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David Allen IT Solutions Master Service Agreement
1 Interpretation
The definitions and rules of interpretation in this condition apply in these master service agreement.
1.1 Definitions:
“Applicable Data Protection Laws” means:
(a) To the extent the 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 to which David Allen IT Solutions is subject, which relates to the protection of personal data.“Applicable Laws” means:
(a) To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom.
(b) To the extent EU GDPR applies, the law of the European Union or any member state of the European Union to which David Allen IT Solutions is subject.“Business Day” a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
“Business Hours” the period from 8.30 am to 5.00 pm on any Business Day.
“Client” the person, firm or company who purchases Services from David Allen IT Solutions.
“Client’s Account Manager” the Client’s manager for the Services appointed under condition 6.1.1.
“Conditions” this master service agreement as amended from time to time in accordance with Condition 2.2.
“Confidential Information” has the meaning given in Condition 13 (Confidentiality).
“Configuration Services” the configuration and related work referred to in Condition 5.1 which may be included in the Contract if set out in the Order, to be performed by David Allen IT Solutions to configure the Software so that the Software conforms with the Software Specification.
“Contract” the Client’s purchase order and David Allen IT Solutions’ acceptance of it under condition 3.
“David Allen IT Solutions” David Allen IT Limited, trading as “David Allen IT Solutions”, a company registered in England and Wales with registered number 07336343.
“David Allen IT Solutions’ Account Manager” David Allen IT Solutions’ manager for the Services, appointed in accordance with condition 4.3.
“Deliverables” all products and materials developed by David Allen IT Solutions in relation to the Services in any media, including computer programs, data, diagrams, reports and specifications (including drafts).
“EU GDPR” the General Data Protection Regulation ((EU) 2016/679).
“Group” in relation to a party, its ultimate holding company and each of its ultimate holding company’s other subsidiaries from time to time.
“Hardware” the items of hardware hired to the Client by David Allen IT Solutions as listed in the Order including all substitutions, replacements, additional orders, or renewals of such equipment and all related accessories, manuals and instructions provided for it.
“Hosting Services” the services that David Allen IT Solutions provides to allow Authorised Users to access and use the Software, including hosting set-up and ongoing services, as described in the Order.
“Initial Terms” the initial term of the Contract as set out in the Order.
“Intellectual Property Rights” patents, rights to inventions, copyright and related rights, trade marks, trade names, rights in domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, 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.
“Maintenance and Support” any error corrections, updates and upgrades that David Allen IT Solutions may provide or perform with respect to the Software and Hosting Services, as well as any other support or training services provided to the Client under the Contract, all as described in the Order.
“Order” the Client’s order for the supply of Services and Hardware, as set out in the Client’s acceptance of David Allen IT Solutions’ proposal or the Client’s signing of or acceptance of a David Allen IT Solutions order form.
“Personal Data” any personal data which David Allen IT Solutions processes in connection with the Contract, in the capacity of a processor on behalf of the Client.
“Pre-existing Materials” materials which existed before the commencement of the Contract.
“Purpose” the purposes for which the Personal Data is processed, as set out in Condition 14.6.1.
“Service Levels” the service levels set out in the Order.
“Services” the services to be provided by David Allen IT Solutions under the Contract.
“Site” the Client premises as identified in the Order, where the Hardware is to be used.
“Software Specification” the functionality and performance specifications for the Software, as set out in the Order.
“Software” the Supplier’s proprietary software in machine-readable object code form only as described in an Order, including any error corrections, updates, upgrades, modifications and enhancements to it provided to the Client under the Contract.
“UK GDPR” has the meaning given to it in the Data Protection Act 2018.
“VAT” value added tax imposed by the Value Added Tax Act 1994 or any similar tax chargeable in the UK or elsewhere.
“Virus” any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
“Vulnerability” a weakness in the computational logic (for example, code) found in software and hardware components that, when exploited, results in a negative impact to confidentiality, integrity, or availability, and the term “Vulnerabilities” shall be interpreted accordingly.
