1.           INTERPRETATION

• 1.1        The following definitions and rules of interpretation apply to these terms and conditions (Conditions).
• Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
• Company: any company, partnership, corporation, or other body corporate, wherever and however incorporated or established and includes any holding or subsidiary companies.
• Confidential Information: Information that is proprietary or confidential to either party which either party directly or indirectly discloses to the other party and is either clearly labelled as such or is by its nature is intended to be exclusively for the knowledge of the recipient alone.
• Consumer: an individual acting for purposes that are wholly or mainly outside that individual’s trade, business, craft or profession.
• Contract: The Customer’s purchase order and the Supplier’s acceptance of it, or the Customer’s acceptance of a quotation for Services by the Supplier under condition 2.2.
• Customer: the party (including but not limited to a Consumer or Company, as the context requires) who engages the Supplier for the provision of the Services.
• Customer’s Equipment: any equipment, systems, cabling, or facilities provided by the Customer and used directly or indirectly in the supply of the Services.
• Deliverables: all survey results and associated Documents, products and materials developed by the Supplier or its agents, subcontractors, consultants and employees in relation to the Services, including computer programs, data, reports and specifications as specified or referred to in the Services specification.
• Document: includes, without limitation, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.
• In-put Material: all Documents, information and materials provided by the Customer relating to the Services including (without limitation), computer programs, data, reports and specifications as may be required of the Customer at the request of the Supplier from time to time.
• Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential Information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
• Pre-existing Materials: all Documents, information and materials provided by the Supplier relating to the Services, which existed prior to the commencement of the Contract including computer programs, data, reports, and specifications.
• Services: the services to be provided by the Supplier under the Contract as set out or referred to in the Services specification by the Supplier together with any other services which the Supplier agrees to provide, to the Customer.
• Site: the construction site or other location where the Services are to be provided by the Supplier under the Contract.
• Supplier: Land Survey Solutions Limited (registered in England and Wales with company number: SC229680) trading as Survey Solutions.
• Supplier’s Equipment: any equipment, including tools, systems, cabling, or facilities, provided by the Supplier or its subcontractors and used directly or indirectly in the supply of the Services.
• VAT: value added tax chargeable under within the United Kingdom for the time being and any similar/equivalent tax in other jurisdictions.

1.2         Headings in these conditions shall not affect their interpretation.

1.3         A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.4         A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment legislation for the time being in force made under it.

1.5         A reference to writing or written includes faxes and e-mail.

1.6         Any obligation in the Contract on a person not to do something includes, without limitation, an obligation not to agree, allow, permit or acquiesce in that thing being done.

1.7          A reference to a holding company or a subsidiary means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006 and a company shall be treated, for the purposes only of the membership requirement contained in sections 1159(1)(b) and (c), as a member of another company even if its shares in that other company are registered in the name of: (a) another person (or its nominee) by way of security or in connection with the taking of security; or (b) its nominee.]

2.           APPLICATION OF CONDITIONS AND AUTHORISED SIGNATORY

2.1         These Conditions shall:

(a) apply to and be incorporated into the Contract; and

(b) prevail over any inconsistent terms or conditions contained, or referred to, in the Customer’s purchase order, confirmation of order, acceptance of a quotation, or specification or other Document supplied by the Customer, or implied by law, trade custom, practice or course of dealing.

2.2         The Supplier’s acceptance of the Customer’s purchase order, or the Customer’s acceptance of a quotation for Services by the Supplier, constitutes the Contract for the Customer to purchase the Services specified in it on these Conditions. No offer placed by the Customer shall be accepted by the Supplier other than:

(a) by a written acknowledgement issued and executed by the Supplier; or

(b) (if earlier) by the Supplier starting to provide the Services, when a contract for the supply and purchase of the Services on these Conditions will be established. The Customer’s standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other Document shall not govern the Contract.

2.3         Quotations are given by the Supplier on the basis that no Contract shall come into existence except in accordance with condition 2.2. Any quotation is valid for a period of 30 days from its date, provided that the Supplier has not previously withdrawn it.

2.4          Any notice, consent or other authorization required under these Conditions shall only be binding on the Supplier if it is signed by a director of the Supplier.

3.          COMMENCEMENT AND DURATION

The Services supplied under the Contract shall be provided by the Supplier to the Customer on such date and for such time as the parties shall agree in writing (the Supplier having conducted an inspection of the Site beforehand, should the Supplier so reasonably require).

