“Company” refers to MAIL HANDLING INTERNATIONAL LIMITED, registered in England and Wales with company registration number 03241562, (also known by the trading name MHI).
“Owner” means the owner of any goods, data, printed matter (including any packaging or containers or equipment), or routing and distribution information to which any business conducted under these conditions relates and any other person who is or may become interested in them.
“Contract” refers to the contract between the Company and the Customer for the provision of the Services in accordance with these terms and conditions.
“Control” means the beneficial ownership of more than fifty per cent (50%) of the issued share capita lof a company or the legal power to direct or cause the direction of the management of the company and Controls and Controlled shall be interpreted accordingly.
“Customer” refers to the business, firm, company or individual to whom the Services are to be supplied, by the Company after an Order has been accepted by the Company.
“Data Protection Legislation” means (i) unless and until the GDPR is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998.
“Intellectual Property Rights” means copyright, patents, Know-how, trade secrets, trademarks, tradenames, design rights, rights in get-up, database rights, rights in data, rights in computer software, 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.
“Know-how” means inventions, discoveries, improvements, processes, formulae, techniques, specifications, technical information, methods, tests, reports, component lists, manuals, instructions, drawings and information relating to the Customer and the Company; whether written or in any other form and whether confidential or not.
“Services” refers to the Services to be supplied by the Company to the Customer as set out in the Order, including, without limitation, any or all of the following receipt of data, data processing, packaging, intellectual routing of or final distribution and postage of the Customers’ goods to the addresses included within either the data previously supplied or for pre-addressed material provided by the Customer.
“Scheme” means any postal or parcel delivery Scheme operated by a postal service provider, whether in the United Kingdom or elsewhere.
“Order” refers to the Company’s Order for the Services in substantially the same form as set out in the Company’s quotation form as supplied in electronic or hard copy to the Customer by the Company from time to time.
2.1 Subject to clause below, all activities of the Company in the course of the provision of the Services are undertaken subject to and in accordance with these terms and conditions.
2.2 These terms and conditions shall be subject to, read and construed in accordance with, all applicable law and the Services shall be supplied accordingly.
2.3 Nothing in these terms and conditions shall be construed as a waiver or surrender by the Company of any of its rights or immunities or as an increase of any of its responsibilities or liabilities under such legislation and if any part of these terms and conditions shall be contrary to or repugnant to such law the applicable law shall be deemed to override these terms and conditions so far as reasonably necessary to enable the Company to comply with such law.
2.4 If the Customer is not the Owner of any good or other items which are the subject of the Contract then the Customer is responsible for making the Owner aware of the provisions of these terms and conditions including any limits or exclusions of liability, and the Customer shall be deemed to warrant
3.1 Upon acceptance of an Order by the Company there shall be a binding agreement between the Company and the Customer for the provision of the Services as specified in the Order.
3.2 Each Order sent by the Customer to the Company shall be an offer to purchase the Service or Services subject to these terms and conditions.
3.3 An Order may be refused or amended by the Company at any time before written notice of acceptance is sent by the Company to the Customer.
3.4 An Order shall lapse unless accepted by the Company before the expiry of fourteen (14) working days after the date of the Order.
3.5 The Company will use reasonable endeavours to notify the Customer promptly whether or not it is able to accept an Order.
3.6 From the date on which the Company sends written acceptance of an Order to the Customer there shall be a binding Contract between the Company and the Customer to provide the Service or Services set out in the Order (unless and until they otherwise agree or if the Contract is terminated by operation of law).
3.7 The Customer acknowledges and agrees that the Company may, at its sole discretion, procure the Services of a third party to enable the Company to process the Customers Order. When and to the extent that the Company does engage a third party the Company shall be entitled and the Customer hereby expressly authorises and appoints the Company to enter into in any Contracts or other arrangements with the third party as the Company thinks appropriate, including, without limitation:
(a) For the carriage of goods or printed material by any distribution route or means or person;
(b) For the storage, packing, trans-shipment, unloading or handling of the goods or printed material by any person at any place and for any length of time;
(c) For the carriage or storage of goods or printed material in or on transport units and with other goods or printed material of whatever nature; and
(d) To do such acts as may in the opinion of the Company be reasonably necessary in performance of the Services; and the Customer hereby agrees to indemnify the Company against all costs and charges levied by any such third party against the Company in respect of any such matter.
