1 Definitions and Interpretation
1.1 In these Terms the following terms have the following meanings:
“Additional Fees” means Lumina’s charges for any Additional Services and any other costs and expenses incurred by Lumina in providing any Additional Services to Customer;
“Additional Services” means any services not falling within the scope of the original Services which Lumina agrees to provide to Customer from time to time;
“Confidential Information” means any information obtained or received by one party from the other prior to acceptance of the Order or during the provision of the Services or Additional Services, including Deliverables, data and research resulting from the Services;
“Customer” means the person whose details are set out on the Order;
“Data Protection Laws” means the data protection legislation or similar legislation as implemented under English law (including any national implementing laws, regulations and secondary legislation), in each case as applicable and in force in the United Kingdom from time to time and all other applicable laws and regulations, relevant industry codes of practice and guidance issued by the Information Commissioner, supervisory authority or other bodies in relation to the processing of personal data;
“Deliverables” means all data, documents, products and materials developed by Lumina pursuant to the Services in any form, including any reports stated on the Order;
“Fees” means the fee payable for the Services as stated on the Order together with such reasonable and demonstrable travel, subsistence and other expenses necessarily incurred in the provision of the Services (as amended from time to time under these Terms);
“Intellectual Property Rights” means any and all intellectual property rights (including copyright, trade marks, patents, design rights, database rights) whether or not registered;
“Initial Period” the initial term for which the Services shall be provided to Customer as set out in the Order (and where no such term is specified, it shall comprise of not less than 2 (two) years from the Commencement Date;
“Lumina” means William Reed Ltd trading as Lumina Intelligence (company number 2883992) whose registered office is at Broadfield Park, Crawley RH11 9RT;
“Order” means any Proposal which is accepted by Customer and confirmed in writing by Lumina or any written order or request for services by Customer for the provision of Services, Additional Services or any other services which is accepted by Lumina (whether or not such order or request is signed by Customer);
“Proposal” means a written proposal by Lumina for the provision of the Services;
“Services” means the services which Lumina is to supply to Customer as detailed on any Order; and
“Terms” means the terms and conditions set out in this document.
1.2 In these Terms headings are included for convenience only and shall not affect interpretation.
1.3 The words “include”, “includes”, “including” and “included” will be construed without limitation unless inconsistent with the context.
2 Basis of Contract
2.1 These Terms shall apply to all Orders for Services accepted by Lumina or Customer (as applicable). By placing an Order with Lumina, Customer agrees to deal with Lumina on these Terms to the exclusion of all other terms, conditions, warranties or representations.
2.2 In the event of any conflict between these Terms and any Order, the terms of the Order shall take precedence but only to the extent that such term is unambiguously and expressly stated to vary these Terms.
2.3 No terms or conditions endorsed on, delivered with or contained in Customer’s purchase order, confirmation of order, specification or any other document or implied by trade customer or course of dealing shall form part of an Order save where these Terms (and where applicable the terms which are to be overridden) are specifically referred to in that document and the document is signed by both Customer and Lumina.
2.4 No variation to these Terms shall be binding unless made in accordance with clause 2.3 above.
2.5 The prices, quantities, service provision levels and timescales for performance stated in any Order are commercial estimates which Lumina shall use its reasonable efforts to achieve.
2.6 No Order accepted by Lumina or Customer (as applicable) may be cancelled by either party in whole or part at any time after its acceptance without the written consent of the other. Lumina reserves the right to charge Customer reasonable cancellation charges in the event of any such cancellation.
2.7 A binding contract shall come into existence when Lumina dispatches an acceptance of the Order to Customer or (if earlier) Lumina supplies the Services to Customer. Customer should return a signed copy of the Order to Lumina for record purposes but where it fails to do so its receipt of the Services or any continued instructions from Customer (whether express or implied) will amount to Customer’s acceptance of both the Order and these Terms.
3 Supply of Services
3.1 Each Order shall commence on the Commencement Date specified in the Order and shall continue for not less than the Initial Period and afterwards for consecutive periods of 1 (one) year (each such contractual period whether during or after the Initial Period being referred to as “Contractual Period(s)”) or until terminated either:
3.1.1 in accordance with clause 11; or
3.1.2 by either party serving not less than twelve months’ written notice to the other provided that
(a) such notice shall not expire before the end of the next Contractual Period following the Contractual Period in which the notice was received; and
b) all payments due to Lumina under the Order shall remain due and payable during the period of such notice.
3.2 Lumina shall supply the Services and any Additional Services to Customer in accordance with these Terms and in consideration of payment of the Fees and any Additional Fees by Customer.