4.            SUPPLIER’S OBLIGATIONS

4.1         The Supplier shall:

(a) use reasonable endeavours to provide the Services, and to deliver the Deliverables to the Customer in accordance with the Customer’s order in all material respects;

(b) provide the Services to the Customer with reasonable care and skill and shall provide the Deliverables to the Customer, in all material respects;

(c) use reasonable endeavours to meet any performance dates specified in the Services, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services;

(d) use reasonable endeavours to observe all health and safety rules and regulations, and any other reasonable security requirements that apply to the Site and that have been communicated to it under condition 5.1(e), provided that it shall not be liable under the Contract if, as a result of such observation, it is in breach of any of its obligations under the Contract;

(e) carry out the Services between the hours of 9:00 to 17:00 on a Business Day except where the Customer requires the Supplier to work outside of these hours at such additional cost, as the parties shall agree; and

(f) grant the Customer a non-exclusive, non-transferable, royalty-free licence to use the Supplier’s Intellectual Property Rights in the Deliverables (and where applicable the Services) solely for the purposes of the Contract.

4.2         Service utilities and drainage pipework may be suitably marked on the ground by the Supplier to enable later identification, by means of coloured spray paint. Unless by prior arrangement, spray markings shall not be removed from the site by the Supplier. Client to advise the Supplier in advance of visiting site should spray markings not be acceptable as this may incur additional time required on site.

4.3         The Supplier shall not lift damaged or broken service covers, or service covers in the highway, where in the opinion of the Supplier such covers cannot be replaced safely or without risk to health and safety. Where such covers require to be lifted in order for the Services to be completed, any additional resources such as, but not limited to, a traffic management system, will be required and the cost borne by the Customer. In the event that a revisit is required by the Supplier an additional fee will apply.

UNDERGROUND AND SUB-SURFACE INVESTIGATIONS AND CCTV DRAINAGE SURVEYS

4.4         For the purposes of Services that require underground and sub-surface investigation and CCTV drainage surveys:

(a) The Supplier shall use all reasonable techniques including electromagnetic or ground penetrating radar and such other equipment as required by the Customer, subject to appropriate training (but not trial excavations unless specifically agreed) of the area of the Site that is to be investigated. The use of equipment will be affected by the conditions of the Site. Dense or multiple layering of reinforcement barring may prevent signal penetration as will wet or dense clay or saline strata.

(b) Such techniques may therefore not be conclusive, and the Customer is deemed to accept the Services in that knowledge.(c)The Supplier shall use its reasonable endeavours to locate and track underground and sub-surface details and services but any evidence in the possession of the Supplier or otherwise supplied to the Supplier that shows such services are recorded but nevertheless physically undetectable will be plotted and annotated on the Supplier’s final survey plans as part of the Services.

(d)Any underground and sub-surface details and services that are located will be identified on the survey plans with reference to measurements from adjacent features. Where depth estimations are requested by the Customer, these will be supplied on the understanding that the Customer acknowledges that such depth estimations will be for guidance only.

(e) Sewer connectivity will be investigated by reference to records where supplied and by visual and audible means. Electronic tracing is an additional service and will only be undertaken by prior arrangement and at additional cost.

(f)The Supplier may at its discretion provide a guidance note on electromagnetic and ground penetrating radar to the Customer for information purposes only on the understanding that it is only for guidance and will not form any part of the rights and obligations of the parties under the Contract.

UAV DRONE IMAGERY SURVEYS

4.5         For the purposes of Services which comprise UAV drone imagery surveys, the Customer is hereby notified that UAV drone flights are susceptible to cancellation due to adverse weather conditions and where a UAV drone imagery survey must, in the Supplier’s sole opinion, be postponed or delayed due to adverse weather conditions, the parties shall cooperate to determine an appropriate alternative appointment for completion of the UAV drone imagery survey, and the Supplier shall not incur any liability or expense to the Customer in connection with any delays to the Services caused by events specified in this clause 4.5.

