1.1 In these conditions, the following expressions have the following meanings unless inconsistent with the context:
Applicable Laws: all applicable laws, statutes, trading standards, regulations and codes from time to time in force.
Authority: means a government body, agency, representative or authority of any kind.
Available Services: Hallmark’s list of services available at http://www.hallmarkconsumer.co.uk/available-services
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Change Order: has the meaning given in Clause 8.1.
Contract: means the contract between Hallmark and the Client for the supply of Available Services in accordance with these conditions.
Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Client: the person, business or firm, that purchases any of the Available Services from Hallmark.
Client’s Equipment: any equipment, including tools, systems, cabling or facilities, provided by the Client, its agents, subcontractors or consultants which is used directly or indirectly in the supply of the Works including any such items specified in a Statement of Work.
Client Materials: all documents, information, items and materials in any form, whether owned by the Client or a third party, which are provided by the Client to Hallmark in connection with the Works, including the items provided pursuant to Clause 6.1(d).
Data Controller: has the meaning set out in the Data Protection Legislation
Data Processing Addendum: an addendum to a Statement of Work detailing, in relation to any Personal Data, the subject matter and duration of the processing of that data, the nature and purpose of the processing of that Personal Data, the type of Personal Data processed and the categories of Data Subjects and the obligations and rights of the Client as Data Controller of such Personal Data.
Data Protection Legislation: means (i) unless and until it is no longer in force, the Data Protection Act 1998 and then (ii) any successor legislation to the Data Protection Act 1998.
Data Subject: an individual who is the subject of Personal Data.
Deliverables: any output of the Works to be provided by Hallmark to the Client as specified in a Statement of Work and any other documents, products and materials provided by Hallmark to the Client in relation to the Works (excluding any Hallmark Software).
Employment Regulations: the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246).
Goods: where the Client purchases Available Services from Hallmark relating to warehousing and/or fulfilment services, the “Goods” shall mean the goods of the Client delivered to Hallmark for the purposes of providing such services.
Goods in Guidelines: means Hallmark’s guidelines relating to the Goods, available at http://www.hallmarkconsumer.co.uk/goods-in-guidelines
Hallmark: Hallmark Consumer Services Limited (registered in England and Wales No. 02695475) whose registered office is at Green Bank, Saxby Road, Melton Mowbray, Leicester, LE13 1FF.
Hallmark Software: any proprietary software of Hallmark provided by it for use by the Client.
Hallmark’s Personnel: all employees, staff, other workers, agents and consultants of Hallmark who are engaged in the provision of the Works from time to time.
Intellectual Property Rights (IPRSs): patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, 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.
Intervention: any intervention, investigation or other activity by an Authority.
Personal Data: has the meaning set out in the Data Protection Act Legislation and relates only to personal data, or any part of such personal data, in respect of which the Client is the Data Controller and in relation to which Hallmark is providing services under the Contract.
Processing and process: have the meaning set out in the Data Protection Legislation.
Relevant Services: the Works to be delivered by or on behalf of Hallmark under these conditions and/or pursuant to a particular Statement of Work.
Software Licence: the terms under which Hallmark grants the Client the right to use Hallmark Software.
SoW Charges: the sums payable for the Works as set out in a Statement of Work or, if not such charges are set out, t Hallmarks standard changes for the Services from time to time.
Statement of Work: a plan, agreed in accordance with Clause 3, describing the services to be provided by Hallmark, the timetable for their performance and other related matters or, if no such plan has been agreed, Hallmark’s estimate or other document provided to the Client describing services to be provided by Hallmark.
VAT: value added tax chargeable under the Value Added Tax Act 1994.
Works: the Available Services which are provided by Hallmark under a Statement of Work, including services which are incidental or ancillary to the Works.
1.2 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.3 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.4 A reference to writing or written includes email.
1.5 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.6 A reference to these conditions or to any other agreement or document referred to in these conditions is a reference of these conditions or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of this conditions) from time to time.
1.7 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.
