These are the Ardenfort Ts and Cs referenced in the Principal Agreement to which the Customer is bound by reference.
1. INTERPRETATION
The following definitions and rules of interpretation apply in these T&Cs:
1.1. Definitions
ADR Notice has the meaning in clause 22.5.
Affected Party has the meaning in clause 6.1.
Applicable Law: Unless otherwise provided, this shall refer to the laws of England and Wales
Business Day: Any day other than a Saturday, Sunday, public holiday in England when banks in London are open for business.
Business Hours: the period from 9:00 am to 5:00 pm on any Business Day.
Ardenfort Agreements; any agreement that is either signed by and between Ardenfort ,including without limit the Principal Agreement, or which is directly incorporated by reference in the Principal Agreement or which is otherwise entered into by the Customer with Ardenfort.
Ardenfort Employee: The employee(s), agent(s) or subcontractor(s) used by Ardenfort for the provision of the Services.
Ardenfort Representative: Means the person identified by Ardenfort in the Principal Agreement.
Customer Representative: Means the person identified by the Customer in the Principal Agreement.
Confidential Information: Information that is proprietary or confidential and is either clearly labelled or identified as such, or otherwise clearly acknowledged by any Party as being Confidential Information. For the avoidance of doubt, Confidential Information shall include, but is not limited to, the contents of the Principal Agreement and of the Services, the business affairs and/or business operations, business plans, contracts, customers (including customer lists), drawings (technical or otherwise), inventions (irrespective of whether the foregoing are patented), know-how, machinery, presentations of information, methods of doing business, methods of manufacturing, organisation, suppliers, trade secrets of either of the Parties.
Commencement Date: means the date of the Principal Agreement.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010.
Intellectual Property Rights: Shall mean patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) 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 rights to claim priority from, such rights 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.
Force Majeure Event any circumstance not within a party’s reasonable control including, without limitation acts of God, flood, drought, earthquake or other natural disaster; epidemic or pandemic (including without limit Covid 19); terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; nuclear, chemical or biological contamination or sonic boom; any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent; collapse of buildings, fire, explosion or accident; and interruption or failure of utility service.
Party means Ardenfort or the Customer, and “Parties” shall mean both
Relevant Requirements shall have the meaning in clause 10.3.1.
Relevant Terms shall have the meaning in clause 10.4.
Services: shall be interpreted broadly as to cover any and all types of services which Ardenfort shall provide to the Customer, a more detailed reference to which shall be provided by means of the Principal Agreement.
1.2. Clauses, schedules and paragraph headings shall not affect the interpretation of these T&Cs.
1.3. A ‘person’ shall include an individual, corporate or unincorporated body (whether or not having separate legal personality), and that person’s legal and personal representatives, successors or permitted assignees.
1.4. A reference to a ‘company’ shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7. A reference to a statute or statutory provision is a reference to it as it is in force as at the date of the Principal Agreement.
1.8. A reference to ‘in writing’ and/or ‘written’ shall include registered mail and/or electronic mail (e-mail).
1.9. References to ‘clauses’ and ‘schedules’ are to the clauses and schedules of these T&Cs.
1.10. Any words following the terms “including”, “include”, “in particular”, “for example”, or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.11. Unless the context otherwise requires, any reference to European Union law that is directly applicable or directly effective in the UK at any time is a reference to it as it applies in England and Wales from time to time including as retained, amended, extended, re-enacted or otherwise given effect on or after 11pm on 31 January 2020 from time to time.
2. ARDENFORT’S OBLIGATIONS
2.1 In providing the Services, Ardenfort shall:
(a) Perform the Services diligently in accordance with the standard practices in Ardenfort’s industry, profession or trade.
(b) Manage the Services, and the various parts thereof within the time scales and costs indicated in the Services subject to any reviews and adjustments which may be necessitated by instructions issued by the Customer Representative or circumstances outside the reasonable direct control of Ardenfort. The Parties agree that Ardenfort shall not be held responsible in the event of departures from the Services caused as a direct result of the acts and/or omissions of third parties engaged by the Customer.
