CUSTOMSPLUS
PROFESSIONAL SERVICES – TERMS AND CONDITIONS
1. Definitions andInterpretation
1.1 In a CustomsPlus Professional Service Agreement the following words have the following meanings:
“AcceptanceTests” means the acceptance tests to be carried out by the Customer using non live, non Personal Data to test whether the Acceptance Criteria has been met in relation to the Implementation Services Deliverables.
“AcceptanceCriteria” means that the Implementation Services Deliverables operate in accordance with the description contained in the Statement of Work.
“Affiliate” means, in respect of any entity, any entity that directly or indirectly controls, is controlled by or is under common control with that entity within the meaning set out in section 1124 of the Corporation Tax Act 2010.
“Agreement” means this agreement between the Customer and Customs Plus for the provision of ProfessionalServices which comprises, the Order Form, and these Terms.
“Background IP” means all Intellectual Property owned or licensed by a party (a) before the EffectiveDate of the applicable Order Form or (b) independent of the ProfessionalServices.
“Business Day” means any day other than a Saturday, Sunday or bank or public holiday in England.
“Business Hours” means9 am to 5.30 pm on a Business Day.
“Change Order” has the meaning given in Condition 5.
“Conditions” means these terms and conditions or any of them.
“Confidential Information” means information that one party (or an Affiliate) discloses to the other party under this Agreement, and that is marked confidential or would normally be considered confidential information under the circumstances. Confidential Information does not include information that is independently developed by the recipient, is shared with the recipient by a third party without confidentiality obligations, or is or becomes public through no fault of the recipient.
“Customer” means the customer purchasing Professional Services from Customs Plus as identified in an applicable Order Form.
“Customer’s Email Service Address” means the Customer’s email service address as set out in an applicable Order Form.
“CustomsPlus” means Customs Plus Services Limited, a company registered in England and Wales with company number 12327750 of Cholmondeley House, Dee Hills Park, Chester,Cheshire, CH3 5AR.
“CustomsPlus Email ServiceAddress” means Customs Plus email service address as set out in an applicable Order Form.
“CustomsPlus Technology” means:(a) Customs Plus Background IP, (b) all Intellectual Property and know-how applicable to Customs Plus products and services, and (c) tools, code, algorithms, modules, methodologies, processes, techniques, ideas, concepts, trade secrets, materials, documentation, reports and technology developed in connection with the Professional Services that have general application toCustoms Plus other customers, including derivatives of and improvements toCustoms Plus Background IP. CustomsPlus Technology does not include Customer Background IP or CustomerConfidential Information.
“DataProtection Laws” means, as applicable to either party of the Professional Services:
(a) the EU GDPR;
(b) the UK GDPR and the UK DPA 2018;
(c) any laws which implement or supplement any such laws; and
(d) any laws that replace, extend, re-enact, consolidate or amend any of the foregoing.
“Day Rate” shall mean Customs Plus prevailing day rate as notified from time to time and based on a 7 ½ hour day.
“Deliverable” means work product created specifically for the Customer by Customs Plus as part of the Professional Services and specified as Deliverables as part of an Order Form.
“EffectiveDate” means the date of the last party’s signature of an Order Form governed by this Agreement.
“EU GDPR” means theGeneral Data Protection Regulation, Regulation (EU) 2016/679).
“Event ofForce Majeure” means causes beyond the reasonable control of either of the parties including but not limited to fires, strikes (of its own or other employees) insurrection or riots, terrorism, embargoes, delays in transportation, inability to obtain supplies, requirements or regulations of any civil or military authority.
“Fees” means the applicable fees and charges for the Professional Services as specified in theOrder Form, including any reimbursable expenses (as applicable).
“HourlyRate” shall mean Customs Plus prevailing hourly rate as notified from time to time (rounded to the next half hour),
“ImplementationServices” means the implementation services, including any modification or customisation to be provided in relation to the Licensed Service as set forth in an Order Form or in a SOW.
“IntellectualProperty” or “IP” means anything protectable by an Intellectual Property Right.
“IntellectualProperty Right(s)” means (1) patents and patent rights, rights of priority, mask work rights, copyrights, moral rights, trade secrets, know-how and any other form of intellectual or industrial property rights; (ii) and other protected rights or assets and any licenses and permissions in connection therewith; (iii) trademarks, trade names, logos, service marks, designs and other designations of source in each case (i), (ii) or (iii), recognised in any country or jurisdiction of the world, and whether or not registered or able to be registered and for the full period thereof, and all extensions and renewals thereof, and all applications for registration in connection with the foregoing.