5.           CUSTOMER’S OBLIGATIONS

5.1         The Customer shall:

(a) co-operate with the Supplier in all matters relating to the Services and inform the Supplier whether it must allow for any confined space entry, high pressure water jetting or pre-cleansing which will be required as part of the Services;

(b)provide the Supplier, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, with access to the Site as well as access to any other property and land (including any access required to property and land owned by third parties) reasonably required by the Supplier to conduct the Services;

(c) provide to the Supplier, in a timely manner, such In-put Material including relevant Data and other information as the Supplier may require and ensure that it is accurate in all material respects;

(d) be responsible (at its own cost) for preparing the Site to enable the Services to be conducted, including identifying, monitoring, removing and disposing of any hazardous materials as the Supplier may require in accordance with all applicable laws, before and during the supply of the Services, and informing the Supplier of all of the Customer’s obligations and actions under this condition 5.1(d);

(e)inform the Supplier of all health and safety rules and regulations and any other reasonable security requirements that apply at the Site;

(f) ensure that all Customer’s Equipment (where it is required by the Supplier) is in good working order and suitable for the purposes for which it is used and conforms to all relevant United Kingdom standards or requirements;

(g) obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Site or other premises as may be required under condition 5.1(b), before the date on which the Services are to start;

(h) where required by the Supplier to keep and maintain the Supplier’s Equipment in accordance with the Supplier’s instructions as notified to the Customer, and shall not dispose of or use the Supplier’s Equipment other than in accordance with the Supplier’s written instructions or authorisation; and

(i) pay for the attendance of any local authority personnel or other representatives who may attend the Site or otherwise become involved in any aspect of the Services on their own behalf;

(j) save the Customer contracting as a consumer, provide the Supplier’s personnel (at the Company’s cost) with the appropriate health and safety equipment before they enter the Site so that they are able to enter the Site safely to provide the Services; and/or

(k) subject to clause 9 (4) (vii), not provide the Deliverables to a third-party without the written consent of the Supplier. 

5.2 In providing the Services, if the Supplier’s personnel comes across any areas that are inaccessible or access is denied to the Supplier or otherwise, in the Supplier’s reasonable opinion present a risk to health and safety, any Services relating to such areas shall be excluded from the Services and annotated accordingly on the Supplier’s final survey plans. If the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees (including prevention of access under condition 5.2) or failure by the Customer to perform any relevant obligation, the Supplier shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer’s default. The Customer shall be liable to pay to the Supplier, on demand, all reasonable costs, charges or losses sustained or incurred by the Supplier whether for any revisits to the survey site or otherwise (including, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Customer’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to the Supplier confirming such costs, charges and losses to the Customer in writing. The Customer shall take out and maintain adequate insurance cover in respect of its risks and liabilities under the terms of the Contract and provide copies of such insurance policies and evidence of the payment of premiums under such policies as the Supplier shall reasonably demand. The Customer shall not do or omit or suffer to be done or omitted any act, matter or thing whatsoever to make void or voidable such policies of insurance.

The Customer acknowledges and agrees that all the Intellectual Property Rights in the Deliverables (and where applicable the Services) remain the exclusive property of the Supplier or, where applicable, the third party licensor from whom the Supplier derives the right to use them.

6.           NON-SOLICITATION

6.1         The Customer shall not, without the prior written consent of the Supplier, at any time from the commencement of the Contract until 12 months after the termination or expiry of the Contract, directly or indirectly solicit or entice away (or attempt to solicit or entice away) from the employment of the Supplier any person employed or engaged by the Supplier in the provision of the Services other than by means of  a advertising campaign open to all comers and not specifically targeted at any staff of the Supplier.

6.2         Any consent given by the Supplier in accordance with condition 6.1 shall be subject to the Customer paying to the Supplier a sum equivalent to 20% of the then current annual remuneration of the Supplier’s employee, consultant or subcontractor (if applicable, extrapolated for a full time role) or, if higher, 20% of the annual remuneration (assumed to be a full time role) to be paid by the Customer to that employee, consultant or subcontractor.

6.3         Without prejudice to any other rights or remedies to which it is entitled, if the Customer commits a breach of clause 6.1, the Customer shall, on demand, pay to the Supplier a sum equal to one year’s basic salary or the annual fee that was payable by the Supplier to the employee, worker or independent contractor plus the recruitment costs incurred by the Supplier in replacing such person.

7.            CHARGES AND PAYMENT

7.1         In consideration of the provision of the Services by the Supplier, the Customer shall pay the charges as set out in the Contract together with any agreed additional charges resulting from an agreed variation of the Services under the Contract.

7.2         All charges quoted to the Customer shall be exclusive of VAT, which the Supplier shall add to its invoices at the appropriate rate and the Customer shall pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.

7.3         The Supplier may increase the charges as set out in the Contract on an annual basis with effect from each anniversary of the commencement of the Contract in line with the percentage increase in the Retail Prices Index in the preceding 12-month period, and the first such increase shall take effect on the first anniversary of the commencement of the Contract and shall be based on the latest available figure for the percentage increase in the Retail Prices Index.