3.3 Lumina reserves the right at any time to make such modifications, changes or additions to, any Service (or part of it), as it deems reasonably necessary. Lumina shall give Customer as much notice as practicable of any proposed modification.
3.4 Customer relies solely on its own skill and judgment in determining the suitability of the Services for any particular purpose.
4 Customer’s obligations
4.1 Customer shall ensure that the terms of its Order are complete and accurate. Where a Customer has any special requirements then these must be stipulated in the Order.
4.2 To enable Lumina to perform its obligations under these Terms, Customer shall co-operate fully with Lumina and provide Lumina and its agents with any information that it reasonably requires.
4.3 If Lumina’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer or its agents, subcontractors, consultants or employees Lumina shall not be liable for any costs, charges or losses sustained or incurred by the Customer to the extent that they arise from such act or omission.
5 Price and payment
5.1 The Fees shall be set out in the Order or, if not specified, the price set out in the Proposal or, if not specified and no price has been quoted (or a Proposal is no longer valid), the price listed in Lumina’s published price list current at the date of supply of the Services.
5.2 Unless otherwise agreed in writing, the Additional Fees shall be set out in the respective additional order form, or, if not specified, calculated in accordance with Lumina’s published price list current at the date of supply of the Additional Services and shall be invoiced and payable in accordance with this clause 5. Additional Fees shall be agreed by the parties in writing prior to commencement of Additional Service.
5.3 Lumina reserves the right, by giving notice to Customer at any time before the anniversary of the Commencement Date, to increase the Fees (and the Additional Fees, if any). In any event Lumina shall have the right to reflect in the Fees any increase in the cost to Lumina which is due to any factor beyond its control, any change in specifications for the Services which is requested by Customer or any delay caused by any instructions of Customer or failure of Customer to give Lumina adequate information or instructions.
5.4 The Fees (and the Additional Fees, if any) are exclusive of any applicable taxes, duties, charges and levies (including, value added tax or any similar tax) which Customer shall be additionally liable to pay to Lumina.
5.5 Lumina shall be entitled to invoice Customer for all amounts due on or in advance of supplying the Services (and the Additional Fees, if any) as set out in the Order and Customer shall make payment to Lumina in pounds sterling in respect of all invoices in full within 30 days of the date of the invoice. No payment shall be deemed to have been received until Lumina has received cleared funds.
5.6 Customer shall make all payments due under an Order in full without any deduction (whether by way of set-off, counterclaim, discount, abatement or otherwise).
5.7 If full payment is not received by Lumina by the due date for payment specified in clause 5.5 then without prejudice to its rights Lumina shall be entitled:
5.7.1 to immediate payment of the fees due for the remainder of the Initial Period (or any extended term); and/or
5.7.2 to suspend the further provision of the Services (and the Additional Services, if any) to Customer without incurring any liability; and/or
5.7.3 to terminate an Order without incurring any liability; and/or
5.7.4 to charge interest on such overdue monies at the rate of 4% per annum above the base rate of Barclays Bank plc from time to time, accruing monthly from the due date for payment thereof until receipt by Lumina of the full amount,
and Customer shall fully indemnify Lumina against all costs and expenses (including legal expenses) incurred by Lumina in connection with the collection of any monies owed by Customer to Lumina.
6 Warranty and Liability
6.1 Lumina warrants to Customer that:
6.1.1 the Services (and the Additional Services, if any) will be performed with reasonable care and skill; and
6.1.2 the Services (and the Additional Services, if any) will be performed in accordance with all statutory requirements and regulations.
6.2 Lumina’s sole liability in respect of any valid warranty claim being made by Customer under clause 6.1.1 shall be limited to the re-performance of the Services (or the Additional Services, as appropriate) free of charge or, at Lumina’s sole discretion, refunding to Customer the Fees (or Additional Fees, as appropriate) or a proportionate part of the Fees or Additional Fees as appropriate.
6.3 Each party warrants to the other that:
6.3.1 it has full authority and all necessary consent to enter into these Terms and any Orders;
6.3.2 any documents, materials and other information provided by it to the other party shall not infringe the Intellectual Property Rights or other rights of any third parties; or
6.3.3 in respect of any data and information provided by it to the other party:
(a) it has full authority and all necessary consents to provide such data and information for the purposes of the Services; and
(b) such data and information does not contain anything which is defamatory, libellous, obscene, contravenes any laws of which offends against good taste or common decency or would place and person in contempt of court.
6.4 All warranties, conditions, undertakings, obligations and other terms implied by statute, common law, custom, trade usage, course of dealing or otherwise are excluded, to the fullest extent permitted by law.