3.8 The Company may, at its sole discretion, require the Customer to enter into a separate agreement with any sub-contractor or other third party selected by the Company. In the event that the Customer declines to enter into such separate agreement the Company may suspend or withdraw from provision of the Services or any of them.
3.9 The Company reserves to itself discretion to select the means, route and procedure to be followed in the handling, storage and transportation of goods and printed material and to deal with all matters related to the provision of the Services and to due observance of, and compliance with, applicable law and the Customer acknowledges and accepts this.
3.10 The Company shall be entitled to perform any of its obligations herein by itself or by its parent, subsidiary or associated companies. In the absence of agreement to the contrary any Contract to which these conditions apply is made by the Company on its own behalf and also as agent for and on behalf of any such parent, subsidiary or associated company, and any such company shall be entitled to the benefit of these conditions.
3.11 In any case in which the Customer uses agents for the preparation and/or handover of items to the Company, the Customer shall be, and remain responsible for the actions of its agent and for ensuring its agent complies with the provisions of these terms and conditions. The Company is entitled to deal with the Customer’s agent in respect of any item handed to the Company by that agent.
4.1 Subject to clause 4.2 below, the Company shall have a general lien on all goods, data or printed matter and documents relating to goods or printed material in its possession, custody or control for all sums due at any time from the Customer or Owner, and shall be entitled to hold, sell or dispose of such goods, data, printed material or documents at the expense of the Customer(or Owner as the case may be) and apply the proceeds in or towards the payment of such sums on (seven (7) days’ notice) in writing to the Customer. Upon accounting to the Customer for any balance remaining after payment of any sum due to the Company and the costs of sale or disposal the Company shall be discharged of any liability whatsoever in respect of the goods, printed material or documents.
4.2 When the goods or printed material are liable to perish, deteriorate or any offer or inducement included within said items are liable to pass any given response requirement, the Company’s right to hold, sell or dispose of the goods or printed material shall arise immediately upon any sum becoming due to the Company subject only to the Company taking reasonable steps to the Customer’s attention it’s intention of holding, selling or disposing of the goods or printed material before doing so.
4.3 The Company shall be entitled to retain and be paid all brokerages, commissions, allowances and other remunerations customarily retained by or paid to the Company in its normal course of business.
4.4 If delivery of the goods or printed material or any part thereof is not taken by the relevant Customer, consignee or Owner at the time and place when and where the Company has been instructed to effect delivery thereof, the Company shall be entitled to store the goods or printed material or any part thereof at the sole risk of the Customer, whereupon the liability of the Company in respect of the goods or printed material or that part thereof stored as aforesaid shall wholly cease and the cost of such storage, return or disposal of, if paid for or payable by the Company or any agent or sub-contractor of the Company shall forthwith upon demand be paid by the Customer to the Company.
4.5 The Company shall be entitled at the expense of the Customer to dispose of (by sale or otherwise as may be reasonable in all the circumstances):
(a) On (twenty one (21) days’ notice) in writing to the Customer, or where the Customer cannot be traced and reasonable efforts have been made to contact any parties who may reasonably be supposed by the Company to have any interest in the goods or printed material; any goods or printed material which have been held by the Company for (ninety (90) days) and which cannot be delivered as instructed; and
(b) Without prior notice, goods or printed material which have perished, deteriorated or altered or are in immediate prospect of doing so in a manner which has caused or may reasonably be expected to cause loss or damage to third parties or to contravene any applicable laws or regulations.