1.2 Condition, Schedule and paragraph headings shall not affect the interpretation of these Conditions.
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 company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.8 References to conditions are to the conditions of these Conditions.
1.9 Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2 Application of conditions
2.1 These conditions shall:
2.1.1 apply to and be incorporated in the Contract; and
2.1.2 prevail over any inconsistent terms or conditions contained in, or referred to in, the Client’s purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing.
2.2 No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on David Allen IT Solutions unless in writing and signed by a duly authorised representative of David Allen IT Solutions.
3 Effect of purchase order
3.1 The Order constitutes an offer by the Client to purchase the Services specified in it on these Conditions. Accordingly, the execution of the Order by David Allen IT Solutions, or David Allen IT Solutions’ commencement or execution of work pursuant to the Order, shall establish a contract for the supply and purchase of those Services on these Conditions (the “Contract”). The Client’s standard terms and conditions (if any) attached to, enclosed with, or referred to in, the Order shall not govern the Contract.
3.2 Any quotation given by David Allen IT Solutions shall not constitute an offer, and is only valid for the period set out in the quotation or a period of thirty (30) days from its date of issue.
4 David Allen IT Solutions’ obligations
4.1 David Allen IT Solutions shall use reasonable endeavours to manage and complete the Services, and to deliver the Deliverables to the Client, in accordance in all material respects with the Order.
4.2 David Allen IT Solutions shall use reasonable endeavours to meet the performance dates specified in the Order, but any such dates shall be estimates only and time shall not be of the essence of the Contract.
4.3 David Allen IT Solutions shall appoint David Allen IT Solutions’ Account Manager who shall have authority to contractually bind David Allen IT Solutions on all matters relating to the Contract. David Allen IT Solutions shall use reasonable endeavours to ensure that the same person acts as David Allen IT Solutions’ Account Manager throughout the term of the Contract, but may replace that person from time to time where reasonably necessary in the interests of David Allen IT Solutions’ business.
5 Software Hosting Services
Configuration Services
5.1 Where Configuration Services are to be provided under the Contract, David Allen IT Solutions shall use reasonable endeavours to meet the performance dates set out in the Order, but any such dates shall be estimates only, and time shall not be of the essence in the Contract.
5.2 On delivery of each Deliverable, the Client shall be able to access the Deliverables online. Within five days of David Allen IT Solutions’ delivery to the Client of any Deliverables, the Client shall review the Deliverable to confirm that it functions in material conformance with the applicable portion of the Software Specification. If the Deliverable fails in any material respect to conform with the applicable portion of the Software Specification, the Client shall give David Allen IT Solutions a detailed description of any such non-conformance (“Error”), in writing, within the five-day review period.
5.3 With respect to any Errors contained in any Deliverables delivered to the Client during the Configuration Services, David Allen IT Services shall use reasonable endeavours to correct any such Error within a reasonable time and, on completion, submit the corrected Deliverable to the Client. The provisions of this Condition 5.3 shall then apply again, up to three additional times. If David Allen IT Solutions is unable to correct such Error after three attempts, either party may terminate the Contract without further liability to the other party.
5.4 If the Client does not provide any written comments in the five-day period described above, or if the Deliverable is found to conform with the Software Specification, the Deliverable shall be deemed accepted.
Hosting Services, Maintenance and Support
5.5 Where Hosting Services and / or Maintenance and Support are to be provided under the Contract, David Allen IT Solutions shall perform the Hosting Services and Maintenance and Support services in accordance with the Service Levels. Where David Allen IT Solutions are to provide Configuration Services, the Service Levels shall apply with effect from the start of the month after the Configuration Services have been satisfactorily completed.
