SUPPLIER
TERMS AND CONDITIONS - EMEA

1. Background

1.1. These Terms govern the relationship between Tag or Tag Group Entity, the details of which are set out in any Purchase Order (the “Company”) and the supplier entity set out in the same Purchase Order from the Company (the “Supplier”).

1.2. The Agreement comprises these Terms together with any Appendices applicable to the Goods and/or Services being delivered by the Supplier. The Supplier’s appointment is strictly subject to the Supplier passing the Company’s Vetting Process (in accordance with Appendix 7) unless the Company states otherwise in writing.

2. Definitions

2.1. The following terms have the meanings set out alongside them:

3. Interpretation

3.1. In these Terms, unless the context otherwise requires:

3.1.1. References to Clauses, Appendices, and Purchase Orders are to the Clauses, Appendices of these Terms; references to paragraphs are to paragraphs of the relevant Clauses, Appendices and Purchase Orders to these Terms;

3.1.2. Clause, Appendices, and Purchase Order headings shall not affect the interpretation of these Terms;

3.1.3. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns;

3.1.4. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established;

3.1.5. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular;

3.1.6. Unless the context otherwise requires a reference to one gender shall include a reference to the other genders;

3.1.7. A reference to writing shall not include email, unless otherwise stated;

3.1.8. A reference to a statute or statutory provision is a reference to it as it is in force as at the date of these Terms;

3.1.9. A reference to an obligation on the Supplier shall also be construed to mean an obligation to procure the Supplier Personnel’s compliance with such obligation; and

3.1.10. A reference to a “Third Party” means a person that is not a Party or a Group Company.

3.2. In the event and only to the extent of any conflict between the provisions contained in these Terms and the Appendices, the following order of precedence shall apply:

3.2.1. any provisions in the Purchase Order;

3.2.2. these Terms, together with Appendices 5, 6 and 7;

3.2.3. any other selected Appendix.

4. Services and Fees

4.1. Subject to the Supplier’s provision of the Goods and/or Services (as applicable) in accordance with these Terms and all Applicable Laws, the Company shall pay the Fees to the Supplier within sixty (60) Business Days from the end of the month of receipt of a correct and valid invoice. The invoice shall be raised monthly in arrears and the Fees in such invoice shall be detailed and payable in the currency set out in the Purchase Order. Where the Company in good faith identifies reasons to dispute an invoice or specific amounts therein, the Company will notify Supplier promptly in writing, setting out such reasons. In the event that the invoice remain disputed for a period of sixty (60) Days from the date that the Company first raised the applicable dispute, the Parties shall refer such dispute to the Escalation Procedure set out in Clause 26.

4.2. The Supplier’s invoices must be complete and include the correct details. If details are not correct, the Supplier’s invoice will be returned and payment will be delayed. Supplier should ensure that Supplier adheres to the invoicing instructions set forth in Appendix 8.

4.3. All undisputed invoiced amounts which are overdue will remain payable by the Company. The Supplier may at its sole discretion impose a Late Payment Fee per annum of the amount of the late payment. Late Payment Fees shall not be due or payable during the process of resolution of disputed charges. If any undisputed invoiced Fees remain unpaid thirty (30) Business days after the due date pursuant to Clause 4.1 and the Escalation Procedure described in Clause 25 has been completed, the Supplier may suspend the provision of the Services in respect of the Purchase Order to which the outstanding invoiced Fees relate. The Supplier’s remedies under this Clause 4.3 are the Supplier’s sole and exclusive remedy for delayed payment of undisputed invoiced Fees.

4.4. The Supplier shall submit invoices as soon as practicable in accordance with Clause 4.2. The Company reserves the right to refuse payment of any invoices which are submitted more than six (6) months after the specific provision of the Software, the Services or Software Services that the applicable invoice relates to were performed or that were otherwise submitted in non-compliance with Clause 4.2.

4.5. If, upon examination at any time, the Company determines that any charges, prices, costs or expenses exceed the amounts properly chargeable to, or recoverable from, the Company, the Supplier shall, without prejudice to the Company’s other rights, promptly refund to the Company the amount over-charged plus interest at the applicable statutory rate.

