Terms and conditions for the provision of Services.
Definitions and interpretation
“You” and “Customer”
The person firm or company to whom the Services are to be provided as identified in the agreed Briefing Document.
Renewal Date (Retainer Services)
The date 12 months from the Commencement Date for Retainer Services and each anniversary of that date until earlier termination of the Agreement, or such other renewal dates set out in the Briefing Document.
The charges as set out in the Briefing Document.
If no such charge is set out in the Briefing Document for any of the Services or where we agree from time to time to provide any additional services not specified in the Briefing Document, our standard charges (whether on a time or piece rate basis) for such Services as are in force at the time of performance of those Services shall apply.
Minimum Termination Notice
Terms and Conditions
1. About us
Company details. Healthwave Limited 11189811 (we, us, the Supplier) is a company registered in England and Wales and our registered office is at 6 Queen Street, Lostwithiel, Cornwall, England, PL22 0AB. We operate the website https://www.healthwavehub.com
1.2 Contacting us. To contact us you can e-mail the team at firstname.lastname@example.org.
1.3 Insurance. We maintain professional liability and public liability insurance with Aviva.
2. Contract formation and Our Agreement with you
2.1 Offer. Once a quote is provisionally agreed between us, it shall be incorporated into a briefing document outlining:
(b) data strategy;
© creative brief for any creative Deliverables;
(d) confirmation of the services to be provided by us (Services); a©(e) materials to be created or produced by or on behalf of us for you in the course of providing the Services (Deliverables)
hereinafter known as the Briefing Document. No legally binding contract shall exist between you and us unless and until Acceptance occurs as referred to in clause 2.2 or 2.3.
2.2 Acceptance. Once a Briefing Document is signed or otherwise expressly accepted in writing by each of us, this creates a legally binding contract (Agreement) for us to provide you the Services, including production of the Deliverables, in consideration of your payment of the Charges. The date of the Agreement shall be known as the Commencement Date.
2.3 Acceptance by Conduct. In absence of a signed Briefing Document or other written acceptance under clause 2.1, conduct by you evidencing your intention to accept the Briefing Document shall be a sufficient substitute for a signed Briefing Document for the purpose of forming an Agreement.
2.4 These Terms. For the avoidance of doubt, these terms and conditions and the accepted Briefing Document shall apply to and be incorporated into the Agreement. They apply to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5 Data Files. The Deliverables shall exclude any raw data we gather as part of our provision of the Services (Data Files) unless expressly listed otherwise in the Briefing Document.
2.6 Term of the Agreement. The term of the Agreement is the period from the Commencement Date until the Completion Date or (if earlier) termination of the Agreement in accordance with clause 13.
2.7 Site development. Where, as part of the Services, a Site is developed by us for you, Schedule 2 shall apply.
3. Our Services
3.1 Our obligations. We shall:
(a) render the Services in all material respects in accordance with the Briefing Document;
(b) be responsible for arranging and supervising the performance of the Services and delivery of the Delivera©s;
(c) at various stages, submit the Deliverables to you for your acceptance;
(d) perform the Services in willing co-operation with ©; and
(e) not, without your prior written consent, place any order in your name or incur any liability on your behalf or pledge your credit or hold ourselves out as being entitled to do so, other than as is contemplated in the Agreement or the Briefing Document.
3.2 Changes to Briefing Document. We reserve the right to amend the specification of the Services or the Deliverables outlined in the Briefing Document if required by any applicable statutory or regulatory requirement or if the amendment will not materially affect the nature or quality of the Services or Deliverables.
3.3 Creative Control. You will, in your absolute discretion but with full discussion with us and giving good faith consideration to our views as a specialist research agency, have final editorial and artistic control over any Deliverables (Creative Control). For the avoidance of doubt, if exercising your Creative Control gives rise to a change in the description of the Services and/or Deliverables then the Briefing Document may be amended by us accordingly and additional Charges may be payable.
3.4 Amendments to Deliverables and requests for additional Services. Requests for amendments to Deliverables or our provision of any additional Services made before the Completion Date that fall out of scope of the Briefing Document will not form part of the Agreement unless and until agreed by us and may be additionally chargeable. In addition, such amendments or additional Services may form the subject matter of a separate Briefing Document and as such will form a separately enforceable contract between us on these terms and conditions.
3.5 Amendments to the Deliverables not made by us. We shall not be responsible for any alterations to the Deliverables made by you or any third party.