(c) Ensure that it obtains, and maintains all consents, licences and permissions (statutory, regulatory, contractual or otherwise) it may require and which are necessary to enable it comply with its obligations under the Principal Agreement.
(d) Observe all health and safety rules and regulations and any other reasonable security requirements that may apply at the premises where the Services will be carried out.
2.2 Ardenfort is hereby granted full authority to act on behalf of the Customer, for the purpose of carrying out the Services, provided that Ardenfort shall not, without the approval of the Customer:-
(a) appoint or determine the appointment of any third-party consultant or contractor of the Customer;
(b) execute a document on behalf of the Customer;
(d) knowingly, and without good cause, do anything which would unreasonably delay the execution of the Services;
(e) except in an emergency, and without good cause, knowingly do anything which would unreasonably increase the costs of the Services.
3. THE CUSTOMER’S OBLIGATIONS
3.1 The Customer shall:
1.1.1 Co-operate fully and promptly with Ardenfort in all matters relating to the Services in order to enable Ardenfort to perform its obligations in terms of the Principal Agreement.
1.1.2 Be responsible for all of the decisions, instructions and directions taken during the performance of the Services.
1.1.3 Supply to Ardenfort promptly any request, any approvals, responses, instructions or directions required by the Principal Agreement and any relevant data and information in the possession of the Customer or which may only be obtained by the Customer and which is necessary for the performance of the Services.
1.1.4 Ensure such access to premises, servers and data, and such office accommodation and other facilities as may reasonably be requested by Ardenfort for the purposes of providing the Services.
1.1.5 Ensure that Ardenfort is provided with such information (including but not limited to documentation, manuals, forms or guides) as Ardenfort may reasonably request from the Customer in order to carry out the Services in a timely manner.
1.1.6 Without prejudice to the foregoing, provide Ardenfort with copies of all contracts between the Customer and any third party where these are relevant or may have a bearing on the provision of the Services. Ardenfort shall become familiar with these contracts and shall use the skill, care and diligence required by Clause 3.1(a) to avoid committing or causing the Customer to commit a breach of any such contract. Furthermore, Ardenfort shall review these contracts and advise the Customer if in the opinion of Ardenfort any of these contracts should be amended. In the event that the Customer agrees to amendments, Ardenfort shall provide reasonable support to the Customer in negotiating these amendments which support shall be considered to be part of the Services.
1.1.7 Inform Ardenfort of all health and safety rules and regulations and any other reasonable security requirements that may apply at the premises where the Services will be carried out.
4. COMMENCEMENT AND TERM
4.1 These T&Cs shall begin on the Commencement Date and shall continue for such time as any other agreement between Ardenfort and the Customer, including without limit the Principal Agreement and/or any Statement of Work, remain outstanding.
5. LIMITATION OF LIABILITY
5.1 Nothing shall limit or exclude a Party’s liability for:
(a) death or personal injury caused by its gross negligence or wilful misconduct, or that of its employees, agents or subcontractors; or
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or other liability which cannot be limited or excluded by applicable law.
5.2 Subject to Clause 5.1, neither Party shall have any liability to the other Party, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of: profit, sales of business, of agreements or contracts, anticipated savings, a use of software, data or information, or damage to goodwill, or for any so called indirect or consequential losses arising under or in connection with the Services and or the Principal Agreement.
5.3 Subject to Clause 5.1 and Clause 5.2, Ardenfort’s total liability to the Customer pursuant to any and all Ardenfort Agreements, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Services and/or the Ardenfort Agreements taken as a whole shall be limited to and shall not exceed the lower of £1,000,000 and an amount equivalent to the total fees invoiced and paid by the Customer for the Services over either the period of twelve (12) months preceding the claim, or over the whole duration of the Principal Agreement where this is less than twelve (12) months.
