ALL SHAPES

HORAK CONSULTING GMBH

terms and conditions for the supply of deliverables

1. Definitions and Interpretation

1. In these Conditions the following words and expressions have the following meanings unless inconsistent with the context:

2. References to any statute or statutory provision include, unless the context otherwise requires, a reference to the statute or statutory provision as modified or re-enacted and in force from time to time, and any subordinate legislation made from time to time under the relevant statute or statutory provision.
3. References to “persons” include natural persons, firms, partnerships, companies, corporations, associations and organisations, (in each case whether or not having separate legal personality).
4. Use of any gender includes the other genders.
5. Words in the singular include the plural and words in the plural include the singular.
6. Any reference to “writing” or any cognate expression includes communications by post and email but excludes facsimile and text messages.
7. The headings to Conditions do not affect the interpretation of these Conditions.
8. Any phrase introduced by the term “include”, “including”, “in particular” or any similar expression will be construed as illustrative and will not limit the sense of the words preceding that term.

2. Basis of Contract

1. These Conditions shall apply to the sale and supply by the Supplier of all Deliverables purchased by the Customer and these Conditions shall govern the Contract to the exclusion of any other terms and conditions introduced or submitted by the Customer.
2. No variation of these Conditions shall be binding unless agreed in writing by a director of the Supplier and no collateral or supplemental contract may be made or construed unless confirmed in writing by a director of the Supplier.
3. Any Proposal submitted to the Customer will not constitute an offer and shall remain valid for the period stated therein, but if no period is specified such Proposal shall be valid for 30 days from the date of issue. Notwithstanding this Condition 2.3, any Proposal shall no longer be valid where a sub-contractor or supplier has changed its charges.
4. Each order or acceptance of a Proposal for the supply of Deliverables by the Customer shall be deemed to be an offer by the Customer to purchase the Deliverables subject to these Conditions.
5. These Conditions shall become binding on the Customer when they are signed by the Customer, or if they are not signed, when the Supplier:

1. acknowledges the order placed by the Customer in writing;
2. commences processing of the order and/or provision of the Deliverables; or
3. notifies the Customer that the Deliverables are ready;        

whichever is the earlier, at which point a “Contract” shall come into existence between the Supplier and the Customer.

6. The Supplier is under no obligation to accept any order, and no order shall be regarded as having been accepted by the Supplier, unless the circumstances set out in Condition 2.5 apply.
7. The Supplier may cancel an order, at any time on the provision of written notice to the Customer at any point before commencing work on the Deliverables. The Supplier shall not be liable to the Customer in relation to any loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Customer as a result of cancellation. For the avoidance of doubt, where the Customer has paid the Price or any element thereof in advance of the Supplier commencing work, the Supplier shall refund such monies to the Customer to such bank account as notified to the Supplier in writing.        
8. Where the Supplier confirms the details of the Contract in writing, the Customer shall be under a duty to bring any discrepancies to the Supplier’s notice within three (3) days of receipt of the written confirmation, and if the Customer fails to bring any such discrepancies to the Supplier’s notice within the said time period, the Customer shall be bound by the details contained mentioned or referred to in the written confirmation of the Contract.         
9. The Supplier’s employees or agents are not authorised to make any representations concerning the Deliverables unless confirmed by the Supplier in writing. In entering into the Contract the Customer acknowledges that it does not rely on any such representations which are not so confirmed save that nothing in this Condition excludes the Supplier’s liability for fraudulent misrepresentation.
10. In the event that the Customer wishes to cancel an order, it may only do so with the written consent of a director of the Supplier and on the terms that the Customer shall indemnify the Supplier in full against all loss, costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Supplier as a result of cancellation.
11. These Conditions, the Contract and the Contract Details shall supersede and entirely replace any and all materials provided in advance, such as but not limited to sales literature, quotation and price lists.