7.4         The Supplier shall invoice the Customer in advance of completion of the Services, on completion of the Services, monthly through the course of the Services or at such other intervals as the Supplier shall otherwise determine and notify the Customer. The Supplier’s invoice shall specify the sum that the Supplier considers to be due on the date the invoice is issued to the Customer and that date shall be treated as the due date.

7.5          No later than five days after the due date, the Customer shall notify the Supplier of the sum that it considers to have been due at the due date in respect of the payment and the basis on which that sum is calculated.

7.6         The final date for each payment shall be 7 days after the relevant due date. Unless the Customer has served a notice under condition 7.7, it shall pay the Supplier the sum referred to in its notice under condition 7.5 (or, if it has not served notice under condition 7.4, the sum referred to in the invoice referred to in condition 7.4) on or before the final date for payment of each invoice

7.7         The Customer may, no later than 7 days before the final date for payment, give the Supplier notice that it intends to pay less than the sum notified under either condition 7.4 or (if applicable) condition 7.5, referred to as a “pay less notice”. Any pay less notice shall specify:

7.7.1          the sum that that the Customer considers to be due on the date the notice is served; and

7.7.2          the basis on which that sum is calculated.

If the Customers serves a pay less notice in accordance with this condition 7.7, its obligation to pay the notified sum in condition 7.6 applies only in respect of the sum specified in that pay less notice.

7.8          Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier by the final date for payment, the Supplier may:

(a) charge interest on such sum from the final date for payment at the monthly rate of 2% above the base lending rate from time to time of National Westminster Bank plc, accruing on a daily basis and being compounded until payment is made, whether before or after any judgment and the Customer shall pay the interest immediately on demand. The Supplier may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and (b) suspend all Services until payment has been made in full.

7.9        Time for payment shall be of the essence of the Contract.

7.10      All sums payable to the Supplier under the Contract shall become due immediately on its termination, despite any other provision. This condition 7.10 is without prejudice to any right to claim for interest under the law, or any such right under the Contract.

7.11      The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer. The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law).

8.            CONFIDENTIALITY AND THE SUPPLIER’S PROPERTY

8.1         The Customer shall 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 to the Customer by the Supplier, its employees, agents, consultants or subcontractors and any other confidential information concerning the Supplier’s business or its products which the Customer may obtain.

8.2         The Customer may disclose such information:

(a) to its employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out the Customer’s obligations under the Contract; and

(b) as may be required by law, court order or any governmental or regulatory authority.

8.3         The Customer shall ensure that its employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such information comply with this condition 8.

8.4         The Customer shall not use any such information for any purpose other than to perform its obligations under the Contract.

8.5         Unless the Supplier otherwise determines, all materials, equipment and tools, drawings, specifications and data supplied by the Supplier to the Customer (including Pre-existing Materials and the Supplier’s Equipment) shall, at all times, be and remain as between the Supplier and the Customer the exclusive property of the Supplier, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to the Supplier, and shall not be disposed of or used other than in accordance with the Supplier’s written instructions or authorisation.

9.            LIMITATION OF LIABILITY – THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CONDITION

9.1         This condition 9 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the Customer under or in connection with this Contract, including but not limited to in respect of:

(a) any breach of the Contract;

(b) any use made by the Customer of the Services, the Deliverables or any part of them; and

(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.

9.2         All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.

9.3         Nothing in these Terms and Conditions limits or excludes the liability of the Supplier:

(a) for death or personal injury resulting from negligence; or

(b) for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by the Supplier; or (c) breach of the following implied terms:

(i) where the Customer is a Company, section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession ) only; but,

(ii) where the Customer is a Consumer, sections 2, 3 and 4 of the Supply of Goods and Services Act 1982 (title and quiet possession, correspondence with description, quality and fitness).

9.4        Subject to condition 9.2 and condition 9.3:

(a) the Supplier shall not be liable for:

(i) damage to the ground caused as a result of gaining access or egress with a survey vehicle; or

(ii) damage to pipe work directly or indirectly as a consequence of any CCTV or jetting process; or

(iii) loss of use; or

(iv) loss of corruption of data or information;

(v) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses;

(vi) if and to the extent the Supplier relies on any information provided to it by the Customer or a third-party, the Supplier shall not be liable to the Customer for any loss or expenses the Customer may incur or suffer in connection with the Services; and/or

(vii) any loss or expense the Customer may suffer or incur where a third-party relies on the information provided within the Deliverables.