1.8 In the event of any inconsistency, ambiguity or conflict between the provisions of these conditions, any Statement of Work or any Software Licence the order of priority for the interpretation of these documents shall be (1) Software Licence, (2) Statement of Work and (3) the provisions of these conditions.
2. BASIS OF CONTRACT
2.1 A Contract shall come in to force upon both parties signing the relevant Statement of Work.
2.2 The Client may procure any of the Available Services by agreeing a Statement of Work with t Hallmark pursuant to Clause 3.
2.3 Hallmark shall provide the Works from the date specified in the relevant Statement of Work.
2.4 By accepting an estimate provided by Hallmark, the Client confirms acceptance to the terms of these conditions.
2.5 Any samples, drawings, descriptive matter or advertising issues by Hallmark and any illustrations or descriptions of the Available Services contained in Hallmark’s catalogues, brochures or website are issued or published for the sole purpose of giving an approximate idea of the Available Services described in them. They shall not form part of the Contract or have any contractual force.
2.6 These conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3. STATEMENTS OF WORK
3.1 Each Statement of Work shall be agreed in the following manner:
(a) the Client shall ask Hallmark to provide any or all of the Available Services and provide Hallmark with as much information as Hallmark reasonably requests in order to prepare an estimate for the Available Services requested;
(b) following receipt of the information requested from the Client Hallmark shall, as soon as reasonably practicable either:
(i) inform the Client that it declines to provide the requested Available Services; or
(ii) provide the Client with an estimate;
(c) if Hallmark provides the Client with an estimate pursuant to Clause 3.1(b)(ii), the Client shall confirm with Hallmark within 10 Business Days whether or not the estimate is agreed.
(d) where the Client accepts an estimate in accordance with clause 3.1(c) Hallmark shall provide the Client with a draft Statement of Work and Hallmark and the Client shall discuss and agree that draft Statement of Work; and
(e) both parties shall sign the draft Statement of Work when it is agreed.
3.2 Unless otherwise agreed, the SoW Charges shall be calculated in accordance with the charges of Hallmark from time to time.
3.3 Once a Statement of Work has been agreed and signed in accordance with Clause 3.1(d), no amendment shall be made to it except in accordance with Clause 8 or Clause 19. The Client acknowledges that by signing a Statement of Work in accordance with clause 3.1(d) it confirms that it has checked and agreed to the terms of such Statement of Work and any specification relevant to it and accordingly, the Client shall be responsible for the accuracy of any specification it relies upon under such Statement of Work.
3.4 Each Statement of Work shall form a separate Contract on the terms of these conditions.
3.5 Regardless of the provisions of the remainder of this clause 3 a Statement of Work shall be considered to be accepted by the Client if Hallmark begins to perform any of the services under that Statement of Work (and accordingly, a Contract shall come into force between the parties).
In the event that the Employment Regulations apply to the Contract (whether during or following the completion of the Works), each party agrees to comply with its respective obligations under the Employment Regulations.
5. HALLMARK’S RESPONSIBILITIES
5.1 Hallmark shall use all reasonable endeavours to provide the Works and deliver the Deliverables to the Client, in accordance with a Statement of Work in all material respects.
5.2 Hallmark shall use all reasonable endeavours to meet any performance dates specified in a Statement of Work but any such dates shall be estimates only and time for performance by Hallmark shall not be of the essence of the Contract.
5.3 Hallmark shall appoint a manager in respect of the Works to be performed under each Statement of Work, such person as identified in the Statement of Work. That person shall have authority to contractually bind Hallmark on all matters relating to the relevant Works (including by signing Change Orders). Hallmark shall use all reasonable endeavours to ensure that the same person acts as Hallmark’s manager throughout the term of the relevant Statement of Work, but may replace that person from time to time where reasonably necessary in the interests of Hallmark’s business.
