In these terms and conditions (“Terms”) the following words have the following meanings:
“Agreement” These Terms and any Proposal referable to these Terms.
“PrivacyAid” PrivacyAid is a trading name of Prior Analytics Ltd registered and incorporated in England company number 03641722. Registered address 590 Green Lanes, Palmers Green, London, N13 5RY.
“Customer”, “You” or “Your” The individual or organisation whose name & address is indicated in the Proposal as the party to which PrivacyAid will supply the Services.
“Fees” The sums payable by You to PrivacyAid in consideration of PrivacyAid’s supply of Services and as specified in our proposal.
“Proposal” Any letter of proposal or other proposal document referred to as such, which is attached to this Agreement.
“Services” Any services requested by You to be supplied by PrivacyAid and as described in a Proposal.
“Work” Any specific and unique output, result or product of the Services to You in any form of media and howsoever arising.
2.1 PrivacyAid will supply Services requested by you in accordance with the terms of this Agreement. In the event of any conflict or ambiguity between these Terms and the provisions of any agreed attachment, the provisions of the attachment will prevail.
2.2 PrivacyAid warrants that Services will be performed in accordance with Good Industry Practice, with reasonable skill and care and it will exercise that degree of skill, diligence, prudence and foresight which would reasonably be expected from a skilled, experienced person engaged in the same type of undertaking under similar circumstances.
3.1 PrivacyAid will invoice you for Services supplied in accordance with this clause 3 and in accordance with Fees specified in PrivacyAid’s proposal.
3.2 All Fees and other sums payable under the Agreement are exclusive of VAT and any other applicable taxes (excluding tax on our income), duties and withholdings, which are payable by You at the rate and in the manner prescribed by law.
3.3 You will pay all invoices within 30 days of the date of the invoice. PrivacyAid reserves the right to charge You interest on all overdue sums in accordance with The Late Payment of Commercial Debts (Interest) Act 1998.
3.4 PrivacyAid will re-charge to You all directly any reasonably incurred out of pocket expenses including travel and subsistence incurred in providing the Services, subject to any maximum amounts set out in our proposal. Reasonable evidence of expenses incurred under this Agreement will be available upon written request.
3.5 If under this Agreement any sum is owed by PrivacyAid to You, this may be deducted from any sum which at any later time may become due to PrivacyAid under this Agreement
4.1 IP Rights are any copyright, patent, registered design, trademark or other intellectual property right of whatever nature subsisting anywhere in the world. IP Rights related to or arising in connection with this Agreement will be deemed to be wholly owned by You upon creation. You hereby grant and PrivacyAid accepts a personal, non-exclusive, non-transferable, perpetual licence to use such IP Rights only for purposes of performing Services. PrivacyAid agrees that PrivacyAid will have no right to use Work or IP Rights outside the scope of this Agreement.
4.2 PrivacyAid’s advice and Work is provided for the purposes set out in this Agreement and PrivacyAid disclaims any responsibility for the use of PrivacyAid’s advice or Work for a different purpose or in a different context.
4.3 Nothing in this Agreement shall prevent either party from using any know how, methodologies, concepts acquired before or during the performance of the Services for any purpose, subject to the confidentiality obligations contained within this Agreement.
5.1 Each party shall be responsible for its compliance with the General Data Protection Regulation (GDPR) and Data Protection Act 2018 on the basis that You are the Data Controller and PrivacyAid is the Data Processor.
6.1 PrivacyAid shall not publish or make publicly available any Work and/or any other matter related to this Agreement without Your prior written consent. If such consent is granted by You, PrivacyAid’s publication of such Work shall be subject at all times to the obligations of confidentiality contained within this Agreement.
PrivacyAid shall not publish or make publicly available any Work and/or any other matter related to this Agreement without Your prior written consent. If such consent is granted by You, PrivacyAid’s publication of such Work shall be subject at all times to the obligations of confidentiality contained within this Agreement.
7.1 Neither party will use or disclose any confidential information belonging to the other party including any trade secrets, business information, employee information, IP Rights and Work and all other information disclosed (“Confidential Information”) except as necessary for the performance of this Agreement and upon conditions of confidentiality. However this will not restrict the disclosure of any Confidential Information:
which is or becomes (through no fault of the disclosing party) public knowledge; or
which is already in the receiving party’s possession prior to the date of this Agreement, or was independently developed by the receiving party without reference to the Confidential Information; or
to the extent permitted or required by law; or
to a professional adviser bound by a professional duty of confidentiality.