3. Commencement and Term – Retainer Arrangements

1. Where a Contract relates to the provision of Deliverables as a Retainer then the following shall apply:

1. the Supplier shall commence supply of the Deliverables on the Commencement Date as further defined in the Contract Details;
2. the Contract shall continue for the Term unless:

1. extended by agreement of the Parties and in accordance with Condition 7;
2. terminated early in accordance with Condition 16; or
3. terminated by either party serving not less than 3 months’ prior written notice on the other.

4. Price

1. The Price is inclusive of delivery but exclusive of the cost of any data servers, storage or any other licensing including but not limited to software, APIs, creative works which, where required, the Supplier shall be entitled to charge the Customer for the cost of as an Additional Charge which will appear separately on the Supplier’s invoice, to be paid in accordance with Condition 5 below.
2. The Price and any Additional Charges are as stated in the Contract Details or as calculated in accordance with the Supplier’s current rate card.
3. The Supplier reserves the right to increase the Price and/or Additional Charges by giving written notice at any time up to seven (7) Working Days prior to delivery in accordance with Condition 9.1 to take account of any increase howsoever arising in the Price and/or Additional Charges including but without being limited to any increase in the costs of materials, labour or delivery or to take account of any fluctuations in exchange rates, or alteration of duties as shall be reasonable in the circumstances provided that where the increase in the Price and/or the Additional Charges is more than 10% the Customer may cancel the Contract by notice in writing within three (3) Working Days of the date of any such notice from the Supplier subject at all times to the Supplier being entitled to recover its costs in accordance with the provisions of Condition 2.10.
4. The Supplier reserves the right to charge the Customer, as an Additional Charge, for any additional work undertaken over and above that which would have been otherwise required, (including any expenses or financial penalties incurred by the Company) as a result of any instructions supplied by the Customer being incomplete, incorrect, inaccurate, illegible, out of sequence, in the wrong form, or provided to the Supplier too late to enable it to meet a deadline subject to the Supplier having provided sufficient notice to the Customer where such requirements are not set out in the Contract Details.
5. Unless otherwise stated in writing, the Price quoted is exclusive of VAT or any other sales tax which will be charged at the rate in force at the time of despatch.
6. Where set out in the Contract Details, the Customer shall reimburse all reasonable expenses properly and necessarily incurred by the Supplier in the course of the Contract, subject to production of receipts or other appropriate evidence of payment.

5. Payment Terms

1. The Supplier shall be entitled to invoice the Customer for the Price and where applicable any Additional Charges in accordance with the payment terms set out in the Contract Details. In the event that any Additional Charges arise following the issue by the Supplier of the invoice, the Supplier will invoice the Customer as and when the Additional Charges arise.
2. The Customer shall make payment for the Price and where applicable any Additional Charges in EURO by telegraphic transfer into such bank account as notified by the Supplier in writing from time to time. Unless agreed otherwise in writing any payment received by the Supplier in any other currency or by any other method will not be deemed to be payment for the Deliverables in question. Payment will not be deemed payment for the Deliverables in question unless and until it is received in full and in cleared funds.
3. The Customer shall pay each undisputed invoice from the Supplier without any set-off or other deduction within thirty (30) days from the invoice date (“Due Date”).
4. The Supplier’s invoices shall be payable in accordance with this Condition 5, notwithstanding that delivery of the Deliverables may not have taken place and title may not have passed to the Customer. The time of payment of the Supplier’s invoices shall be of the essence of the Contract.
5. If the Customer fails to pay in full any invoice from the Supplier by the Due Date or in any other way breaches the terms of this Contract without prejudice to any other right or remedy the Supplier may have:

1. all invoices issued by the Supplier in respect of any Deliverables sold or supplied and any Additional Charges pursuant to this Contract and any sums due for goods and/or services under any other contract which may exist between the parties shall immediately fall due for payment; and
2. the Supplier shall be entitled to:

1. cancel or suspend any further deliveries of Deliverables to the Customer under any order;
2. sell or otherwise dispose of the Deliverables and/or any goods which are the subject of any order by the Customer, whether or not appropriated thereto, and, where applicable, apply the proceeds of sale to the Unpaid Amount;
3. where applicable, charge the Customer interest of 5 % p.a., starting from the due date. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment;
4. appropriate any payment made by the Customer to such of the Deliverables (or good and/or services supplied under any other order) as the Supplier may think fit; and
5. by notice to the Customer unilaterally vary payment terms for future Contracts;

3. the Customer shall indemnify the Supplier for all reasonable Costs that are reasonably incurred by the Supplier (either directly or indirectly or by a third party) in seeking or securing payment of any Unpaid Amount or otherwise pursuing any claim for damages for breach of this Contract. This indemnity shall apply whether or not the Customer has been negligent or at fault. For the avoidance of doubt, the limitations set out in Condition 12, do not apply to the indemnity in this Condition 5.5.3.

6. Unless otherwise agreed in writing by the Supplier, all queries from the Customer regarding any invoice must be received prior to the relevant due date.

6. Deliverables

1. The Deliverables are as described in the specification set out in the Contract Details.
2. Where any design is applied to the Deliverables either at the Customer’s request or to the Customer’s specification, the Customer shall indemnify the Supplier against all loss, damages, costs and expenses awarded against or incurred by the Supplier in connection with or paid or agreed to be paid by the Supplier in settlement of any claim for infringement of any Intellectual Property Rights of any person which results from the Supplier’s use of the Customer’s specification.
3. Acceptance of any design applied to the Deliverables in accordance with Condition 6.2 shall take place in accordance with the provisions set out in the Contract Details and in Condition 10 hereunder.

7. Changes to the Deliverables

1. The Customer and the Supplier shall meet as and when deemed reasonably necessary by the Supplier to discuss matters relating to the Deliverables. If either party wishes to change the scope or execution of the Deliverables, it shall submit details of the requested change to the other in writing.
2. If either party requests a change to the scope or execution of the Deliverables, the Supplier shall, within a reasonable time, and where reasonably practicable, provide a written estimate to the Customer of:

1. the likely time required to implement the change;
2. any variations to the Price arising from the change;
3. the likely effect of the change on the Contract Details; and
4. any other impact of the change on the Conditions.

3. If the Customer wishes the Supplier to proceed with the change, the Supplier has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to the Price and the Contract Details.
4. The Supplier may, from time to time and without notice, change the Deliverables in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the Price for the Deliverables.

8. Risk and Title

1. Risk of damage to or loss of the Deliverables shall pass to the Customer at the time of delivery to the Delivery Location, save in the following situations:

1. if the Supplier is not responsible for delivery, risk shall pass to the Customer at the point when the Customer or a representative of the Customer collects the Deliverables from the Supplier’s registered office or place of business; or
2. if the Customer wrongfully fails to take delivery, risk shall pass to the Customer at the time when the Supplier has tendered delivery of the Deliverables.

2. Notwithstanding delivery and the passing of risk in the Deliverables, or any other provision of these Conditions, title in the Deliverables shall not pass to the Customer until the Supplier has received in cash or cleared funds payment in full of:

1. the Price and any Additional Charges; and
2. all other sums payable by the Customer to the Supplier for which payment is then due.

3. Until such time as title in the Deliverables passes to the Customer:

1. the Customer shall hold the Deliverables as the Supplier’s fiduciary agent and bailee, and shall keep the Deliverables separate from those of the Customer and third parties and properly stored, protected and insured and identified as the Supplier’s property, but shall be entitled to resell or use the Deliverables in the ordinary course of its business;
2. if Deliverables are damaged or destroyed by an insured risk prior to the same being paid for by the Customer, the Customer shall receive the proceeds of any such insurance as trustee for the Supplier;
3. the Supplier shall be entitled at any time to require the Customer to deliver up the Deliverables to the Supplier and if the Customer fails to do so forthwith, to enter upon any premises of the Customer or third party where the Deliverables are stored and mark identify and repossess the Deliverables and the Customer grants the Supplier an irrevocable license to enter any premises of the Customer for such purposes; and
4. the Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Deliverables which remain the property of the Supplier, but if the Customer does so all monies owing by the Customer to the Supplier shall (without prejudice to any other right or remedy of the Supplier) forthwith become due and payable.