5.4 The Customer shall indemnify and hold harmless Ardenfort on demand from and against any and all third party claims, liabilities, actions, proceedings, losses, damages, expenses and costs (including, without limitation, court expenses and legal fees and disbursements) arising out of or in connection with the supply and delivery of the Services and/or the Principal Agreement, and any ensuing obligations entered into pursuant thereto, except to the extent that such claims, liabilities, actions, proceedings, losses, damages, expenses and costs arise from the gross negligence or wilful misconduct of Ardenfort.
5.5 In addition, the Customer shall at all times indemnify on demand Ardenfort, its officers, directors, agents, employees or authorised representatives, and hold them harmless from and against any and all claims, liabilities, damages and costs that Ardenfort may incur by virtue of the Customer’s negligence, whether gross or otherwise, wilful misconduct, or the non-performance of any of its obligations under or in connection with the Services and/or the Ardenfort Agreements whether in contract, tort (including negligence) or breach of statutory duty in respect of each and every claim for which the Customer has a legal liability.
6. FORCE MAJEURE
6.1 If a party is prevented, hindered or delayed in or from performing any of its obligations under the Ardenfort Agreements by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of the Principal Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
6.2 The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.
6.3 The Affected Party shall:
6.3.1 as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the agreement; and
6.3.2 use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
6.4 If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than 45 Business Days the party not affected by the Force Majeure Event may terminate this agreement by giving 10 Business Days written notice to the Affected Party, subject to payment of all outstanding or already costs incurred and/or accrued up to the date of termination.
7. CONFIDENTIALITY
7.1 Each Party to the Principal Agreement may be given access to Confidential Information from the other Party in order to perform its obligations arising under or in connection with the Principal Agreement. A Party’s Confidential Information shall not be deemed to include information that:
1.1.8 is or becomes publicly known other than through any act or omission of the receiving Party;
1.1.9 is lawfully disclosed to the receiving Party by a third party without restrictions on disclosure;
1.1.10 is independently developed by the receiving Party, which independent development can be shown by written evidence; or
1.1.11 is required to be disclosed by law, or by any court of competent jurisdiction or by any regulatory or administrative body.
7.2 In line with the definition given in Clause 1.1 of these T&Cs to the term “Confidential Information”, each Party shall hold the other Party’s Confidential Information in confidence and shall keep secret all information marked “confidential” or which may reasonably be supposed to be confidential and, unless required by law, not make the other Party’s Confidential Information available to any third party, or make use thereof for any purpose other than the implementation of the Principal Agreement.
7.3 Each Party shall hold the other Party’s Confidential Information with the same degree of care as it employs with regards to its own Confidential Information of a like nature and in any event in accordance with the best current commercial and industry security practices.
7.4 Notwithstanding this, each Party may disclose the other Party’s Confidential Information to its employees, officers, representatives or advisers who strictly need to know such information for the purposes of exercising the Party’s rights or carrying out its obligations arising under or in connection with the Principal Agreement. Each Party shall ensure that its employees (which includes, where applicable, the Ardenfort Employee concerned), officers, representatives or advisers to whom it discloses the other Party’s Confidential Information comply with Clause 7.2 above.
7.5 Should the Customer need to disclose any Confidential Information pertaining to Ardenfort to any of the Customer’s clients in the execution of the Services, then the Customer undertakes to obtain from its client/s, in advance of any disclosure, a written undertaking which protects Ardenfort’s Confidential Information which is no less onerous than the confidentiality obligations contained in these T&Cs. Any such disclosure shall be limited to that specific information which is necessary and required for the Services in question to be performed in line with the provisions of the Principal Agreement.