8.1 You undertake that You will:
make available and give free of charge, unhindered access to such of Your premises and facilities (subject to reasonable safety and security requirements) as required by PrivacyAid to enable the supply of Services;
ensure that Your employees and other independent contractors co-operate reasonably with PrivacyAid and its employees in supplying Services;
promptly furnish PrivacyAid with all information and documents as reasonably required for the supply of Services;
be solely responsible for the maintenance, upkeep and repair of all Work (unless otherwise agreed by PrivacyAid in writing);
pay VAT or any other sales tax upon any payment to be made to PrivacyAid; and
provide suitable accommodation / facilities for PrivacyAid employees on your premises.
9.1 PrivacyAid will make available (amongst others) the personnel named in the Proposal to perform the Services or such replacements of equivalent status as may be approved by You (such approval not to be unreasonably withheld or delayed) and will use all reasonable endeavours to ensure that they remain available to the extent necessary to perform their allotted tasks until the completion of the Services.
9.2 You shall have the right after consultation with PrivacyAid to request the removal from involvement in the Services of any person if in Your reasonable opinion the performance or conduct of such person is or has been unsatisfactory.
9.3 Both parties agree not to solicit or entice away any personnel of the other party or offer or cause to be offered any employment to any such personnel for a minimum period of twelve months following the expiry or termination of this Agreement. Nothing in this clause shall restrict an application by any person in response to a general recruitment advertisement by either party.
9.4 If You do appoint any PrivacyAid’s personnel (or PrivacyAid’s subcontractors / associates) who have been engaged in the Services to a permanent and/or salaried position within Your organisation during the term of this Agreement, or within six months of its termination, even where they have applied in response to a recruitment advertisement, You will pay PrivacyAid a fee based on a percentage of the first year’s salary or of the annual equivalent if the appointment is for less than a year or of the fees You agree to pay, whichever is higher, to be calculated as follows:
– Recruited within the first 2 months of this assignment: 30%
– Recruited within first 3-6 months of this assignment: 25%
– Recruited within first 6-9 months of this assignment: 20%
– Recruited after first 9 months of this assignment: 15%
This fee will become payable on the date that the PrivacyAid employee, subcontractor or associate agrees to join Your organisation. If this Agreement is still in force at that time, it will automatically terminate on the day that this fee is received by PrivacyAid .
10.1 PrivacyAid reserves the right to sub-contract all or any part of the supply of Services. Without limiting PrivacyAid ’s rights to engage the services of its advisors, associates, or engage consultants or sub contractors, PrivacyAid shall use its reasonable endeavours to notify You that it has or intends to sub-contract all or part of the Services. If You object, on reasonable grounds, to such sub-contracting You shall notify PrivacyAid within five (5) working days for the grounds of such objections and the parties shall enter into good faith discussions to resolve the matter.
11.1 If either party identifies a requirement for a change to the Services, the identifying party will send a written notice (“Change Request”) to the other party detailing the change requirements. If sent by PrivacyAid, the Change Request will state the effect such a change will have on the Services and fees. If sent by You, PrivacyAid’s receipt of the Change Request will represent a request to PrivacyAid to state in writing the effect the change will have on the Services and Fees. PrivacyAid will use reasonable endeavours to supply such information within 15 working days from receipt of Your Change Request.
11.2 Where a change to Fees is required the basis for calculating the additional cost of the change will be PrivacyAid ’s prevailing rates which are available upon written request. The parties will then decide whether or not to implement the Change Request. If the Change Request is implemented, the amended services and fees will be deemed Services and Fees and take effect for the remainder of this Agreement.
12.1 Neither party excludes or limits liability to the other party for death or personal injury or fraud or any breach of any obligations implied by Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982.
12.2 Each party’s total liability, whether in contract, tort (including negligence), breach of statutory duty or otherwise for loss or damage to the tangible property of the other party caused by its negligence shall not exceed one million pounds sterling in aggregate.
12.3 Except for liability governed by clause 12.1 and 12.2 above, each party’s total liability (whether in contract, tort (including negligence), breach of statutory duty or otherwise) in connection with this Agreement shall not exceed the greater of £500,000 (five hundred thousand pounds sterling) or the Fees paid by You under this Agreement
12.4 Subject always to Clause 12.1, neither party will be liable to the other for: Loss of profits, business, revenue; data, goodwill or anticipated savings; and/or Indirect or consequential loss or damage. however and whenever arising.
12.5 PrivacyAid and You agree that should any limitation or provision contained in this Agreement be held invalid under any statute or other law it shall to that extent be deemed omitted but if either party becomes liable for loss or damage which would otherwise have been excluded such liability shall be subject to the other limitations and provisions set out herein.
12.6 Except as expressly provided in this Agreement no warranty, condition, undertaking or term, expressed or implied, statutory or otherwise as to the condition, quality, performance or fitness for purpose of the Work or the Services will be assumed by PrivacyAid and except as expressly provided in this Agreement all such warranties, conditions, undertaking and terms are excluded.