5.6 In relation to the Software:
5.6.1 David Allen IT Solutions hereby grants to the Client on and subject to the master service agreement a non-exclusive, non-transferable licence, without the right to grant sublicences, to allow Authorised Users to access the Software through the Hosting Services and to use the Software during the Term solely for the Client’s business purposes;
5.6.2 the Client shall not store, distribute, introduce or transmit through the Hosting Services:
(a) any Virus,
(b) any Vulnerability; or
(c) any material that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; or promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities;5.6.3 the rights provided under this Condition 5.6 are granted to the Client only, and shall not be considered granted to any subsidiary or holding company of the Client;
5.6.4 the Client shall not:
(a) attempt to copy, duplicate, modify, create derivative works from or distribute all or any portion of the Software except to the extent expressly set out in this Agreement or as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; or
(b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; or
(c) access all or any part of the Software or Hosting Services in order to build a product or service which competes with the Software and/or the Services
(d) use the Software or Hosting Services to provide services to third parties; or
(e) subject to Condition 22.2, transfer, temporarily or permanently, any of its rights under this Agreement, or
(f) attempt to obtain, or assist third parties in obtaining, access to the Software, other than as provided under this Condition 5.6.4; and5.6.5 the Client shall use reasonable endeavours to prevent any unauthorised access to, or use of, the Software and notify David Allen IT Solutions promptly of any such unauthorised access or use.
6 Client’s obligation
6.1 The Client shall:
6.1.1 co-operate with David Allen IT Solutions in all matters relating to the Services and appoint the Client’s Account Manager, who shall have the authority to contractually bind the Client on matters relating to the Services;
6.1.2 provide in a timely manner such access to the Client’s premises and data, and such office accommodation and other facilities, as is requested by David Allen IT Solutions;
6.1.3 provide in a timely manner such information as David Allen IT Solutions may request, and ensure that such information is accurate in all material respects; and
6.1.4 be responsible (at its own cost) for preparing the relevant premises for the supply of the Services.
6.2 If David Allen IT Solutions’ performance of its obligations under the Contract is prevented or delayed by any act or omission of the Client or the Client’s agents, subcontractors or employees, the Client shall in all circumstances be liable to pay to David Allen IT Solutions on demand all reasonable costs, charges or losses sustained or incurred by it, subject to David Allen IT Solutions confirming such costs, charges and losses to the Client in writing. Such losses shall include, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property, injury to or death of any person and loss of opportunity to deploy resources elsewhere.
6.3 The Client covenants with David Allen IT Solutions for itself and as agent for each member of its Group, that it shall not without the prior written consent of David Allen IT Solutions, at any time from the date of the Contract to the expiry of twelve (12) months after the completion of the Services or the termination of the Contract, solicit or entice away from David Allen IT Solutions or employ or attempt to employ any person who is, or has been, engaged as an employee or subcontractor of David Allen IT Solutions. The Client shall not be in breach of this condition 6.3 if it hires an employee or subcontractor of David Allen IT Solutions as a result of a recruitment campaign not specifically targeted to any employees or subcontractors of David Allen IT Solutions.
6.4 Any consent given by David Allen IT Solutions in accordance with condition 6.3 shall be subject to the Client paying to David Allen IT Solutions on demand a sum equivalent to one year of the then current annual remuneration of David Allen IT Solutions’ employee or subcontractor.
7 Change control
7.1 The Client’s Account Manager and David Allen IT Solutions’ Account Manager shall meet as required to discuss matters relating to the Services. If either party wishes to change the scope of the Services, it shall submit details of the requested change to the other in writing.
7.2 If either party requests a change to the scope or execution of the Services, David Allen IT Solutions’ shall, within a reasonable time, provide a written estimate to the Client of:
7.2.1 the likely time required to implement the change;
7.2.2 any variations to David Allen IT Solutions’ charges arising from the change;
7.2.3 the likely effect of the change on any agreed timescales for the Services; and
7.2.4 any other impact of the change on the terms of the Contract.7.3 If David Allen IT Solutions’ requests a change to the scope of the Services, the Client shall not unreasonably withhold or delay consent to it.
7.4 If the Client wishes David Allen IT Solutions to proceed with the change, David Allen IT Solutions has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges and any other relevant terms of the Contract to take account of the change.