(b) the Supplier’s total liability in aggregate in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the Contract shall be limited to the lesser of:

(i) £250,000; or

(ii) the price paid by the Customer to the Supplier for the Services.

9.5          This condition 9 shall survive termination of the Contract.

10.          CONSUMER REMEDIES – THIS CLAUSE 10 ONLY APPLIES WHERE THE CUSTOMER IS A CONSUMER 

10.1        Subject to clauses 10.2 and 10.3, where the Customer is a Consumer, the Customer may cancel the Contract without giving any reason.

10.2        The cancellation period expires after 14 days from the date the contract is formed pursuant to clause 2.

10.3        Where the Customer requires the Services and the Supplier performs all or part of the Services within the cancellation period specified in clause 10.2, the Customer hereby acknowledges and accepts that they shall be liable for any reasonable costs incurred by the Supplier in connection with the supply of Services.

10.4        To exercise the right to cancel, the Customer must inform the Supplier of its decision to cancel the order pursuant to clause 21.

10.5        The Supplier will make reimbursements without undue delay, and not later than 14 days after the Supplier receives notification of cancellation from the Customer under this clause 10.

10.6        The Supplier will make the reimbursement using the same means of payment that the Customer used for the initial transaction, unless the parties to the Contract agree otherwise; in any event, the Customer will not incur any fees as a result of the reimbursement.

11. DATA PROTECTION 

11.1       For the purposes of this clause 11, the following definitions shall apply:

(a) “Controller”, “Data Subject”, “Personal Data”, “Processor” and “appropriate technical and organisational measures” shall all have the meanings as given to them in the Data Protection Legislation;

(b) Data Protection Legislation: Shall mean: (a) to the extent UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the Protection of Personal Data. (b) To the extent the EU GDPR applies, the law of the European Union or any member state of the European Union which the Customer or the Supplier is subject, which relates to the protection of Personal Data

(c) Domestic Law: the law of the United Kingdom or a part of the United Kingdom.

(d) EU GDPR: the General Data Protection Regulation ((EU) 2016/679).

(e) EU Law: the law of the European Union or any member state of the European Union.

(f) UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.

11.2         Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause number 11 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.

11.3         The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller and the Supplier is the Processor of Personal Data processed by the Supplier on behalf of the Customer for the purpose of providing the Services.

11.4         Without prejudice to the generality of clause 11.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Supplier.  

11.5         Without prejudice to the generality of clause 11.2, the Supplier shall, in relation to any Personal Data processed in connection with performance by the Supplier of its obligations under this Contract:(a) Process that Personal Data only on the documented written instructions of the Customer, unless the Supplier is required by Domestic Law or EU Law as the basis for processing Personal Data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Domestic Law or EU Law unless the Domestic Law or EU Law prohibits the Supplier 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 the unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, 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 not transfer any Personal Data outside of the UK unless the following conditions are fulfilled:

a. the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;

b. the Data Subject has enforceable rights and effective legal remedies;

c. the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and

d. the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data.

(d) 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;

(e) notify the Customer without undue delay on becoming aware of a Personal Data Breach;

(f) at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the Contract unless required by Domestic Law or EU Law to store the Personal Data; and

(g) maintain complete and accurate records and information to demonstrate its compliance with this clause 11.

11.6 The Customer consents to the Supplier appointing third-party processors of Personal Data under this Contract. The Supplier confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement which the Supplier confirms reflects and will continue to reflect the requirements of the Data Protection Legislation. As between the Customer and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 11.6.

12.         TERMINATION

12.1      Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other immediately on giving notice to the other if:

(a) the other party fails to pay any amount due under the Contract on the final date for payment and remains in default not less than 14 days after being notified inwriting to make such payment; or

(b) the other party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or

(c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; or

(d) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or

(e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

(f) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party; or

(g) a floating charge holder over the assets of that other party has become entitled to appoint or has appointed an administrative receiver; or

(h) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; or

(i) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or

(j) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 12.1(c) to condition 12.1(i) (inclusive); or

(k)the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.

12.2     On termination of the Contract for any reason:

(a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest;

(b) in the case of termination by the Supplier in accordance with these conditions where no invoice has been submitted, the Supplier may submit an invoice to the Customer which shall be payable immediately on receipt, regardless of whether such Services have been supplied;

(c) in the case of termination by the Customer prior to the commencement of the Services, the Supplier may submit an invoice to the Customer for all costs, charges or losses sustained or incurred by the Supplier (including, without limitation, any direct, indirect or consequential losses or loss of profit) arising directly or indirectly from the Contract which shall be payable immediately on receipt. Where the Customer is a Consumer, such invoice must be for reasonable costs, charges or losses only;

(d) the Customer shall return all of the Supplier’s Equipment, Pre-existing Materials and any Deliverables required by the Supplier; and

(e) the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.