13.1 You may upon not less than 1 month’s written notice suspend the supply of Services for up to three consecutive months (“Suspension Period”) subject to payment of 25% of the average monthly Fees (estimated by PrivacyAid ) for each month or part month in the Suspension Period. You may request reinstatement of the supply of Services upon not less than 1 month’s written notice (unless a shorter period shall be agreed between the parties) at any time during the Suspension Period. If You do not request reinstatement of Services during the Suspension Period this Agreement will be terminated immediately upon expiry of the Suspension Period.
14.1 Neither party will be under any liability to the other for damage, delay or any other matter arising from circumstances beyond a party’s reasonable control, including but not limited to acts of war, rebellion, civil disturbance, strikes, lock outs and industrial disputes, fire, explosion, earthquake, Acts of God, flood, drought or bad weather or other act or order by any Government department, Council, or other constituted body (‘‘Force Majeure’’) provided always that both parties will use all reasonable endeavours (but without an obligation to incur cost) to minimise the period of disruption caused by Force Majeure.
15.1 Either party may terminate this Agreement by giving 30 days written notice if:
The other party commits any material breach of this Agreement and fails to remedy such breach within 30 days, for the avoidance of doubt non-payment by
You of any invoice in accordance with section 3 shall be considered a material breach of this contract;
The other party becomes bankrupt or compounds or makes any arrangement with or for the benefits of its creditors or (being a company) enters into compulsory or voluntary liquidation or amalgamation (other than for the purpose of a bone fide reconstruction or amalgamation without insolvency) or has a receiver or manager appointed of the whole or substantially the whole of its undertakings or if any distress or execution is threatened or levied upon any property of the other party or if the other party is unable to pay its debts as they fall due; or
An occurrence of Force Majeure continues for 3 months.
15.2 PrivacyAid may immediately terminate this Agreement upon written notice if (in its discretion) PrivacyAid determines, and can demonstrate, that a conflict of interests exists or may develop between PrivacyAid and You.
15.3 Upon termination or expiry of the Agreement, however caused: the provisions of clauses 1, 3, 4, 6, 7, 8, 12, 9.3, 15 and 16 shall survive; You shall pay all fees and other charges payable prior to the date of termination or expiry and You shall have no right to withhold, deduct or set off any such amounts and will be without prejudice to any accrued rights and remedies available to either party.
16.1 This Agreement represents the whole agreement between the parties in respect of the matters referred to above and overrides any other prior verbal or written understandings except in the case of fraud.
16.2 No amendment to this Agreement will be binding unless made in writing and signed by an authorised representative of both parties.
16.3 You shall not assign, charge or otherwise transfer to a third party any of Your rights or obligations hereunder, or hold any such rights or obligations on trust for any other person, without the prior written consent of PrivacyAid , such consent not to be unreasonably withheld or delayed.
16.4 No waiver of any breach of the other party’s obligations hereunder will represent a waiver of the rights for that or any subsequent breach.
16.5 Any notice to effect suspension or termination of the whole or any part of this Agreement:
(i) Will be made in writing and either delivered personally or sent by first class recorded delivery to the party to whom the notice is addressed at its address as set out in the Proposal or such other address as either party may specify by notice in writing to the other;
(ii) In the absence of evidence of earlier receipt, notice shall be deemed to have been duly given:
(a) if delivered personally, when left at the address referred to in 16.5 (i);
(b) if sent by recorded delivery, at the time recorded by the delivery agent.
16.6 For the avoidance of doubt electronic mail shall be deemed to be “writing” for the purpose of this Agreement but this shall not prejudice the express requirements for delivery of notices under clause 16.5.
16.7 If any provision of this Agreement is held to be void or unenforceable in whole or in part, this Agreement shall continue to be valid as to the other provisions thereof and the remainder of the affected provision.
16.8 This Agreement shall be binding on and shall continue for the benefit of any permitted successors and permitted assigns of each of the parties hereto.
16.9 All provisions of this Agreement shall so far as they are capable of being performed and observed continue in full force and effect until any expiry or earlier termination.
16.10 None of the provisions of this Agreement are intended to or will operate to confer any benefit pursuant to the Contracts (Rights of Third Parties) Act 1999 on a person who is not named as a party to this Agreement. The Contracts (Rights of Third Parties) Act 1999 is expressly excluded to the fullest extent permitted by law.
16.11 PrivacyAid shall have at all times reasonable insurance cover, taking into account the nature and type of services being performed under this Agreement.
17.1 This Agreement will be governed by and construed in accordance with English law and each party to this Agreement submits to the non-exclusive jurisdiction of the English courts.