4.6 No insurance will be effected except upon express instructions given in writing by the Customer and all insurances effected by the Company are subject to the usual exceptions and conditions of the applicable policies of the relevant insurance company or underwriters taking the risk. Unless otherwise agreed in writing the Company shall not be under any obligation to effect a separate insurance on each consignment but may declare it on any open or general policy held by the Company.
4.7 Insofar as the Company agrees to arrange insurance, the Company acts solely as agent for the Customer using its reasonable endeavours to arrange such insurance and does so subject to the limits of liability contained in Clause 4 hereof.
4.8 Except under special arrangements previously made in writing or under the terms of a printed document signed by the Company, any instructions relating to the delivery or release of goods or printed material in specified circumstances only, such as (but without prejudice to the generality of this Clause) against payment or against surrender of a particular document, are accepted by the Company only as agents for the Customer where third parties are engaged to effect compliance with the instructions.
4.9 Information, in whatever form it may be given, is provided by the Company for the Customer’s assistance only and if the Customer shall pass any such information to anyone else the Customer shall indemnify the Company against any liability, claims, loss, damage, costs or expenses arising out of any other persons relying upon such information.
5.1 Except under special arrangement, previously made in writing, and signed by someone duly authorised to sign on its behalf, the Company will not accept or deal with bullion, narcotics, coin, precious stones, jewellery, valuables, antiques, pictures, human remains, livestock or plants. Should any Customer never-the-less deliver any such goods or printed material to the Company or cause the Company to handle or deal with any such goods or printed material otherwise than under special arrangements previously made in writing the Company shall be under no liability whatsoever for or in connection with such goods or printed material howsoever arising.
5.2 Except following instructions previously received in writing and accepted by the Company, the Company will not accept or deal with goods or printed material of a dangerous or damaging nature, nor with goods or printed material likely to harbour or encourage vermin or other pests, nor with goods or printed material liable to taint or affect other goods or printed material. If such goods or printed material are accepted pursuant to a special arrangement and then in the opinion of the Company they constitute a risk to other goods or printed material, property, life or health, the Company shall where reasonably practicable contact the Customer, but reserves the right at the expense of the Customer to remove or otherwise deal with the goods or printed material.
5.3 Where there is a choice of rates according to the extent or degree of the liability assumed by carriers, warehousemen or others, no declaration of value where optional will be made except under special arrangements previously made in writing.
6.1 The Customer will ensure that:
(a) The description and particulars of any goods or printed material furnished by or on behalf of the Customer to the Company are full and accurate;
(b) All goods or printed material have been properly and sufficiently prepared, packed, stowed, labelled and/or marked, and that the preparation, packing, stowage, labelling and marking are appropriate to any operations or transactions affecting the goods or printed material and the characteristics of the goods or printed material.
6.2 Where the Company receives the goods or printed material from the Customer already stowed in or on a container, trailer, tanker, or any other device specifically constructed for the carriage of goods or printed material by land, sea or air (each hereafter individually referred to as “the transport unit”) the transport unit is in good condition, and is suitable for the carriage to the intended destination of the goods or printed material loaded therein or thereon.
6.3 All the material accepted for processing is subject to any other published regulations of the Company relating to printed material and published from time to time by the Company. Any such regulations are deemed incorporated herein and are available for inspection by the Customer upon request.
6.4 The Customer shall ensure the Company is provided with such information as it may require so as to enable the Company to despatch the correct quantity and type of material to a third party. Such information must be accurate and include the weight and volume of material and the contents of any database containing delivery addresses. The Customer shall ensure that any information contained in a database or other means of electronic storage is compatible with the Company’s computer equipment as notified to the Customer from time to time. In the event that such information is corrupted during transmission to the Company (otherwise than as a result of the Company’s negligence) or is inaccurate or sufficient the Customer will indemnify the Company in full for all costs, claims, expenses, postage and freight charges and liability incurred as a result of the Company relying upon such inaccurate information.
