SCHEDULE 1: GENERAL TERMS
1. BASIS OF CONTRACT
1.1. This Agreement will be deemed to be accepted by the Client and will be effective on the earlier of:
1.1.1. the Client signing the cover sheet of this Agreement;
1.1.2. the Client using any of the Services after receipt of this Agreement; or
1.1.3. (where there is an existing agreement between the parties relating to the subject matter of this Agreement) 30 days after the Client’s receipt of this Agreement without the Client notifying Beacon IT of any objections there to, on which date this Agreement will come into existence(“Start Date”)and will continue in force until terminated in accordance with its terms.
1.2. Any Service Schedule(s) will be effective on the earlier of:
1.2.1. the parties marking a cross in the relevant Service Schedule box on the Cover Sheet of this Agreement. If this occurs after the Start Date, each party will insert its authorised representatives’ initials and the date at the right hand side of the relevant Service Schedule box; or
1.2.2. the Client using a Service that corresponds with the relevant Service Schedule, on which date such Service Schedule(s) will be incorporated into this Agreement and will continue in force until terminated in accordance with the terms of this Agreement.
1.3. In the event of conflict between any part of this Agreement and/or any ancillary documents, the conflicting terms will take precedence in descending order of priority as follows:
1.3.1. any Statement of Work (the most recent version taking priority over previous versions);
1.3.2. any Client Specific Terms & Conditions (Schedule 9);
1.3.3. the Service Schedules, in descending order of appearance in this Agreement;1.3.4.the Standard Terms & Conditions (Schedule 1); and
1.3.5. Schedule 2 (Definitions).
1.4. This Agreement will apply to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are contained in, or referred to in, the Client's purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing.
1.5. Subject to clauses 10.2 and 10.3, the Client acknowledges that this Agreement will apply to all current and future dealings between the parties relating to its subject matter.
1.6. In this Agreement, unless the context requires otherwise, the following provisions apply:
1.6.1. any capitalised terms in this Agreement will have the meaning set out in Schedule 2 (Definitions) or alternatively within the body of this Agreement, unless otherwise stated;
1.6.2. any clauses or paragraphs referred to in a Schedule to this Agreement is to a clause or paragraph within that Schedule unless otherwise stated;
1.6.3. clause headings are for reference purposes only and shall affect the interpretation of the clause;
1.6.4. a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
1.6.5. the terms ‘including’, ‘include’, ‘in particular’ or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
1.6.6. a reference to ‘writing’ or ‘written’ includes faxes and email unless stated otherwise.
2. GENERAL OBLIGATIONS
2.1. We will provide the Services to you using reasonable care and skill and we will use reasonable efforts to deliver any Hardware and Deliverables to you in accordance with the applicable Statement of Work.
2.2. We will use reasonable efforts to complete the Services within anytime frame agreed with you, but for the avoidance of doubt, time shall not be ‘of the essence’ for the performance of the Services.
2.3. From time to time we may request that you provide us with certain Client Materials, further information or assistance to enable us to fully perform the Services and you agree that this will promptly be provided to us.
2.4. You must ensure the accuracy of all such Client Materials or information provided to us. If we are unable to perform our obligations to you under this Agreement because we have been prevented or delayed by you, such as your failure to do something requested of you, we will not be liable for any delays which may occur in the provision of the Services. If the delay in providing the Services exceeds seven days, you must pay us for any costs or expenses we have incurred as a result of the delay and all work provided by us up to that point in time.
2.5. You will be responsible for obtaining all licences and permissions in the Client Materials which we may need in order to fully perform the Services. You hereby confirm that you have all the necessary rights and ownership in the Client Materials to permit us to use them for the provision of the Services without infringing any third party Intellectual Property Rights.
2.6. Where the Services are to be performed by Beacon IT at the Client’s premises or any third party location, the Client is responsible for arranging any insurance against any loss or damage that may arise and ensuring that such premises are in a suitable condition for the provision of the Services.
2.7. You will check that the terms of each Statement of Work and any other information provided to us is correct and accurately reflects your requirements.
2.8. The Services are provided to you only, and you may not resell the Services to any third party.
2.9. You warrant that you have the legal right and authority to enter into and adhere to the terms of this Agreement.
3. FEES AND PAYMENT
3.1. The Client agrees to pay any invoices within seven days of the date of the relevant invoice.
3.2. Where stated in a Statement of Work we may require you to pay a deposit or advance payment for certain Services.
3.3. VAT and any expenses to be incurred will be shown separately on all invoices (where applicable).
3.4. The Client will not be entitled to set-off, counterclaim, deduct or withhold payment under this Agreement.
3.5. If any expenses are required(including travel and accommodation), we will obtain your written consent before we incur such expenses.
