Service terms

Definitions

• Business Day

  A day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

• Charges

  The charges payable by the Customer for the supply of the Services by the Supplier, as set out in the Contract Details.

• Conditions

  These Herd Service Terms.

• Contract

  The contract between the Customer and the Supplier for the supply of the Services in accordance with the Contract Details.

• Control

  The beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be construed accordingly.

• Customer Mandatory Policies

  The Customer's policies as set out in the Contract Details.

• Customer Materials

  All materials, equipment and tools, drawings, specifications and data supplied by the Customer to the Supplier.

• Customer Personal Data

  Any personal data which the Supplier processes in connection with the Services in the capacity of a processor on behalf of the Customer and which is detailed in the Contract Details.

• Deliverables

  All documents, products and materials developed by the Supplier or its agents, subcontractors and personnel as part of or in relation to the Services in any form, including without limitation computer programs, data, reports and specifications (including drafts) and the Key Deliverables set out in the Contract Details.

• EU GDPR

  Means the General Data Protection Regulation ((EU) 2016/679), as it has effect in EU law.

• Initial Term

  The period as set out in the Contract Details which is also the Renewal Term.

• Intellectual Property Rights

  All patents, rights to inventions, utility models, copyright and related rights, trademarks, 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.

• Mandatory Policies

  Means the Customer Mandatory Policies and the Supplier Policies as applicable to the Services.

• Services

  The services, including without limitation any Deliverables, to be provided by the Supplier as set out in the Contract Details.

• Services Start Date

  The day on which the Supplier is to start provision of the Services, as set out in the Contract Details.

• Service Levels

  The agreed service levels applicable to Services where set out in the Contract Details.

• Supplier IPRs

  All Intellectual Property Rights subsisting in the Deliverables excluding any Customer Materials incorporated in them.

• Supplier Policies

  The Supplier Policies which apply to the Contract and which are identified in the Contract Details.

• UK GDPR

  Has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.

Interpretation

1. A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
2. Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
3. A reference to writing or written includes email.

Commencement and term

1. The Contract shall commence on the date given in the Contract Details and shall continue, unless terminated earlier in accordance with its terms.
2. Without prejudice to clause 11 (termination) the either party may terminate the Contract on written notice of not less than 3 months to expire no earlier than the Initial Term.
3. Subject to notice being served prior to clause 3.2 and in accordance with clause 3.2, after the Initial Term the Contract shall renew for successive Renewal Terms until either party serves written notice of not less than 3 months prior to the end of the current Renewal Term. If such notice is served, the Contract shall terminate at the end of the current Renewal Term.

Supply of services

1. The Supplier shall supply the Services to the Customer from the Services Start Date in accordance with the Contract.
2. In supplying the Services, the Supplier shall:
   1. perform the Services with reasonable care and skill;
   2. use reasonable endeavours to perform the Services in accordance with the service description set out in the Contract Details
   3. ensure that the Deliverables, and all standards and techniques used in providing the Services are of satisfactory quality
   4. comply with:
      1. all applicable laws, statutes, regulations from time to time in force; and
      2. the Mandatory Policies
      Provided that the Supplier shall not be liable under this agreement if, as a result of such compliance, it is in breach of any of its obligations under this agreement.
   5. take reasonable care of all Customer Materials in its possession and make them available for collection by the Customer on reasonable notice and request, always provided that the Supplier may destroy the Customer Materials if the Customer fails to collect the Customer Materials within a reasonable period after termination of the Contract
3. The Supplier shall use reasonable endeavours to meet any performance dates or Service Levels but any such dates and levels shall be estimates only and time for performance by the Supplier shall not be of the essence of this agreement. Where the parties agree that Service Levels require improvement, the Supplier shall use reasonable endeavours to ensure that the Service Levels are back on track in the period agreed at the time by the parties.