6.5 Should the Customer, otherwise than under special arrangements previously made in writing and signed by someone with authority to sign on behalf of the Company, deliver to the Company or cause the Company to deal with or handle goods or printed material of a dangerous or damaging nature, or goods or printed material likely to harbour or encourage vermin or other pests, or goods or printed material liable to taint or affect other goods or printed material, the Customer shall be liable for all loss or damage arising in connection with such goods or printed material and shall indemnify the Company against all penalties, claims, damaged, costs and expenses whatsoever arising in connection therewith, and the goods or printed material may be dealt with in such manner as the Company or any other person in whose custody they may be at any relevant time shall reasonably fit.
6.6 The Customer shall save harmless and keep the Company indemnified from and against:
(a) All liability, loss, damage, costs and expenses whatsoever (including without prejudice to the generality of the foregoing, all duties, taxes, imposts, levies, deposits and outlays of whatsoever nature levied by any authority in relation to the goods or printed material) arising out of the Company acting in accordance with the Customer’s instructions or arising from any breach by the Customer of these terms and conditions or any of them or arising from the negligence of the Customer, and;
(b) When by reason of carrying out the Customer’s instructions the Company has become liable or may become liable to any other party, and;
(c) All claims, costs and demands whatsoever and by whomsoever made or preferred in excess of the liability of the Company under the terms of these conditions regardless whether such claims, costs and demands arise from or in connection with the negligence or breach of duty of the Company its employees, sub contractors or agents, and;
(d) Any claims which may be made on the Company.
6.7 Credit accounts may be opened subject to satisfactory credit references being obtained, at the Company’s sole discretion. The terms of any credit account can be amended or revoked at anytime at the company’s discretion.
6.8 The Customer shall pay to the Company, in cash or as otherwise agreed, all sums immediately when due without reduction or deferment on account of any claim, counterclaim or set-off. Invoices can be raised prior to, or after, goods are despatched. Invoices are payable once goods have been despatched, or work has commenced to deliver the service.
6.9 If the Customer fails to make a payment due to the Company under this agreement and the due date, then without limiting the Company’s remedies under Clause 11 (Termination and Notice), the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at eight per cent (8%) a year above the Bank of England’s base rate from time to time, but at (eight per cent (8%) a year) for any period when that base rate is below nought per cent (0 %).
6.10 In the event of there being any default by the Customer in making payment as aforesaid the entire balance of the said account shall be payable forthwith and the Company shall be entitled to charge interest thereon in accordance with sub-clause 6.9 hereof.
6.11 Despite the acceptance by the Company of instructions to collect freight, duties, charges of other expenses from a consignee or any other person the Customer shall remain responsible for such freight, duties, charges or expenses on receipt of evidence of proper demand and in the absence of evidence of payment (for whatever reason) by such consignee or other person when due.
6.12 The Customer shall ensure that all material delivered or caused to be delivered to the Company and accepted for processing:
(a) Will be printed papers fit to be stored and/or posted and/or despatched in the condition in which they are delivered to the Company.
(b) Will not consist of nor contain any matter or thing which may be considered offensive, defamatory, indecent, obscene, blasphemous or which will be in anyway illegal in the ultimate destination of the material or in any state or country through which the material will or may pass en route to its ultimate destination.
6.13 The Customer warrants that the contents of any mail or package shall not contravene any legislation of any country that the mail may be routed from, to or through in pursuance of the Customer’s instruction, including the country of origin, destination and/or routing.
6.14 The Customer will indemnify the Company for professional costs, fines or any other costs howsoever incurred by the Customer’s breach of any of its obligations.
6.15 Where liability arises in connection with the goods or printed material, the Customer shall promptly provide security to the Company or to any other party designated by the Company in a form acceptable to the Company.
7.1 The Company shall perform its duties with a reasonable degree of care, diligence, skill and judgement.
7.2 Except under special arrangements previously made in writing the Company accepts no responsibility for departure or arrival dates of goods or printed material.
7.3 Except as otherwise provided in these terms and conditions, and then only to the extent so provided the Company shall not be liable for any loss or damage if and to the extent that such loss or damage is caused by:
(a) Strike, lock-out, stoppage or restraint of labour, the consequences of which the Company is unable to avoid by the exercise of reasonable diligence;
(b) Any cause or event which the Company is unable to avoid and the consequences whereof the Company is unable to prevent by the exercise of reasonable diligence.