8. TERMINATION
8.1 Without affecting any other right or remedy available to it under the Principal Agreement, or at law, either Party may terminate the Principal Agreement, in full or in part, with immediate effect by giving written notice to the other Party if:
8.1.1 the other Party fails to pay any amount due arising under the Principal Agreement including any other Ardenfort Agreements on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
8.1.2 the other Party commits a material breach of any other term contained in the Principal Agreement, which breach is irremediable or, if such breach is remediable, fails to remedy that breach within a period of 15 days after being notified in writing to do so;
8.1.3 the other Party repeatedly breaches any of the terms of the Principal Agreement and/or any Ardenfort Agreements in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to fulfil its obligations entered into pursuant to any such agreements;
8.1.4 the other Party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(c) or 123(2) of the IA 1986;
8.1.5 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors;
8.1.6 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company, limited liability partnership or partnership;
8.1.7 an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other party;
8.1.8 the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
8.1.9 a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
8.1.10 a creditor or encumbrancer of the other Party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other Party’s assets and such attachment or process is not discharged within 15 days;
8.1.11 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 8.1.4 to clause 8.1.10 (inclusive); or
8.1.12 the other Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
8.1.13 the other Party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
8.2 On termination (or expiry) of the Principal Agreement, howsoever arising, each Ardenfort Agreement or contract then in force at the date of such termination shall continue in full force and effect for the remainder of its specified term, unless terminated earlier in accordance with its own terms.
8.3 The termination of any Ardenfort Agreement shall not shall not affect any other Ardenfort Agreement or this agreement.
9 CONSEQUENCES OF TERMINATION
9.1 On termination of the Principal Agreement:
9.1.1 any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination or expiry, including the right to claim and receive payment and the right to claim and receive damages in respect of any breach of the Principal Agreement which existed at or before the date of termination or expiry shall not be affected;
9.1.2 the Customer shall, within the payment periods stipulated in the Principal Agreement, after submission of Ardenfort’s invoice, pay Ardenfort any sums which have accrued and which are due to Ardenfort up to the date of termination of the Principal Agreement and/or are already committed (such as for example payments third parties); and
9.1.3 the following clauses shall continue to remain in force between the Parties: Clause 1 (Interpretation), Clause 5 (Limitation of Liability), Clause 6 (Force Majeure), Clause 7 (Confidentiality), Clause 9 (Consequences of Termination), Clause 12 (Non-Solicitation), Clause 21 (Governing law), Clause 22 (Jurisdiction).
9.2 If TUPE is applicable when the Principal comes to an end (either by expiry or termination), the provisions of ANNEX II shall apply.
10 COMPLIANCE WITH LAWS AND POLICIES
10.1 In performing its obligations under the Principal Agreement, Ardenfort shall comply with all Applicable Laws and any Customer policies made known to it, and in relation to its policies the Customer shall, where requested by Ardenfort make such reasonable allowance as may be required so as to enable the delivery of the Services, providing always such allowance does not have the effect of breaching any Applicable Laws.
10.2 Ardenfort will inform the Customer as soon as it becomes aware of any changes in the Applicable Laws.
10.3 Each party shall in relation to the Principal Agreement:
10.3.1 comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (Relevant Requirements):
10.3.2 not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
10.3.3 have and shall maintain in place throughout the term of the Principal Agreement its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements and clause 10, and will enforce them where appropriate;
10.3.4 promptly report to the other party any request or demand for any undue financial or other advantage of any kind received by it in connection with the performance of the Principal Agreement;
10.3.5 immediately notify the other party (in writing) if a foreign public official becomes an officer or employee of it or acquires a direct or indirect interest in it and warrants that it has no foreign public officials as direct or indirect owners, officers or employees at the Commencement Date; and
10.3.6 within two months of the Commencement Date, and annually thereafter, certify to the other party in writing signed by one of its officers, compliance with this clause 10 by it and all persons associated with it under clause 10. Each party shall provide such supporting evidence of compliance as the other party may reasonably request.