6.5 The Fees and Additional Fees are determined on the basis of the following limitations and exclusions of liability which each party agrees are reasonable.
6.6 Neither party excludes or limits its liability for:
6.6.1 death or personal injury resulting from its negligence; or
6.6.2 any damage or liability incurred by the other as a result of its fraud or fraudulent misrepresentation; or
6.6.3 any liability incurred by the other party as a result of any breach by it of the condition as to title or the warranty as to quiet possession implied by section 2 of the Supply of Goods and Services Act 1982; or
6.6.4 any matter in respect of which it would be illegal for it to exclude or attempt to exclude its liability; or
6.6.5 subject only to clause 6.7, breach of confidentiality; infringement of intellectual property rights; or any regulatory fines or sanctions which a party suffers as a direct result of a breach of this Agreement by the other party.
6.7 The parties shall not be liable to the other for any indirect, incidental or consequential loss or loss of profits
6.8 Subject to clause 6.6, each party’s total aggregate liability for all claims arising out of or in relation to an Order (whether in contract, strict liability, tort (including, without limit, negligence), misrepresentation or any other matter for which a party is liable) shall not in any event exceed the Fees and Additional Fees paid and payable in respect of that Order.
6.9 Lumina accepts no liability for any disruption or non-availability of the Services resulting from internet service provider equipment failure, host equipment failure, communications network failure and power failure.
7 Intellectual Property Rights
7.1 Unless otherwise agreed in writing all Intellectual Property Rights in the Services and any Deliverables shall vest in Lumina.
7.2 Subject to clause 7.1, Lumina grants to Customer a personal, non-transferable, non-exclusive, royalty-free right to use any Deliverables only for its own internal management purposes. Save as required under this clause 7.2 and as permitted by law, Customer shall not copy, reproduce, disseminate, distribute or publish any Deliverables (whether in whole or in part) without Lumina’s prior written consent. For the avoidance of doubt Customer shall not (i) sell any of the Services (or any part thereof) to third parties; (ii) distribute any of the Deliverables (or any part thereof) to third parties for sale or resale (or free of charge) whether as part of a package or as a separate product; (iii) use the Services (or any part thereof) for any purpose which rivals or competes with Lumina. In the event of a dispute between Customer and Lumina it shall be for Lumina to define “rival” and/or “competing” purposes. Nothing in clause 7.2 shall prevent Customer from using the Deliverables for presentations made in the usual course of business.
7.3 Lumina is entitled to inform third parties that it provides, or has provided, the Services to Customer. For this sole purpose, Customer grants Lumina a licence to use its corporate name and any logo.
8 Confidential Information
8.1 Except as required by law or the rules and regulations of any other regulatory authority by whose rules or regulations a party is bound, neither party shall publish or permit to be published either
alone or in conjunction with any other person any press release, information, article, photograph, illustration or any other material of whatever kind relating to this Contract or the business of the other party without prior reference to and approval in writing in all cases from the other party.
8.2 Each party acknowledges that in the course of the Engagement it will have access to Confidential Information of the other party. Each party shall keep all Confidential Information of the other party confidential and shall not either during, or at any time after termination disclose such Confidential Information to any third party or use such Confidential Information (other than for its own internal management purposes) without the disclosing party’s prior written consent.
8.3 The provisions of clause 8.2 shall not apply to information which is:
8.3.1 in or comes into the public domain otherwise than by breach of these Terms;
8.3.2 already in the receiving party’s possession;
8.3.3 obtained from a third party who is free to disclose the same;
8.3.4 required to be disclosed by operation of law.