“Laws” means all applicable statutory and other laws, rules,r egulations, instruments, orders and/or provisions in force from time to time which have binding legal effect on a party (including Data Protection Laws, the Bribery Act 2010) and the rules, guidance, codes of conduct, codes of practice, practice requirements issued by a regulator to which that party is subject from time to time to the extent binding upon the relevant party and applicable to its rights or obligations under this Agreement),
“Licensed Service” means the software as a service licensed by the Customer pursuant to the Master SaaS Terms between the Customer and Customs Plus Software Limited.
“OrderForm” means each Customs Plus order form setting out the Professional Services required by the Customer. An Order Form may include a SOW.
“PersonalData” has the meaning given in Data Protection Laws.
“ProfessionalServices” means the services including without limitation Implementation Services, consultancy, tariff classification, compliance audit to be provided as set forth in an Order Form or in a SOW.
“Statement of Work” or “SOW” means a written description of the Professional Services to be provided to theCustomer.
“UK DPA 2018” means the UnitedKingdom’s Data Protection Act 2018.
“UK GDPR” has the meaning given to that term in the UK DPA 2018.
“VAT” valueadded tax chargeable in the UK.
1
1.1
1.2 Interpretation. In these Conditions:
1.2.1 headings are for convenience only and shall not affect the interpretation of these Conditions,
1.2.2 unless the context otherwise requires, references to:
1.2.2.1 writing or written includes email,
1.2.2.2 words in the singular shall include the plural and vice versa,
1.2.2.3 a statute or statutory provision is a reference to it amended, re-enacted or extended from time to time,
1.2.2.4 a person include companies, associations, partnerships and all other legal entities or groups of legal entities,
1.2.2.5 a Condition is to a Condition of these Conditions,
1.2.2.6 including, includes, in particular and for example or similar expression are illustrative only and shall not limit the sense of the words preceding or following those terms and each of them shall be deemed to incorporate the expression without limitation,
1.2.3 an obligation on a party not to do something includes an obligation not to allow that thing to be done, and
1.2.4 any inconsistency between any provisions of the Agreement shall be resolved according to the following order of precedence:
1.2.4.1 the Order Form, and
1.2.4.2 these Conditions.
2 Application of Conditions
2.1.1 apply to and be incorporated in the Agreement,and
2.1.2 prevail over any inconsistent terms or conditions contained in, or referred to in, any Customer's purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing.
3 ProfessionalServices
3.1 Subject to payment of all Fees due and payable pursuant to this Agreement, Customs Plus will provide the Customer withProfessional Services, including Deliverables for the period specified in theOrder Form, or if no period is specified in the Order Form, until thec ompletion of the Professional Services, unless otherwise agreed by theCustomer and Customs Plus, subject to the Customer fulfilling its obligations under Condition 4.
3.2 Customs Plus shall perform theProfessional Services and use commercially reasonable endeavours to deliver anyDeliverables to the Customer in all material respects in accordance with theAgreement.
3.3 Time shall not be of the essence for the performance of the Professional Services and Customs Plus shall not be liable for any failure to perform the Professional Services by any dates specified or within a reasonable time thereafter.
3.4 In relation to the ImplementationServices, Customs Plus will provide the Customer with advice, assistance, and other services agreed by the parties in respect of implementation and use of the Licensed Service.
3.5 Professional Services will be provided to the Customer remotely, unless the parties agree otherwise.
3.6 The parties will work together to prioritise and agree in writing the scope and estimated period of Professional Services prior to Customs Plus providing any assistance. The parties may update or vary that scope and/or estimated period of Professional Services by mutual agreement from time to time throughout the provision of the Professional Services in accordance with the provisions of Condition 5, however the Customer acknowledges that any such update or variation may result in an increase to the Fees, or any estimate of the Fees payable provided to the Customer by Customs Plus.