8 Charges and payment
8.1 The charges shall be set out in the Order.
8.2 All payments made by the Client under the Contract are exclusive of VAT. David Allen IT Solutions shall provide the Client with a valid VAT invoice. The Client shall pay any stamp duties or similar transfer taxes imposed on the supplies made under the Contract and shall reimburse David Allen IT Solutions for any such stamp duties or similar transfer taxes paid by David Allen IT Solutions. If the Client is required to make any deduction for or on account of tax from any payment due under the Contract (“Tax Deduction”):
8.2.1 the Client shall account to the relevant tax authority for such Tax Deduction and shall provide evidence to David Allen IT Solutions that it has so accounted.
8.2.2 the amount of the payment due under the Contract shall be increased so that David Allen IT Solutions receives an amount equal to the amount that would have been received by it, had the Client not been required to make any Tax Deduction.
8.3 The Client and David Allen IT Solutions shall co-operate to minimise the amount of any Tax Deduction. If following the making of a Tax Deduction, David Allen IT Solutions determines in its sole discretion that it (or any member of David Allen IT Solutions’ Group) has received and retained any credit, relief or other benefit as a result of the Tax Deduction, David Allen IT Solutions shall pay such amount to the Client as David Allen IT Solutions determines in its sole discretion would leave David Allen IT Solutions in the same position as if the Client had not been required to make any Tax Deduction.
8.4 Without prejudice to any other right or remedy that David Allen IT Solutions may have, if the Client fails to pay David Allen IT Solutions on the due date David Allen IT Solutions may:
8.4.1 charge interest on such sum from the due date for payment at the annual rate of four percent (4%) above the base lending rate from time to time of Natwest Minister Bank, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment; and
8.4.2 suspend all Services until payment has been made in full.
8.5 Time for payment shall be of the essence of the Contract.
8.6 The Client shall pay each invoice submitted to it by David Allen IT Solutions in full, and in cleared funds, within thirty (30) days of receipt.
8.7 All payments payable to David Allen IT Solutions under the Contract shall become due immediately on termination of the Contract, despite any other provision. This condition is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
8.8 All amounts due under the Contract shall be paid by the Client to David Allen IT Solutions in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). David Allen IT Solutions may, without prejudice to any other rights it may have, set off any liability of the Client to David Allen IT Solutions against any liability of David Allen IT Solutions to the Client.
9 Hardware
9.1 Where the Order states the Client will hire Hardware, David Allen IT Solutions shall hire the Hardware, as set out in the Order, to the Client subject to these Conditions.
9.2 The cost of the Client hiring the Hardware from David Allen IT Solutions shall be included as part of the charges as set out in the Order.
9.3 David Allen IT Solutions shall:
9.3.1 Deliver any Hardware to the Client at the Site at no cost to the Client on a date and time to be agreed by the parties (the “Delivery Date”);
9.3.2 ensure that any hardware Delivered has the latest version of the Software installed and is in a state to deliver the Services;
9.3.3 risk for any Hardware shall transfer in accordance with Condition 11 of these Conditions;
9.3.4 the Client shall procure that the Client’s Account Manager shall be present at the Delivery of the Hardware. Acceptance of Delivery by such representative shall constitute conclusive evidence that the Client has examined the Hardware and has found it to be in good condition, complete and fit in every way for the purpose for which it is intended (save as regards any latent defects not reasonably apparent on inspection). If required by David Allen IT Solutions, the Client’s duly authorised representative shall sign a receipt confirming such acceptance;
9.3.5 to facilitate Delivery and installation of the Hardware, the Client shall provide all requisite materials, facilities, access and suitable working conditions to enable Delivery and installation to be carried out safely and expeditiously;
9.3.6 if the Client fails to accept delivery of the Hardware on the Delivery Date, then, except where such failure is caused by the Client’s failure to comply with its obligations under the Contract:
(a) the Hardware shall be deemed to have been delivered at 9.00 am on the Delivery Date; and
(b) David Allen IT Solutions shall store the Hardware until delivery takes place and may charge the Client for all related costs and expenses (including insurance); and
(c) maintain at its own expense the Hardware in good and substantial repair in order to keep it in as good an operating condition as it was on the Delivery Date (fair wear and tear only excepted) including replacement of worn, damaged and lost parts, and shall make good any damage to the Hardware.9.4 The Client shall:
9.4.1 ensure that the Hardware is kept and operated in a suitable environment, used only for the purposes for which it is designed, and operated in a proper manner by trained competent staff in accordance with any operating instructions or training provided by David Allen IT Solutions;
9.4.2 take such steps (including compliance with all safety and usage instructions provided by David Allen IT Solutions) as may be necessary to ensure, so far as is reasonably practicable, that the Hardware is at all times safe and without risk to health when it is being set, used, cleaned, and/or maintained;
9.4.3 make no alteration to the Hardware and shall not remove any existing component (or components) from the Hardware without the prior written consent of David Allen IT Solutions;
9.4.4 keep David Allen IT Solutions fully informed of all material matters relating to the Hardware, including when Hardware is damaged and/or not working;
9.4.5 keep the Hardware at all times at the Site and shall not move or attempt to move any part of the Hardware to any other location without David Allen IT Solutions’ prior written consent;
9.4.6 maintain operating and maintenance records of the Hardware and make copies of such records readily available to David Allen IT Solutions, together with such additional information as David Allen IT Solutions may reasonably require;
9.4.7 not, without the prior written consent of David Allen IT Solutions, part with control of (including for the purposes of repair or maintenance), sell or offer for sale, underlet or lend the Hardware or allow the creation of any mortgage, charge, lien or other security interest in respect of it;
9.4.8 not use the Hardware for any unlawful purpose;
9.4.9 permit David Allen IT Solutions to inspect the Hardware upon request; and
9.4.10 deliver up the Hardware at the end of the Term at such address as David Allen IT Solutions requires, or if necessary, allow David Allen IT Solutions or its representatives access to the Site or any premises where the Hardware is located for the purpose of removing the Hardware.
9.5 The Client shall only sub-lease the Hardware with the prior written consent of David Allen IT Solutions.
10 Hardware Warranties
10.1 The Client shall be entitled only to such warranty or other benefit as David Allen IT Solutions has received from the manufacturer.
11 Title, risk and insurance of Hardware
11.1 The Hardware shall at all times remain the property of David Allen IT Solutions, and the Client shall have no right, title or interest in or to the Hardware (save the right to possession and use of the Hardware subject to the Conditions).
11.2 The risk of loss, theft, damage or destruction of the Hardware shall pass to the Client on Delivery. The Hardware shall remain at the sole risk of the Client during the Term until such time as the Hardware is redelivered to David Allen IT Solutions in accordance with Condition 9.4.10. During the Term, David Allen IT Solutions shall, at its own expense, obtain and maintain the following insurances:
11.2.1 insurance of the Hardware to a value not less than its full replacement value comprehensively against all usual risks of loss, damage or destruction by fire, theft or accident, and such other risks as David Allen IT Solutions may from time to time nominate in writing;
11.2.2 insurance for such amounts as a prudent owner or operator of the Hardware would insure for, or such amount as David Allen IT Solutions may from time to time reasonably require, to cover any third party or public liability risks of whatever nature and however arising in connection with the Hardware; and
11.2.3 insurance against such other or further risks relating to the Hardware as may be required by law, together with such other insurance as David Allen IT Solutions may from time to time consider reasonably necessary and advise to the Client in writing.
11.3 All insurance policies procured by the Client shall be endorsed to provide David Allen IT Solutions with at least fourteen (14) Business Days’ prior written notice of cancellation or material change (including any reduction in coverage or policy amount) and shall on David Allen IT Solutions’ request name David Allen IT Solutions on the policies as a loss payee in relation to any claim relating to the Hardware. The Client shall be responsible for paying any deductibles due on any claims under such insurance policies.
11.4 If the Client fails to effect or maintain any of the insurances required under the Contract, David Allen IT Solutions shall be entitled to effect and maintain the same, pay such premiums as may be necessary for that purpose and recover the same as a debt due from the Client.
11.5 The Client shall, on demand, supply copies of the relevant insurance policies or other insurance confirmation acceptable to David Allen IT Solutions and proof of premium payment to David Allen IT Solutions to confirm the insurance arrangements.