9. Delivery

1. The Supplier shall reasonably endeavour to deliver the Deliverables on the Anticipated Delivery Date to the Delivery Location (which may include digital delivery to an agreed platform or network), subject to the availability of the Supplier’s employees, agents and sub-contractors and the availability and delivery of the Deliverables. The time for delivery shall not be of the essence.
2. The Supplier shall have the right to deliver Deliverables ordered in instalments.
3. In the event that the Supplier is unable for any reason to fulfil any delivery of the Deliverables on any Anticipated Delivery Date the Supplier shall not be deemed to be in breach of contract or have any liability to the Customer. Failure by the Supplier to deliver any one or more of the instalments on any Anticipated Delivery Date or any claim by the Customer in respect of the Deliverables delivered in any one or more instalments shall not entitle the Customer either to treat the Contract as a whole as repudiated or to reject or refuse to take delivery of any of the Deliverables delivered in any other instalment.
4. Delivery shall occur on delivery to the Delivery Location.

10. Acceptance, Trial Phase

1. Acceptance of the Deliverables shall take place in accordance with the process set out in the Contract Details or upon the use of the Deliverables by the Customer, whichever is the soonest to occur. For the avoidance of doubt acceptance shall not, unless expressly stated to the contrary in the Contract Details, be linked to the launch of any Deliverables on an app store nor shall the Supplier be responsible for any rejection by an app store of any Deliverables other than on grounds of the Deliverables’ failure to comply with those functionality requirements set out in the Contract Details.
2. Without hindering the generality of Condition 10.1 and unless explicitly set out in the Contract Details, the Acceptance and subsequent trial phase by the Customer shall cover following services of the Supplier:

• Following the first day of use of the Deliverables by the Customer ten (10) days (the “Trial Phase”) of bug fix by the Supplier free of charge.
• Thereupon a subsequent three (3) months period (starting on the last day of the ten (10) days’ period availability of the Supplier for further fixes and changes ad Customer’s request, subject to the standard terms and fees of the Supplier.
• Any request for fixes or changes after these three (3) months shall be treated as a new Order.

3. The Supplier shall conduct basic internal testing with his team before delivery. The Customer may use the Trial Phase to run further test in the designated Customer’s environment of the Deliverables. Upon request of the Customer, the Supplier shall offer additional support to any such coordinated testing, offered at the standard terms and fees of the Supplier.

11. Customer Obligations

1. The Customer warrants that:

1. it will co-operate with the Supplier in all matters relating to the Deliverables;
2. it will provide, for the Supplier, its employees, agents and sub-contractors, in a timely manner and at no charge, access to the Delivery Location as requested by the Supplier and as necessary to enable the Supplier to perform its obligations under these Conditions;
3. it will provide, in a timely manner, such Input Materials as the Supplier may request and ensure that it is accurate in all material respects;
4. it will carry out all actions specified in the Contract Details by the times and dates set out therein but where no such times or dates are specified within two (2) Working Days of notification by the Supplier; and
5. it will obtain before the date on which the Deliverables are to start and maintain all necessary licenses and consents and comply with all relevant legislation in relation to the Deliverables and the use of the Input Materials.