4 Customer’s Obligations
4.1 Customer shall:
4.1.1 co-operate with Customs Plus in good faith in all matters relating to the Agreement,
4.1.2 provide (or procure the provision to CustomsPlus of) all reasonable access, documentation, information and other assistance as is reasonably required by Customs Plus for the provision of the Professional Services in a timely manner,
4.1.3 maintain, and procure that its employees, agents and any other approved third parties, maintain the confidentiality of all passwords issued for each person utilising or accessing the Deliverables or Professional Services from time to time (the Customer is responsible for all use of such passwords, whether or not such use was actually or expressly authorised by the Customer), and
4.1.4 perform the AcceptanceTests in relation to the Implementation Services in accordance with Condition 7.
4.2 Customer is responsible for any consents and notices required to permit Customer’s use and receipt of the ProfessionalServices.
4.3 Customer acknowledges that Customs Plus does not need to process Personal Data to perform the Professional Services unless the parties have agreed in a separate agreement on the scope of work and any terms applicable to Customs Plus processing of such Personal Data.
5 Change Control
5.1 Customs Plus may at anytime make any changes to the Professional Services to comply with any applicable Law.
5.2 Without prejudice to Condition 5.1, either party may propose changes to the scope or execution of the Professional Services but no proposed changes shall come into effect until a Change Order has been signed by both parties.A Change Order shall be a document setting out the proposed changes and the effect that those changes will have on:
5.1.1 the Professional Services;
5.1.2 Customs Plus existing charges;
5.1.3 the timetable of the ProfessionalServices (if any); and
5.1.4 any of the terms of this Agreement.
5.3 If Customs Plus wishes to make a change to the Professional Services it shall provide a draft ChangeOrder to the Customer.
5.4 If the Customer wishes to make a change to the Professional Services:
5.2
5.3
5.3.1 it shall notify Customs Plus and provide as much detail as Customs Plus reasonably requires of the proposed changes, including the timing of the proposed changes; and
5.3.2 Customs Plus shall, as soon as reasonably practicable after receiving the information at Condition5.2, provide a draft Change Order to the Customer.
5.5 If the parties:
5.4
5.4.1 agree to a Change Order, they shall sign it and that Change Order shall amend this Agreement; or
5.4.2 are unable to agree a Change Order, the parties will continue their respective responsibilities under thisAgreement as unaffected by such Change Order.
5.6 Customs Plus may charge for the time it spends on preparing and negotiating Change Orders which implement changes proposed by the Customer pursuant to Condition5.4 on a time and materials basis based, as appropriate, on Customs Plus Day Rate or Hourly Rate.
6 Fees and invoicing
6.1 Customer shall pay the Fees as set out in the Order Form for all ProfessionalServices provided by CustomsPlus in accordance with this Condition 6.
6.2 The Fees for the Professional Services shall be calculated on a time and materials basis, based, as appropriate, on Customs Plus prevailing Day Rate or HourlyRate.
6.3 In addition to the Fees, Customs Plus shall be entitled to charge for, and the Customer shall pay, reasonable costs and expenses (including travel) where work is carried out at premises other than Customs Plus normal place of business.
6.4 Unless otherwise expressly agreed, Customs Plus shall be entitled to invoice the Customer at monthly intervals. All invoices shall be payable within 30 days from the date ofCustoms Plus invoice.
6.5 All sums payable toCustoms Plus under this Agreement are exclusive of VAT and any other taxes for which the Customer will be additionally liable.
6.6 The Customer will pay interest to Customs Plus in respect of the late payment of any sum due under this Agreement both before or after judgment at the rate of 4% per annum above the base rate from time to time of Lloyds Bank Plc or 8% per annum, whichever is the higher, compounded monthly from the date payment is due until payment is received by Customs Plus.
6.7 Without affecting any other right or remedy available to it, Customs Plus may suspend the supply of all or part of the Professional Services and any right to access or use any of the Deliverables if the Customer fails to pay any amount due under the Agreement until payment has been made in full.
7 Testing and acceptance in relation to ImplementationServices Deliverables
7.1 All Implementation Services Deliverables shall be subject to acceptance testing by the Customer. Customer shall use reasonable endeavours to perform theAcceptance Tests as soon as reasonably practicable and within 5 Business Days (unless the parties agree otherwise) of the Deliverables being made available by Customs Plus to the Customer for user acceptance testing.
7.2 The Customer shall notify Customs Plus forthwith of the outcome of the Acceptance Tests, such notice shall include:
7.1.1 confirmation that the Deliverables have passed the Acceptance Tests, or
7.1.2 confirmation that, in the Customer’s opinion (acting reasonably),the Deliverables have failed the Acceptance Tests (in which case such confirmation shall detail in writing why the Customer believes the Deliverables have failed the Acceptance Tests).