7.4 The Company shall not be liable to the Customer for any loss, damage, costs, expenses or other claims for compensation arising out of or in connection with any breach by the Customer of its obligations under the Contract.
7.5 The Company shall not be liable to the Customer by reason of any tortious action or any representation (unless fraudulent), or any implied warranty, condition or other term, for any loss of anticipated revenues, loss or corruption of data, loss of profits, loss of business opportunities, loss of goodwill, damage to reputation, any indirect, special or consequential loss damage, costs or expenses, save where such losses are due to negligence on the part of the Company, its employees or agents, which arises out of or in connection with the Contract.
7.6 The Company reserves the right, by written notice given at any time, to exclude liability for damage to any mail, parcels or other items of fragile or brittle nature, scientific instruments or electrical equipment. Glass or similar goods, which will then be carried at the Customer’s own risk. If the Company agrees by special arrangement, in accordance with Clause 5.1 to carry what would otherwise be a prohibited item, the Company reserves the right to exclude liability for any damage to that item.
7.7 In the event of a damaged mail, parcel, or other item the Company reserves the right to recover the damaged item for inspection prior to instigating a claim enquiry.
7.8 The entire liability of the Company under or in connection with the Contract shall not exceed an amount equal to the fees paid to the Company for that particular job to which the Contract relates less the cost to the Company of engaging any and all carriers who are engaged by it in relation to that particular job and all postal and other charges paid by the Company in relation to it.
7.9 Nothing in the Contract or these terms and conditions shall operate to limit or exclude the liability of the Company for death or personal injury caused by the negligence of the Company, its employees, agents or sub-contractors, or any other liability of the Company which may not legally, under the law of England and Wales, be excluded, or as the case may be, limited, provided that nothing in this clause confers any right or remedy upon the Customer to which it would not otherwise be entitled.
7.10 Notwithstanding Clause 7.8 above the Company’s liability howsoever arising and notwithstanding that the cause of loss or damage be unexplained shall not exceed the lower of, in the case of claims for loss or damage to goods or printed material (i) the cost of any goods or printed material lost or damaged, or (ii) the sum if any which the Company recovers under any applicable Scheme.
7.11 Any claim by the Customer against the Company arising in respect of any Service provided for the Customer or which the Company has undertaken to provide shall be made in writing and notified to the Company within (twenty one (21) days) of the date upon which the Customer became or should have become aware of any event or occurrence alleged to give rise to such claim and any claim not made and notified as aforesaid shall be deemed to be waived and absolutely barred except where the Customer can show that it was impossible for him to company with this time limit and that the Customer has made the claim as soon as it was reasonably possible to do so.
7.12 The Company shall be under no liability to the Customer, anyone claiming through the Customer or to any party in respect of loss, damage or injury to the material or to any other property of the Customer occasioned by or arising from theft, fire, vandalism, power cut, act of God, or other actor omission beyond the control of the Company.
7.13 The Company shall not in any circumstances be liable for:
(a) Loss of a particular market or any Customer or the general business reputation of the Customer;
(b) Indirect or consequential loss or from any loss to the Customer arising from third party claims occasioned by or arising from neglect or default of the Company, its employees, subcontractors or agents except for any claims for damages for death or personal injury arising as a consequence of the negligence of the Company;
(c) (Subject to and without prejudice to the generality of these terms and conditions) An event of force majeure as set out in Clause 8 below.
8.1 In this clause ‘Force Majeure’ means an event or sequence of events beyond the Company’s reasonable control preventing or delaying it from performing its obligations under the Contract.
8.2 The Company shall not be liable if delayed in or prevented from performing its obligations under the Contract due to Force Majeure, provided that it:
(a) Notifies the Customer of the Force Majeure event and its expected duration; and
(b) Uses reasonable endeavours to minimise the effects of that event.