Customer's obligations

1. The Customer shall:
   1. co-operate with the Supplier in all matters relating to the Services;
   2. provide, in a timely manner, such information as the Supplier may reasonably require, and ensure that it is accurate in all material respects;
   3. obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable the Supplier to provide the Services.
2. If the Supplier's performance of its obligations under this agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, the Supplier shall:
   1. not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay;
   2. be entitled to payment of the Charges despite any such prevention or delay; and
   3. be entitled to recover any additional costs, charges or losses the Supplier sustains or incurs that arise directly or indirectly from such prevention or delay.

Charges and payment

1. In consideration of the provision of the Services by the Supplier, the Customer shall pay the Charges.
2. Where the Charges are calculated on a time and / or materials basis:
   1. the Supplier's daily fee rates for each individual person are calculated on the basis of an eight-hour day, worked during Business Hours;
   2. where the Customer has agreed in writing to overtime, this shall be charged at an overtime rate of 150% of the daily fee rate on a pro rata basis for any time worked by individuals whom it engages on the Services outside Business Hours; and
   3. the Supplier shall ensure that every individual whom it engages completes time sheets to record time spent on the Services, and the Supplier shall indicate the time spent per individual in its invoices.
3. Where the Charges are calculated on a fixed price basis, the amount of those charges and frequency shall be as set out in the Contract.
4. All amounts payable by the Customer exclude amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.
5. The Supplier shall submit invoices for the Charges plus VAT if applicable to the Customer monthly in advance (fixed price) or monthly in arrears (time and materials). Each invoice shall include all reasonable supporting information required by the Customer.
6. The Customer shall pay each invoice due and submitted to it by the Supplier, within 14 days of receipt, to a bank account nominated in writing by the Supplier.
7. Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier any sum due under this agreement on the due date:
   1. the Customer shall 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 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%; and
   2. the Supplier may suspend part or all of the Services until payment has been made in full.
8. The Supplier may increase the Charges on an annual basis with effect from each anniversary of the date of this agreement in line with the percentage increase in the Retail Prices Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the date of this agreement and shall be based on the latest available figure for the percentage increase in the Retail Prices Index.
9. From time to time the parties may agree that additional work is required outside of the scope of the Services and in which case the rate card set out in the Contract Details will be applied for such work. The rate card will be increased in accordance with clause 6.8.

Non-solicitation and employment

Data protection

1. For the purposes of this clause 8, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the UK GDPR.
2. Both parties will comply with all applicable requirements of Applicable Data Protection Laws. This clause 8 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under Applicable Data Protection Laws.
3. The parties have determined that, for the purposes of Applicable Data Protection Laws the Supplier shall act as controller of the personal data where this is processed for the purposes set out in the current version of the Supplier Privacy Notice (see Mandatory Policies).
4. Where the Services require the Supplier to process Customer Personal Data the Supplier shall act as a processor.
5. Without prejudice to the generality of clause 8.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Customer Personal Data to the Supplier and / or lawful collection of the same by the Supplier for the duration and purposes of the Contract.
6. In relation to the Customer Personal Data, the scope, nature and purpose of processing by the Supplier, the duration of the processing and the types of personal data and categories of data subject will be set out in the Contract where this is applicable.
7. Without prejudice to the generality of clause 8.2, the Supplier shall, in relation to Customer Personal Data:
   1. process that Customer Personal Data only on the documented instructions of the Customer (which is set out in the relevant Contract), unless the Supplier is required by Applicable Laws to otherwise process that Customer Personal Data (Purpose). Where the Supplier is relying on Applicable Laws as the basis for processing Customer Processor Data, the Supplier shall notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Provider from so notifying the Customer on important grounds of public interest. The Supplier shall inform the Customer if, in the opinion of the Supplier, the instructions of the Customer infringe Applicable Data Protection Laws;
   2. implement the technical and organisational measures set out the Supplier Policies to protect against unauthorised or unlawful processing of Customer Personal Data and against accidental loss or destruction of, or damage to, Customer Personal Data, which the Customer has reviewed and confirms are appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
   3. ensure that any personnel engaged and authorised by the Supplier to process Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
   4. assist the Customer insofar as this is possible (taking into account the nature of the processing and the information available to the Supplier), and at the Customer's cost and written request, in responding to any request from a data subject and in ensuring the Customer's compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
   5. notify the Customer without undue delay on becoming aware of a personal data breach involving the Customer Personal Data;
   6. at the written direction of the Customer, delete or return Customer Personal Data and copies thereof to the Customer on termination of the agreement unless the Supplier is required by Applicable Law to continue to process that Customer Personal Data. For the purposes of this clause 8.7(f) Customer Personal Data shall be considered deleted where it is put beyond further use by the Supplier; and
   7. maintain records to demonstrate its compliance with this clause 8, and allow for reasonable audits by the Customer or the Customer's designated auditor, for this purpose, on reasonable written notice.
8. The Customer provides its prior, general authorisation for the Supplier to appoint processors to process the Customer Personal Data.