4.6. Subject to Appendices 1 and 2 if incorporated, the Fees shall remain fixed for the duration of this Agreement.

4.7. The Fees are inclusive of all travel, subsistence and other incidental expenses incurred by the Supplier and the Supplier Personnel in respect of the provision of the Services. The Supplier shall only be permitted to charge for expenses if expressly authorised to do so in the applicable Purchase Order and provided that the Company’s prior written consent has been obtained by the Supplier prior to the relevant expenses being incurred.

4.8. If Value Added Tax (VAT) is applicable:

4.8.1. the Supplier’s invoice shall comply with all the requirements of Article 226 of the European Union Council Directive 2006/112/EC. The Company shall not be required to pay any invoice which fails to meet the requirements of Article 226 referred to above.

4.8.2. the Services provided by the Supplier shall be taxable where the Company is established, according to the terms of Article 56.1 (c) of the European Union Council Directive 2006/112/EC.

4.9. If any Service Credits have been issued by the Supplier between invoices rendered by the Supplier, the Supplier shall reduce the Fees charged in the later invoice by an amount equal to the value of the Service Credits.

4.10. The Company may set off sums due from the Supplier to the Company under these Terms against sums due from the Company to the Supplier. The Supplier may not set off sums due from the Company to the Supplier under these Terms against sums due from the Supplier to the Company.

5. Confidentiality

5.1. Where the Company is required to disclose Confidential Information to the Supplier, such disclosure shall be in accordance with the provisions of this Clause 5.

5.2. The Parties agree that the Company shall disclose such Confidential Information as it deems necessary or useful in furtherance of the Business Activities, provided however that the protection to be afforded to such Confidential Information by the Supplier herein shall not extend to Confidential Information which:

5.2.1 is already known to the Supplier or in its possession before the disclosure hereunder free of any obligation to keep it confidential;

5.2.2 is or becomes publicly known through no wrongful act or default of the Supplier or its Representatives (as defined below); or

5.2.3 is received from a Third Party without similar obligations of confidence and without breach of these Terms.

5.3. The Supplier undertakes for a period of five (5) years from the date of disclosure or such other period as specified by the Company:

5.3.1 not to, without prior written consent of the Company, disclose any such Confidential Information to any person or body other than its employees, agents, professional advisors or sub-contractors (“Supplier Representatives”) on a need-to-know basis relating to the Business Activities;

5.3.2. to treat such Confidential Information as confidential and secret;

5.3.3. to treat such Confidential Information in a like manner to the Supplier’s own Confidential Information or as is reasonable under the circumstances and to take all necessary precautions to effect and maintain, to the highest standards, security measures to safeguard such Confidential Information from unauthorised use and prevent its unauthorised, negligent or inadvertent disclosure;

5.3.4. to use, copy, reproduce or reverse-assemble such Confidential Information only for the Business Activities provided if specified by the Company in writing, and never for his/her/its personal gain;

5.3.5. where the Supplier is a company, advise relevant Supplier Representatives, prior to the disclosure of such Confidential Information, of the confidential nature thereof, explain that they owe a duty of confidence to the Company and its Clients and must agree to hold such Confidential Information in confidence in accordance with the provisions of these Terms, and take reasonable steps to ensure compliance by such Supplier Representatives with the provisions of this Clause 5;

5.3.6. to bring to the immediate attention of the Company any known or suspected breaches of its obligations under this Agreement;

5.3.7. to execute such documents or agreements that the Company may require from time to time in respect of the Confidential Information. The Confidential Information shall remain the property of the Company at all times and no licence in the Intellectual Property is either granted or implied, nor any trademark, patent, copyright or other Intellectual Property Right(s) by the conveying of Confidential Information to the Supplier. No Confidential Information disclosed shall constitute any representation, warranty, assurance, guarantee or inducement by the Company, in particular with respect to its accuracy, completeness nor the non-infringement of trademarks, patents, copyrights or other Intellectual Property Right(s), or other rights of Third Parties.