3.6 We cannot guarantee results. Notwithstanding clause 3.7, in performing the Services and the Deliverables we do not guarantee any financial or effectual outcome such as, but not limited to, increased sales and enquiries, campaign success, or public perception. We make no representations or warranties whatsoever in relation to any potential improvements or benefits that may arise out of your engagement of our Services.
3.7 Reasonable care and skill. We warrant to you that the Services and preparation of the Deliverables will be provided using reasonable care and skill.
3.8 Time for performance. We will use all reasonable endeavours to meet any performance dates specified in the Briefing Document, but any such dates are estimates only and failure to perform the Services, or deliver the Deliverables, by such dates will not give you the right to terminate the Agreement.
3.9 Acceptance of Deliverables (excluding any Site). Further to delivery of the Deliverables by us to you, you will have five business days to accept them unless otherwise agreed between us. If you do not accept the Deliverables, or request any amendment to the Deliverables within such period, acceptance shall be deemed to have occurred and the Deliverables accepted on the expiry of that period.
3.10 Acceptance of a Site. Acceptance of any Site developed by us as part of the Services shall be tested and accepted in accordance with Schedule 2.
3.11 Completion. The date of completion shall be the later of:
(a) the date of acceptance or deemed acceptance of the Deliverables;
(b) the date of acceptance or deemed acceptance of any Site in accordance with Schedule 2; and
(c) the date of completion of the Services;
(hereinafter known as Completion Date).
3.12 Referred suppliers. Where we refer you to external suppliers, referrals are provided for your convenience only and we have no control over their conduct. We therefore make no warranties or representations as to the suitability or quality of any of their products or services.
3.13 Sub-contractors. We may, from time to time and without requiring your consent, appoint sub-contractors to perform our obligations under the Agreement where we do not have a certain capability or specialism in-house. We confirm that we shall remain responsible to you for all acts and omissions of our subcontractors and the acts and omissions of those employed or engaged by our subcontractors in connection with our provision of the Services as if they were our own.
4. Your obligations
4.1 It is your responsibility to ensure that you:
(a) provide us with all necessary acceptances or approvals, passwords, accesses, editing permissions, domains, sub-domains, analytical data and similar data, documents, branding images and materials, images and materials, performances and services to be provided by you, or on your behalf to us relating to the Services and/or Deliverables, as specified in the Briefing Document or reasonably requested by us or as otherwise agreed between us from time to time, including your name and branding provided by you to us (Input Materials).
(b) where necessary instruct your personnel to assist and support us wherever possible, to comply with our reasonable requests, and in particular to provide such information as we may request; and
(c) either own, or have obtained and paid for licences to use, all Input Materials provided to us by you in connection with the Services and/or Deliverables
4.2 If our ability to perform the Services and/or Deliverables is prevented or delayed by any failure by you to fulfil any obligation listed in clause 4.1 (Your Default):
(a) we will be entitled to suspend performance of the Services and/or Deliverables until you remedy Your Default, and to rely on Your Default to relieve us from the performance of the Services, in each case to the extent Your Default prevents or delays performance of the Services. In certain circumstances Your Default may entitle us to terminate the contract under clause 13.3 (Termination);
(b) we will not be responsible for any costs or losses you sustain or incur arising directly or indirectly from our failure or delay to perform the Services resulting from Your Default; and
(c) it will be your responsibility to reimburse us, and you agree that you will indemnity us, on written demand for any costs or losses we sustain or incur arising directly or indirectly from Your Default.
5.1 In consideration of us providing the Services and/or Deliverables you must pay our charges (Charges) in accordance with this clause 5 and clause 6.
5.2 The Charges are those prices quoted in the Briefing Document or otherwise payable by you for our Services in accordance with these terms and conditions.
5.3 If you wish to change the scope of the Services and/or Deliverables after acceptance of the Briefing Document by you but before the Completion Date, and we agree to such change, we will modify the Charges accordingly. In addition, such amendments may form the subject matter of a separate Briefing Document and as such will form a separately enforceable contract between us.
5.4 Our Charges are exclusive of VAT. Where VAT is payable in respect of some or all of the Services and/or Deliverables you must pay us such additional amounts in respect of VAT, at the applicable rate, at the same time as you pay the Charges.