Intellectual property

1. The Supplier and its licensors shall retain ownership of all Supplier IPRs. The Customer and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials.
2. The Customer grants the Supplier a fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable licence to copy and modify the Customer Materials for the term of the Contract for the purpose of providing the Services to the Customer in accordance with the Contract.
3. The Customer shall keep the Supplier indemnified in full against any sums awarded by a court against the Supplier as a result of or in connection with any claim brought against the Supplier for infringement of a third party's rights (including any Intellectual Property Rights) arising out of, or in connection with, the receipt or use of the Customer Materials by the Supplier.

Limitation of liability

1. References to liability in this clause 10 include every kind of liability arising under or in connection with the Contract including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
2. Nothing in this clause 8 shall limit the Customer's payment obligations under the Contract.
3. Nothing in the Contract shall limit or exclude the Supplier's liability for:
   1. Death or personal injury caused by its negligence, or the negligence of its personnel, agents or subcontractors;
   2. Fraud or fraudulent misrepresentation; and
   3. Breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
4. Subject to clause 10.1, the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement for:
   1. Loss of profits;
   2. Loss of sales or business;
   3. Loss of agreements or contracts;
   4. Loss of anticipated savings;
   5. Loss of use or corruption of software, data or information;
   6. Loss of or damage to goodwill; and
   7. Any indirect or consequential loss.
5. Subject to clause 10.1, the Supplier's total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to the greater of £100,000 and eighty per cent (80%) of the average annual Charges (calculated by reference to the Charges in successive 12 month periods from the Services Start Date) paid by the Customer under the Contract.
6. The conditions implied by sections 3 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this agreement.
7. Unless the Customer notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire 6 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.

Termination

1. Without affecting any other right or remedy available to it, either party to the Contract may terminate it with immediate effect by giving written notice to the other party if:
   1. The other party commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
   2. The other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent.
   3. Restructuring, having a receiver appointed to any of its assets or ceasing to carry on business;
   4. The other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
   5. The other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
2. Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment
3. On termination of the Contract for whatever reason:
   1. The Customer shall pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest in line with the agreed charges and payment terms and, in respect of Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall also be payable in line with the agreed charges and payment terms;
   2. Termination of the Contract shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination; and
   3. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.

General

1. Force majeure

   Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.

2. Assignment and other dealings

   1. The Customer shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract without the Supplier's prior written consent.
   2. The Supplier shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under the Contract without the Customer's prior written consent.

3. Confidentiality

   1. Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 11.3(b).
   2. Each party may disclose the other party's confidential information:
      1. To its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 12.3; and
      2. As may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
   3. No party shall use any other party's confidential information for any purpose other than to perform its obligations under the Contract.

4. Entire agreement

   1. The Contract and documents refereed to in it constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
   2. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.

5. Variation

   No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives) save for increased to Charges.

6. Waiver

   1. Waive that or any other right or remedy; or
   2. Prevent or restrict the further exercise of that or any other right or remedy.

7. Severance

   If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

8. Notices

   1. Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance w paid first class post or other next working day delivery service, commercial courier, or email (to the address given in the Contract Details for each representative).
   2. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.8(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by email, one Business Day after transmission.
   3. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

9. Third party rights

   No one other than a party to the Contract shall have any right to enforce any of its terms.

10. Governing law

    The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with the law of England and Wales.

11. Jurisdiction

    Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.