5.4. In terms of any Intellectual Property (“IP”) Rights in any Works and/or Inventions created by the Supplier in the provision of the Good and/or Services to the Company, the Supplier:

5.4.1. shall irrevocably transfer, assign, and convey the full and exclusive ownership thereof and all right, title, and interest in and to such Works and/or Inventions and all IP therein to the Company with full title guarantee, free and clear of any liens, claims, or other encumbrances;

5.4.2. shall promptly disclose to the Company or its Group Companies all works including, without limitation, all Inventions and/or Works embodying Intellectual Property Rights originated, conceived, developed, written or made by the Supplier whether alone or with others during the Supplier’s engagement with the Company which relate, or could relate, to the business of the Company or its Group Companies (as applicable) and shall (to the extent that they do not automatically vest in the Company or its Group Companies (as applicable) by operation of law) hold them in trust for the Company or Group Companies until such rights have been fully and absolutely vested in the Company or its Group Companies (as applicable);

5.4.3. waive any moral rights in the Inventions and Works to which it (or any of its staff) is now or may at any future time be entitled under Chapter IV of the Copyright Designs and Patents Act 1988 or any similar provisions of law in any jurisdiction, including (but without limitation) the right to be identified, the right of integrity and the right against false attribution, and agrees not to institute, support, maintain or permit any action or claim to the effect that any treatment, exploitation or use of such Works or Inventions or other materials, infringes the Individual’s moral rights;

5.4.4. agrees that the Company shall (without limitation) be entitled to make such additions to, deletions from or alternatives to or adaptations of any of the Inventions and Works;

5.4.5. acknowledges that, except as provided by law, no further remuneration or compensation other than that provided for in this Agreement is or may become due to the Supplier (or any of its employees ) in respect of the performance of the obligations under this Clause 5;

5.4.6. agrees to (at any time during or after the provision of such Services) do all acts necessary to confirm that absolute title in all Intellectual Property Rights in the Inventions and Works has passed, or will pass, to the Company including but not limited to executing all documents, making all applications and do all acts and things as may, in the opinion of the Company be necessary or desirable to vest the Intellectual Property Rights in, and to register them in, the name of the Company and to defend the Company against claims that works embodying Intellectual Property Rights or Inventions and Works infringe Third Party rights, and otherwise to protect and maintain the Intellectual Property Rights in the Inventions; and

5.4.7. grants an irrevocable Power of Attorney to the Company to be the Supplier’s attorney in the Supplier’s name and on his/her/its behalf to execute, sign all such deeds or instruments and do all things and to generally use his/her/its name for the purpose of giving to the Company or his/her/its nominee the full benefit of the provisions of this Clause 5, and the Supplier acknowledges in favour of a Third Party that a certificate in writing signed by any authorised signatory of the Company that any instrument or act falls within the authority conferred by this Clause 5 shall be conclusive evidence that such is the case.

5.5. The Supplier shall not make or permit others to make any reference to the disclosing or receiving of the Confidential Information or use the name or branding of the Company or any Client in any public announcements, promotional, marketing or sales materials without the prior written consent of the Company.

5.6. Unless the Company has agreed otherwise in writing, upon completion of the purpose for which Confidential Information has been disclosed, the Supplier shall either return or destroy (as the Company may elect) any Confidential Information and all copies made of it within fourteen (14) days of a request for the same by the Company. If the Company asks the Supplier to destroy the Confidential Information, the Supplier at its own cost must provide a confirmation declaration, signed by one of its directors, confirming that such destruction has been completed in accordance with these Terms.

5.7. The Supplier acknowledges and understands that the Confidential Information is of great value and importance to the success of Company’s business.

5.8. From the date of the Agreement and for a period of twelve (12) months after the date upon which the Agreement expires, the Supplier shall not, and shall not without the prior written consent of the Company, offer employment to, enter into a contract for the services of, or attempt to entice away from the Company any individual who is at the time of the offer and was during the Supplier’s engagement, an employee, or an officer of the Company, or procure or facilitate the making of any such offer or attempt by any other person (other than by means of an advertising campaign for genuine vacancies open to all comers and not specifically targeted at such employees or officers of the Company).

5.9. Any unauthorised use or disclosure of the Confidential Information would cause serious and irreparable injury to the Company. Money damages may not be a sufficient remedy for a breach of these Terms and the Company is entitled to specific performance and/or injunctive or other equitable relief and remedies for such breach, without the necessity of showing any irreparable injury or special damages.