3.6. If you do not pay an invoice issued to you by the relevant due date, we reserve the right to take the following actions:
3.6.1. charge interest on any outstanding sums from the due date for payment in accordance with the Late Payment of Commercial Debts (Interest) Act 1998, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment;
3.6.2. deleting or disposing of any Deliverables that we may hold on your behalf. Please note that we will not be responsible for any loss or damage you may suffer as a result of any deletion or disposal; and/or
3.6.3. suspending the Services we provide to you. We will not be liable for any loss of data that may occur in relation to the suspension of the Services Please note: suspension of hosting or web servers due to non-payment could result in a negative effect on your website’s SEO and rankings.
3.7. We may set-off any liability that you may have to us against any liability that we may have to you.
4. INTELLECTUAL PROPERTY RIGHTS
4.1. You hereby grant Beacon IT a non-exclusive, perpetual, irrevocable, transferable, royalty-free, worldwide licence to use the Client Materials solely for use in the provision of the Services and the creation and use of the Deliverables.
4.2. We will retain all Intellectual Property Rights and other rights in the Deliverables.
4.3. All Intellectual Property Rights in the Systems and any software and/or materials (either in the form of pre-contractual documentation, site documentation or as text, images, research papers or electronically stored code for the manipulation, transmission and presentation of information) developed by us under this Agreement in connection with the Services, including modifications to any software, will remain our property.
4.4. You acknowledge that Beacon IT and its personnel may use any non-confidential details of the Services and the Deliverables (including sharing any analysis or metrics gained from any testing) for a number of purposes, including case studies, publications, exhibitions, competitions and other promotional purposes (such as use in print and on our website).You hereby permit Beacon IT and other associated parties to publish the name and standard logo of the Client for such purposes.
4.5. Upon payment of the full Fees, we will grant you a licence for all Intellectual Property Rights in the Final Deliverables on a non-exclusive, perpetual, irrevocable, non-transferable, royalty-free, worldwide basis to allow you to make reasonable use of the Deliverables.
4.6. The Client will indemnify and keep Beacon IT and its Affiliates, officers, employees, consultants, agents and sub-contractors indemnified, on demand, against all losses, costs and liabilities and all expenses, including reasonable legal or other professional expenses, suffered or incurred by Beacon IT arising out of or in connection with any claim:
4.6.1. in relation to the Client Materials or any Deliverables infringing a third party’s Intellectual Property Rights;
4.6.2. in relation to any information provided by you, the Client Materials or any Deliverables being inaccurate or incomplete; and/or
4.6.3. for any defamatory, offensive or illegal content, information or materials provided by you either directly or indirectly to us.
5.1. A party (“Receiving Party”) will keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed (either orally, in writing or by demonstration) to the Receiving Party by the other party (“Disclosing Party”) or its employees, agents or sub-contractors and any other confidential information concerning the Disclosing Party’s business, its products and services which the Receiving Party may obtain (“Confidential Information”).
5.2. In relation to any Confidential Information received from the Disclosing Party or from a third party on behalf of the Disclosing Party, the Disclosing Party and the Receiving Party agree:
5.2.1. to treat the Confidential Information in confidence and to use it only for the purpose of discharging the Receiving Party’s obligations under this Agreement;
5.2.2. not to disclose the Confidential Information to any third party without the express written permission of the Disclosing Party (except that the Receiving Party may disclose the Confidential Information to its officers, employees, consultants, agents and sub-contractors who need access to the Confidential Information in connection with discharging the Receiving Party’s obligations under this Agreement and provided that such officers, employees, consultants, agents and sub-contractors are made aware of the confidential nature of the Confidential Information and are subject to confidentiality obligations at least as onerous as those set out in this Agreement); and
5.2.3. to treat the Confidential Information with the same degree of care and with sufficient protection from unauthorised disclosure as the Receiving Party uses to maintain its own confidential or proprietary information.
5.3.Nothing in this Agreement will prevent the Receiving Party from using or disclosing any Confidential Information which:
5.3.1. is in or comes into the public domain in any way without breach of this Agreement by the Receiving Party or any person or entity to whom it makes disclosure;
5.3.2. the Receiving Party can show was:(i) in its possession or known to it by being in its use or being recorded in its files prior to receipt from the Disclosing Party and was not acquired by the Receiving Party from the Disclosing Party under an obligation of confidence; or (ii) to have been independently developed by the Receiving Party without reference to the Confidential Information;
5.3.3. the Receiving Party obtains or has available from a source other than the Disclosing Party without breach by the Receiving Party or such source of any obligation of confidentiality or non-use;
5.3.4. is disclosed by the Receiving Party with the prior written approval of the Disclosing Party; or
5.3.5. is required by law to be released (e.g. by a court order), provided that, when permitted by the applicable law, the Disclosing Party is given as much prior written notice as possible of such request.