2. If the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, sub-contractors or employees, the Supplier shall not be liable for any costs, expenses, losses or charges sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.
3. Notwithstanding the provisions of Condition 11.2, the Supplier may charge the Customer as an Additional Charge for any additional reasonable costs and expenses incurred by the Supplier caused by the Customer’s instructions, failure to provide instructions, or failure to comply with Condition 11.1.
4. The Customer shall not, without the prior written consent of the Supplier, at any time from the date of the Contract to the expiry of twelve (12) months after the termination of the Contract, solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee or sub-contractor of the Supplier in the provision of the Deliverables.
5. Any consent given by the Supplier in accordance with Condition 11.4 shall be subject to the Customer paying to the Supplier a sum equivalent to 20% of the then current annual remuneration of the Supplier’s employee or sub-contractor or, if higher, 20% of the annual remuneration to be paid by the Customer to that employee or sub-contractor.

12. Warranties and Liability

1. Subject to the Conditions set out below the Supplier warrants that upon acceptance in accordance with Condition 10 the Deliverables will:

1. comply with any specification set out in the Contract Details and shall continue to do so for a period of 21 days. For the avoidance of doubt the Supplier may from time to time make changes in the specification of the Deliverables which are required to comply with any applicable safety or statutory requirements or which do not materially affect the quality of the Deliverables; and
2. be performed by the Supplier with reasonable care and skill subject to the Customer complying with the obligations set out in Condition 11.1;

for the avoidance of doubt the warranty set out in this Condition 12.1 shall not extend to cover any aspect of the Deliverables not manufactured, designed, programmed or created by the Supplier or its sub-contractors including but not limited to the Input Materials and any third party tools such as payment APIs or servers. Any bug fixes made during the Trial Phase as set out in Condition 10.2 shall be deemed to be in compliance with the Contract Details.

2. Subject as expressly provided in these Conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law. In particular, the Supplier makes no warranty as to the fitness of the Deliverables for any particular purpose even if that purpose is stated in the Customer’s order. This exclusion includes recommendations or advice from the Supplier to the Customer relating to a specific enquiry. The Customer must satisfy itself as to the fitness for the purpose for which the Deliverables are intended. The Supplier does explicitly not provide any warranty for the fitness of the Deliverables in case the dependencies of the Deliverables within the realm of the Customer or any third party changes.
3. The Supplier shall not be liable for breach of warranty under Condition 12.1 if:

1. the defect arises because the Customer has failed to follow the Supplier’s instructions (whether oral or in writing) as to the commissioning, proper use and/or maintenance of the Deliverables or (if there are none) good trade practice; or
2. the Customer alters or repairs the Deliverables without the written consent of the Supplier.

4. Where any valid claim in respect of the Deliverables is made, the Customer may request the Supplier to:

1. re-perform the relevant part of the Deliverables found not to conform to warranty at the Supplier’s cost; or
2. refund to the Customer the Price (or a proportionate part of the Price) of the relevant part of the Deliverables found not to conform to warranty in case the valid claim is made with regard to any material part or aspect of the Deliverables;

and subject to Condition 12.6, if the Supplier meet this request, the Supplier shall have no further liability to the Customer.

5. Subject to Condition 12.6, both parties shall be liable for any direct loss (whether in contract, tort or otherwise and on whatever legal ground). Such liability shall be limited in any case and in the aggregate to the amount of the Price under the Contract. Both parties’ liability for any indirect or consequential damages, such as but not limited to loss of profit, loss of business and loss of reputation is excluded.

6. Nothing in these Conditions seeks to limit the Supplier’s liability for personal injury or death caused by the Supplier’s negligence in respect of which the Supplier’s liability shall be unlimited. Same applies to the Supplier’s liability for any gross negligent or wilful breach of Data Protection, IPR indemnity and Confidentiality as provided for hereunder.
7. Subject to Condition 12.6, the Supplier shall have no liability under these Conditions or otherwise if the Deliverables have not been paid for by the Due Date.

8. Any claim by the Customer under this Condition 12 in respect of any Deliverables shall not entitle the Customer to withhold or delay payment in respect of any other Deliverables in respect of which no such claim has been made whether or not those Deliverables form part of the same consignment.