10.4 Each party shall ensure that any person associated with it who is performing obligations in connection with the Principal Agreement or any other Ardenfort Agreement does so only on the basis of a written contract which imposes on and secures from such person terms equivalent to those imposed on that party in this clause 10 (Relevant Terms). Such party shall be responsible for the observance and performance by such persons of the Relevant Terms, and shall be directly liable to the other party for any breach by such persons of any of the Relevant Terms.
10.5 For the purpose of this clause 10 the meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), sections 6(5) and 6(6) of that Act and section 8 of that Act respectively.
10.6 In performing its obligations under this Principal Agreement each party shall comply with the Modern Slavery Act 2015, and shall notify the other parties as soon as it becomes aware of any actual or suspected breach of this clause 10.6.
11 DATA PROTECTION
The Parties undertake to comply with all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the UK data protection regulation, the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a Party in so far as the same relates to the provisions and obligations of the Principal Agreement and/or any other Ardenfort Agreements. In this regard the Customer hereby undertakes to sign and execute any data protection agreement which Ardenfort provides to the Customer and which is required to be put in place by the above-indicated legislation.
12 NON-SOLICITATION
12.1 The Customer undertakes that during (i) the entire term of the Principal Agreement and (ii) for the period of two (2) years after the expiration, termination or conclusion of the Principal Agreement or of the Services (for whatever reason) whichever is the later, it shall not, without the prior written and explicit consent of Ardenfort, attempt to solicit or entice away from Ardenfort or engage or employ, or procure the engagement or employment of, any Ardenfort Employee, the Ardenfort Representative or of any person who at the date of expiration, termination or conclusion of the Principal Agreement or of the Services was an employee or consultant of Ardenfort.
12.2 Should the Customer be in breach of clause 12.1, then it is agreed that the Customer shall pay Ardenfort within 14 days, by way of pre-liquidated damages, the amount that is equal to the aggregate of: (i) a recruitment fee payable to recruit a substitute member of staff and/or contractor; and (ii) any lost billings sustained by Ardenfort during the period from the loss of the individual solicited and which are attributable to him/her and the obtaining of a suitable replacement. The Customer also agrees that in the event of any breach under this Clause 12, the pre-liquidated damages stipulated above in Clause 12shall become immediately due and payable by the Customer to Ardenfort without the need for Ardenfort to obtain a Court order to such effect, and the Customer agrees that the mentioned amount in pre-liquidated damages so payable under this Clause 12 will not be subject to any reduction or abatement.
13 VARIATION
No variation of the any Ardenfort Agreement shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).
14 WAIVER
14.1 A waiver of any right or remedy under the Principal Agreement or by law is only effective if given in writing and it only applies to the Party to whom the waiver to whom it is addressed and to the circumstances for which it is given.
14.2 A failure or delay by a Party to exercise any right or remedy provided under these Ts and Cs, any Ardenfort Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Principal Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
14.3 Unless specifically provided otherwise, rights arising under these Ts and Cs and/or any Ardenfort Agreement are cumulative and do not exclude rights arising at law.
15 SEVERANCE
15.1 If any provision or part-provision of the Principal Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
15.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the Parties.
16 ENTIRE AGREEMENT
16.1 The Principal Agreement, these Ts and Cs and any other Ardenfort Agreement, shall constitute 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.
16.2 Each of the Parties agrees and acknowledges that in entering into the Principal Agreement, these Ts and Cs and/or any other Ardenfort Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warrant or understanding (whether in writing or verbal) of any person (whether a Party to the Principal Agreement or not) relating to the subject matter of the same , other than as expressly set out in the relevant agreement.
17 ASSIGNMENT AND OTHER DEALINGS
17.1 The Customer shall not, without the prior written consent of Ardenfort, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Principal Agreement and/or any other Ardenfort Agreement.
17.2 Ardenfort may, at any time, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Principal Agreement and/or any other Ardenfort Agreement, provided that it gives prior written notice of such dealing to the Customer.