9 Data Protection
9.1 “Data subject”, “personal data”, “personal data breach”, “process”, “processor” and “supervisory authority” shall for the purposes of this clause 9 have the meanings set out in the Data Protection Laws. To the extent that a Party (“Processor Party”) is a Data Processor of Personal Data on behalf of the other party (“Controller Party”), the Processor Party agrees (and will procure that any permitted subcontractors will) comply with the following obligations:
9.1.1 comply with the Data Protection Laws in the performance of its obligations under these Terms;
9.1.2 only use Personal Data on the documented instructions of the Controller Party, for purposes that are consistent with the purposes of these Terms and/or to the extent required by law or regulatory requirements, unless the Controller Party agrees otherwise in writing. If the Processor Party is required by law or regulatory requirement to process Personal Data for another reason, the Processor Party shall inform the Controller Party of that legal requirement, unless such requirement prohibits such information on important grounds of public interest. The Processor Party shall promptly notify the Controller Party if any instruction by the Controller Party to process Personal Data infringes Data Protection Laws;
9.1.3 render such assistance and co-operation as the Controller Party may reasonably require to assist the Controller Party to comply with its obligations under the Data Protection Laws;
9.1.4 have in place and maintain throughout the duration of this Agreement appropriate technical and organisational measures (including appropriate policies communicated to the its employees, management of ongoing compliance and effective security measures) in respect of Personal Data to prevent unauthorised or unlawful processing of the Personal Data and to protect it against accidental loss or destruction, or damage;
9.1.5 ensure that its employees who process the Personal Data for the purposes of this Agreement are reliable and have been trained in the law of data protection and in the care and handling of Personal Data and have committed themselves to confidentiality;
9.1.6 without undue delay notify the Controller Party in writing in the event of:
(a) receipt by the Processor Party of a legally binding request for disclosure of the Personal Data by a Supervisory Authority or any other third party (unless prohibited under any law from doing so);
(b) a Personal Data Breach, in which event the Processor Party will do all such acts and things as Controller Party may reasonably require in order to remedy or mitigate the effects of the Data Breach. Any such assistance shall be at the Controller’s expense, unless the Personal Data Breach is demonstrably the fault of the Processor Party;
(c) receipt by the Processor Party of a request by an individual (or his/her representative) to exercise rights of access, rectification, erasure, restriction of processing or data portability in respect of the Personal Data held by Processor Party on behalf of the Controller Party; and
(d) receipt by the Processor Party of a complaint, communication or request relating to the Controller Party or Processor Party under the Data Protection Laws including requests from any Supervisory Authority (unless prohibited under any law from doing so);
9.1.7 not transfer or permit the transfer of the Personal Data to a third party or to any territory outside of the European Economic Area except with the prior consent of Controller Party or except where the appropriate data transfer mechanism for such transfers is in place to ensure adequate safeguards for such Personal Data. The parties shall take practical and contractual measures to ensure that all Personal Data can be lawfully transferred as needed, within the EEA and/or globally throughout the term of this Agreement, including but not limited to:
(a) obtaining consent from data subjects where required to allow the parties to undertake direct marketing activities; and
9.2 The Controller Party authorises the Processor Party to subcontract processing of Personal Data under this Agreement to a third party provided that:
9.2.1 the Processor Party provides the Controller Party with reasonable prior notice of, and the opportunity to object to, any such subcontracting;
9.2.2 if the Controller Party objects to the proposed subcontractor, the Processor Party shall not subcontract processing of the Personal Data to that subcontractor;
9.2.3 the Processor Party flows down its obligations under this clause to protect the Personal Data in full to any subcontractor it appoints, such that the data protection terms of the subcontract are no less onerous than the data protection terms set out in these Data Protection Terms; and
9.2.4 the Processor Party will remain fully liable to the Controller Party for the acts, errors and omission of any subcontractor it appoints to process the Personal Data.
9.3 Upon written request, the Processor Party shall make available to the Controller Party, within a reasonable time, all information necessary to demonstrate compliance with these Data Protection Terms. If the above measures are not sufficient to confirm the Processor Party’s compliance with the Agreement, the Controller Party may request an audit by an external auditor, jointly selected by the parties and the parties will mutually agree the scope, timing and duration of the audit. The external auditor’s costs shall be borne by the Controller Party, unless as a result of such audit, the Processor Party is found to have been in breach of this Agreement, in which case the Processor Party shall be liable for the reasonable costs of such audit. Any such audit may take place not more than once per calendar year.
9.4 Following completion of the Services, at the request of the Controller Party, the Processor Party will, at the Controller Party’s option, either (i) delete the Controller Party’s Personal Data and certify in writing that it has done so, or (ii) deliver the Personal Data collected by it from the Controller Party pursuant to under this Agreement in a form agreed by the parties (acting reasonably). The Processor Party shall, however, be entitled to retain copies of the Controller Party’s Personal Data, where required for legal, regulatory or audit purposes.
9.5 The parties shall complete a data processing form (in the form set out in the annex hereto) setting out the subject-matter and duration of the processing, the nature and purpose of the processing, the type of personal data and categories of data subjects (which may be updated by the parties in writing from time to time).
10.1 Each party shall:
10.1.1 comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (“Relevant Requirements“);
10.1.2 not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
10.1.3 comply with that party’s ethics and business policies from time to time (“Relevant Policies“);
10.1.4 have and shall maintain in place throughout the Initial Period and thereafter its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements, the Relevant Policies and this clause 10, and will enforce them where appropriate;
10.1.5 immediately notify the other party if a foreign public official becomes an officer or employee of the notifying party or acquires a direct or indirect interest in the notifying party (and each party warrants that it has no foreign public officials as officers, employees or direct or indirect owners at the date of this Agreement);
10.1.6 ensure that all persons associated with it or other persons who are performing services or providing or leasing goods in connection with this Agreement comply with this clause 10.