11.6 The Client shall give immediate written notice to David Allen IT Solutions in the event of any loss, accident or damage to the Hardware arising out of or in connection with the Client’s possession or use of the Hardware.
12 Intellectual Property Rights
12.1 All Intellectual Property Rights and all other rights in the Deliverables shall be owned by David Allen IT Solutions. David Allen IT Solutions licenses all such rights to the Client free of charge and on a non-exclusive, non-transferable and worldwide basis to such extent as is necessary to enable the Client to make reasonable use of the Deliverables and the Services as is envisaged by the parties. If David Allen IT Solutions terminates the Contract under condition 16.1, this licence will automatically terminate.
12.2 The Client acknowledges that the Client’s use of rights in Pre-existing Materials is conditional on David Allen IT Solutions obtaining a written end-user licence (or sub-licence) of such rights from the relevant licensor or licensors on such terms as will entitle David Allen IT Solutions to license such rights to the Client.
12.3 The Client acknowledges and agrees that they may not use the name or logo of David Allen IT Solutions in any promotional material, document or statement without the prior written consent of David Allen IT Solutions.
13 Confidentiality and David Allen IT Solutions’ property
13.1 “Confidential Information” means all confidential information (however recorded or preserved) disclosed by a party or its Representatives (as defined below) to the other party and that party’s Representatives whether before or after the date of the Contract in connection with the Contract, including but not limited to:
13.1.1 any information that would be regarded as confidential by a reasonable business person relating to:
(a) the business, assets, affairs, Clients, clients, suppliers, plans, intentions, or market opportunities of the disclosing party (or of any member of the disclosing party’s Group); and
(b) the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party (or of any member of the disclosing party’s Group);13.1.2 any information developed by the parties in the course of carrying out the Contract; and
13.1.3 any information detailed in the Order.
“Representatives” means, in relation to a party, its employees, officers, contractors, subcontractors, representatives and advisers.
13.2 The provisions of this Condition shall not apply to any Confidential Information that:
13.2.1 is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this Condition);
13.2.2 was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;
13.2.3 was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party’s knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party;
13.2.4 the parties agree in writing is not confidential or may be disclosed; or
13.2.5 is developed by or for the receiving party independently of the information disclosed by the disclosing party.
13.3 Each party shall keep the other party’s Confidential Information secret and confidential and shall not:
13.3.1 use such Confidential Information except for the purpose of exercising or performing
13.4 A party may disclose the other party’s Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that:
13.4.1 it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and
13.4.2 at all times, it is responsible for such Representatives’ compliance with the confidentiality obligations set out in this Condition.
13.5 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this Condition 13.5, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
13.6 A party may, provided that it has reasonable grounds to believe that the other party is involved in activity that may constitute a criminal offence under the Bribery Act 2010, disclose Confidential Information to the Serious Fraud Office without first informing the other party of such disclosure.
13.7 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party’s Confidential Information other than those expressly stated in these Conditions are granted to the other party, or to be implied from these Conditions.
13.8 On termination of the Contract, each party shall:
13.8.1 destroy or return to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party’s Confidential Information;
13.8.2 erase all the other party’s Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties (to the extent technically and legally practicable); and
13.8.3 certify in writing to the other party that it has complied with the requirements of this Condition, provided that a recipient party may retain documents and materials containing, reflecting, incorporating or based on the other party’s Confidential Information to the extent required by law or any applicable governmental or regulatory
authority. The provisions of this Condition shall continue to apply to any such documents and materials retained by a recipient party, subject to Condition 16 (Termination).13.9 Except as expressly stated in these Conditions, no party makes any express or implied warranty or representation concerning its Confidential Information.
13.10 The provisions of this Condition 9 shall survive for a period of two (2) years from termination of the Contract.
14 Data Protection
14.1 For the purposes of this Condition 14, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the UK GDPR.
14.2 Both parties will comply with all applicable requirements of Applicable Data Protection Laws. This Condition 14 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under Applicable Data Protection Laws.