8.3 If, due to Force Majeure, the Company:
(a) Is or is likely to be unable to perform a material obligation; or
(b) Is or is likely to be delayed in or prevented from performing its obligations for a continuous period in any (twelve (12) months) of operation of the Contract of more than (ninety (90)Business Days), the Customer may terminate the Contract on not less than (four (4) weeks’)written notice.
9.1 The Customer will indemnify and keep indemnified the Company its subsidiaries, employees, officers and agents from and against all or any liabilities in respect of any losses (including but not limited to any direct, indirect, special, incidental or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs, fees and disbursements (calculated on a full indemnity basis) and all other professional costs and expenses whether foreseeable or otherwise)and any injury, damages, actions, proceedings, claims, demands, costs and/or expenses of whatever nature in respect of:
(a) Any alleged or actual defamatory, obscene, blasphemous, indecent, illegal and/or offensive matter contained in or forming all or any part of the material;
(b) Any injury to or death of any person or damage to any property movable or immovable arising by reason from any act, omission or default of the Customer or its personal injury arising as a consequence of the negligence of the Customer;
(c) Any breach or non-performance of this agreement by the Customer (including but not limited to any failure to make payment of sums demanded or falling due under or in accordance with this agreement); and,
(d) Any claim brought by or on behalf of any third party against the Company or its subsidiaries, employees, officers or agents which relates to, concerns or is in respect of the Services and/or the performance of this agreement;
(e) All costs incurred by the Company in connection with any dispute, question or difference which may arise between the Company and the Customer concerning the construction, meaning, effect or performance of this agreement in which judgment is given in the Company’s favour.
10.1 Prices including postal rates & tariffs are based upon the prevailing conditions at the date a quotation or price list is supplied by the Company to the Customer. The Company may increase the prices for the Services or surcharges (eg. fuel, COVID, war) at any time by giving the Customer not less than fourteen (14) days’ notice in writing.
10.2 Notwithstanding clause 10.1, the Company may increase the prices with immediate effect by written notice to the Customer where there is an increase in the direct cost to the Company of supplying the relevant Services which exceeds two per cent (2%) and or surcharges which are due to any factor beyond the control of the Company.
10.3 If the Customer does not agree with any increase in the prices notified under clauses 10.1 or 10.2 then the Customer may terminate the Contract by giving the Company not less than (thirty (30)calendar days’ notice), such notice to expire no earlier than the date on which the price increase was due to take effect provided always that the Customer shall accept performance (and shall, where applicable pay the increased price for) any Services in respect of which the Company had(at or prior to the time of receiving such notice) entered into an irrevocable commitment with any third party in connection with the Services.
11.1 Without prejudice to any other rights that it may have, the Company may terminate the Contract immediately on written notice to the Customer if the Customer has failed to pay any amount due under the Contract on the due date and such amount remains unpaid (ten business days) after the Customer has received a written notification from the Company that the payment is overdue.
11.2 The Company may terminate the Contract at any time by giving notice in writing to the Customer if the Customer:
(a) Stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;
(b) Is unable to pay its debts either within the meaning of Section 123 of the Insolvency Act 1986 or if the non-defaulting party reasonably believes that to be the case;
(c) Becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;
(d) Has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;
(e) Has a resolution passed for its winding up;
(f) Has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it(
g) Is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within (seven (7) days) of that procedure being commenced;
(h) Has a freezing order made against it;
(i) Is subject to any recovery or attempted recovery of items supplied to it by a supplier retaining title to those items;
(j) Is subject to any events or circumstances analogous to those in this Clause 11.2 in any jurisdiction;
(k) Takes any steps in anticipation of, or has no realistic prospect of avoiding, any of the events or procedures described in this Clause 11.2 including for the avoidance of doubt, but not limited to, giving notice for the convening of any meeting of creditors, issuing an application at court or filing any notice at court, receiving any demand for repayment of lending facilities, or passing any board resolution authorising any steps to be taken to enter into an insolvency process.