6. How to pay
6.1 In respect of Retainer Services, unless otherwise provided in the Briefing Document or agreed by us, payment for all Charges shall be due monthly in arrears payable within 30 days of the end of the month to which the invoice relates.
6.2 In respect of Project Services, unless otherwise provided in the Briefing Document or agreed by us, payment for all Charges (after allowing for any deposit already paid by you to which those Charges relate) shall be due within 30 days of the date of our invoice for such Charges.
6.3 We may submit our invoice for Project Services following:
(a) the Completion Date;
(b) expiry of your notice to us pursuant to clause 13.1; or
(c) the date of delivery of our notice to you under 13.3;
(d) any milestone dates for performance of the Services set out in the Briefing Document.
6.4 If you fail to make a payment under the Agreement by the due date, then, without limiting our remedies under clause 13 (Termination), you will have to pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 6.4 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
6.5 We may, from time to time, incur expenses during our performance of the Services. You shall reimburse us for any anticipated expenses or disbursements set out in the Briefing Document. Any other expenses and disbursements that we incur shall be confirmed with you in writing in advance. Any expenses or disbursements payable by you to us shall be included in the next invoice after they are incurred and paid by you in accordance with clause 6.1 or clause 6.2 as applicable.
6.5 All amounts due under the Agreement, must be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
If a problem arises or you are dissatisfied with the Services and/or the Deliverables, please contact us by email or telephone to discuss the issue.
8. Intellectual property rights
8.1 Definition. For the purpose of these terms and conditions and the schedules to it, intellectual property rights shall be all copyright, neighbouring and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, format rights, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world (Intellectual Property Rights).
8.2 Client Materials. In relation to any Input Material provided by you or on your behalf to us for our use in the performance of the Services or provision of any Deliverable:
(a) you and your licensors shall retain ownership of all Intellectual Property Rights in such Input Materials;
(b) you grant us a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify (including but not limited to adding, deleting and/or altering text, images, pages, meta-tags, titles, mark-ups, style sheets, scripts, internal and external links and structure) such Input Material, including the right to grant sub-licences to permitted subcontractors, for the term of the Agreement and for the purpose of performing the Service or providing the Deliverable to the you;
(c) you warrant that the receipt and use of the Input Materials by us and our permitted sub-licensees shall not infringe the rights, including any Intellectual Property Rights, of any third party; and
(d) you shall indemnify us against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred or paid by us arising out of or in connection with any claim brought against the us for actual or alleged infringement of a third party's Intellectual Property Rights arising out of, or in connection with, our receipt or use of the Input Materials.
8.3 Assignment of Deliverables. Subject to payment in full of all monies due to us by you in accordance with clause 5.1, and save as provided for in clause 8.8 we shall assign, by way of present and future assignment with full title guarantee to you all Intellectual Property Rights in the Deliverables subject to any rights in any Third Party Materials referred to in clause 9.7. For the avoidance of doubt, assignment excludes Our IPR under clause 8.4, any Background IPR under clause 8.5, any Data Files and any Site developed under Schedule 2, unless otherwise agreed between us in accordance with clause 9.6.
Our IPR. We may use our logo, business name or domain name (Our IPR) in the Deliverable to apply a credit in accordance with clause 9. Upon assignment in accordance with clause 8.3, we hereby grant you a limited, non-exclusive, non-transferable, revocable, worldwide licence to use any of Our IPR contained within the Deliverable for the purposes of promoting the Deliverable. This licence shall be immediately revoked in the event that you, in our sole opinion, materially edit the Deliverable following assignment.
8.5 Background IPR. The Deliverables may include our templates, standard content and other materials developed by us before the Commencement Date which have not been developed specifically for you (Background IPR). Upon assignment in accordance with clause 8.3, we hereby grant you a limited, non-exclusive, non-transferable, revocable, worldwide licence to use any of the Background IPR contained within the Deliverable for the purposes of promoting the Deliverable. This licence shall be immediately revoked in the event that you, in our sole opinion, materially edit the Deliverable following assignment.
8.6 Data Files. You acknowledge that the Data Files reflect the know-how, methodology and intellectual capital that we have developed or acquired prior to performing the Services. As a result, the Intellectual Property Rights in the Data Files are to be retained by us. If you wish to acquire an assignment of any Intellectual Property Rights in the Data Files, such acquisition shall be subject to our agreement and may be subject to payment of a fee and separate terms to be agreed by us.