6. Termination

6.1. The Company may terminate the Agreement and/or any Purchase Order in whole or in part at any time and for convenience without penalty upon serving thirty (30) days’ written notice to the Supplier.

6.2. All individual Purchase Orders shall terminate immediately upon termination or expiry of the Agreement, unless otherwise agreed in writing between the Parties. In the event it is agreed between the Parties that a particular Purchase Order shall survive the Agreement, the terms of this Agreement shall continue in full effect to govern that Purchase Order for the remainder of the term of that Purchase Order.

6.3. If the Company determines that the Supplier has committed a Relevant Breach (as defined below), the Company may (at its option) and without liability:

6.3.1. terminate the Agreement; or

6.3.2 terminate only the Purchase Order in respect of which the Relevant Breach has occurred;

6.4. For these purposes, a “Relevant Breach” is one or more of the following:

6.4.1. the Supplier has committed a material breach of the Agreement (if such material breach has not been remedied within a period of ten (10) Business Days of a request from the Company to remedy it);

6.4.2. the Supplier has committed material breach of the Agreement, which is not capable of remedy;

6.4.3. where the Supplier has not complied with any remediation plan agreed in writing between the Parties;

6.4.4. where the Supplier has provided Poor Service;

6.4.5. in the event that the Supplier contravenes Clause 23.2; or

6.4.6. where the Supplier has failed to comply with Clause 5 (Confidentiality) or Appendices 1, 2, 4, 6 or 7.

6.5. Either Party may terminate the Agreement upon giving written notice to the other:

6.5.1. upon the other Party passing a resolution for winding up (save for the purposes of amalgamation or reconstruction where the successor to the Party agrees to adhere to the Agreement) or suffering a winding-up order being made against it; or

6.5.2. if the other Party is generally unable to pay its debts or ceases or threatens to cease to carry on its business; or

6.5.3. within six (6) months of distress or execution being levied against any property of the other Party; or

6.5.4. if the other Party claims Force Majeure and the period of the Force Majeure has lasted longer than thirty (30) days.

6.6. On termination of the Agreement or any Purchase Order for any reason:

6.6.1. all licences granted under the Agreement or the applicable Purchase Order(s) shall immediately terminate unless expressly agreed otherwise;

6.6.2. each Party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other Party;

6.6.3. the Supplier shall, in respect of the terminated Purchase Order(s), immediately deliver up to the Company the Company Data and all other relevant data in its most recent form (whether or not backed up) and all other property of the Company then in its possession at no additional cost;

6.6.4. 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 any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced; and

6.6.5. the Supplier shall return any amounts pre-paid by the Company to the Supplier for the future provision of the Goods and the Services which would have been provided but for the termination of the Agreement or the applicable Purchase Order(s).

6.7. If a Material Adverse Event occurs, the impacted Party may:

6.7.1. Require the other Party to negotiate in good faith an amendment to the Agreement to alleviate the Material Adverse Event; and

6.7.2. If no such amendment is made to the Agreement within thirty (30) days, terminate the Agreement by giving the other Party not less than thirty (30) days written notice. On termination under this clause, clause 6.6 shall apply.

7. Force Majeure

7.1. Without prejudice to Clause 11, neither Party will be liable for delay or failure in performing obligations if the delay or failure resulted from circumstances beyond its reasonable control (such circumstances hereinafter referred to as “Force Majeure”), including but not limited to: acts of God, governmental acts (other than the exiting of a European Union Member State from the European Union), flood, fire, explosion, accident, civil commotion, and impossibility of obtaining materials. For the avoidance of doubt, the Company shall not be required to pay for any non-provision of Goods and/or Services as a result of the Force Majeure and any Fees charged in connection for such non-provided Goods and/or Services shall either be waived, reimbursed or credited to the Company (at the Company’s direction).

7.2. The Party whose performance is affected by Force Majeure shall upon becoming aware of same give notice forthwith in writing to the other Party, together with documentary evidence, and shall use all reasonable endeavours to resolve the delay or failure under Clause 7.1 or to provide temporary workarounds or alternative solutions.