14.3 The parties have determined that, for the purposes of the Applicable Data Protection Laws David Allen IT Solutions shall process the personal data set out in the Order as a processor on behalf of the Client in respect of the processing activities set out in the Order
14.4 Without prejudice to the generality of Condition 14.2, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of Personal Data to David Allen IT Solutions and lawful collection of the same by David Allen IT Solutions for the duration and purposes of the Contract.
14.5 In relation to the Personal Data, the Order shall set out the scope, nature and purpose of processing by David Allen IT Solutions, the duration of the processing and the types of personal data and categories of data subject.
14.6 Without prejudice to the generality of Condition 14.2 David Allen IT Solutions shall, in relation to Personal Data:
14.6.1 process that Personal Data only on the documented instructions of the Client, which shall be to process the Personal Data for the purposes set out in the Order, unless David Allen IT Solutions is required by Applicable Laws to otherwise process that Personal Data. Where David Allen IT Solutions is relying on Applicable Laws as the basis for processing Client Processor Data, David Allen IT Solutions shall notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Provider from so notifying the Client on important grounds of public interest. David Allen IT Solutions shall inform the Client if, in the opinion of David Allen IT Solutions, the instructions of the Client infringe Applicable Data Protection Laws;
14.6.2 implement appropriate technical and organisational measures (including any that may be set out in the Order) to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, which the Client has reviewed and confirms are appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
14.6.3 ensure that any personnel engaged and authorised by David Allen IT Solutions to process Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
14.6.4 assist the Client insofar as this is possible (taking into account the nature of the processing and the information available to David Allen IT Solutions), and at the Client’s cost and written request, in responding to any request from a data subject and in ensuring the Client’s compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
14.6.5 notify the Client without undue delay on becoming aware of a personal data breach involving the Personal Data;
14.6.6 at the written direction of the Client, delete or return Personal Data and copies thereof to the Client on termination of the agreement unless David Allen IT Solutions is required by Applicable Law to continue to process that Personal Data. For the purposes of this Condition 14.6.6 Personal Data shall be considered deleted where it is put beyond further use by David Allen IT Solutions; and
14.6.7 maintain records to demonstrate its compliance with this Condition 14.
14.7 The Client hereby provides its prior, general authorisation for David Allen IT Solutions to:
14.7.1 appoint processors to process the Personal Data, provided that David Allen IT Solutions:
(a) shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on David Allen IT Solutions in this Condition 14;
(b) shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of David Allen IT Solutions; and
(c) shall inform the Client of any intended changes concerning the addition or replacement of the processors, thereby giving the Client the opportunity to object to such changes provided that if the Client objects to the changes and cannot demonstrate, to David Allen IT Solutions’ reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, the Client shall indemnify David Allen IT Solutions for any losses, damages, costs (including legal fees) and expenses suffered by David Allen IT Solutions in accommodating the objection.14.7.2 transfer Personal Data outside of the UK as required for the Purpose, provided that David Allen IT Solutions shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Client shall promptly comply with any reasonable request of David Allen IT Solutions, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the UK Information Commissioner from time to time (where the UK GDPR applies to the transfer).
14.8 Either party may, at any time on not less than thirty (30) days’ notice, revise this Condition 14 by replacing it (in whole or part) with any applicable standard clauses approved by the EU Commission or the UK Information Commissioner’s Office or forming part of an applicable certification scheme or code of conduct (“Amended Terms”). Such Amended Terms shall apply when replaced by attachment to the Order, but only in respect of such matters which are within the scope of the Amended Terms
15 Limitation of liability
15.1 The following provisions set out the entire financial liability of David Allen IT Solutions (including any liability for the acts or omissions of its employees, agents and subcontractors) to the Client in respect of:
15.1.1 any breach of the Contract however arising;
15.1.2 any use made by the Client of the Services, the Deliverables or any part of them; and
15.1.3 any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
15.2 All warranties, conditions and other terms implied by statute or common law are, to the greatest extent permitted by law, excluded from the Contract.
15.3 Nothing in these conditions excludes the liability of David Allen IT Solutions:
15.3.1 for death or personal injury caused by David Allen IT Solutions’ negligence; or
15.3.2 for fraud or fraudulent misrepresentation.