13. Intellectual Property Rights

1. The Customer acknowledges and agrees that it shall not acquire any right, title or interest in or to the Intellectual Property Rights:

13.1.1         relating or contained within the Supplier's Software;

13.1.2         relating to or contained within the Third Party Software; and/or

13.1.3         relating to or contained within the Supplier's Background IPR;

title in relation to all such Intellectual Property Rights shall continue to vest in the Supplier or its licensor.        

2. The Supplier shall, at the point of title in the Deliverables passing in accordance with Condition 8.2, assign to the Customer, with full title guarantee and free from all third party rights, all Intellectual Property Rights in the Foreground IPR.
3. The Supplier shall grant or shall procure the direct grant to the Customer a non- exclusive, royalty-free, irrevocable licence (without the right to sub-licence) to use any Intellectual Property Rights in the Supplier’s Software, the Third Party Software, if any, and or the Supplier’s Background IPRs in the Deliverables for the purpose of making reasonable use of the Deliverables. For the avoidance of doubt, any licences granted in accordance with this Condition 13.3 are granted solely to the extent necessary for the Customer to utilise the Deliverables and therefore they should not be used for any other purpose
4. The Customer shall provide the Input Materials to the Supplier for the purpose of the provision of Deliverables and shall grant to the Supplier a non-exclusive licence to use any Input Materials for the purpose of providing the Deliverables.
5. The Customer shall indemnify and hold the Supplier harmless from all claims and all direct, indirect or consequential liabilities (including loss of profits, loss of business, depletion of goodwill and similar losses), costs, proceedings, damages and expenses (including reasonable  legal and other professional fees and expenses) awarded against or incurred or paid by, the Supplier as a result of or in connection with any alleged or actual infringement, , of any third party’s Intellectual Property Rights arising out of the Supplier’s use of the Input Materials in the manner instructed by the Customer in this Agreement or in the Contract.        
6. To the extent that the Supplier assigns or licenses to the Customer any Suppler Software, Third Party Software or Supplier Background IPR (“Supplier IPR”) (as recorded by the parties in the relevant Contract ), the Supplier shall indemnify and hold the Customer harmless from all claims and all direct, indirect or consequential liabilities (including loss of profits, loss of business, depletion of goodwill and similar losses), costs, proceedings, damages and expenses (including reasonable legal and other professional fees and expenses) awarded against or incurred or paid by, the Customer as a result of or in connection with any alleged or actual infringement of any third party’s Intellectual Property Rights arising out of the Customer’s use of the Suppler Software, Third Party Software or Supplier Background IPR (as applicable) in the manner instructed by the Supplier in this agreement or the Contract. The parties will use reasonable endeavours to record all Supplier IPR in the relevant Contract, however the Supplier’s indemnity will apply in the event of a third party claim regardless of whether the relevant Supplier IPR is listed in the Contract or not.
7. Supplier’s obligation under Section 13.6 is subject to Customer: (a) allowing Supplier to have sole control of the defence or settlement of the claim; (b) reasonably cooperating with Supplier during defence and settlement efforts; and (c) not making any admission, concession, consent judgment, default judgment or settlement of the applicable infringement claim or any part thereof (unless otherwise agreed by Supplier in writing). If any applicable infringement claim is initiated, then Supplier may at its option and expense: (i) procure the right for Customer to continue using the infringing Supplier IPR (ii) replace or modify the infringing Supplier IPR so that it becomes non-infringing or, (iii) if such remedies are not reasonably available, Customer may terminate this agreement and Supplier will refund a proportionate amount of the Price.