11.3 The Company may terminate the Contract at any time by giving not less than (four’ (4) weeks’)notice in writing to the Customer if the Customer undergoes a change of Control.
11.4 On termination of the Contract for any reason:
(a) The Customer shall immediately pay all outstanding invoices to the Company;
(b) The Company shall promptly invoice the Customer for all Services performed but not yet invoiced and payment for such invoices shall be due immediately on receipt by the Customer;
(c) The Customer shall within (five Business Days) return any materials of the Company then in its possession or control; if it fails to do so, the Company may enter any premises Owned by or under the Control of the Customer and take possession of them; and
(d) The accrued rights and liabilities of the parties (including any rights in relation to breaches of Contract) shall not be affected.
11.5 The following clauses of these terms and conditions shall survive termination of the Contract, howsoever caused:
(a) clause 7 (liability and limitation);
(b) clause 11 (termination and notice);
(c) clause 14 (assignment),
(d) clause 17 (third party rights);
(e) clauses 18 and 19 (governing law and jurisdiction) and
(f) together with any other provision of the Contract which expressly or by implication is intended to survive termination.
12.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer), shall be owned by the Company.
12.2 The Customer grants the Company a fully paid-up , non-exclusive , royalty-free, non-transferable licence to copy and modify any materials provided by the Customers to the Company for the term of the Contract for the sole purpose of providing the Services to the Customer.
13.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 13 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
13.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the data controller and the Company is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
13.3 Without prejudice to the generality of Clause 13.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data (as defined in the Data Protection Legislation) to the Company for the duration and purposes of the Contract.
13.4 Without prejudice to the generality of Clause 13.1, the Company shall, in relation to any Personal Data processed in connection with the performance by the Company of its obligations under the Contract:
(a) Process that Personal Data only on the written instructions of the Customer unless the Company is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Company to process Personal Data (Applicable Data Processing Laws).Where the Company is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Company shall promptly notify the Customer of this before performing the processing required by the Applicable Data Processing Laws unless those Applicable Data Processing Laws prohibit the Company from so notifying the Customer;
(b) Ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) Ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
(d) Not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
(i) The Customer or the supplier has provided appropriate safeguards in relation to the transfer;
(ii) The Data Subject (as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies;
(iii) The Company complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and Company complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
(iv) Assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(v) Notify the Customer without undue delay on becoming aware of a Personal Data breach;
(vi) At the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Data Processing Law to store the Personal Data; and
(vii) Maintain complete and accurate records and information to demonstrate its compliance with this Clause 13.4.
13.5 The Customer consents to the supplier appointing any third-party processor of Personal Data under the Contract. The Company confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this Clause 13. As between the Customer and the Company, the Company shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this Clause 13.
14.1 The Customer may not assign, subcontract or encumber any right or obligation under the Contract, in whole or in part.
15.1 No failure, delay or omission by either party in exercising any right, power or remedy provided bylaw or under the Contract or these terms and conditions shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
15.2 No single or partial exercise of any right, power or remedy provided by law or under the Contract of these terms and conditions shall prevent any future exercise of it or them or the exercise of any other right, power or remedy.
15.3 A waiver of any term, provision. condition or breach of the Contract of these terms and conditions shall only be effective if given in writing and signed by the waiving party, and then only in the instance and for the purpose for which it is given.
15.4 Except as set out in these Contracts, no variation of the Contract shall be effective unless it is inwriting and signed by the parties (or their authorised representatives).
16.1 If any provision of these terms and conditions (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of these terms and conditions shall not be affected.
16.2 If any provision of these terms and conditions (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.
17.1 A person who is not a party to these terms and conditions shall not have any rights under the Contracts (Rights of Third Parties Act 7999) to enforce any of the provisions of these terms and conditions.
18.1 These terms and conditions and any dispute or claim arising out of, or in connection with it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with the laws of England and Wales.
19.1 The Company and the Customer irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with the Contract, Services, these terms and conditions, their subject matter or the Contract’s formation(including non-contractual disputes or claims).