10.2 Breach of this clause 10 shall be deemed a breach incapable of remedy for the purposes of clause 11.1.1.
10.3 For the purpose of this clause 10, the meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), sections 6(5) and 6(6) of that Act and section 8 of that Act respectively. For the purposes of this clause 10 a person associated with a party includes any sub-contractor of that party.
11.1 Each party shall be entitled to terminate any unperformed Order immediately by notice in writing to the other party if the other party:
11.1.1 commits an irremediable breach of these Terms; persistently repeats a remediable breach or commits any remediable breach and fails to remedy it within 30 days of receipt of notice of the breach requiring remedy of the same; or
11.1.2 makes an arrangement with or enters into a compromise with its creditors, becomes the subject of a voluntary arrangement, receivership, administration, liquidation or winding up, is unable to pay its debts or otherwise becomes insolvent or suffers or is the subject of any distraint, execution, event of insolvency or event of bankruptcy or any other similar process or event, whether in the United Kingdom or elsewhere.
11.2 In the event of termination by Lumina pursuant to clause 11.1 above then, without prejudice to any other right or remedy available to Lumina, Lumina shall be entitled to:
11.2.1 immediate payment of all payments payable to Lumina under an Order;
11.2.2 suspend any further performance of the Services without any liability to Customer; and
11.2.3 demand the return of any Deliverables.
11.3 Upon the termination or expiry of these Terms all Orders shall terminate and each party’s rights, liabilities and obligations under these Terms and any Orders shall cease, except that each party’s rights, liabilities and obligations that have accrued prior to such termination or expiry or that are expressly or by implication intended to come into force upon or remain in force following such termination or expiry shall survive any such termination or expiry.
Neither party shall, without the prior written consent of the other, at any time from the date of an Order to the expiry of six (6) months after the last date of supply of the Services, solicit or entice away from the other or employ (or attempt to employ) any person who is, or has been, engaged as an employee, consultant or subcontractor of the other in the provision or receipt of the Services. Notwithstanding the foregoing, this clause 12 shall not prohibit solicitations through advertising or other publications of general circulation or the hiring of any employee of a party who independently contacts the other party without the other party having solicited the employee.
13 Force Majeure
Lumina reserves the right to defer the date of provision of the Services or to cancel an Order without incurring any liability if it is prevented from or delayed in the carrying on of its business due to circumstances beyond Lumina’s reasonable control including acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, pandemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials. If the event in question continues for a continuous period in excess of 90 (ninety) days, Customer shall be entitled to give notice in writing to Lumina to terminate an Order.
The failure or delay of any party to enforce or to exercise, at any time, or for any period of time, any remedy, right, power or privilege arising pursuant to an Order does not constitute and shall not be construed as a waiver of such remedy, right, power or privilege and shall in no way affect a party’s right later to enforce or exercise it, nor shall any single or partial exercise of any remedy, right, power or privilege preclude any further exercise of the same or the exercise of any other remedy, right, power or privilege.
The invalidity or unenforceability of any term of, or any right arising pursuant to an Order shall not in any way affect the remaining terms or rights which shall be construed as if such invalid or unenforceable term or right did not exist.
Any notice or written communication required or permitted to be served on or given to either party under an Order shall be delivered by hand or sent by recorded delivery mail to the other party at its address set out in the Order or to such other address which it has been previously notified to the sending party and shall be deemed to have been given on the day of delivery.
These Terms are personal to the parties and neither party may assign, transfer, sub-contract or otherwise part with these Terms or any Order or any right or obligation under it without the prior written consent of the other party. Lumina is entitled to sub-contract the Services or any part of them provided that it will remain primarily liable for the acts and omissions of its sub-contractors.
18 Entire Agreement
These Terms contains all the terms agreed by the parties relating to the subject matter of the Terms and supersedes any prior agreements, understandings or arrangements between them, whether oral or in writing, and no representation (unless made fraudulently), undertaking or promise shall be taken to have been given or been implied from anything said or written in negotiations between the parties prior to an Order except as set out in an Order.
19 Third Party Rights
The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Contract and no person other than Lumina and Customer shall have any right under it.
20 Governing Law and Jurisdiction
The formation, construction, validity and performance of these Terms (including any associated non-contractual disputes or claims) are governed by the laws of England and the parties accept the exclusive jurisdiction of the English Courts.
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