14. Protection of Confidential Information

8. Each party (‘Receiving Party’) shall keep the Confidential Information of the other party (‘Supplying Party’) confidential and secret, the Receiving Party shall only use the Confidential Information of the Supplying Party as necessary in relation to the supply of the Deliverables (in the case of the Supplier) or as necessary for the purpose of making reasonable use of the Deliverables (in the case of the Customer) and for performing the Receiving Party’s obligations under the Contract.  The Receiving Party shall inform its officers, employees and agents of the Receiving Party’s obligations under the provisions of this Condition 14, and ensure that they meet such obligations.
9. The obligations of Condition 14.1 shall not apply to any information which:

1. was known or in the possession of the Receiving Party before it was provided to the Receiving Party by the Supplying Party;
2. is, or becomes, publicly available through no fault of the Receiving Party;
3. is provided to the Receiving Party without restriction or disclosure by a third party, who did not breach any confidentiality obligations by making such a disclosure;
4. was developed by the Receiving Party (or on its behalf) without direct access to, or use or knowledge of the Confidential Information supplied by the Supplying Party; or
5. is required to be disclosed by order of a court of competent jurisdiction.

10. This Condition 14 shall survive termination of the Contract.

15. Data Protection

1. For the purposes of this Condition 15 the following definitions shall apply:

1. “Controller” has the meaning set out in the General Data Protection Regulation (GDPR);
2. “Data Subject” an individual who is the subject of Personal Data;
3. “Personal Data” has the meaning set out in the GDPR and relates only to personal data, or any part of such personal data, in respect of which the Customer is the Controller and in relation to which the Supplier is providing the Deliverables in accordance with these Conditions; and
4. “processing” and “process” have the meaning set out in the GDPR.

The Customer and the Supplier acknowledge that for the purposes of the GDPR, the Customer is the Controller and the Supplier is the Processor, if and when any personal data is transferred with regard to the Deliverables.

2. The Supplier shall process the Personal Data only in accordance with the Customer’s instructions from time to time and shall not process the Personal Data for any purpose other than those expressly authorised by the Customer.
3. The Supplier shall take reasonable steps to ensure the reliability of all its employees and or sub-contractors who have access to the Personal Data.
4. Each party warrants to the other that it will process the Personal Data in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments.
5. The Supplier warrants that, having regard to the state of technological development and the cost of implementing any measures, it will:

1. take appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data to ensure a level of security appropriate to:

1. the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage; and
2. the nature of the data to be protected;

2. take reasonable steps to ensure compliance with those measures.

6. Each party agrees to indemnify and keep indemnified and defend at its own expense the other party against all costs, claims, damages or expenses incurred by the other party or for which the other party may become liable due to any failure by the first party or its employees or agents to comply with any of its obligations under this agreement.
7. The Customer acknowledges that the Supplier is reliant on the Customer for direction as to the extent to which the Supplier is entitled to use and process the Personal Data. Consequently, the Supplier will not be liable for any claim brought by a Data Subject arising from any action or omission by the Supplier, to the extent that such action or omission resulted directly from the Customer’s instructions or failure to provide instructions.

16. Termination and Consequences

8. Without prejudice to any other remedies or rights whether under the Contract or otherwise, this Contract may be terminated at any time by written notice and the notice taking effect as specified in the notice:  

3. By either party if the other party commits a material or persistent breach of any of these Conditions, and (if such a breach is remediable), fails to remedy that breach within 14 days of being notified in writing by the non-breaching party;
4. By the Supplier if the Customer fails to pay any undisputed sum due by the Due Date, including any interest accrued, in full cleared funds in accordance with Condition 5 within fourteen (14) days of being notified in writing;
5. By either party if the other party suspends, or threatens to suspend, payment of its debts or makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction);
6. By either party a creditor or encumbrancer 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 any property or assets of the other party;
7. By either party if the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
8. By either party if such party reasonably apprehends that any of the events mentioned above is about to occur and notifies the respective other party accordingly.