7.3. Force Majeure shall not be deemed to include any failure by a Third Party to perform its obligations to one of the Parties, unless agreed otherwise or unless the relevant Party shows that the non-performance of that Third Party was due to Force Majeure.

8. Relationship between the Parties

8.1. The relationship of the Supplier (and the Supplier Personnel) to the Company will be that of independent contractor and nothing in the Agreement shall render it (nor the Supplier Personnel) an employee, worker, agent or partner of the Company and the Supplier shall not hold itself out as such and shall procure that the Supplier Personnel do not hold themselves out as such.

8.2. Except as it may be expressly authorised in writing by the Company from time to time (and then only to the extent of such authorisation) the Supplier:

8.2.1. will not have the right, power or authority to act as agent for the Company for any purpose and shall not on enter into any contract or make any warranty or representation as to any matter or create any obligation, express or implied, or make any representation on behalf of the Company or any Client; or

8.2.2. shall have no authority to incur any expenditure in the name of or for the account of the Company.

9. Vetting

9.1. Where appropriate to the Goods and/or Services the Company will conduct vetting on the Supplier in accordance with Appendix 7. Supplier acknowledges and warrants that Supplier Personnel consent to the Company (and its suppliers) processing their Personal Data solely for the purposes of the delivery of any Goods and/or Services pursuant to this Agreement.

10. Audit of Supplier’s Performance

10.1. The Supplier shall, forthwith following receipt of written notice from the Company, allow and/or procure the Company and any auditors of, or other advisers to the Company, to access the Supplier’s premises or business premises of any Supplier Personnel at which the Supplier or Supplier Personnel holds any the Company Data or the Company’s Confidential Information relating to the Goods and/or Services and to access such personnel and relevant records specifically relating to the Goods and/or Services provided herein, as may be reasonably required in order to:

10.1.1. fulfil any request from any regulatory authority or made by virtue of any Applicable Laws;

10.1.2. verify the accuracy of any amounts payable pursuant to the Agreement or to identify suspected fraud;

10.1.3. verify that the Goods and/or Services are being provided in accordance with the Agreement (including any Appendices) and all Applicable Laws;

10.1.4. verify that the Supplier’s systems protect the integrity, operational availability, confidentiality and security of the Company’s Confidential Information and Company Data;

10.1.5. verify compliance with the Supplier’s obligations under Clause 5 (Confidentiality), and Appendices 1,2, 4, 5, and 6; and

10.1.6. where the Goods and/or Services include Software or IT related Services, ensure compliance with ISO 20000.

10.2. the Company shall use reasonable endeavours to ensure that the conduct of each audit does not disrupt the Supplier or delay the provision of the Goods and/or Services by the Supplier.

10.3. Subject to the Company’s obligations of confidentiality, the Supplier shall provide the Company (and its auditors and other advisers) with all reasonable co-operation, access and assistance in relation to each audit.

10.4. the Company shall provide at least ten (10) Business Days’ notice of its intention to conduct an audit unless such audit is conducted in respect of a suspected fraud, in which event no such notice shall be required.

10.5. The Parties shall bear their own costs and expenses incurred in respect of compliance with their obligations under this Clause 10, unless the audit identifies a material default by the Supplier in complying with its obligations under the Agreement, in which case the Supplier shall reimburse the Company for all reasonable costs and expenses incurred in the course of the audit.

10.6. If an audit identifies that:

10.6.1 the Supplier is failing to comply with any of its obligations under the Agreement then, without prejudice to the other rights and remedies of the Company, the Supplier shall take the necessary steps to comply with its obligations at no additional cost to the Company within ten (10) Business Days of written notice from the Company;

10.6.2. the Company has overpaid any Fees payable under the Agreement, the Supplier shall pay to the Company the amount overpaid within ten (10) Business Days from the date of receipt of an invoice or notice to do so.

10.7. Notwithstanding Clause 5 (Confidentiality), the Supplier hereby agrees that in respect of documents relating to the audit including audit results (“Audit Documentation”) the Company has the right to share any such Audit Documentation with its relevant Clients subject always to the Client complying with confidentiality obligations substantially similar to those set out in the Agreement.