5.4. This clause 5shall survive termination of this Agreement, however arising.
6. DATA PROTECTION
6.1. General Obligations. Each party will ensure that in the performance of its obligations under this Agreement it will at all times comply with all applicable Data Protection Laws and any other applicable privacy laws and regulations.
6.2. Data Specification: The Client must provide Beacon IT with a document setting out the (a) subject matter and duration of any processing to be undertaken by Beacon IT; (b) the nature and purpose of the processing; and (c) the type of Personal Data and the categories of data subject relevant to this Agreement.
6.4. Data Processor. Beacon IT acknowledges and agrees that it will be the Data Processor under this Agreement and that it shall: (a) keep all Personal Data it receives, stores and collects from the Client strictly confidential (pursuant to clause 5(Confidentiality), and not disclose any Personal Data to third parties; (b) not use the Personal Data for any purpose other than to perform its obligations under this Agreement; (c) ensure that all Personal Data it receives, stores and collects from the Client is processed in accordance with this Agreement or as otherwise instructed in writing from time to time by the Client and Beacon IT shall not process the Personal Data for any other purpose, unless required by law to which Beacon IT is subject, in which case Beacon IT shall to the extent permitted by law inform the Client of that legal requirement prior to responding to the request; (d) promptly carry out any written request requiring Beacon IT to amend, transfer or delete the Personal Data or any part of the Personal Data made by the Client during this Agreement; and (e) notify the Client without undue delay or in any case within 48 hours upon Beacon IT or any sub-processor becoming aware of a breach affecting Personal data and at this time providing the Client with all sufficient information required to meet any obligation to notify the relevant data protection authority or inform affected individuals under applicable Data Protection Laws.
6.5. Assistance. Beacon IT agrees to assist the Client with all subject access requests which may be received from an end-customer in a prompt timeframe (at the Client’s cost) and ensure that appropriate technical and organisational measures are in place to enable the Client to meet its obligations to those requesting access to Personal Data held by Beacon IT. Upon request, Beacon IT shall provide you with reasonably requested information within a reasonable timeframe to demonstrate its compliance with this clause 6. Beacon IT shall assist the Client in relation to any data impact assessments and/or any prior consultation with the relevant data protection authority, provided that Beacon IT shall be entitled to charge a reasonable fee for such assistance.
6.6. Data Transfers. Beacon IT agrees not to transmit any Personal Data to a country or territory outside the European Economic Area without the Client’s prior written consent provided that such consent is hereby deemed provided where the Personal Details subject to an adequate level of protection in accordance with Data Protection Laws.
6.7. Return of Data: Upon the termination or expiry of this Agreement for any reason, Beacon IT shall return all Personal Data to the Client as requested by the Client in writing, provided that this shall not prevent Beacon IT from retaining a copy to meet its legal or regulatory obligations.
6.8. Safeguards. Taking into account the state of the art, the costs of implementation, and the nature, scope, context and purpose of processing as well as the varying risks to rights and freedoms of natural persons, the parties warrant that for the duration of this Agreement they will implement administrative, technical and physical safeguards sufficient to ensure the security and confidentiality, and protect against the unauthorised or accidental destruction, loss, alteration, use, or disclosure, of Personal Data and other records and information of the end-customers or employees and to protect against anticipated threats or hazards to the integrity of such information and records.
7.1. This clause7 sets out the entire financial liability of Beacon IT (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client:
7.1.1. arising under or in connection with this Agreement;
7.1.2. in respect of any use made by the Client of the Services, the Hardware and/or the Deliverables or any part of them; and
7.1.3. in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
7.2. All warranties, conditions and other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law.
7.3. Nothing in this Agreement limits or excludes the liability of either party: (i) for death or personal injury which results from negligence; (ii) for any damage or liability incurred by a party as a result of fraud or fraudulent misrepresentation by the other party; or (iii) under any indemnities in this Agreement.