9. For the purposes of Condition 16.1.1, a breach shall be considered capable of remedy if a party can comply with the provision in question in all respects other than as to the time of performance (provided that time of performance is not of the essence).
10. Upon termination of the Contract for any reason:

1. the Customer shall pay to the Supplier all outstanding and valid invoices within ten (10) days of receipt of the invoice, and in respect of any part of the Price and Additional Charges or other sums payable by the Customer but for which no invoice has been submitted, the Supplier may submit an invoice which shall be payable within ten (10) days of receipt;
2. each party shall return, delete or destroy all Confidential Information and all other information which has been provided to it by the other party belonging to that other party in whatever medium in accordance with the instructions of that other party;
3. any licence granted by these Conditions shall terminate, in particular those granted under Condition 13; and
4. the accrued rights and remedies of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.

17. Force Majeure

1. The Supplier shall not be liable to the Customer or be deemed to be in breach of this Contract by reason of any delay in performing, or any failure to perform, any of its obligations in relation to the Contract, if the delay or failure was due to any cause beyond the Supplier’s reasonable control such as (but without limitation) any strike, lock-out or other form of industrial action, failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or government order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, earthquake, volcanic eruption, explosion, lightning, storm, wind, hail, tidal wave, landslide, act of God or other physical event or default of suppliers or sub-contractors or inability to procure materials required for performance of the Contract.
2. The Supplier shall promptly notify the Customer in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than 1 month, the Supplier may terminate the Contract by written notice to the Customer.

18. Notices

1. Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice. Any notice:

1. sent by post shall be deemed served on the next Working Day following posting where the notice is sent and received within Germany, or seven (7) Working Days following posting where the notice is sent and/or received outside of Germany;
2. delivered personally shall be deemed served at the time of personal delivery, provided the same occurs on a Working Day; and
3. sent by email shall be deemed served at the time of transmission provided that the transmission occurs on a Working Day and a confirmatory copy of the email is sent by post within 24 hours of transmission of the email.

2. To prove service it shall be sufficient to show that the email was transmitted to the email address of the other party or that the envelope containing the notice was properly addressed and posted.

19. Entire Agreement

1. Each Contract constitutes the entire agreement between the parties in relation to its subject matter, supersedes any previous agreement or understanding and may not be varied except in writing between the parties. All other terms and conditions express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.

20. No Partnership or Agency

1. Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for or to bind another party in any way.

21. Further Assurance

1. Each party to the Contract shall at the request and expense of the other execute and do any deeds and other things reasonably necessary to carry out the provisions of the Contract or to make it easier to enforce.

22. Assignment

1. The Supplier 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 Contract. The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any manner with all or any of its rights or obligations under the Contract.

23. Severance

1. If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions shall remain in full force and effect.

24. Waiver

1. A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by the Supplier to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

25. Cumulative Remedies

1. All rights and remedies available to either of the parties under the terms of the Contract or under the general law are to be cumulative, and no exercise by either of the parties of any such right or remedy is to restrict or prejudice the exercise of any other right or remedy granted by the Contract or otherwise available to that party.

26. Third Party Rights

1. A person who is not a party to the Contract will not have any rights under any term of the Contract.

27. Dispute and Governing Law

1. Where any dispute arises between the parties, the parties shall reasonably endeavour to resolve such dispute in good faith and with the assistance of the party personnel engaged in the performance of the Contract.
2. At any stage of the dispute, either party may serve on the other written notification of the nature of the dispute and request the other to appoint a senior executive officer to endeavour to resolve the dispute. Within seven (7) Working Days of receipt of such notification the parties shall procure that a senior executive officer from each party shall meet and use reasonable endeavours to resolve the dispute.
3. In the event that such senior executive officers shall fail to meet within such seven (7) Working Day period or in the event that the dispute remains unresolved ten (10) Working Days after such seven (7) Working Day period, either party may at any time thereafter refer the dispute to the courts in accordance with Condition 27.4.
4. This Contract 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 English law.
5. All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules.