Purple Seven Ltd - Standard Terms And Conditions

These terms and conditions (the “Standard Terms and Conditions”) are entered into between Purple Seven Ltd of Floor 4, Henry Wood House, 2 Riding House Street, London W1W 7FA (the “Company”) and you as customer (“Client”),  and are the Standard Terms and Conditions referred to in and comprising part of a Statement of Work (as such term is defined below).

1 DEFINITIONS AND INTERPRETATION
1.1 Defined terms shall have the following meaning when used in these Standard Terms and Conditions:
‘Act’ has the meaning given to it in Clause 8.2;

‘Application’ means each Vital Statistics software application to which the Client subscribes pursuant to a  Statement of Work;

‘Charges’ means the Company’s fees and other charges (including any costs incurred by the Company with third parties)  for the provision of the Services to the Client.

‘Information’ shall have the meaning given to it in Clause 7.1.

‘Intellectual Property Rights’ means all patents, rights to inventions, utility models, copyright and related rights, trade marks,  service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off,  unfair competition rights, rights in designs, rights in computer software, database rights, topography 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.

‘Processed Client Data’ means the data created for a Client by the Company, which is based on and/or includes, amongst other things, the Data.

‘Services’ means work which the Client requires the Company to carry out from time to time as detailed in a Statement of Work.  This includes, but is not limited to, access to software, training, consultancy and documentation.

‘Specification’ means the written specification (if any) of the work which the Client requires the Company to carry out  including any technical or other requirements, which may be attached as Appendix 1 to the relevant Statement of Work.

‘Statement of Work’ means an agreement identified therein as a Statement of Work for the purpose of these Standard Terms  and Conditions which has been entered into between the Company and the Client and which sets out the terms on which the  Company shall (1) deliver Services, which may include the creation and delivery of Processed Client Data, to the Client,  and (2) if applicable, provide access to one or more Applications to the Client.

1.2 Headings shall not affect the interpretation of these Standard Terms and Conditions.
1.3 A person includes a natural person, corporate or incorporated body (whether or not having a separate legal personality).
1.4 Words in the singular shall include the plural and vice versa. 
1.5 reference to one gender shall include a reference to other genders.
1.6 A reference to a statute, statutory provision or subordinated legislation is a reference to it as it is in force from time to time  taking account of any amendment or re-enactment; provided that as between the parties no such amendment or re-enactment shall  apply for the purposes of these Standard Terms and Conditions to the extent that it will impose any new or extended obligation,  liability and restriction or otherwise adversely effects the rights of any party. 
1.7 A reference to a statute or statutory provision shall include any subordinate legislation made under that statue or statutory provisions. 
1.8 A reference to “includes” or “including” shall be construed without limitation.
1.9 References to clauses and schedules are to clauses and schedules of these Standard Terms and Conditions. 
2 SERVICES
2.1 The Client shall notify the Company when it requires Services whereupon the Company shall prepare a  Statement of Work for acceptance by the Client. The procedure for submission and acceptance of  a Statement of Work is set out in Clause 5.
2.2 If the Client wishes to retain the Company to provide further Services from time to time then these  shall be detailed in a separate Statement of Work.
2.3 The Company shall provide such Services to the Client, and the Client shall pay for and receive such Services,  in accordance with the terms and conditions set out in the relevant Statement of Work together with  the terms and conditions set out in these Standard Terms and Conditions. 
3 TERM OF A STATEMENT OF WORK
3.1 Each Statement of Work shall come into force on the date on which the parties enter into such Statement of Work  and shall continue until terminated in accordance with Clause 12.
4 CHARGES AND PAYMENT
4.1 Unless otherwise provided in the relevant Statement of Work, payment of the Charges shall be made by the Client in sterling.  If Charges are paid by Direct Debit, they shall be deducted by from the Client’s account on the date on which payment  is due pursuant to the terms of the relevant Statement of Work. If Charges are not paid by Direct Debit,  they shall be paid by the Client within 30 days of receipt of the relevant invoice from the Company.  The Client shall not be entitled to withhold payment of Charges or make any deduction therefrom in respect of any setoff or counter claim.
4.2 Without prejudice to any other right or remedy of the Company, if any payment is not received by the Company by its due date:
4.2.1 The Company shall be entitled to charge interest thereon at the rate of 5% above the Base Rate of National Westminster Bank plc  for the time being in force from the due date for payment until actual payment; and
4.2.2 May by notice in writing to the Client suspend the performance of the Services in whole or in part (in the Company’s discretion)  pending payment of all sums due to it.
5 ENTERING INTO STATEMENTS OF WORK
5.1 These Standard Terms and Conditions shall take effect in relation to all Services provided by the  Company to the Client pursuant to a Statement of Work.
5.2 The submission by the Company of a Statement of Work to the Client shall comprise an offer by the Company to supply  the relevant Services and/or give the Client access to the relevant Applications (as the case may be), which offer may be accepted by the Client by returning to the Company the Statement of Work executed by the Client within 60 days of such offer being made and provided that the offer has not been withdrawn in writing by the  Company prior to such acceptance. On expiry of such 60 day period, the offer shall lapse if it has not already been withdrawn.
5.3 Should the Client deliver to the Company an executed Statement of Work containing conditions or provisions inconsistent with  or additional to those contained in the Statement of Work originally issued by the Company to the Client, then such revised  version of the Statement of Work shall comprise a counter-offer available for acceptance by the Company. Such counter-offer  may be accepted by the Company by delivering their written confirmation of the same to the Client. Any such acceptance of a  Statement of Work containing revised terms shall not oblige the Company to accept such revised terms in respect of any future Statement of Work.
5.4 In the event of any conflict between the provisions set out in these Standard Terms and Conditions and any Statement of Work,  then the provisions of the relevant Statement of Work shall prevail. 
6 INTELLECTUAL PROPERTY RIGHTS
6.1 All Intellectual Property Rights belonging to a party prior to the acceptance of a Statement of Work shall,  for the purpose of this Agreement, remain vested in that party.
6.2 The Company retains all rights, title and interest in the products of the Services, including any Processed  Client Data provided to the Client. Subject to payment in full for the relevant Services, the Company  hereby grants the Client a non-exclusive licence to use the products of such Services solely for the Client’s  own internal business purposes. The Client shall not share, transfer or otherwise make available to any third  party the products of the Services, including any Processed Client Data, unless agreed in writing between the Company and the Client.
6.3 Where the products of Services are comprised in whole or in part of items containing the Company’s Intellectual  Property Rights which are licensed to the Client for use, and the Company has reason to believe that the  Client may be in breach of the terms of such licence (whether express or implied), the Company may terminate  such licence immediately, without prejudice to any other rights which the Company may have in respect thereof. 
6.4 If the Client agrees to participate in the Company’s customer satisfaction survey, all rights to the responses  and data submitted by the Client as part of such survey shall vest in the Company and the Company shall be  entitled to use the completed surveys as it deems fit, including sharing the results with third parties.
7 CONFIDENTIALITY
7.1 Subject to Clauses 7.2, 7.3, 7.4 and 7.5, each party to these Standard Terms and Conditions undertakes to treat as  confidential and not disclose to any third party any information received by them from the other Party marked  ‘confidential’ or which may reasonably be supposed to be confidential, including, without limitation, information  contained or embodied in the Applications or the products of the Services including the Processed Client Data  (in this Agreement collectively referred to as the “Information”), and shall keep such received Information secure  with at least the same degree of care as it employs with regard to its own confidential information of a like nature  and in any event in accordance with best current commercial security practices.
7.2 The provisions of Clause 7.1 shall not extend to any information which was rightfully in the possession of the receiving  party prior to the date on which these Standard Terms and Conditions became binding on such party or any information which is already public knowledge or becomes so at a future date other than as a result of unauthorised disclosure.
7.3 A party shall not, without the prior written consent of the other party, divulge any part of the other party's  Information to any person except:
7.3.1  to its employees or authorised officers who have signed confidentiality provisions that reflect, or are more  stringent than, those set out in Clause 7.1;
7.3.2  to its auditors and professional advisors, an officer of HM Revenue and Customs, a court of competent jurisdiction,  governmental body or applicable regulatory authority,
and the divulging party shall ensure that the persons and bodies referred to in paragraph 7.3.1. and 7.3.2. are made aware  before the disclosure of any Information that the same is confidential and that the divulging party owes a duty of confidence to the other party.
7.4 The provisions of Clause 7 shall not apply to the whole or any part of the Information to the extent that it is the subject  of a request under the Freedom of Information Act 2002 (unless the relevant Information is exempt from disclosure under such Act).  Under such circumstances, the relevant party shall consult the other party (giving the other party 5 working days to respond)  and take any observations received on the disclosure of the Information requested into account before making a determination on the request.
7.5 Notwithstanding the foregoing, data provided by the Client to the Company in relation to the provision of the Services by the Company to  the Client may be used by the Company in anonymised reports and such anonymised data shall not constitute Information for the purpose  of the provisions of Clause 7.
7.6 A receiving party shall promptly notify the other party in writing if the receiving party becomes aware of any breach of confidence in relation  to the other party’s Information by any person to whom the receiving party has divulged such Information, and shall give the other party  all reasonable assistance in connection with any proceedings which the other party may institute against such person for breach of confidence.
7.7 The provisions of Clause 7 shall survive the termination of this Agreement.
8 CLIENT DATA
8.1 The Client shall be solely responsible for the accuracy of any data provided to the Company or submitted via an Application in relation  to the provision of Services, a Statement of Work and/or these Standard Terms and Conditions, and acknowledges that the accuracy  of the reports and other information created by an Application are entirely dependent on the accuracy of such data.
8.2 To the extent that any such data submitted to the Company by the Client contains personal data, the Client shall be a data controller  for the purposes of such personal data and the Client warrants that it has complied with its obligations under the Data Protection Act 1998  (as amended) (the “Act”) and in particular the Client warrants that it has obtained all required third party consents for the processing  of such personal data and all other submitted data by the Company for the purposes of providing the Services to the Client.
8.3 The Company warrants that it shall act on the reasonable instructions of the Client from time to time in respect of any personal data  supplied by the Client to the Company.
8.4 For the purposes of Clause 8 the terms personal data and data controller shall be as defined in the Act.
8.5 The Client consents to all transactional data held by the Company as a result of the Client using an Application being added  into the aggregated data set maintained by the Company for the purposes of creating and maintaining anonymous industry  benchmarking, and to the retention of such data by the Company following termination of any relevant Statement of Works pursuant  to which such data was originally submitted. 
9 ANTI-BRIBERY
9.1 The Client shall comply with all applicable laws, statutes and regulations relating to anti-bribery and anti-corruption including,  but not limited to, the Bribery Act 2010. 
10 LIMITATION OF LIABILITY
10.1  The Client acknowledges that the Company’s obligations and liabilities in respect of the Services are exhaustively defined in these Standard Terms  and Conditions and each Statement of Work. The Client agrees that the express obligations undertaken by the Company in these Standard Terms and  Conditions and each Statement of Work are in lieu of and to the exclusion of any warranty, condition, term, undertaking or representation of  any kind, express or implied, statutory or otherwise relating to anything supplied or services provided under or in connection with these Standard  Terms and Conditions and each Statement of Work, including (without limitation) as to the condition, quality, performance, merchantability or fitness  for purpose of the Services, the Applications, and the products thereof or any part of them.
10.2  The Client is responsible for the consequences of any use of the Services and/or Applications. The Company will not be liable for any indirect  or consequential loss, damage, cost or expense of any kind incurred by the Client, whatever and however caused, whether arising under  contract, tort (including negligence) or otherwise, including (without limitation) loss of production, loss of or corruption to data,  loss of profits or of contracts, loss of operation time and loss of goodwill or anticipated savings, even if the Company has been advised of their possibility.
10.3  The Company will not be liable for:
10.3.1  any failure to comply with the provisions of a Statement of Work or these Terms and Conditions if such default is attributable  to any extent to the acts or omissions of the Client its agents, employees or contractors;
10.3.2  any consequences arising from the Company complying with the Client’s instructions or requirements;
10.3.3  any consequences arising from the Client failing to secure any necessary consents, licences or permissions; or
10.3.4  any consequences arising from (a) software or equipment not supplied by the Company, or (b) the Internet, or (c) the Client’s Internet connection. 
10.4 The Company accepts liability for death or injury without limit to the extent that the same results from the Company’s negligence or the negligence of its employees.
10.5 In all other cases not falling within clause 10.4, the Company’s total liability per calendar year  (whether in contract, tort, including negligence, or otherwise) under or in connection with these Standard Terms and Conditions  and all Statements of Work, shall be £250,000 in aggregate. 
10.6 The Client agrees that, except as expressly provided in Clause 10, the Company will not be under any liability of any kind whatever  and however caused arising directly or indirectly in connection with these Standard Terms and Conditions and each Statement of Work. 
10.7 The Client shall indemnify the Company and its employees and agents against:
10.7.1  all damage or injury of any kind suffered by the Company or any of its employees or agents caused by or arising from or  attributable to any act or omission by the Client, its employees or agents and arising whilst any employee or agent  of the Company is present on the Client's premises; and
10.7.2  all claims, costs, damages and expenses which may be incurred by reason of any infringement of Intellectual Property Rights  or other proprietary right arising out of the use by the Company, without knowledge of the fact of such infringement,  of any data, program materials or information supplied to it or submitted via an Application by the Client or its  employees or agents for the purposes of or in connection with the performance of the Services and the provision of the Applications.
11 NON-SOLICITATION
11.1 The Client shall not at any time before the expiry of 12 months from the date of termination of the final Statement of Work,  without prior written consent of the Company, solicit or endeavour to entice away from or discourage from being employed  by the Company any of its employees engaged at any time during the duration of any Statement of Work. In the event of a  breach of this Clause 11.1 by the Client, the Client shall pay to the Company an amount equal to one year's gross  annual salary including benefits in kind (such sum being a genuine pre-estimate of the Company’s losses and costs arising  in respect of the recruitment of a replacement). 
12 TERMINATION
12.1 The Client may terminate Services or an Application subscription being delivered pursuant to a Statement of Work, in whole or  in part for convenience and without cause at any time by giving to the Company:
12.1.1  in relation to Services provided or Application subscriptions entered into pursuant to a Statement of Work concerning the  software ‘Vital Statistics’, not less than 60 days’ notice prior to auto renewal, such notice to be sent to the address  specified in such Statement of Work; or
12.1.2  in relation to all other Services, not less than twenty (20) days’ notice. In the case of notice given pursuant to Clause  12.1.1 or Clause 12.1.2, the Client shall specify the termination date and pay to the Company all amounts due for  the Services performed or Applications subscribed to up to the termination date. Pre-committed expenses shall be  payable by the Client provided they have been incurred or committed to by the Company in line with the relevant  Statement of Work, provided that that the Company shall use its reasonable endeavours to minimise and mitigate such expenses.  Upon termination, the Company shall credit to the Client a pro-rata share of any Charges prepaid by the Client for Services  or Application subscriptions to be provided after the effective date of termination.
12.2 The Company may terminate Services or an Application subscription being delivered pursuant to a Statement of Work, in whole or in part  for convenience and without cause at any time by giving 60 days’ written notice to the Client. Such notice shall specify the termination  date and the Client shall pay all amounts due for the Services received or Applications subscribed to up to the termination date.  Upon termination, the Company shall credit to the Client a pro-rata share of any Charges prepaid by the Client for Services or  Application subscriptions to be provided after the effective date of termination.
12.3 Without prejudice to clause 12.4, termination of Services or Application subscriptions pursuant to clause 12.1 or 12.2 shall not:
12.3.1  affect these Standard Terms and Conditions or any Statement of Work then remaining in force  (including those in relation to which Services or Application subscriptions have been terminated if other Services  are provided and Applications are subscribed to pursuant to such agreements); or
12.3.2  affect any accrued rights or liabilities of either party irrespective of the cause of such termination; or
12.3.3  terminate the right of the Company to use any data supplied to it by the Client (including any data derived therefrom) provided that such use is on an anonymised and aggregated basis. 
12.4 Without prejudice to any specific termination provisions contained within a Statement of Work, a party  (the “Non-Defaulting Party”) may terminate a Statement of Work immediately on giving notice to  the other party (the “Defaulting Party”) if:
12.4.1  the Defaulting Party commits or permits any material breach of any provision of the relevant Statement of Work and the  Defaulting Party has failed to remedy such material breach as soon as practicable (where it is capable of remedy) and,  in any case, within twenty (20) working days of receipt of notice of the breach from the Non-Defaulting Party;
12.4.2  the Defaulting Party commits or permits any material breach of any provision of the relevant Statement of Work which is not capable of being cured;
12.4.3  the Defaulting Party commits repeated breaches of duties or obligations under the relevant Statement of Work   (regardless of whether these breaches are individually cured or otherwise resolved), the cumulative effect of which shall be  deemed to be a material breach of the relevant Statement of Work;
12.4.4  the Defaulting Party has a receiver or administrative receiver appointed or passes a resolution for winding up  (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent  jurisdiction makes an order to that effect or if the Defaulting Party becomes subject to an administration order or enters  into any voluntary arrangement with its creditors or ceases or threatens to carry on business; 
12.4.5  any encumbrancer takes possession of any material part of the assets of  the Defaulting Party; or
12.4.6  if the Defaulting Party ceases or threatens to cease to carry on the whole or substantially the whole of its business or that  part of its business to which  the relevant Statement of Work relates.
12.5 Termination of a Statement of Work pursuant to sub-clauses 12.4.1 to 12.4.6 shall not (subject as above) affect:
12.5.1  any accrued rights or liabilities of either party irrespective of the cause of such termination; or
12.5.2  any other Statement of Work still in force; and 
12.5.3  the provisions of these Standard Terms and Conditions which have been incorporated into such  Statement of Work and which shall survive such termination.
13 FORCE MAJEURE
13.1 Neither party will be liable for any delay in performing or failure to perform its obligations  (other than a payment obligation) under any Statement of Work and/or these Standard Terms and Conditions due to  any cause outside its reasonable control. Such delay or failure will not constitute a breach of the relevant  Statement of Work or these Standard Terms and Conditions and the time for performance of the affected obligation will be extended by such period as is reasonable.
14 NOTICES
14.1 Any notice or other document required to be given in relation to a Statement of Work or these Standard Terms and Conditions or  any communication between the parties with respect to any of the foregoing shall be in writing in English and be deemed duly  given if signed by or on behalf of a duly authorised officer of the party giving the notice and if left at or sent by pre-paid  registered or recorded delivery post or by facsimile transmission or other means of telecommunication in permanent written form  to the address of the party receiving such notice as set out at the head of the Statement of Work to which the notice or  communication relates, or to such other address as notified between the parties for the purpose of this Clause.
14.2 Any such notice or other communication shall be deemed to be given to and received by the addressee:
(a) at the time the same is left at the address of or handed to a representative of the party to be served;
(b) by post on the day not being a Sunday or public holiday 2 days following the date of posting; and
(c) in the case of a facsimile transmission or other means of telecommunication on the next following day.
14.3 In proving the giving of a notice it shall be sufficient to prove that the notice was left, or that the envelope  containing the notice was properly addressed and posted, or that the applicable means of telecommunication was addressed  and despatched and despatch of the transmission was confirmed and/or acknowledged as the case may be.
15 SEVERABILITY
15.1 If any part of these Standard Terms and Conditions or a Statement of Work is found by a court of competent jurisdiction or  other competent jurisdiction to be invalid, unlawful or unenforceable then such part will be severed from the remainder  of these Standard Terms and Conditions or the relevant Statement of Work (as the case may be) which will continue to be  valid and enforceable to the fullest extent permitted by law.
16 WAIVER
16.1 No delay or failure by either party to exercise any of its powers, rights or remedies under a Statement of Work or these Standard Terms  and Conditions will operate as a waiver of them nor shall any single or partial exercise of any such powers, rights or remedies preclude  any other or further exercise of them. Any waiver to be effective must be in writing. The remedies provided in a Statement of Work and  these Standard Terms and Conditions are cumulative and not exclusive of any remedies provided by law.
17 WHOLE AGREEMENT AND VARIATIONS OF TERMS
17.1 These Standard Terms and Conditions together with each Statement of Work issued pursuant to its provisions constitute the complete and exclusive statement of the agreement between the parties relating to the subject matter thereof and supersedes all previous communications, representations and other arrangements, oral or written, save that where the Client enters into a separate data confidentiality agreement with the Company, that  agreement is standalone and shall not be superseded by these Standard Terms and Conditions or a Statement of Work. The Client acknowledges that  no reliance is placed on any representation made but not embodied in the Statements of Work or these Standard Terms and Conditions. 
17.2 The Company may amend these Standard Terms and Conditions from time to time and shall notify the Client of any variations.
18 THIRD PARTY RIGHTS
18.1 A person who is not a party to a Statement of Work or these Standard Terms and Conditions shall not have any rights of enforcement  in relation thereto under the Contracts (Rights of Third Parties) Act 1999.
19 NO PARTNERSHIP OR AGENCY
19.1 Nothing in any Statement of Work or these Standard Terms and Conditions is intended or shall operate to create a partnership between  the parties, or authorise either party to act as agent for the other.
20 GOVERNING LAW AND DISPUTE RESOLUTION
20.1 These Standard Terms and Conditions will be construed in accordance with and governed by the laws of England.
20.2 In the event that any dispute or difference between the Client and the Company arising out of or in connection with these  Standard Terms and Conditions cannot be resolved between the Client and the Company within a reasonable time, then both  parties hereby agree to refer the dispute to, and follow the procedures of the CEDR, 70 Fleet Street, London, EC4Y 1EU.  Unless agreed otherwise, the parties shall share equally the costs charged by the mediation service provider.
20.3 If any dispute between the the Client and the Company arising out of or in connection with an alleged breach of these Standard Terms  and Conditions cannot be resolved within 1 month of being submitted to mediation proceedings pursuant to Clause 20.2, then either  party may issue a claim in the courts of England to whose exclusive jurisdiction in relation to any such claims each party hereby submits.