In default of any such notification or written statement being provided to CustomsPlus within 10 Business of completion of the Acceptance Tests, or such other period agreed between the Parties in writing, the Customer shall be deemed to have accepted the Deliverables.
7.3 If the parties agree that that Deliverables have failed the Acceptance Tests then Customs Plus shall implement, free of charge, such alterations or modifications to the Deliverables as it shall in the circumstances judge necessary and in sufficient time to make possible the repetition of the Acceptance Tests by the Customer within 5 Business Days of the date of failure (First Repeat Acceptance Tests). The Customer shall as soon as reasonably practicable implement the First Repeat Acceptance Tests within 5 Business Days ofDeliverables being made available for First Repeat Acceptance Tests and shall notify Customs Plus forthwith of the outcome of such Acceptance Tests in accordance with Condition 7.2.
7.4 If the parties agree that the Deliverables fail the First Repeat Acceptance Tests theCustomer may require Customs Plus by written notice to implement, free of charge, such further alterations or modifications to the Deliverables as Customs Plus shall reasonably judge necessary to enable the Deliverables to pass the further repeat Acceptance Tests (Second Repeat Acceptance Tests). The Customer shall as soon as reasonable practicable implement the Second Repeat Acceptance Tests within five Business Days of the Deliverables being made available for Second Repeat Acceptance Tests and shall notify Customs Plus forthwith of the outcome of such Acceptance Tests in accordance with Condition 7.2.
7.5 Where the parties agree that the Deliverables fail the Second Repeat Acceptance Tests or any subsequent Acceptance Tests Customs Plus shall, at its own expense (save where any failure arises as a result of the Customer’s breach of their obligations under this Agreement) correct the errors in the Deliverables so that the Deliverables will pass the Acceptance Criteria and shall make theDeliverables available to the Customer to re-test and the provisions of Conditions 7.4 shall apply with such amendments as are appropriate to additional repeat Acceptance Tests.
7.6 If after the Second Repeat Acceptance Tests or any subsequent Acceptance Tests, the Customer demonstrates that the Deliverables have failed to meet the Acceptance Criteria in any material respect, the Customer shall, as its sole remedies, be entitled to:
7.1.3 accept the Deliverables,
7.1.4 reject the Deliverables and terminate the Order Form and receive a refund of any applicable Fees received from the nonconforming Implementation Services.
7.7 Deliverables shall be deemed to be accepted on the earlier of the Deliverables passing the Acceptance Tests or the Customer electing to use the Deliverables in accordance with the Licenced Service.
8 Warranties
8.1 Customs Plus warrants that it will perform the Professional Services with reasonable skill and care in accordance with generally acceptable industry practices using personnel reasonably trained and experienced in the provision of theProfessional Services. If Customs Plus fails to do so and the Customer notifies Customs Plus within thirty (30) days of the date the Professional Services were performed, Customs Plus will undertake at its sole option and as the Customer’s exclusive remedy for breach of this warranty use commercially reasonable efforts to re-provide the Professional Services or (2) terminate the Order Form and refund any applicable Fees received from the nonconforming Professional Services.
8.2 Each of the parties warrants that:
8.2.1 it has full power and authority to enter into the Agreement.
8.2.2 it holds all licences, authorisations or permits required by Law for the purposes of carrying out its obligations under the Agreement, and that throughout the term of the Agreement it will continue to hold all such licences, authorisations and permits, and
8.2.3 it shall comply withLaws in the performance its obligations under this Agreement.
8.3 Subject to the foregoing, all conditions, warranties, terms and undertakings, express or implied, statutory or otherwise, including warranties of merchantability, fitness for a particular use, non infringement, or error free of uninterrupted use in respect of the Implementations Services are hereby excluded to the fullest extent permitted by law.
9 Intellectual Property Rights
9.1 Customer owns all rights, title and interest in Customer’s Background IP. Customs Plus owns all rights, title and interest in Customs Plus Background IP. Customer grants Customs Plus a license to use Customer’s Background IP to provide the Professional Services (with a right to sublicense to CustomsPlus Affiliates and subcontractors). Except for the license rights under Conditions 9.2 and 9.3, neither party will acquire any right, title, or interest in or to the other party’s Background IP under this Agreement.
9.2 Customs Plus owns all rights, title and interest in Customs Plus Technology. To the extent that Customs Plus Technology is incorporated into Deliverables, Customs Plus grants Customer a limited, worldwide, non-exclusive, perpetual, non-transferable license to use theCustoms Plus Technology in connection with the Deliverables for Customer’s internal business purposes.
9.3 Customs Plus grantsCustomer a limited, worldwide, non-exclusive, perpetual, non-transferable license to use, reproduce and modify the Deliverables for Customer’s internal business purposes.
9.4 Customs Plus shall, subject to Condition 11 (Limitation of liability) indemnify the Customer in full against all damages and costs awarded by a competent court in respect of any claim by any other person alleging infringement of anyIntellectual Property Rights supplied by Customs Plus that may be awarded against or which become payable by the Customer to any third party as a result of or in connection with any claim or action that the use of any IntellectualProperty Rights in the Deliverables and Google Technology (in each case, excluding any open source software) infringes the Intellectual Property Rights of any third party.
9.5 The Customer shall have no claim under the indemnity at Condition 9.4, to the extent the infringement arises from:
9.5.1 the use of the Customer Background IP in the development of, or the inclusion of theCustomer Background IP in any Deliverable;
9.5.2 any modification of the Deliverables or Professional Services, other than by or on behalf of Customs Plus; and
9.5.3 compliance with the Customer’s specifications or instructions.
9.6 The Customer shall indemnify Customs Plus and its Affiliates in full against all damages and costs awarded by a competent court in respect of any claim by any other person alleging infringement of any Intellectual PropertyRights supplied by the Customer that may be awarded against or which become payable by Customs Plus to any third party as a result of or in connection with any claim or action that the use of any Intellectual Property Rights in theCustomer Background IP, and any other information, materials or technology provided to Customs Plus in connection with the Professional Services (in each case, excluding any open source software) infringes the Intellectual PropertyRights of a third party.
9.7 If either party (the IndemnifyingParty) is required to indemnify the other party (the IndemnifiedParty) under thisCondition 9, the Indemnified Party shall:
9.7.1 notify the Indemnifying Party in writing of any claim against it in respect of which it wishes to rely on the indemnity at Condition 9.4 or Condition 9.6 (as applicable) (IPRsClaim);
9.7.2 allow the Indemnifying Party, at its own cost, to conduct all negotiations and proceedings and to settle the IPRs Claim, always provided that the Indemnifying Party shall obtain the Indemnified Party's prior approval of any settlement terms, such approval not to be unreasonably withheld;
9.7.3 provide the Indemnifying Party with such reasonable assistance regarding the IPRs Claim as is required by the Indemnifying Party, subject to reimbursement by the Indemnifying Party of the Indemnified Party's costs so incurred; and
9.7.4 not, without prior consultation with the Indemnifying Party, make any admission relating to the IPRs Claim or attempt to settle it, provided that the Indemnifying Party considers and defends any IPRs Claim diligently, using competent counsel and in such a way as not to bring the reputation of the Indemnified Party into disrepute.
10 Confidentiality
10.1 Except as provided for by Condition 10.2, each party shall at all times during the continuance of the Agreement and following its termination keep confidential all information (written or oral) that it shall have obtained or received as a result of the discussions leading up to or the entering into or performance of this Agreement (including the terms of this Agreement, any notifications under Condition 12 (Suspension and Termination) and in relation to information provided by Customs Plus or its Affiliates all confidential information in or relating to the Professional Services and the Deliverables) save that which is:
10.1.1 trivial or obvious,
10.1.2 already in its possession other than as a result of a breach of this Condition 10
(Confidentiality) and is not subject to an obligation of confidentiality, or
10.1.3 in the public domain other than as a result of a breach of this Condition 10(Confidentiality).
10.2 Each party may disclose any confidential information to:
10.2.1 its employees, auditors and professional advisors,
10.2.2 comply with any law, regulation or government request (including the rules of any applicable stock exchange and HM Revenue and Customs), and
10.2.3 its sub-contractors, consultants and suppliers provided that the party disclosing the confidential information under this Condition 10.2 (Disclosure of Confidential Information) uses its reasonable endeavours to procure that the person to whom confidential information is disclosed maintains as it as confidential and does not use the same except for the purposes for which the disclosure and shall take all such steps as shall from time to time be necessary to ensure compliance.