6. CLIENT’S OBLIGATIONS
6.1 The Client shall:
(a) provide to Hallmark all reasonable cooperation in all matters relating to the Works;
(b) appoint a manager in respect of the Works to be performed under each Statement of Work, such person as identified in the Statement of Work. That person shall have authority to contractually bind Hallmark on all matters relating to the relevant Works (including by signing Change Orders);
(c) provide, for Hallmark, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Client’s data and other facilities as reasonably required by Hallmark including any such access as is specified in a Statement of Work;
(d) provide to Hallmark in a timely manner all documents, information, items and materials in any form (whether owned by the Client or a third party) required under a Statement of Work or otherwise reasonably required by Hallmark in connection with the Works and ensure that they are accurate and complete in all material respects;
(e) ensure that all the Client’s Equipment is in good working order and suitable for the purposes for which it is used in relation to the Works and conforms to all relevant United Kingdom standards or requirements;
(f) obtain and maintain all necessary licences and consents and comply with all relevant legislation as required (including without limitation, the CAP Code) to enable Hallmark to provide the Works, including in relation to the use of all Client Materials and the use of the Client’s Equipment insofar as such licences, consents and legislation relate to the Client’s business, staff and equipment, in all cases before the date on which the Works are to start;
(g) comply with any additional responsibilities of the Client as set out in the relevant Statement of Work;
(h) comply with the terms of any Software Licence; and
(i) when attending Hallmark’s premises (where applicable) sign in and out of the premises, usingt Hallmark’s log book and, wear appropriate personal protective equipment (PPE). For the avoidance of doubt, Hallmark may refuse the Client access to Hallmark’s premises (or any part of them) where the provisions of this clause 6.1(i) are not complied with.
6.2 If Hallmark’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees then, without prejudice to any other right or remedy it may have, Hallmark shall be allowed an extension of time to perform its obligations equal to the delay caused by the Client.
6.3 During the term of the Contract, the Client shall obtain and maintain in force insurance with a reputable insurance company, professional indemnity insurance, product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Contract and shall, on Hallmark’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance. For the avoidance of doubt, the Client must ensure that each carrier that it instructs for all and any consignments of the Goods has and maintains adequate insurance to cover its liabilities in relation to the consignment of such Goods.
7.1 Where a Statement of Work requires Hallmark to provide warehousing and/or fulfilment services in respect of the Goods, the provisions of this clause 7 shall apply:
(a) the Client must at all times comply with Hallmark’s Goods in Guidelines (as amended from time to time);
(b) all deliveries of the Goods must be accompanied by an advanced shipping notice and a delivery note, specifying the stock-keeping unit (sku), quantity and type of Goods included within such delivery;
(c) Hallmark shall not be deemed to have accepted any Goods until it has signed the relevant delivery note in relation to such delivery and Hallmark has had reasonable time to inspect the Goods following delivery of them. For the avoidance of doubt, Hallmark shall not be responsible for, or accept liability for, any shortfall in the Goods, where such shortfall exists prior to Hallmark confirming acceptance of the Goods; and
(d) the Client warrants that it owns the Goods and has all rights, licences and consents required (including those that relate to IPRs) to provide the Goods to Hallmark for the purposes of receiving the relevant services listed under the applicable Statement of Work.
7.2 Where the Client requires Hallmark to undertake stock checking of the Goods (or any part of the Goods), the Client must provide Hallmark with at least 10 Business Days’ written notice and Hallmark shall provide the Client with details of the charges applicable for such stocktaking. The Client shall pay such charges in accordance with the terms of the invoice raised by Hallmark.
7.3 In the event that the Client fails to pay Hallmark for any charges due under the Contract:
(a) Hallmark reserves the right to withhold any Goods it has in its possession and/or control on behalf of the Client, until such time as the Client settles all and any outstanding charges due to Hallmark; and
(b) Hallmark reserves the right to dispose of some or any part of the Goods (without notice to the Client) as settlement for any debt due to it and any expenses incurred by Hallmark arising out of such disposal shall be charged to the Client and become due immediately upon demand. For the avoidance of doubt, where the disposal of Goods under this clause 7.3(b) results in Hallmark obtaining more money than that which is due to it as settlement for any debt due to it (under the Contract and/or any other contract entered in to between the parties), Hallmark shall refund such monies to the Client within 30 days of receiving the same.
7.4 Risk in the Goods and Client Equipment shall at all times remain with the Client and, unless otherwise agreed by Hallmark in writing, the Client shall be solely and fully responsible for obtaining and maintaining insurance of the Goods and Client Equipment (including for the avoidance of doubt, when the Goods and/or Client Equipment are in transit) and Hallmark shall assume that the Goods and Client Equipment have been adequately insured by the Client.
7.5 The responsibility to pay all taxes, duties (including import duties) and other charges in relation to the Goods shall be with the Client. In the event that Hallmark is obliged to pay any such charges, duties or other payments either on receipt or despatch of the Goods or otherwise the Client shall repay such sums to Hallmark on demand.
8. CHANGE CONTROL
8.1 Without prejudice to clause 9.3.1, either party may propose changes to the scope or execution of the Works but no proposed changes shall come into effect until a relevant Change Order has been agreed by both parties. A Change Order shall be a document setting out the proposed changes and the effect that those changes will have on:
(a) the Works;
(b) the SoW Charges; and
(c) any of the other terms of the relevant Statement of Work.
8.2 If Hallmark wishes to make a change to the Works it shall provide a draft Change Order to the Client.
8.3 If the Client wishes to make a change to the Works:
(a) it shall notify Hallmark and provide as much detail as Hallmark reasonably requires of the proposed changes, including the timing of the proposed change; and
(b) Hallmark shall, as soon as reasonably practicable after receiving the information at Clause 8.3(a), provide a draft Change Order to the Client.
8.4 If the parties:
(a) agree to a Change Order, they shall sign it and that Change Order shall amend the relevant Statement of Work; or
(b) are unable to agree a Change Order, either party may require the disagreement to be dealt with in accordance with the dispute resolution procedure in Clause 27.
9. CHARGES AND PAYMENT
9.1 In consideration of the provision of the Works by Hallmark, the Client shall pay the SoW Charges.
9.2 The SoW Charges exclude the following, which shall be payable by the Client monthly in arrears, following submission of an appropriate invoice:
(a) the cost of subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom Hallmark engages in connection with the Works; and
(b) the cost to Hallmark of any materials or services procured by Hallmark from third parties for the provision of the Works as such items and their cost are approved by the Client in advance from time to time.
9.3 Hallmark may increase any SoW Charges (whether in relation to an ongoing or proposed Statement of Work) as follows:
9.3.1 in relation to any changes in legislation or any other legal requirement (including, but not limited to any increase in the statutory living wage or other equivalent requirement) as and when such change becomes effective;
9.3.2 to reflect any increase in material costs on a quarterly basis; and
9.3.3 otherwise on providing 30 days’ written notice of any proposed increase.
9.4 Hallmark may amend its standard charges at any time at its discretion.
9.5 Hallmark shall invoice the Client for the SoW Charges and any charges that apply to postal floats, at the intervals specified in the Statement of Work. For the avoidance of doubt, for postal floats, Hallmark has the right to request upfront payment from the Client prior to incurring such charges on the Client’s behalf. If no intervals are so specified in the Statement of Work, Hallmark shall invoice the Client at the end of each month for Works performed during that month.
9.6 In the event that the Client cancels a Statement of Work or postpones any of the Relevant Services to be carried out under it, Hallmark shall charge the Client all and any reasonable and properly incurred expenses that Hallmark incurs, whether directly or indirectly, as a result of such cancellation or postponement. The Client shall pay Hallmark such charges in accordance with the provisions of clause 9.7.
9.7 Unless otherwise stated in the Statement of Work, the Client shall pay each invoice submitted to it by Hallmark within 30 days of the date of the invoice, to a bank account nominated in writing by Hallmark from time to time.
9.8 Without prejudice to any other right or remedy that it may have, if the Client fails to pay Hallmark any sum due under the Contract on the due date:
(a) the Client shall pay interest on the overdue amount at the rate of 4% per annum above Barclay Bank’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount; and
(b) Hallmark may suspend part or all of the Works until payment has been made in full.
9.9 All sums payable to Hallmark under the Contract:
(a) are exclusive of VAT, and the Client shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; provided always that, if Hallmark agrees, at any time, not to invoice the Client for VAT (on the basis that it is believed that there is no taxable supply) but it is subsequently determined by Hallmark on reasonable grounds that a taxable supply has taken place, then Hallmark may issue an invoice for the uncharged VAT (or a sum equivalent to the uncharged VAT) and such invoice shall be payable by the Client within thirty (30) days of receipt or within such other period as the parties may agree in writing; and
(b) shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
9.10 Without prejudice to clause 9.8 above, in the event that the Client fails to pay Hallmark any SoW Charges by the due date for payment, Hallmark shall reserve the right to:
(a) terminate the Contract in accordance with clause 15.2 below;
(b) immediately cease fulfilment of the Works and any Works that may have been agreed with the Client under a different Statement of Work, until such time as the Client settles any debt due to Hallmark;
(c) provide the Client with a debt repayment plan (on such terms as Hallmark decides in its sole discretion) to pay Hallmark all and any debt due to it and, for the avoidance of doubt, where Hallmark provides the Client with a debt repayment plan under this clause 9.10(c), all future Work carried out by Hallmark for the Client must be paid by the Client in monthly instalments, in advance (based on Hallmark’s estimate of the costs of such Works) and the Client shall lose its right to any credit period from Hallmark. Notwithstanding such estimate, Hallmark shall have the right to invoice the Client for all and any costs, charges and expenses incurred by Hallmark under a relevant Statement of Work, where such costs, charges and expenses are in excess of the estimate provided by Hallmark to the Client.
9.11 In the event that the estimate provided by Hallmark to the Client under clause 9.10(c) is in excess of the expenses, costs and/or charges actually incurred by Hallmark for the provision of such Works, Hallmark shall, provided that there is no other sum due to Hallmark under the Statement of Work that the Works relate to and/or any other Statement of Work that Hallmark has provided or is due to provide Works to the Client, refund such outstanding amount to Client as soon as reasonably practicable.
9.12 Where Hallmark provides the Client with a debt repayment plan under clause 9.10(c) above and the Client defaults on the terms of such debt repayment plan, Hallmark reserves the right to immediately terminate the Contract upon providing the Client with written notice.
10 INTELLECTUAL PROPERTY RIGHTS
10.1 In relation to the Deliverables:
(a) Hallmark and its licensors shall retain ownership of all IPRs in the Deliverables, excluding the Client Materials;
(b) Hallmark grants the Client, or shall procure the direct grant to the Client of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence to copy and modify the Deliverables (excluding the Client Materials) for the purpose of receiving and using the Works and the Deliverables in its business; and
(c) the Client shall not sub-license, assign or otherwise transfer the rights granted in Clause 10.1(b).
10.2 In relation to the Client Materials, the Client:
(a) warrants that it has all necessary licences, rights and/or consents to allow Hallmark to use all and any IPRs in the Client Materials,
(b) and its licensors shall retain ownership of all IPRs in the Client Materials; and
(c) grants to Hallmark a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Client Materials for the term of the Contract for the purpose of providing the Works to the Client.
(a) warrants that the receipt, use of the Works and the Deliverables by the Client shall not infringe the Intellectual Property Rights of any third party;
(b) shall, subject to Clause 14.4 and the Client using all commercially reasonable endeavours to mitigate it loss and expenses, keep the Client indemnified in full against all costs, expenses, damages and losses, including any interest, fines, legal and other professional fees and expenses awarded against or incurred or paid by the Client as a result of or in connection with any claim brought against the Client for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the receipt, use of the Works and the Deliverables; and
(c) shall not be in breach of the warranty at Clause 10.3(a), and the Client shall have no claim under the indemnity at Clause 10.3(b) to the extent the infringement arises from:
(i) the use of Client Materials in the development of, or the inclusion of the Client Materials in, the Works or any Deliverable;
(ii) any modification of the Works or any Deliverable, other than by or on behalf of Hallmark; and
(iii) compliance with the Client’s specifications or instructions, where infringement could not have been avoided while complying with such specifications or instructions and provided that Hallmark shall notify the Client if it knows or suspects that compliance with such specification or instruction may result in infringement.