18 NO PARTNERSHIP OR AGENCY
Nothing in the Principal Agreement and/or any other Ardenfort Agreement is intended to or shall operate to create a partnership or joint venture between the Parties, or authorise either Party to act as agent for the other, and neither Party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability or the exercise of any right or power).
19 THIRD PARTY RIGHTS
Except as may otherwise be provided in the Principal Agreement and/or any other Ardenfort Agreement, none shall confer any rights to any person or party (other than the Parties to the Principal Agreement and, where applicable, their successors and permitted assignees).
20 NOTICES
20.1 Any notice required to be given to a Party under or in connection with the Principal Agreement shall be in writing and shall be:
20.1.1 delivered by hand or sent by registered email to the other party at its address set out in the Principal Agreement, or such other address that may, by notice, be designated from time to time. Delivery of notice in this manner shall be deemed to have occurred within two (2) Business Days from date of postage;
20.1.2 sent by electronic email (e-mail) to the relevant e-mail address designated in the Principal Agreement;
Provided that notification to the other Party must be effected when the e-mail addresses indicated in the Principal Agreement are to be changed by Ardenfort/the Customer.
Delivery of notice shall be deemed to have occurred immediately and in any case, within one day.
20.2 This Clause 20 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
21 GOVERNING LAW
These Ts and Cs and the Principal Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the Applicable Law.
22 JURISDICTION
22.1 This agreement and any Ardenfort Agreement and any dispute or claim arising out of or in connection with it/them or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales. Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
22.2 If a dispute arises out of or in connection with this agreement or the delivery and performance of the Services (Dispute) then the Parties shall follow the procedure set out in this clause:
22.3 either Party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, a representative of the Customer and a representative of Ardenfort shall attempt in good faith to resolve the Dispute;
22.4 if the Ardenfort Representative and Customer Representative are for any reason unable to resolve the Dispute within 30 days of service of the Dispute Notice, the Dispute shall be referred to the Director of the Customer and Director of Ardenfort who shall attempt in good faith to resolve it; and
22.5 if the Director of the Customer and Director of Ardenfort are for any reason unable to resolve the Dispute within 30 days of it being referred to them, either party shall immediately be at liberty to serve notice to try and settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator shall be nominated by CEDR. To initiate the mediation, a party must serve notice in writing (ADR notice) to the other party to the Dispute, requesting a mediation whereupon the parties shall be bound to mediate. A copy of the ADR notice should be sent to CEDR. The costs of appointment and all other incidental CEDR costs shall be apportioned equally between the parties and each shall be bound to promptly pay its contribution when requested. A failure to pay the contribution shall frustrate the mediation whereupon the issue shall immediately be deemed to have been resolved in favour of the Party that paid its contribution and the non-paying Party shall have no further recourse.
22.6 The commencement of mediation shall prevent the Parties commencing court proceedings in relation to the Dispute under clause 22.5 unless a Party requires an injunction because damages alone would not be an adequate remedy.
22.7 The existence of a Dispute, even if referred to mediation, will not relieve any Party to the Principal Agreement from honouring its contractual obligations under the Principal Agreement and/or any other Ardenfort Agreement, unless the subject matter of the unresolved Dispute has a direct effect on Ardenfort’s ability to provide the Services to scope, cost and/or time whereupon it shall be entitled (at its sole election and without liability) to suspend its Services pending resolution of the Dispute.
ANNEX I
SPECIAL TERMS AND CONDITIONS UNDER THE MICROSOFT SPA PARTNERSHIP PROGRAM
1. DEFINITIONS OF CERTAIN TERMS FOR THE PURPOSES OF THESE SPECIAL PROVISIONS
Authorised Software: Shall mean the customisations, localisations, translations or any form of adaptation of the Microsoft Licensed Software as may be effected by Ardenfort to the Customer in terms of the Services outlined or referred to in the Principal Agreement.