15.4 Subject to condition 15.2 and condition 15.3:
15.4.1 David Allen IT Solutions shall not in any circumstances be liable, whether in tort (including for negligence or breach of statutory duty however arising), contract, misrepresentation (whether innocent or negligent) or otherwise for:
(a) loss of profits; or
(b) loss of business; or
(c) depletion of goodwill or similar losses; or
(d) loss of anticipated savings; or
(e) loss of contract; or
(f) loss of use; or
(g) wasted expenditure; or
(h) loss or corruption of data or information; or
(i) any special, indirect or consequential loss, costs, damages, charges or expenses.15.4.2 David Allen IT Solutions’ total liability in contract, tort (including negligence or breach of statutory duty however arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the total price the price paid for the services and Hardware in the twelve (12) month before the event or events giving rise to the liability.
16 Termination
16.1 Where the Contract is for the supply of recurring Services, the Contract shall commence on the commencement Date and, unless terminated earlier in accordance with this Condition 16, shall continue for the Initial Term and automatically extend for twelve (12) months (an “Extended Term”) at the end of the Initial Term and at the end of each Extended Term. Either party may give written notice to the other party, not later than thirty (30) days before the end of the Initial Term or the relevant Extended Term, to terminate the Contract at the end of the Initial Term or the relevant Extended Term, as the case may be.
16.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Contract without liability to the other if:
16.2.1 the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within seven (7) days of that party being notified in writing to do so;
16.2.2 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
16.2.3 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or16.2.4 the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
16.3 Without affecting any other right or remedy available to it, David Allen IT Solutions may terminate the Contract with immediate effect by giving written notice to the Client if:
16.3.1 the Client fails to pay any amount due under the Contract on the due date for payment; or
16.3.2 there is a change of control of the Client (within the meaning of section 1124 of the Corporation Tax Act 2010).
16.4 Without affecting any other right or remedy available to it, David Allen IT Solutions may suspend the supply of Services under the Contract or any other contract between the Client and David Allen IT Solutions if:
16.4.1 the Client fails to pay any amount due under the Contract on the due date for payment;
16.4.2 the Client becomes subject to any of the events listed in Condition 16.2.3 or Condition 16.2.4, or David Allen IT Solutions reasonably believes that the Client is about to become subject to any of them; and
16.4.3 David Allen IT Solutions reasonably believes that the Client is about to become subject to any of the events listed in Condition 16.2.2.
16.5 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
16.6 Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination.
17 Force majeure
Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure results from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for thirty (30) day, the party not affected may terminate the Contract by giving seven (7) days’ written notice to the affected party.
18 Waiver
18.1 A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
18.2 A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
19 Rights and remedies
Except as expressly provided in these Conditions, the rights and remedies provided under these Conditions are in addition to, and not exclusive of, any rights or remedies provided by law.
20 Severance
20.1 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract.
20.2 If any provision or part-provision of the Contract is deemed deleted under Condition 20.1, the parties shall negotiate in good faith to amend such provision so that, to the greatest extent possible, the amended provision achieves the intended commercial result of the original provision.
21 Entire agreement
21.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter.
21.2 Each party acknowledges that, in entering into the Contract, it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract.
21.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
21.4 Nothing in this Condition shall limit or exclude any liability for fraud.
22 Assignment
22.1 David Allen IT Solutions may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
22.2 The Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract.
23 No partnership or agency
Nothing in the Contract is intended to or shall operate to create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
24 Third party rights
The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
25 Notices
25.1 Any notice given to a party under or in connection with this contract shall be in writing and shall be:
25.1.1 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 principal place of business (in any other case); or
25.1.2 sent by email to the email addresses set out in the Order.
25.2 Any notice shall be deemed to have been received:
25.2.1 if delivered by hand, at the time the notice is left at the proper address;
25.2.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
25.2.3 if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
25.3 This condition 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.
26 Governing law
The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and interpreted in accordance with the law of England and Wales.
27 Jurisdiction
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).