8.7 Third Party Materials. Where a third party owns or licenses any material used in connection with the Deliverables (Third Party Materials) we will notify you in writing:
(a) whether an assignment to you of the relevant proposed Third-Party Materials can be obtained and the cost of obtaining it; and
(b) if an assignment of the relevant proposed Third-Party Materials cannot be obtained or you do not agree to the proposed cost of an assignment, the cost of obtaining a licence of such materials for your use of the Deliverable.
8.8 Following notice to you under clause 8.7, you must notify us as soon as reasonably practicable in writing whether we are required to obtain an assignment (if available) or whether you wish to be granted a licence directly from that particular third party. We will assist you in obtaining such licence or assignment directly from that particular third party. You will be responsible for paying the costs of such assignment or licence, any costs associated with or arising out of an unreasonable delay to your notification under this clause 9.8 and any legal costs reasonably required to secure such rights, as appropriate.
8.9 (a)We warrant that the receipt, use and onward supply of the Deliverables by you and your permitted sub-licensees shall not infringe the rights, including any Intellectual Property Rights, of any third party; and
(b) subject in all cases to the limitation set out at clause 11.3, we shall indemnify you against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs and all other reasonable professional costs and expenses) suffered or incurred or paid by you arising out of or in connection with any claim brought against you for actual or alleged infringement of a third party's Intellectual Property Rights arising out of, or in connection with, your receipt or use of the Deliverables (excluding the Client Materials)
8.10 Moral Rights. We hereby waive the benefits of any provision of law relating to so-called “moral rights” (including without limitation any of our rights under section 77 to section 85 inclusive of the Copyright Designs and Patents Act 1988) and any similar laws of any jurisdiction in relation to the Deliverables, excluding the Background IPR and Our IPR. We further agree to procure the waiver of all such rights in your favour and your successors in title by all persons engaged or employed by us and who contribute to the Deliverables and to whom such rights may accrue.
8.11 Our own promotion. We shall retain the right to use the Deliverables and information relating to the broad nature of the Services, for our own promotional use, including presentations and on our website and social media platforms. We may, at our discretion, agree to not exercise our right if you are able to reasonably evidence that such use may be detrimental to your reputation or commercial interests.
9.1 Subject to us not being in breach of any of our material obligations under the Agreement and these terms and conditions, you authorise us to insert credit:
(a) for us, as the producer of the Deliverables, with our name, logo and, if appropriate, web address included; and
(b) for any Third Party Material owner or licensor, where such credit is a legal condition of use or the license.
10. How we may use your personal information
10.1 We will use any personal information you provide to us to:
(a) provide the Services and/or Deliverables;
(b) process your payment for the Services and/or Deliverables; and
(c) inform you about similar services that we provide, but you may stop receiving these at any time by contacting us.
10.2 Further details of how we will process personal information are set out in Schedule 1.
11. Limitation of liability
11.1 Nothing under these terms and conditions limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
11.2 Subject to clause 11.1, we will not be liable to you, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Agreement for:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) any indirect or consequential loss.
11.3 Subject to clause 11.1 and without prejudice to clause 11.2, our total liability to you arising under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, will be limited to 100% of the total Charges paid under the Agreement.
11.4 The terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Agreement.
11.5 Unless you notify us that you intend to make a claim in respect of any matter or event within the notice period set out in this clause 11.5, we shall have no liability for that matter or event. The notice period shall start on the day on which you became, or ought reasonably to have become, aware of you having grounds to make a claim in respect of the matter or event and shall expire 12 months from that date. The notice must be in writing and must identify the matter or event and the grounds for the claim in sufficient detail to enable us reasonably to consider the nature, merits and value of the claim.
11.6 This clause 11 will survive expiry or termination of the Agreement.
12.1 We each undertake that we will not at any time disclose to any person any confidential information concerning one another's business, affairs, customers, clients or suppliers, except as permitted by the Agreement.
12.2 We each may disclose the other's confidential information:
(a) to such of our respective employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of exercising our respective rights or carrying out our respective obligations under the Agreement. We will each ensure that such employees, officers, representatives, subcontractors or advisers comply with this 12; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.3 Each of us may only use the other's confidential information for the purpose of fulfilling our respective obligations under the Agreement or legal obligations.