Authorised Users: Shall refer to all the individuals who shall be authorised to use the Authorised Software, as designated by the Customer, to the exclusion of any other individual person.
Authorised Devices: Shall refer to all the devices which shall be authorised for use of the Authorised Software, as designated by the Customer, to the exclusion of every other device.
Enhancement Plan: Shall refer to the Microsoft Services which shall include maintenance and/or support services relating to the Microsoft Licensed Software under the Microsoft SPA Partnership Program.
Microsoft: Shall mean Microsoft Corporation, a company organised under the laws of the State of Washington, and any affiliated entity (including Microsoft Ireland Operations Limited) authorised to act or to contract on behalf of Microsoft Corporation anywhere in the world.
Microsoft Services: Shall mean services provided by Microsoft under an Enhancement Plan.
Microsoft Licensed Software: Shall mean all software licensed by Microsoft as a result of the Microsoft SPA Partnership Program entered into by Ardenfort with Microsoft, for the purposes of developing Authorised Software for the benefit of the Customer.
Other Microsoft Software Licenses: Shall refer to any software other than Microsoft Licensed Software or Authorised Software, the Intellectual Property Rights in which belong to Microsoft.
Microsoft SPA Partnership Program: Shall refer to the agreement between Ardenfort and Microsoft, under whose terms and conditions Ardenfort is licensed to use, customize and adapt Microsoft software for the purposes of carrying out, among other things, the Services specified in the Principal Agreement.
2. GENERAL
2.1. In addition to the provisions contained in the T&Cs, the Customer agrees to the following Special Provisions which arise as a result of Ardenfort’s obligations to Microsoft under the terms and conditions of the Microsoft SPA Partnership Program.
2.2. Should a conflict, including but not limited to a conflicting interpretation, arise between the Special Provisions and any other provision of the Principal Agreement and/or an Ardenfort Agreement, the Special Provisions shall take precedence and shall prevail.
3. DISCLOSURE OF INFORMATION
3.1. Notwithstanding any other provision of the Principal Agreement, the Customer understands and accepts that Ardenfort may be required by Microsoft to provide a copy of the Principal Agreement and any information pursuant to the said Principal Agreement to Microsoft, and that the disclosure thereof or any information pursuant to it, including the details of the Authorised Users and of the Authorised Devices will be made under the terms of applicable and available data protection legislation. In this regard the Customer is hereby providing consent fully in line with applicable and available data protection legislation.
3.2. The Customer hereby agrees and authorises Ardenfort to share information with Microsoft that will be necessary for Ardenfort to collaborate with Microsoft for the purposes of the Microsoft SPA Partnership Program, for Microsoft to be able to provide the Microsoft Services (if and where applicable), for Microsoft to be able to communicate directly with the Customer, and for Microsoft to be able to verify Customer’s compliance with the terms of the agreement regulating the Microsoft Licensed Software.
4. USE OF AUTHORISED WORK
4.1. The Customer understands and accepts that the terms and conditions regulating the Microsoft Licensed Software do not govern in any manner whatsoever the use of the Authorised Software. The Customer’s use of the Authorised Software is subject to the Principal Agreement and not to the terms and conditions regulating the Microsoft Licensed Software.
4.2. The Customer undertakes and agrees that access to the Authorised Software shall be limited to the Authorised Users and the Authorised Devices.
4.3. The Customer hereby undertakes that it shall have all the required Other Microsoft Software Licenses in order to support the maximum number of Authorised Users and Authorised Devices that may access or use the Authorised Software.
4.4. Ardenfort hereby confirms that it shall be solely responsible for the Authorised Software and that Microsoft shall have no responsibility over the said Authorised Software or any effect this may have on the Microsoft Licensed Software or the Customer’s own system, business or operations.