10.8. This Clause 10 shall survive termination of the Agreement, however arising, for a period of up to six (6) years following the date of termination of the Agreement.

11. Disaster Recovery and Business Continuity

11.1. The Supplier undertakes that it has and shall continue to have in place and keep up-to-date disaster recovery plans and business continuity plans and processes in accordance with:

11.1.1. the minimum standards prescribed from time to time by Applicable Laws; and

11.1.2. without limiting the generality of the foregoing, in accordance with Good Industry Practice.

12. Liability

12.1. The following provisions set out the entire financial liability of the Parties (including liability for the acts or omissions of their employees, agents and sub-contractors) in respect of:

12.1.1. any breach of the Agreement; and

12.1.2. any representations, statements or tortious acts or omissions including negligence arising under or in connection with the Agreement.

12.2 Supplier does not limit its liability (if any) in respect of any of the following:

12.2.1. fraud or fraudulent misrepresentation;

12.2.2. the death of, or personal injury to, any person caused by negligence;

12.2.3. any losses caused by the Supplier’s wilful misconduct or intentional default;

12.2.4. any loss of the Company Data;

12.2.5. causes of action brought under Clause 23 (Infringement of Third Party Rights),

12.2.6. all losses, damages, liabilities suffered or incurred by the Company arising out of or in connection with any third party claim relating to the provision, supply or use of Works, Services or Goods : to the extent that any such claim relates to any act, neglect or default of the Supplier, the Supplier will indemnify and hold harmless the Company from and against these losses, damages, liabilities; and

12.2.7. any claims arising out of any Works, Services or Goods breaching Applicable Laws.

12.3. Subject to Clause 12.2 above:

12.3.1. the total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise for either Party arising in connection with the performance or contemplated performance of the Services shall be limited to one hundred and twenty five per cent (125%) of the total value of the sums paid or payable under the Agreement or £1,000,000 (one million pounds Sterling), whichever is the greater; and

12.3.2. neither Party shall be liable to the other Party for any indirect or consequential loss or damage (including loss of business, loss of profit, or loss or depletion of goodwill (howsoever caused)) which arise out of or in connection with the Agreement. The Parties agree that the following losses are deemed as direct losses:

12.3.2.1. loss of profits, loss of reputation, loss of goodwill, loss of contracts, loss of business opportunity or loss of revenue;

12.3.2.2. the cost of selecting, procuring, implementing and operating any alternative or replacement systems or services whether internally or through or with a Third Party;

12.3.2.3. reasonable administrative costs (including but not limited to postage) and management time incurred by the Company; and

12.3.2.4. cost of additional checks relating to security breaches.

12.4. For the avoidance of doubt, the Company entity that is a Party to the applicable Purchase Order is solely responsible for its acts and/or omissions under such Purchase Order and no Group Company shall otherwise be liable to the Supplier in connection with such Purchase Order.

13. Insurance

13.1. The Supplier shall at all times be adequately insured (but without limiting its obligations and responsibilities under the Agreement), with a reputable insurer, against all liabilities for which it is able to insure under the Agreement, including without prejudice to the foregoing:

13.1.1. Public Liability Insurance for a minimum amount of cover of £5 million (five million pounds Sterling) on an each and every claims basis;

13.1.2. Products Liability Insurance for a minimum amount of cover of £5 million (five million pounds Sterling) on an each and every claims basis;

13.1.3. Employers’ Liability Insurance for a minimum amount of cover of £5 million (five million pounds Sterling) on an each and every claim basis;

13.1.4. Property Insurance for a minimum amount of cover of £2 million (two million pounds Sterling) on an each and every claim basis; and

13.1.5. Professional Indemnity Liability Insurance for a minimum amount of cover of £5 million (five million pounds Sterling) on an each and every claims basis.

13.2. The Supplier shall provide all facilities, assistance and advice required by the Company or its insurers for the purpose of contesting or dealing with any action, claim or matter arising out of the Supplier’s performance, or purported performance of, or failure to perform, under the Agreement.