13.1 In the case of Retainer Services only, you may terminate the Agreement at any time by giving us written notice of not less than the Minimum Termination Notice such notice to expire on the next Renewal Date thereafter. If the Minimum Termination Notice is not given by you, the Retainer Services will automatically renew from Renewal Date to renewal Date unless and until such notice is given.
13.2 On termination under clause 13.1, we will be entitled to receive payment for:
(a) all sums that we are, up to the date of termination, contractually obligated to pay to any third parties; and
(b) all of the work reasonably carried out in respect of the Services and/or Deliverables up to the date of receipt of your notice, as set out in the Briefing Document or, if a Charge has not been expressly defined within the Briefing Document, at our standard charges (whether on a time or piece rate basis) for such Services as were in force at the time of performance of those Services.
13.3 Without limiting any of our other rights, we may suspend the performance of the Services and/or Deliverables, or terminate the Agreement with immediate effect by giving written notice to you if:
(a) you commit a material breach of any term of the Agreement and (if such a breach is remediable) fail to remedy that breach within 5 days of you being notified in writing to do so;
(b) you fail to pay any amount due under the Agreement on the due date for payment;
(c) you take any step or action in connection with you entering administration, provisional liquidation or any composition or arrangement with your 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 your 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;
(d) you suspend, threaten to suspend, cease or threaten to cease to carry on all or a substantial part of your business; or
(e) your financial position deteriorates to such an extent that in our opinion your capability to adequately fulfil your obligations under the Agreement has been placed in jeopardy.
13.4 Termination of the Agreement will not affect your or our rights and remedies that have accrued as at termination.
13.5 Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination will remain in full force and effect.
14. Events outside our control
14.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the Agreement that is caused by any act or event beyond our reasonable control (Event Outside Our Control). Events Outside of Our Control include the consequences of compliance with any restrictions or guidance issued from time to time by any relevant governmental body in response to or in connection with any epidemic or pandemic.
14.2 If an Event Outside Our Control takes place that affects the performance of our obligations under the Agreement:
(a) we will contact you as soon as reasonably possible to notify you; and
(b) our obligations under the Agreement will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control. We will arrange a new date for performance of the Services and/or Deliverables with you after the Event Outside Our Control is over.
14.3 Where our performance of our obligations under the Agreement is affected by any Event Outside of Our Control for more than three months, either you or us may cancel the Agreement on giving written notice to this effect to the other party. In the event of any such termination, the provisions of clause 13.2 shall apply.
You must not attempt to procure services that are competitive with the Services from any of our directors, employees or consultants, whether as an employee or on a freelance basis, during the period that we are providing the Services to you or at any time during the period of 12 months following termination of the Agreement.
16. Communications between us
16.1 When we refer to "in writing", this includes email.
16.2 Any notice or other communication given by one of us to the other under or in connection with the Agreement must be in writing and be delivered personally, sent by pre-paid first class post or other next working day delivery service, or email.
16.3 Subject to clause 16.4, a notice or other communication is deemed to have been received:
(a) if delivered personally, on signature of a delivery receipt or at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second working day after posting; or
(c) if sent by email, at 9.00 am the next working day after transmission.
16.4 In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee and a declaration that a transmission delay or failure notice was not issued to the sender..
16.5 The provisions of this clause will not apply to the service of any proceedings or other documents in any legal action.
17.1 Assignment and transfer.
(a) We may assign, sub-contract or transfer our rights and obligations under the Agreement to another entity but will always notify you in writing.
(b) You may only assign or transfer your rights or your obligations under the Agreement to another person if we agree in writing.
17.2 Variation. Any variation of the Agreement only has effect if it is in writing and agreed by you and us.
17.3 Full effect. We shall promptly execute and deliver such documents and perform such acts as may be required for the purpose of giving full effect to the Agreement and shall use all reasonable endeavours to procure that any third parties shall also do so as necessary. You shall reimburse us for the reasonable costs properly incurred by it in complying with its obligations under this clause.
17.4 Entire agreement. The Agreement is the entire agreement between you and us in relation to its subject matter. You acknowledge that you have not relied on any statement, promise or representation or assurance or warranty that is not set out in the Agreement.
17.5 Waiver. If we do not insist that you perform any of your obligations under the Agreement, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you or that you do not have to comply with those obligations. If we do waive any rights, we will only do so in writing, and that will not mean that we will automatically waive any right related to any later default by you.