12.3       On termination of the Contract (however arising), the following conditions shall survive and continue in full force and effect:

(a) condition 8;

(b) condition 9;

(c) condition 10;

(d) condition 22; and

(e) condition 23.

13.         FORCE MAJEURE

13.1      The Supplier shall have no liability to the Customer under the Contract if and to the extent it is prevented, impeded, hindered, conditioned or delayed in performing, its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control (whether or not reasonably foreseeable), including (without limitation) breakdown of equipment or delivery vehicles, inability to obtain sufficient labour, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, epidemic or pandemic, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction (including those restricting the opening of the Site and/or access by the Supplier’s personnel to the Site), accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.

13.2      If the Force Majeure Event prevents, impedes, hinders, conditions or delays the Supplier from providing any of the Services for more than 12 weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate the Contract immediately by giving written notice to the Customer.

14.         VARIATION

14.1      The Supplier may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services.

14.2      Subject to condition 14.1, no variation of the Contract or these Conditions or of any of the documents referred to in them shall be valid unless it is in writing and signed by or on behalf of each of the parties.

15.         WAIVER

A waiver of any right under the Contract is only effective if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy.

16.          SEVERANCE

If a provision of the Contract (or part of any provision) is found illegal, invalid or unenforceable, the parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the parties’ original commercial intention.

17.          ENTIRE AGREEMENT

17.1 This Contract 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.

17.2 Each party agrees that it 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 Contract.

17.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Contract.

17.4 Nothing in this Contract shall limit or exclude any liability for fraud.

18.         ASSIGNMENT

18.1      The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights or obligations under the Contract (which for the avoidance of doubt shall include assignment of the benefit of any of the Deliverables).

18.2      The Supplier may at any time assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.

18.3       Each party that has rights under the Contract is acting on its own behalf and not for the benefit of another person.

19.         NO PARTNERSHIP OR AGENCY

Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.

20.         RIGHTS OF THIRD PARTIES

This Contract does not give rise to any rights under the Contracts (Rights of Third parties) Act 1999 to enforce any terms of this agreement.

21.          NOTICES

21.1        Any notice given to a party under or in connection with this Contract shall be in writing and shall be:

(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a Company) or its place of residence (which is communicated to the Supplier in writing) if a Consumer; or

(b) sent by email to an address substituted in writing by the party to be served

21.2        Any notice shall be deemed to have been received:

a) if delivered by hand, at the time the notice is left at the proper address;

(b) if delivered by pre-paid first-class post or other next working day delivery service, at 09:00 on the second Business Day after posting; or

(c) if sent by email, at the time of transmission, or, if this time falls outside of the hours of 09:00 to 17:00 (Business Hours)on a Business Day, then the next Business Day , when Business Hours resume.

This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.  

22.         GOVERNING LAW AND JURISDICTION

22.1        The Contract, and any dispute or claim arising out of or in connection with it, shall be governed by, and construed in accordance with, the law of England and Wales.

22.2         Subject to clause 23, each party irrevocably agrees that the courts of England and Wales shall have jurisdiction to settle any dispute or claim (including non-contractual disputes or claims and claims seeking enforcement of an adjudicator’s decision) arising out of or in connection with the Contract or its subject matter or formation.

23.         ADJUDICATION

23.1        Notwithstanding clause 22.2, either party to this Contract has the right to refer a dispute arising out of or in connection with the Contract to adjudication under a procedure complying with Section 108 of the Housing Grants, Construction and Regeneration Act 1996. Except to the extent it is amended by the rest of this clause 23, the Scheme for Construction Contracts (England and Wales) Regulations 1998 will apply.

23.2       Each party to the Contract has the right to give notice at any time of that party’s intention to refer a dispute to adjudication to the other parties to the Contract and the adjudicator in accordance with clause 23.1. Unless agreed otherwise in writing, the parties agree that the adjudicator will be nominated by the Nominating Body.

23.3       The appointed adjudicator shall reach a decision within 28 days of referral or such longer period as is agreed by the parties after the dispute has been referred.

23.4        Each party agrees that decision of the appointed adjudicator is binding until the dispute is finally determined by legal proceedings or by agreement between each party.

23.5        The adjudicator may correct the decision so as to remove a clerical or typographical error arising by accident or omission.