13.3. The Supplier shall maintain such insurance whilst the Agreement is in force and for a period of twelve (12) months after termination or expiry of the Agreement (howsoever arising) and shall do nothing to vitiate such insurance and shall upon reasonable request furnish the Company with proof of cover, through the provision of valid certificates of insurance.

14. Severability

14.1. If any provision of the Agreement is held invalid, illegal, or unenforceable for any reason, such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if the Agreement has been executed with the invalid provision eliminated.

15. Waiver

15.1. No failure or delay by a Party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy. Waivers are only binding if in writing and signed by an authorised representative of the Party giving the waiver.

16. Cumulation of Remedies

16.1. Subject to the specific limitations set out in the Agreement, no remedy conferred by any provision of the Agreement is intended to be exclusive of any other remedy except as expressly provided for in the Agreement and each and every remedy shall be cumulative and shall be in addition to every other remedy given hereunder or existing at law or in equity by statute or otherwise.

17. Whole Agreement

17.1. This Agreement (including any Purchase Order(s), all applicable Appendices and any document specifically referred to herein) form the entire Agreement between the Parties and any other terms and conditions included in or specified by any other document exchanged between the Parties are fully excluded.

18. Amendment

18.1. This Agreement may only be amended by written agreement of the Parties.

19. Notices

19.1. Notices hereunder shall be validly given if delivered by hand or post (recorded delivery) to the address identified in the Purchase Order and shall be deemed to have been served; if delivered by hand at the time of delivery and if posted: before five (5) pm on the next Business Day; or after five (5) pm on the second Business Day afterwards.

20. Publicity

20.1 Except with the prior written consent of the Company, which the Company may withhold in its absolute discretion, the Supplier shall not:

20.1.1. make any press announcements regarding the arrangements agreed between the Parties, or any Client; or

20.1.2. otherwise publicise the Agreement or any part hereof in any way; or

20.1.3. refer to its role hereunder in any market material or presentations whatsoever, whether as a site reference or otherwise.

20.2. The Company will be entitled to recover from the Supplier any expenses it has incurred arising from or incurred by it enforcing the compliance by the Supplier of Clause 20.1.

21. Assignment and Subcontracting

21.1. Subject to Clause 21.3, neither Party may assign or transfer the Agreement in whole or in part without the other Party’s prior written consent.

21.2. The Supplier will not subcontract this Agreement in whole or in part to any Third Party unless prior written authorisation is provided by the Company. Without prejudice to the foregoing, the Supplier shall remain responsible for the acts and omissions of any Approved Subcontractor and such acts and omissions shall be deemed to be those of the Supplier.

21.3. The Company may assign or novate its rights and obligations under the Agreement to a Group Company or a legal entity established or authorised to take over and operate on a continuing basis all or the relevant parts of its business and Supplier shall enter into such documents as are reasonably necessary for this purpose.

21.4. The Terms of this Agreement are binding on and shall vest to the benefit of the Parties, their successors in title and permitted assigns.

22. Third Party Rights

22.1. The Agreement do not confer any rights on any person or party (other than the Parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999 other than in respect of any Group Company.

23. Infringement of Third-Party Rights

23.1. The Supplier shall fully indemnify and keep indemnified the Company (and for the avoidance of doubt any Group Company) against all actions, proceedings, damages, costs, claims, charges and expenses arising from or incurred by reason of any infringement or alleged infringement of any Intellectual Property Rights arising from the provision of the Goods and/or Services by the Supplier by or on behalf of a member of the Company’s Group and the Company shall as soon as practicable notify the Supplier in writing of any alleged infringement of which the Company becomes aware; make no admission without the Supplier’s prior written consent; and if the Supplier so requests, the Company shall allow the Supplier to conduct any negotiations or litigation and/or settle any claim. The Company shall give the Supplier all reasonable assistance (at the Supplier’s cost). All costs, fees (including attorney’s fees), judgments and settlements shall be borne by the Supplier.

23.2. If at any time an allegation of infringement of Intellectual Property Rights is made in respect of the Software, Goods and/or Services or Documentation or if in the Company’s reasonable opinion such an allegation is likely to be made, the Supplier may, at its own expense, modify or replace the Software, Goods and/or Services, or Documentation so as to avoid the infringement without detracting from the overall performance the Supplier making good to the Company and any applicable member of the Company’s Group any loss of productivity or use during modification or refund to the Company and any applicable member of the Company’s Group all sums paid in respect of the infringing item.