WHERE APPLICABLE, ARDENFORT HEREBY AGREES THAT IT SHALL PROVIDE THE CUSTOMER WITH DIRECTIONS ON HOW TO ACCESS MICROSOFT’S CUSTOMERSOURCE PLATFORM (CURRENTLY AT: HTTPS://MBS.MICROSOFT.COM/CUSTOMERSOURCE) SUBJECT THAT THE CUSTOMER HAS AN ACTIVE ENHANCEMENT PLAN IN PLACE.
ANNEX II
TUPE ON EXIT
1. PERSONNEL
1.1 In this ANNEX II the following definitions apply:
1.1.1 New Supplier: another party chosen by the Customer to take over the provision of all or part of the Services.
1.1.2 Returning Employees: those persons listed in a Schedule to be agreed by the parties prior to the Subsequent Transfer Date who it is agreed were employed by Ardenfort wholly and/or mainly in the Services immediately before the Subsequent Transfer Date.
1.1.3 Subsequent Transfer Date: means the date or dates on which there is a transfer of responsibility for the provision of the Services or part of the Services between Ardenfort and the Customer and/or a New Supplier (as the case may be).
1.1.4 TUPE: the Transfer of Undertakings (Protection of Employment) Regulations 2006 (as amended).
1.2 The Parties acknowledge and agree that where all or part of the Services cease to be provided by Ardenfort for any reason and where all or part of the Services continue to be provided by the Customer and/or a New Supplier, there may be a relevant transfer of the Returning Employees to the Customer and/or the New Supplier for the purposes of TUPE. If there is such a transfer, the employment of the Returning Employees shall transfer to the Customer and/or the New Supplier in accordance with TUPE with effect from the Subsequent Transfer Date.
1.3 Save where the Parties reasonably believe that there will be no relevant transfer for the purposes of TUPE, the Parties shall co-operate in agreeing a list of Returning Employees prior to the Subsequent Transfer Date, and shall co-operate in seeking to ensure the orderly transfer of the Returning Employees to the Customer and/or the New Supplier.
1.4 Ardenfort shall 14 days after notice is given of termination of the applicable Contract and to the extent lawfully permitted, provide the Customer with the following details:
1.4.1 a list of those personnel engaged in the Services (Potential Returning Employees);
1.4.2 job title, age, length of continuous services, current remuneration, benefits, and notice periods of the Potential Returning Employees;
1.4.3 terms and conditions of employment of the Potential Returning Employees, including any particulars that Ardenfort is obliged to give under section 1 of the Employment Rights Act 1996;
1.4.4 any current disciplinary or grievance proceedings ongoing in respect of the Potential Returning Employees and any such proceedings in the preceding two years;
1.4.5 any claims, current or which Ardenfort has reasonable grounds to believe will be brought by the Potential Returning Employees or their representatives or which have been brought in the preceding two years;
1.4.6 all benefit schemes or arrangements (whether contractual or not) applicable in respect of the Potential Returning Employees; and
1.4.7 information on any collective agreements which will have effect in relation to the Potential Returning Employees after the Subsequent Transfer Date pursuant to TUPE.
1.5 Ardenfort shall provide updates of the details listed above at regular intervals to be specified by the Customer.
1.6 Ardenfort shall indemnify the Customer (both for itself and a New Supplier) against all costs, claims, liabilities and expenses (including reasonable legal expenses) incurred by the Customer and/or a New Supplier in connection with or as a result of:
1.6.1 any claim or demand by any Returning Employee or a trade union or other body or person representing a Returning Employee (whether in contract, tort, under statute, pursuant to European law or otherwise) arising from any act, fault or omission of Ardenfort on or before the Subsequent Transfer Date;
1.6.2 any failure by Ardenfort to comply with its obligations under regulations 13 and 14 of TUPE, or any award of compensation under regulation 15 of TUPE, save where such failure arises from the failure of the Customer and/or New Supplier to comply with its or their duties under regulation 13 of TUPE; and
1.6.3 a claim by any person who transfers or alleges that they have transferred to the Customer or the New Supplier but whose name is not included in the list of Returning Employees.