17.6 Severance. Each paragraph of the Agreement operates separately. If any court or relevant authority decides that any of them is unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.
17.7 Third party rights. The Agreement is between you and us. No other person has any rights to enforce any of its terms under the Contracts (Rights of Third Party) Act 1999.
17.8 Governing law and jurisdiction. The Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it, is governed by English law and we each irrevocably agree to submit all disputes arising out of or in connection with the Agreement to the exclusive jurisdiction of the English courts.
Schedule 1. Personal Data
In this schedule, the following definitions shall apply:
Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including without limitation the UK GDPR; the Data Protection Act 2018 (and regulations made thereunder) (DPA 2018); the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
Environmental Information Regulations/EIR: the Environmental Information Regulations 2004 (SI 2004/3391) together with any guidance and/or codes of practice issued by the Information Commissioner or relevant government department in relation to such regulations.
FOIA: the Freedom of Information Act 2000, and any subordinate legislation made under the Act from time to time, together with any guidance and/or codes of practice issued by the Information Commissioner or relevant government department in relation to such legislation.
Information: has the meaning given under section 84 of FOIA.
Personal Data: as defined in the Data Protection Legislation.
Representatives: means, in relation to a party, its employees, officers, contractors, subcontractors, representatives and advisors.
Request for Information: a request for information or an apparent request under the FOIA or the Environmental Information Regulations.
Services: the services to be delivered by or on behalf of the Supplier under the Agreement.
UK GDPR: Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018.
1. Data Protection (Supplier as Processor)
1.1 The parties will comply with all applicable requirements of the Data Protection Legislation. This Schedule 1 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation. In this Schedule 1, Applicable Laws means (for so long as and to the extent that they apply to us) the law of the European Union, the law of any member state of the European Union and/or domestic UK law;
1.2 The parties acknowledge that for the purposes of the Data Protection Legislation, where Personal Data (as defined in the Data Protection Legislation) is transferred to or otherwise processed by us on your behalf in connection with the Agreement (hereafter referred to as “Client Data”), you shall be the data controller and we shall be the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
1.3 Without prejudice to the generality of paragraph 1.1 of this Schedule 1, you will ensure that you have all necessary appropriate consents and notices in place to enable the lawful transfer of the Client Data to us for the duration and purposes of the Agreement.
1.4 Without prejudice to the generality of paragraph 1.1 of this Schedule 1, we shall, in relation to any Client Data processed in connection with the performance by us of our obligations under the Agreement:
1.4.1 process that Client Data only on your written instructions unless we are required by Applicable Laws to otherwise process that Client Data. Where we are relying on laws of a member of the European Union or European Union law as the basis for processing Client Data, we shall promptly notify you of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit us from so notifying you;
1.4.2 ensure that we have in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of Client Data and against accidental loss or destruction of, or damage to, Client Data, 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 (those measures may include, where appropriate, pseudonymisation and encryption of Personal Data, ensuring confidentiality, integrity, availability and resilience of our systems and services, ensuring that availability of and access to Client Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
1.4.3 ensure that all personnel who have access to and/or process Client Data are obliged to keep the Client Data confidential; and
1.4.4 not transfer any Client Data outside of the European Economic Area unless you prior written consent has been obtained and the following conditions are fulfilled:
22.214.171.124 the parties have provided appropriate safeguards in relation to the transfer;
126.96.36.199 the Data Subject (as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies;
188.8.131.52 we comply with our obligations under the Data Protection Legislation by providing an adequate level of protection to any Client Data that is transferred; and
184.108.40.206 we comply with reasonable instructions notified to it in advance by you with respect to the processing of the Client Data;
1.4.5 assist you, at your cost, in responding to any request from a Data Subject and in ensuring compliance with your obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
1.4.6 notify you without undue delay on becoming aware of a Client Data breach;
1.4.7 at your written direction, delete or return Client Data and copies thereof to you on termination of the agreement unless required by Applicable Law to store the Personal Data; and
1.4.8 maintain complete and accurate records and information to demonstrate our compliance with this Schedule 1.
1.5 You consent to us appointing sub-processors as third-party processors of Client Data under the Agreement, such sub-processors to be outlined by the parties from time to time. We confirm that we have entered or (as the case may be) will enter with the third-party processor into a written agreement substantially on that third party's standard terms of business. As between the parties, we shall remain fully liable for all acts or omissions of any third-party processor appointed by us pursuant to this Schedule 1.