7.4. Subject to clause7.3:
7.4.1. neither party will be liable for loss of profits, loss of business, depletion of goodwill and/or similar losses, loss of anticipated savings, loss of goods, loss of contract, loss of use, loss or corruption of data or information or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; and
7.4.2. each party’s total liability to each other party in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising under or in connection with this Agreement will be limited to the Fees paid or payable for the relevant Services provided to the Client by Beacon IT giving rise to such liability in the preceding 12months to the claim arising (to be calculated on a pro rata basis where the contract term is less than 12months).
7.5. Whilst we will use our reasonable endeavours to make sure that any Client Materials you provide to us are not lost or damaged, we will not be responsible or liable for any loss or damage that may occur to them.
8.1. Each Service shall continue for the period stated in a Statement of Work and each Service may be terminated for convenience where this is provided in a Statement of Work only.
8.2. This Agreement will automatically terminate with immediate effect upon the termination of all of the Service Schedules incorporated into this Agreement.
8.3. Without limiting any other rights or remedies, either party (“Terminating Party”) may terminate this Agreement with thirty days notice by providing written notice to the other party (“Defaulting Party”) on or at any time after the occurrence of any of the events specified below:
8.3.1. a breach by the Defaulting Party of its obligations under this Agreement which (if the breach is capable of remedy) the Defaulting Party has failed to remedy within 14 days after receipt of notice in writing from the Terminating Party requiring the Defaulting Party to do so; or
8.3.2. an event, including (or similar in nature to) the following:
a. the Defaulting Party is unable to pay its debts as they fall due;
b. the Defaulting Party goes into liquidation either compulsorily (except for the purpose of reconstruction or amalgamation) or voluntarily;
c. a receiver is appointed in respect of the whole or any part of the Defaulting Party; or
d. a provisional liquidator is appointed to the Defaulting Party or the Defaulting Party enters into a voluntary arrangement or any other composition or compromise with the majority by value of its creditors or has a winding-up order or passes a resolution for the voluntary winding-up or has an administrative receiver appointed or takes steps towards any such event; or
8.3.3.the Defaulting Party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
8.4. If this Agreement terminates for any reason:
8.4.1. any Statement of Work in force at the time of termination relating to the terminated Services will automatically terminate;
8.4.2. Beacon IT shall not have any obligation to repay any charges paid by the Client;
8.4.3. notwithstanding any other provision, all charges payable by the Client to Beacon IT under this Agreement or the relevant Service Schedule will become due and payable immediately. This clause is without prejudice to any right by Beacon IT to claim for interest or any other right under this Agreement; and
8.5. Termination of this Agreement and/or any Service Schedule will not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of a breach of this Agreement and/or any Service Schedule which existed at, or before, the effective date of termination.
8.6. Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.
9. FORCE MAJEURE
Neither party shall be liable for any failure to perform its obligations under this Agreement if such failure results from circumstances which could not reasonably be contemplated at the time of entering into this Agreement and which are beyond the parties’ reasonable control(including, without limitation, acts of God, strikes, lock-outs or other industrial disputes (involving the workforce of Beacon IT), failure of a utility service or transport network, war, riot, civil commotion, terrorism, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, fire, flood, storm or default of suppliers or sub-contractors). If a force majeure event under this clause continues for a period of 30 days or more, either party may terminate this Agreement immediately by providing the other party with written notice.
10.1. This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
10.2. It may be necessary for us to update this Agreement and its terms from time to time. If you continue to use the Services after we have informed you of any amendments or additional terms to the Agreement, you will be deemed to have accepted these changes and they will be incorporated into this Agreement.
10.3. Subject to clause 10.2, no variation of this Agreement will be effective unless it is in writing and signed by both parties.
10.4. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law will constitute a waiver of that or any other right or remedy, nor will it prevent or restrict the further exercise of that or any other right or remedy.
10.5. You shall not, without the prior written consent of Beacon IT, assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations under this Agreement. Beacon IT may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
10.6. All notices must be in writing and will be deemed given when mailed by registered or certified mail, return receipt requested, to the other party’s main business address. Serving notice by email or fax will not be accepted as an effective method of providing notice of a claim under this Agreement.
10.7. No one other than a party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
10.8. Nothing in this Agreement is intended to, or will be deemed to, establish any partnership or joint venture between the parties, make a party the agent of the other party or authorise a party to make or enter into any commitments for or on behalf of the other party.
10.9. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
10.10. This Agreement and any Statement of Work may be signed in counterparts. Each signed copy of a document will be deemed to be an original, but all signed copies, when taken together, will constitute one and the same agreement.
10.11. This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including without limitation non-contractual disputes or claims) are governed by English law and the parties irrevocably submit to the exclusive jurisdiction of the English courts.