23.3. If the above remedies fail after all reasonable efforts by the Supplier within a reasonable period, without prejudice to any other remedies available to the Company:

23.3.1. the Company may, at the expense of the Supplier, procure an alternative solution from a Third Party to satisfy its requirements relating to the Goods and/or Services; or

23.3.2. the Supplier shall refund the Fees paid for Goods and/or Services found to be or alleged to be infringing as well as any payment made for any related Goods and/or Services which have not been delivered or performed.

24. Counterparts

24.1 This Agreement may be entered into in any number of counterparts and by the Parties to it on separate counterparts each of which when so executed and delivered shall be an original, but all these counterparts together shall constitute one and the same instrument.

25. Escalation and Dispute Resolution Process

25.1. The Parties shall meet and use their reasonable endeavours to resolve any dispute in accordance with the Dispute Resolution Procedure set out in this Clause 25 before escalating the dispute to court proceedings.

25.2. The Parties may relax the timescales referred to in this Clause 25 by mutual agreement (such agreement not to be unreasonably withheld or delayed).

25.3. The Parties’ representatives to resolve the dispute shall be a director or senior manager (“Representative(s)” or “Authorised Representative(s)”) within either Party who is authorised to make decisions on behalf of the Party and contractually bind the Party (including the settlement of any disputes) or the persons holding the relevant title, its equivalent or any successor title from time to time. If any of the representatives are unable to attend a meeting, a substitute may attend provided that such substitute has at least the same seniority or reasonably comparable managerial or directorial responsibility and is authorised to settle the unresolved matter.

25.4. As soon as either Party becomes aware of a disputed matter it shall refer the dispute to the representative best placed to deal with the dispute (taking into account the nature of the dispute). If the dispute cannot be resolved by good faith negotiations between the Parties within ten (10) Business Days of a written request from either Parties (“Dispute Notice“), the Dispute shall be further escalated in accordance with the escalation process set out in Clause 25.3.

25.5. If the Dispute is not resolved within a further thirty (30) days from the date of the Dispute Notice, then the Parties shall mutually agree to resolve Dispute by mediation in accordance with Clause 26.

26. Mediation

26.1. The following provisions shall apply to any such reference to mediation:

26.1.1. the reference shall be a reference under the Model Mediation Procedure (“MMP”) of the Centre of Dispute Resolution (“CEDR”) for the time being in force;

26.1.2. both Parties shall, immediately on such referral, co-operate fully, promptly and in good faith with CEDR and the mediator and shall do all such acts and sign all such documents as CEDR or the mediator may reasonably require to give effect to such mediation, including an agreement in, or substantially in, the form of CEDR’s Model Mediation Agreement for the time being in force; and

26.1.3. to the extent not provided for by such Agreement of the MMP:

i. the mediation shall commence by either Party serving on the other written notice setting out, in summary form, the issues in dispute and calling on that other Party to agree the appointment of a mediator; and

ii. the mediation shall be conducted by a sole mediator (which shall not exclude the presence of a pupil mediator) agreed between the Parties or, in default of Agreement, appointed by CEDR.

27. Applicable Law and Jurisdiction

27.1. Unless specified to the contrary in writing, this Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England.

27.2. Unless specified to the contrary in writing, each Party irrevocably agrees that the courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

28. Data Protection

28.1 The parties agree to comply with their respective obligations under the Data Protection Legislation. Any processing (having meaning under the relevant data protection legislation), under this contract will be subject to the Appendix 5 – Tag Data Protection Schedule)

29. Non-Solicitation

29.1. During the term of this Agreement and for twelve months thereafter, Supplier shall not (and shall procure that Sub-contractors and agents shall not), without the prior written consent of the Company, directly or indirectly solicit or entice away (or attempt or endeavour to solicit or entice away) from the Company or its Group any customer, former customer or employee of any member of the Group Company with whom it has had contact in connection with this Agreement, to enter into a contract for similar service or a contract of employment with it.