1.6 Either party may, at any time on not less than 30 days' notice, revise this Schedule 1 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when signed or otherwise expressly accepted by both parties in writing).
2. Data Protection (Supplier as Controller)
2.1 The parties acknowledge that for the purposes of the Data Protection Legislation, where Personal Data that is not Client Data (hereafter referred to as Supplier Data) is processed by us, we shall be the Data Controller.
3. Freedom of Information
APPLICABLE ONLY TO PUBLIC AUTHORITY CUSTOMERS
3.1 We acknowledge that you are subject to the requirements of the FOIA and the EIRs. We shall:
a) provide all necessary assistance and cooperation as reasonably requested you to enable you to comply with your obligations under the FOIA and EIRs;
b) transfer to you all Requests for Information relating to the Agreement that it receives as soon as practicable and in any event within 2 Working Days of receipt;
c) provide you with a copy of all Information belonging to the Customer requested in the Request For Information which is in its possession or control in the form that you require within 5 Working Days (or such other period as the Customer may reasonably specify) of your request for such Information; and
d) not respond directly to a Request for Information unless authorised in writing to do so by you.
3.2 We acknowledge that you may be required under the FOIA and EIRs to disclose Information (including Commercially Sensitive Information) without consulting or obtaining consent from us. You shall take reasonable steps to notify us of a Request for Information (in accordance with the Cabinet Office's Freedom of Information Code of Practice issued under section 45 of the FOIA) to the extent that it is permissible and reasonably practical for it to do so but (notwithstanding any other provision in the Agreement) you shall be responsible for determining in its absolute discretion whether any Commercially Sensitive Information and/or any other information is exempt from disclosure in accordance with the FOIA and/or the EIRs.
Schedule 2 – Additional Website development terms.
THIS SCHEDULE SHALL ONLY APPLY WHERE THE SERVICE(S) INCLUDE WEBSITE DEVELOPMENT.
The definitions and rules of interpretation in this paragraph apply in this Schedule.
Acceptance: the acceptance or deemed acceptance of the Site by you pursuant to clause 3.
Acceptance Tests: the tests to be carried out on the Site as set out in clause 3.
Business Day: a day other than a Saturday or Sunday or public holiday in England when banks in London are open for business.
Charges: the charges in respect of the Services set out in the Briefing Document and otherwise payable by you in respect of the Services pursuant to the Agreement.
Heightened Cybersecurity Requirements: any laws, regulations, codes, guidance from regulatory and advisory bodies (whether mandatory or not), international and national standards, industry schemes and sanctions, which are applicable to you (but not us) relating to security of network and information systems and security breach and incident reporting requirements, which may include the Cybersecurity Directive ((EU) 2016/1148), Commission Implementing Regulation ((EU) 2018/151), the Network and Information systems Regulations 2018 (SI 506/2018), all as amended or updated from time to time.
Non-Supplier Defects: those defects described in clause 3.4 of this Schedule.
Personal Data: has the meaning set out in Article 4(1) of the GDPR.
Server: a computer server administered by us.
Services: the website design and development services to be provided pursuant to the Agreement.
Site: the website outlined in the Briefing Document, where applicable, to be hosted by us pursuant to the Agreement.
Site Software: the software for the Site commissioned by you as specified in the Briefing Document.
Site Specification: the specification for the Site set out in the Briefing Document.
Third Party Products: third party software products used by us in providing the Services.
Visitor: a visitor to the Site.
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 the confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.
1. Scope of the project
1.1 Where website development services are outlined in the Briefing Document, we shall:
(a) design, develop and deliver the Site in accordance with the Briefing Document; and
(b) provide the Services and, where outlined in the Briefing Document, host the Site from the Server.
2. Your responsibilities
2.1 You acknowledge that our ability to provide the Services is dependent upon your full and timely cooperation (which you agree to provide), as well as the accuracy and completeness of any information and data you provide to us. Accordingly, you shall provide us with access to, and use of, all information, data and documentation reasonably required by us for our performance of our obligations under the Agreement.
2.2 You shall be responsible for the accuracy and completeness of the Input Materials on the Site in accordance with clause 7 of this schedule.
3. Development and acceptance of site
3.1 Once we have completed the design and development of the Site in accordance with the Briefing Document, you shall run the Acceptance Tests.