11 Limitation of Liability
11.1 References to liability in this Condition 11 (Limitations o fLiability) apply to every liability arising under or in connection with this Agreement including liability in contract, tort (including negligence),misrepresentation, restitution or otherwise.
11.2 Nothing in this Agreement limits any liability which cannot legally be limited, including liability for:
11.2.1 death or personal injury caused by negligence, and
11.2.2 fraud or fraudulent misrepresentation.
11.3 Subject to Condition 11.2 (Limitations that cannot be legal be limited) Customs Plus total aggregate liability:
11.3.1 for damage to property caused by the negligence of its employees and agents in connection with this Agreement shall not exceed £500,000 for any event or series of connected events,
11.3.2 for all other loss or damage which does not fall within Condition 11.3.1 Customs Plus total aggregate liability shall not exceed 125% of the aggregate Fees that have been paid by the Customer under or in connection with this Agreement.
11.4 Subject to Condition 11.2, Customs Plus shall not be liable for the following specified types of loss:
11.4.1 loss of profits,
11.4.2 loss of turnover,
11.4.3 loss of anticipated savings,
11.4.4 loss of business opportunity,
11.4.5 loss of or damage to goodwill,
11.4.6 damage or corruption toor loss of data,
11.4.7 loss of insurance premium,
11.4.8 loss of insurance commissions,
11.4.9 damage to reputation, and
11.4.10 any indirect or consequential losses.
11.5 Subject to Condition 11.2, Customs Plus shall not be liable for any losses, damages, costs or expenses arising from:
11.5.1 the failure of theCustomer to observe and perform its obligations under the Agreement,
11.5.2 any event which occurs before Customs Plus confirmed in writing to the Customer that the Deliverables were ready to use,
11.5.3 its use of the Deliverables after it became or should have become aware of an issue but beforeCustoms Plus has confirmed that a solution has been completed,
11.5.4 impairment of the performance of the Deliverables if this is due to circumstances beyond CustomsPlus direct control, in particular, interruption to the availability or degradation of the speed of the internet or the communications links, which are provided to Customs Plus by third parties.
11.6 Customs Plus shall have no liability to the Customer unless theCustomer shall have served notice of the same upon Customs Plus within three(3) months of the date the Customer became aware or ought to have become aware of the consequences of a breach of this Agreement.
11.7 Customer declares and acknowledges that it has considered the provisions of this Condition 11 in detail including each of the limitations on liability contained in Conditions 11.1 to 11.6 (inclusive) and considers them reasonable in the circumstances having taken into account among other factors the subject matter of the Agreement and having obtained or had the opportunity to obtain independent legal advice on the same.
12 Commencement, Duration and Termination
12.1 This Agreement shall commence on the Effective Date and continue until the expiration or termination of the Order Form.
12.2 If Customs Plus performance of any of its obligations under the Agreement is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation or the Customer becomes subject to any of the events listed in Condition 12.3.2 (Customer Default):
12.2.1 without limiting or affecting any other right or remedy available to it, Customs Plus shall have the right to suspend performance of the Professional Services and the licence under Conditions 9.2 and 9.3 until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays Custom Plus performance of any of its obligations;
12.2.2 Customs Plus shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Customs Plus failure or delay to perform any of its obligations as set out in this Condition 12.2; and
12.2.3 the Customer shall reimburse Customs Plus on written demand for any costs or losses sustained or incurred by Customs Plus arising directly or indirectly from the Customer Default.
12.3 Either party may at any time, without limiting any other right or remedy, terminate the Agreement forthwith by giving written notice to the other if:
12.3.1 the other party commits any material breach of any term of this Agreement and, in the case of a material breach capable of remedy, fails to remedy the same within 30 days of a written notice from the other Party giving particulars of the breach and requiring it to be remedied,
12.3.2 the other party shall make a proposal for a voluntary arrangement within Part I of the Insolvency Act1986 or a proposal for any other composition, scheme or arrangement with (or assignment for the benefit of) its creditors generally or if the other party shall be unable to pay its debts as they fall due within the meaning of Section123 of the Insolvency Act 1986 or if a trustee, receiver, administrator, administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the other or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the other Party or for the making of an administration order (otherwise than for the purpose of an amalgamation or reconstruction), or
12.3.3 in the circumstances set out in Condition 13.3 (Force Majeure).
12.4 On termination of an Agreement:
12.4.1 Customs Plus shall be entitled to:
12.4.1.1 payment of all Fees which are due or outstanding under the Agreement,
12.4.1.2 raise an invoice and to be paid the same in relation to any agreed milestones or payment dates which have occurred but in relation to which an invoice has not been raised and payment has not been made, and
12.4.1.3 payment, on a quantum meruit basis, for all other work carried out under the Agreement,
12.4.2 the licence at Conditions 9.2 and 9.3 shall be terminated,
12.4.3 any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination of this Agreement shall remain in full force and effect, and
12.4.4 termination of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination.
13 Force Majeure
13.1 The parties shall not be liable for any breach of their obligations under the Agreement resulting from an Event of Force Majeure.
13.2 Each of the parties agrees to give notice forthwith to the other upon becoming aware of an Event ofForce Majeure, such notice to contain details of the circumstances giving rise to the Event of Force Majeure.
13.3 If a default due to an Event of Force Majeure shall continue for more than 4 weeks, then either party shall be entitled to terminate the Agreement immediately on giving written notice to the other party. The Parties shall have no additional liability in respect of the termination of the Agreement as a consequence of an Event of Force Majeure.
14 Data Protection
14.1 Unless otherwise stated in the Order Form, the Customer shall not provide to Customs Plus and CustomsPlus shall not process on behalf of the Customer any Personal Data in connection with the Professional Services.
15 Restrictions
15.1 Except upon mutually agreed terms in writing, neither Customs Plus nor the Customer will during the continuance of this Agreement or for a period of 12 months from the date of termination of the Agreement, directly or indirectly solicit or entice away (or attempt to solicit or entice away) from the employment of the other party any individual employed or engaged by that other party on either a permanent or a temporary basis other than by means of general advertising open to all-comers and not specifically targeted at anyone employed or engaged by the other party.Should either party commit any breach of this Condition 15, it shall pay to the other party a fee equivalent to 6 months' gross pay for the relevant employee or contractor and such fee shall be payable within 45 days of the date of the other party's invoice.
16 General
16.1 This Agreement constitutes the entire agreement and understanding between the parties with respect to all the matters which are referred to in this Agreement and the Customer acknowledges that in entering into thisAgreement it has not relied on any warranty, representation, undertaking or agreement other than those contained or referred to in this Agreement. The Customer waives any right or remedy it may have to claim damages or rescission for any misrepresentation in respect of any representation not contained in this Agreement or for breach of any warranty not contained in this Agreement and acknowledges that its only remedies against Customs Plus are for breach of contract.
16.2 No variation of or addendum to this Agreement shall be effective unless it is agreed in writing and signed by a duly authorised representative of the parties.
16.3 Customs Plus may update the terms of this Agreement from time to time. The terms of the updated Agreement will apply only to Order Forms signed by parties after Customs Plus posts the updated Agreement to a publicly available URL.
16.4 The waiver by either party of a breach or default of any of the provisions of the Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions of the Agreement or these Conditions nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has or may have under the Agreement or theseConditions operate as a waiver of any breach or default by the other party.
16.5 Any notice, request, instruction or other document to be given under the Agreement, shall be delivered or sent by first class post to the address of the other party set out in the Agreement (or such other address as may have been notified) or by email to the Customs Plus Email Service Address or the Customer’s Email ServiceAddress and any such notice or other document shall be deemed to have been served (if delivered) at the time of delivery (if sent by post) upon the expiration of 48 hours after posting and (if sent by email) upon receipt by the sender of the notice of a recipient delivery notice email. No party may serve a notice relating to any notification of breach or notice to terminate this Agreement by email.
16.6 If any provision of the Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of the Agreement and all provisions not affected by such invalidity or enforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision, which achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid or unenforceable provision.
16.7 Customs Plus shall be entitled to subcontract and/or delegate any of its obligations under this Agreement to any other Affiliate or to any third-party subcontractor provided that Customs Plus remains liable for the acts and omissions of its subcontractors as if such acts and omissions were its own.
16.8 Notwithstanding anything to the contrary contained in the Agreement, the parties agree and intend that nothing in the Agreement shall confer any rights on any third parties.
16.9 The parties agree that nothing in the Agreement shall be deemed to create any partnership, joint venture or relationship of employer and employee between them.
16.10 The Agreement and any dispute 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 English law.
16.11 The parties agree to submit to the exclusive jurisdiction of theEnglish Courts.
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