by the Customer a result of any breach by CDS DS of the condition as to title or the warranty as to quiet possession implied by Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982; and
12.2.3 for fraud including fraudulent misrepresentation;
is not limited (but nothing in this clause 11 confers any right or remedy upon the Customer to which it would not otherwise be entitled).
12.3 This clause 11 sets out CDS DS’ entire liability (including any liability for the acts and omissions of its employees, agents or sub-contractors) to the Customer in respect of:
12.3.1 any breach of its contractual obligations arising under or in connection with the Contract; and
12.3.2 any representation, statement, negligence, breach of statutory duty or other tortious act or omission arising under or in connection with the Contract;
12.3.3 any indemnity provided in the Contract; and
12.3.4 any damage to property.
12.4 CDS DS’ total liability under or in connection with the Contract will not in aggregate exceed an amount equal to 100% of the Charges paid by the Customer to CDS DS in the 12 months prior to the claim arising.
12.5 To the extent that CDS DS remains subject to any obligations after the Contract Term the limit of liability which was in force as a result of clause 11.4 shall continue to apply in respect of any liability which may be incurred by CDS DS after the Contract Term.
12.6 CDS DS will not be liable to the Customer for any direct or indirect loss of profits whether or not CDS DS has been advised of the likelihood of such loss.
12.7 CDS DS will not be liable to the Customer for any loss of goodwill or reputation whether or not CDS DS has been advised of the likelihood of such loss.
12.8 In addition to clauses 11.7 and 11.8, CDS DS will not be liable to the Customer for any damage to, loss of or costs in respect of:
12.8.1 anticipated profits, revenues, anticipated savings or business opportunities (in each case, whether direct or indirect); or
12.8.2 its employees’ or consultants’ time in relation to the Services (in each case, whether direct or indirect); or
12.8.3 any consequential or indirect loss;
and in each case whether or not CDS DS has been advised of the likelihood of such damage, loss or costs.
12.9 CDS DS and the Supplier agree that each of the bullet points (and any section of them) in clause 11.8 above are to be regarded as separate and severable clauses and that if any of the bullet points are or become void or unenforceable in whole or in part, the other bullet points shall remain valid and enforceable.
12.10 CDS DS will not be liable to the Customer for any loss or corruption of data, software or database configuration held by the Customer (whether before or after termination of the Contract) which could have been avoided by the Customer keeping full back-up copies of its data, software or database configuration in accordance with good data processing practice.
12.11 The Customer acknowledges that the Services provided by CDS DS form only part of a wider body of services provided by other consultants, experts and individuals appointed by the Customer to work with CDS DS and the Customer agrees that CDS DS shall not be liable for any claims, losses, expenses or other costs suffered by the Customer to the extent that such claims, losses, expenses or other costs arise in whole or in part as a result of the services, advice or recommendations provided by any third party appointed by the Customer (even where CDS DS has consented to such appointment).
12.12 This clause 11 will continue to have effect after termination of the Contract, for whatever reason.
13.1 CDS DS shall be entitled to terminate the Contract by giving at least one month's notice in writing to the Customer.
13.2 Either party shall be entitled to terminate the Contract immediately by notice in writing to the other party if the other party:-
13.2.1 commits a breach of the Contract which is not capable of remedy, or commits a breach of the Contract that is capable of remedy and fails to remedy it within thirty (30) days of receipt of notice of the breach requiring it to be remedied;
13.2.2 persistently repeats any breach of the Contract where this amounts to a material breach of the Contract as a whole;
13.2.3 fails to pay any sums due to the other within thirty (30) days of the dates on which any sums are due; or
13.2.4 (being a company (or other incorporated body)) is unable to pay its debts within the meaning of s.123 of the Insolvency Act 1986 or convenes a meeting of its creditors or if a proposal shall be made for a voluntary arrangement within Part I of the Insolvency Act 1986 or a proposal for any other composition, scheme or arrangement with (or assignment for the benefit of) its creditors or a receiver, administrative receiver or similar officer is appointed over all or a substantial part of its business or affairs or a meeting is convened for the purpose of considering a resolution or other steps are taken for winding up of such other party (whether by the presentation of a winding up petition or otherwise) or for the making of an administration order (other than for the purposes of solvent reconstruction or amalgamation);
13.2.5 (being an individual) is unable to pay its debts within the meaning of s.268 of the Insolvency Act 1986 or a petition is presented for its bankruptcy or it makes an arrangement or compromise for the benefit of its creditors whether pursuant to the provisions of Part VIII Insolvency Act 1986 or otherwise (a "Personal Insolvency Event"); or
13.2.6 (being a partnership) is unable to pay its debts or a petition is presented for its winding up under the provisions of the Insolvent Partnerships Order 1994 whether or not involving individual insolvency proceedings against the Customer’s partners and presented by creditors or by the partners themselves or such a petition is presented against it in conjunction with bankruptcy or individual insolvency or petitions against any partner or if the Customer enters into any composition, scheme or arrangement or voluntary arrangement including its business and assets or the share of any partner or in the event of any action for a partnership account and/or a winding up of or a dissolution of the Customer under the Partnership Act 1890 or if any partner suffers a Personal Insolvency Event.
13.3 CDS DS shall be entitled to terminate the Contract immediately by giving written notice to the Customer if:
13.3.1 the Customer undergoes a change in control (where “control” means the ability, directly or indirectly, to direct the affairs of another (whether by means of ownership, contract or otherwise)); or
13.3.2 the Customer is guilty of conduct which in the opinion of CDS DS brings (or is likely to bring) CDS DS or the Customer into disrepute.
14. EFFECT OF TERMINATION
14.1 On termination of the Contract:
14.1.1 CDS DS may immediately to cease to perform the Services; and
14.1.2 the Customer shall have no continuing rights or interests in any assets, licences, people or any other matter used to perform the Services unless the Contract expressly states otherwise; and
14.1.3 the Customer shall return to CDS DS any of CDS DS' Confidential Information, property or materials that are in its possession or control; and
14.1.4 CDS DS may issue an invoice for any Charges and other sums which it has not invoiced and which relate to activities which occurred prior to the date of termination; and
14.1.5 if CDS DS has terminated the Contract due to the occurrence of any of the events set out in clause 12.2, all Charges and other sums payable under the Contract for the entire Contract Term shall become immediately due and payable by the Customer.
15. DATA PROTECTION AND FREEDOM OF INFORMATION
15.1 The Customer undertakes to comply with the Data Protection Act 1998 in connection with the performance of its obligations and the instructions given pursuant to the Contract. The Customer further undertakes to ensure that it complies with the Data Protection Act 1998 in such a way as to enable CDS DS to perform its obligations under the Contract.
15.2 For the purposes of these Conditions, the terms "Data", “Personal Data”, “Sensitive Personal Data”, “Data Processor” and “Data Controller” shall have the meaning set out in the Data Protection Act 1998 (“DPA”).
15.3 CDS DS acknowledges that under the terms of the Contract:
15.3.1 it acts as a Data Processor appointed by the Customer who is a Data Controller; and
15.3.2 the Data to which it has access may contain Personal Data including potentially Sensitive Personal Data.
15.4 CDS DS must:
15.4.1 only process the Personal Data in accordance with the instructions from the Customer and the Customer hereby generally instructs CDS DS to process the Personal Data to the extent reasonably required to perform the Contract;
15.4.2 take such appropriate technical and organisational measures to protect against unauthorised or unlawful processing of the Personal Data and against accidental loss or destruction of, or damage to the Personal Data as agreed with the Customer from time to time. The Customer acknowledges that, as at the date of the Contract, CDS DS has in place appropriate technical and organisational measures.
15.4.3 require a third party to enter into a written contract containing equivalent terms to those set out in this clause 14 if (subject to clause 9) it appoints any third party, such as a sub-contractor or other agent, contractor or professional adviser to which Personal Data will be disclosed to enable the third party to perform its appointment;
15.4.4 not process Personal Data outside of the European Economic Area (or any country deemed adequate by the Commission pursuant to Article 25(6) of the Directive 95/46/EC) without the prior written consent of the Customer; and
15.4.5 co-operate so far as is reasonable with the Customer in complying with any subject access request (to which the Customer is responsible for responding) and/or responding to any enquiry made, or investigation or assessment of processing initiated by the Information Commissioner in respect of the Personal Data. CDS DS will be entitled to recover its reasonable costs and expenses of providing such assistance. The parties acknowledge that “reasonable” when used in this context is not to be construed by reference to the fee which the Customer is entitled to charge a data subject as prescribed by the 1998 Act (“Prescribed Fee”). The parties recognise that the Prescribed Fee bears no correlation to the actual costs and expenses which may be incurred by CDS DS in responding to a subject access request or other enquiry, investigation or assessment.
15.5 Following termination of the Contract, CDS DS may process the Personal Data only for so long as is required or as may be necessary for the purpose of defending any legal proceedings that may be brought against CDS DS by any person or body in relation to the Contract or as is required by law or any regulatory body or recommended by any relevant code of practice. Subject to the expiry of any relevant limitation period, any period required by law or a regulatory body or recommended by any relevant code of practice, CDS DS will not retain any copy, abstract, précis or summary of any Personal Data and will destroy its records and documentation accordingly on the expiry of such period.
15.6 The Customer indemnifies, and shall continue to indemnify and hold harmless CDS DS, from and against all third party actions, claims and demands (and any related costs and expenses) arising from or incurred by reason of the processing by CDS DS of Personal Data in accordance with this clause 14 and including a breach of clause 14.1 whilst providing the Services (including the defence of such alleged unlawful processing of Personal Data).
Freedom of Information
15.7 CDS DS acknowledges that certain Customers ("Relevant Customers") may be subject to the Freedom of Information Act 2000 ("FOIA") and the Environmental Information Regulations 2004 ("EIR") and will use reasonable endeavours to assist and cooperate with the Relevant Customers to enable them to comply with the FOIA and the EIR.
15.8 For the purposes of these Conditions, the term "Information" has the meaning set out in Section 84 of the FOIA or in the EIR, but only in so far as the information in question relates to this Contract or its subject matter.
15.9 CDS DS must:
15.9.1 transfer to the Relevant Customer all requests for information under the FOIA or EIR ("Requests for Information") that it receives as soon as practicable and in any event within five (5) working days of receiving a Request for Information;
15.9.2 provide the Relevant Customer with a copy of all Information in its possession or power in the form that the Relevant Customer requires within ten (10) working days (or such other longer period as the Relevant Customer may specify) on the Relevant Customer's request;
15.9.3 provide suitable assistance as reasonably requested by the Relevant Customer to enable the Relevant Customer to respond to the Request for Information within the time for compliance set out in section 10 of the FOIA or Regulation 5 of the EIRs (as applicable); and
15.9.4 CDS DS shall not respond directly to a Request for Information unless expressly authorised to do so by the Relevant Customer.
15.10 The Relevant Customer will reimburse CDS DS for any costs reasonably incurred by CDS DS in complying with the obligations set out in clause 14.9 above.
15.11 If the Relevant Customer receives a Request for Information which may include Confidential Information it shall inform CDS DS of the nature and scope of any such request before seeking to confirm or deny the existence of, or to disclose, such information. The Relevant Customer must give CDS DS at least 7 working days in which to make representations to the Relevant Customer as to whether in their view such information can be disclosed under FOIA. The Relevant Customer must take into account the fact that such information may be commercially sensitive and shall consider CDS DS' comments in deciding whether or not the information requested is exempt from disclosure under FOIA but the Relevant Customer will make the final decision as to whether to disclose the information.
15.12 The Relevant Customer shall not disclose any Confidential Information (including the terms of the Contract) if in its view a claim for exemption from disclosure under FOIA could be maintained.
15.13 If the Relevant Customer determines that any Confidential Information (including the terms of the Contract) is not exempt from disclosure under FOIA, it shall notify CDS DS of its decision if reasonably practical at least 7 days before any disclosure of such information.
16. FORCE MAJEURE
16.1 Neither party shall be liable to the other for any breach or delay in the performance of its obligations under the Contract to the extent that the breach or delay is caused, wholly or partly, by circumstances beyond the reasonable control of that party, including without limiting the generality of the foregoing; any act of God, flood, lightning or fire, act or omission of Government local or district authorities, public telecommunications operators or other competent authorities, epidemic or pandemic, industrial dispute, war, terrorism, military operations, riot, limitations in the ability of third parties approved by the Customer (a “Force Majeure Event”). Provided always that the party suffering from the Force Majeure Event shall:
16.1.1 notify the other party in writing of the Force Majeure Event as soon as reasonably practicable;
16.1.2 use reasonable endeavours (but without any obligation to incur cost or to enter into any commitment which may result in the incurring of costs) to mitigate the effects of the Force Majeure Event;
16.1.3 continue to provide the Services not affected by the Force Majeure Event, to the extent that it is possible and practical to do so;
its time for performance of its affected obligation will be extended by a period equal to the delay caused by the Force Majeure Event.
16.2 If non-performance due to a Force Majeure Event continues for a period of 3 months either party may immediately terminate the Contract provided that all payments due under the terms of the Contract have been made.
17.1 Any notice, demand or communication in connection with the Contract must be in writing and must be delivered by hand or by reputable postal or courier service requiring signature on delivery addressed to the address set out in the Proposals (or such other address as a party may have notified the other of in writing). The notice, demand or communication will be considered to have been served:
17.1.1 if delivered by hand, at the time of delivery; or
17.1.2 if delivered by post/courier, the third working day following but excluding the day of posting or in the case of Airmail the tenth working day following but excluding the day of posting (working days exclude Saturdays, Sundays and public holidays).
17.2 Any notice to CDS DS must also be copied to the Company Secretary at CDS DS’ registered address.
18.1 The Customer shall not assign, transfer or charge the whole or any part of its liabilities or obligations under the Contract or the benefit of the Contract
18.2 CDS DS may, following written notice to the Customer, assign or transfer the Contract in favour of third party.
18.3 CDS DS may appoint a sub-contractor or an agent to perform any of its obligations.
19.1 Any party may, at its discretion, in whole or in part, release or compromise, or waive its rights or grant time or indulgence in respect of, any liability owed to it under the Contract.
19.2 If either party does not exercise a right or remedy, either immediately or at all, that party can still exercise that right or remedy at a later date in respect of that or any other breach, claim or matter.
20. RESOLUTION OF DISPUTES
20.1 Either party may refer any dispute between the parties arising out of or relating to the Contract to the Contract Managers for resolution by giving a notice in writing. The Contract Managers shall negotiate in good faith to resolve such disputes.
20.2 If any dispute cannot be resolved by the Contract Managers under clause 19.1 within twenty-one (21) days after it has been referred to them, the dispute must be referred to suitable directors of CDS DS and the Customer (with notice of such escalation being sent to the senior legal representatives of each party as notified to each party in writing from time to time) for resolution and such directors shall negotiate in good faith to resolve such disputes within twenty-one (21) days.
20.3 If any dispute cannot be resolved by the directors of CDS DS and the Customer under clause 19.2, CDS DS and the Customer must consider whether or not it would be suitable to seek to resolve the matter by mediation with the assistance of a mediator appointed by them or in default of agreement by the Centre for Effective Dispute Resolution (CEDR).
20.4 Neither party may commence any court proceedings (except for seeking injunctive relief) in relation to any dispute arising out of or in connection with this agreement sooner than twenty-one (21) days following the end of negotiations under clause 19.2 or if the matter has been referred to mediation under clause 19.3 within twenty-one (21) days of such mediation concluding.
21.1 Each provision of the Contract is severable and distinct from the others and, if any provision is or at any time becomes to any extent or in any circumstances invalid, illegal or unenforceable for any reason, it shall to that extent or in those circumstances be deemed not to form part of the Contract but the validity, legality and enforceability of all other provisions of the Contract shall not be affected or impaired.
21.2 Any clauses which are expressly stated to apply (or are intended by implication to apply) after the termination of the Contract shall continue in full force and effect in accordance with their terms.
21.3 Nothing contained in the Contract, and no action taken by the parties pursuant to the Contract, will be deemed to constitute a relationship between the parties of partnership, joint venture, principal and agent or employer and employee. Neither party has, nor may it represent that it has, any authority to act or make any commitments on the other party’s behalf.
21.4 Each of the parties is responsible for any costs and expenses incurred by it in connection with the negotiation, preparation and execution of the Contract.
21.5 Subject to clause 20.6, neither party may make any external comment or issue any external announcement, public circular, press statement, publicity, advertising or promotional or other marketing activity information or materials concerning or relating to the Contract, the existence of the Contract, the other party or any ancillary matter (but excluding any disclosure required by legal, accounting or regulatory requirements) without the prior written consent of the other, such consent not to be unreasonably withheld or delayed.
21.6 Notwithstanding the provisions of clause 20.5 above, CDS DS (or any of its Associates) may:
21.6.1 announce the award of the Contract by the Customer to CDS DS, its length, total contract value, location, number of employees deployed on the contract and a brief description of the Services or any other details relating to the Contract and its operation and/or delivery (the "Details");
21.6.2 refer to the existence of the Contract in any proposal to any third party by specifying the Details;
21.6.3 publicise and refer to the existence of the Contract by specifying the Details above in any internal CDS DS communication and publication; and
21.6.4 use the Customer’s name in any internal communication activity.
21.7 During the Contract Term and for a period of 12 months after expiry or termination of the Contract howsoever caused neither party shall solicit the other party’s staff that have been employed or engaged in the provision of the Services or the performance of the Contract. For the purposes of this clause, “solicit” means the soliciting of such person with a view to engaging such person as an employee, director, sub-contractor or independent contractor but shall exclude recruitment following a general recruitment process, campaign or advertisement.
21.8 If a party is in breach of clause 20.7 (and subject always to clause 11) the party in breach must pay to the other by way of liquidated damages an amount equal to 100 per cent (100%) of the gross annual salary (as at the time of the breach) of the person so employed or engaged. This provision shall be without prejudice to either party’s ability to seek injunctive relief.
21.9 The parties acknowledge and agree that the formula specified in clause 20.8 is a reasonable estimation of the loss which would be incurred by the loss of the person so employed or engaged.
21.10 CDS DS' Associates may enforce the provisions of this Contract directly (although CDS DS and the Customer may vary or terminate the Contract without obtaining the permission of such Associates). However, the parties to the Contract do not intend that any of its terms will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any other third party.
21.11 The Contract may be executed in counterparts, each of which constitutes the original and is effective when two counterparts have been signed by the parties and the signed counterparts have been delivered to the other party.
21.12 The provisions of the Contract shall be governed by and construed in accordance with English law and in respect of all matters arising under or in connection the Contract (including any contractual or tortious matter), the parties submit to the non-exclusive jurisdiction of the Courts of England and Wales.
Our Website Terms and Conditions
By using our website, you confirm that you have read and accept the Terms and that you agree to comply with them. If you do not accept the Terms in full, please do not use the website.
1. Introduction and Other Applicable Terms
1.1 These Terms refer to the following additional terms, which also apply to your use of our website:
1.2 We may revise the Terms at any time. Please check the Terms on this webpage from time to time to take notice of any changes we made, as they are binding on you.
1.3 We may update our website from time to time, and may change the content at any time. Please note, however, that we are under no obligation to keep the content up to date nor to ensure that it is free from errors or omissions.
2. Your Access to our Website
2.1 We shall not be liable if the website is unavailable at any time or for any period. Access to the website may be suspended temporarily and without notice in the case of system failure, maintenance or repair or for reasons beyond our control.
2.2 If you choose or are provided with a user identification code, password or any other piece of information as part of our security procedures, you should treat such information as confidential and not disclose it to any third party.
2.3 We have the right to disable any user identification code or password, whether chosen by you or allocated by us, at any time, if in our reasonable opinion you have failed to comply with any of the provisions of these Terms.
2.4 If you know or suspect that anyone other than you knows your user identification code or password, you must promptly notify us at firstname.lastname@example.org.
3. Intellectual Property
3.1 All intellectual property on the website, including without limit, the text, graphics, trade marks and copyright works, is owned by us (or our relevant content supplier). Those works are protected by copyright laws and treaties around the world. All such rights are reserved.
3.2 You may print off one copy, and may download extracts, of any page(s) from our website for your personal use. You must not modify the paper or digital copies of any materials you have printed off or downloaded in any way, and you must not use any illustrations, photographs, video or audio sequences or any graphics separately from any accompanying text.
3.3 Our status (and that of any identified contributors) as the authors of content on our website must always be acknowledged.
3.4 You must not use any part of the content on our website for commercial purposes without obtaining a licence to do so from us or our licensors.
3.6 If you wish to link to any part of this website, you must obtain our prior written consent.
4. Visitor Material and Conduct
4.2 You are prohibited from posting or transmitting to or from the website any material:
4.2.1 that is threatening, defamatory, offensive, pornographic, abusive, liable to incite racial hatred, discriminatory, inflammatory, blasphemous, in breach of confidence, in breach of privacy or which may cause annoyance or inconvenience;
4.2.2 for which you have not obtained all necessary licences and/or approvals;
4.2.3 which constitutes or encourages conduct that would be considered a criminal offence, give rise to civil liability, or otherwise be contrary to the law of or infringe the rights of any third party in any country; and/or
4.2.4 which is technically harmful (including, without limitation, computer viruses, logic bombs, Trojan horses, worms, harmful components, corrupted data or other malicious software or harmful data).
4.3 You may not misuse the website (including, without limitation, by hacking).
5.1 Nothing in these Terms excludes or limits our liability for death or personal injury arising from our negligence, or our fraud or fraudulent misrepresentation, or any other liability that cannot be excluded or limited by English law.
5.2 To the extent permitted by law, we exclude all conditions, warranties, representations or other terms which may apply to our website or any content on it, whether express or implied.
5.3 We will not be liable to any user for any loss or damage, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, even if foreseeable, arising under or in connection with:
5.3.1 use of, or inability to use, our website; or
5.3.2 use of or reliance on any content displayed on our website.
5.4 If you are a business user, we will not be liable for:
5.4.1 loss of profits, sales, business, or revenue;
5.4.2 business interruption;
5.4.3 loss of anticipated savings;
5.4.4 loss of business opportunity, goodwill or reputation; or
5.4.5 any indirect or consequential loss or damage.
5.5 If you are a consumer user, please note that we only provide our site for domestic and private use. You agree not to use our site for any commercial or business purposes, and we have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.
6. Third Party Websites
6.1 The website contains links to third party websites, including websites via which you are able to purchase products and services. They are provided for your convenience only and we do not check, endorse, approve or agree with such third party websites nor the products and/or services offered and sold on them. We have no responsibility for the content, products and/or services of the linked websites.
7. Jurisdiction and Governing Law
7.1 Unauthorised use of the website may give rise to a claim for damages and/or be a criminal offence.