3.2 The Acceptance Tests shall be limited to test compliance of the Site with the Site Specification and shall not cover any new or additional instructions or modifications beyond the scope of the original Site Specification.
3.3 Acceptance of the Site shall occur when the Site has passed the Acceptance Tests.
3.4 If any failure to pass the Acceptance Tests results from a defect which is caused by your act or omission, or by one of your sub-contractors or agents for whom we have no responsibility (Non-Supplier Defect), the Site shall be deemed to have passed the Acceptance Tests notwithstanding such Non-Supplier Defect. We shall provide assistance reasonably requested by you in remedying any Non-Supplier Defect by supplying additional services or products. You shall pay us in full for all such additional services and products at our then current fees and prices.
3.5 Acceptance of the Site shall be deemed to have taken place upon the occurrence of any of the following events:
(a) you use any part of the Site for any revenue-earning purposes or to provide any services to third parties other than for test purposes; or
(b) you unreasonably delay the start of the relevant Acceptance Tests or any retests.
4. Third party products
The Third Party Products shall be supplied in accordance with the relevant licensor's standard terms. The one-off licence fee for such Third Party Products is included in the Charges.
5.1 We warrant that the Site will perform substantially in accordance with the Site Specification for a period of three months from Acceptance. If the Site does not so perform, we shall, for no additional charge, carry out any work necessary in order to ensure that the Site substantially complies with the Site Specification.
5.2 The warranty set out in paragraph 5.1 of this Schedule shall not apply to the extent that any failure of the Site to perform substantially in accordance with the Site Specification is caused by any Input Materials.
5.3 The Agreement and this Schedule set out the full extent of our obligations and liabilities in respect of the supply of the Services. All conditions, warranties or other terms concerning the Services which might otherwise be implied into the Agreement or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.
5.4 We do not warrant that:
(a) your use of the Services or the Site will be uninterrupted or error-free; or
(b) the Services or the Site will be free from Vulnerabilities
(c) the Services or the Site will comply with any Heightened Cybersecurity Requirements.
6. Intellectual property rights
6.1 All Intellectual Property Rights in the Site (including in the content of the Site and the Site Software), but excluding the Input Materials, arising in connection with the Agreement shall be our property, and we hereby grant you a non-exclusive licence of such Intellectual Property Rights for the purpose of operating the Site.
6.2 In relation to the Input Materials, you grant us a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Input Materials for the purpose of performing the Service or providing the Site to you.
6.3 You shall indemnify us against all damages, losses and expenses arising as a result of any action or claim that the Input Materials infringe the Intellectual Property Rights of a third party.
6.4 We shall indemnify you against all damages, losses and expenses arising as a result of any action or claim that the Site infringes any Intellectual Property Rights of a third party in the UK, other than infringements referred to in clause 6.1.
6.5 The indemnities under paragraph 6.1, paragraph 6.4 and paragraph 7.3 are subject to the following conditions:
(a) the indemnified party promptly notifies the indemnifier in writing of the claim;
(b) the indemnified party makes no admissions or settlements without the indemnifier's prior written consent;
(c) the indemnified party gives the indemnifier all information and assistance that the indemnifier may reasonably require; and
(d) the indemnified party allows the indemnifier complete control over the litigation and settlement of any action or claim.
6.6 The indemnities in clause 6.1, clause 6.4, clause 7.3 and clause 7.4 may not be invoked to the extent that the action or claim arises out of the indemnifier's compliance with any designs, specifications or instructions of the indemnified party.
7. Site content
7.1 We shall update the Site with Input Materials provided from time to time by you at your own expense. You shall ensure that the Input Materials do not infringe any applicable laws, regulations or third party rights (including material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous or in breach of any third party Intellectual Property Rights) (Inappropriate Content).
7.2 Where provided for in the Briefing Document or otherwise expressly greed by is in writing, we shall grant you access to the Server in order to update information held on the Site. Any changes by you may only be made within the scope of the access that we specifically grant to you. You may not make any other alterations or additions to the Site without our express written consent.
7.3 You shall indemnify us against all damages, losses and expenses arising as a result of any action or claim that the Input Materials constitute Inappropriate Content.
7.4 We may include the statement "Designed by Healthwave Limited" on the homepage of the Site in a form to be agreed
7.5 We reserve the right to withdraw operation of any Site where ongoing maintenance services and/or hosting services expire or are terminated and are not renewed by you.