10.4 The Client:
(a) warrants that the receipt and use in the performance of the Contract by Hallmark, its agents, subcontractors or consultants of the Client Materials shall not infringe the Intellectual Property Rights of any third party; and
(b) shall keep Hallmark indemnified in full against all costs, expenses, damages and losses, including any interest, fines, legal and other professional fees and expenses awarded against or incurred or paid by Hallmark as a result of or in connection with any claim brought against Hallmark, its agents, subcontractors or consultants for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the receipt or use in the performance of the Contract of the Client Materials and/or the Goods (or any part of them).
10.5 If either party (Indemnifying Party) is required to indemnify the other party (Indemnified Party) under this Clause 10, the Indemnified Party shall:
(a) notify the Indemnifying Party in writing of any claim against it in respect of which it wishes to rely on the indemnity at Clause 10.3(b) or Clause 10.4(b) (as applicable) (IPRs Claim);
(b) 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;
(c) 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
(d) 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.
10.6 The provision and use of any Hallmark Software shall be subject to the applicable Software Licence.
11 COMPLIANCE WITH LAWS AND POLICIES
11.1 In performing their obligations under the Contract each party shall comply with the Applicable Laws
11.2 Changes to the Works required as a result of changes to the Applicable Laws shall be agreed via the change control procedure set out in Clause 8.
11.3 In the event that:
(a) an Authority carries out an Intervention at any of Hallmark’s premises or, contacts Hallmark for any information in relation to the Client, the Client Equipment, Client Materials and/or the Goods; or
(b) the Client requires Hallmark to assist it with any product recalls,
the Client shall keep Hallmark indemnified in full against all costs, expenses, damages losses (including loss of business and goodwill), and any interest, fines, legal and other professional fees and expenses incurred or paid by Hallmark as a result of such Intervention or contact made by the Authority or, as a result of any assistance provided by Hallmark in recalling products.
12 DATA PROTECTION AND DATA PROCESSING
12.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 12 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
12.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the data controller and Hallmark is the data processor (where data controller and data processor have the meanings as defined in the Data Protection Legislation).
12.3 Without prejudice to the generality of clause 12.1, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Hallmark for the duration and purposes of this agreement.
12.4 Without prejudice to the generality of clause 12.1, Hallmark shall, in relation to any Personal Data processed in connection with the performance by Hallmark of its obligations under this agreement:
(a) process that Personal Data only on the written instructions of the Client unless Hallmark is required by the law to process Personal Data (Applicable Laws). Where Hallmark is relying on Applicable Laws as the basis for processing Personal Data, Hallmark shall promptly notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Hallmark from so notifying the Client;
(b) ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
(d) not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Client has been obtained and the following conditions are fulfilled:
(i) the Client or Hallmark has provided appropriate safeguards in relation to the transfer;
(ii) Data Subject have enforceable rights and effective legal remedies;
(iii) Hallmark complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(iv) Hallmark complies with reasonable instructions notified to it in advance by the Client with respect to the processing of the Personal Data;
(e) assist the Client, at the Client’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify the Client without undue delay on becoming aware of a Personal Data breach;
(g) at the written direction of the Client, delete or return Personal Data and copies thereof to the Client on termination of the agreement unless required by Applicable Law to store the Personal Data; and
(h) maintain complete and accurate records and information to demonstrate its compliance with this clause 12.
12.5 The Client consents to Hallmark appointing third parties to process Personal Data under this agreement. Hallmark confirms that it has entered or (as the case may be) will enter with any third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 12. As between the Client and Hallmark, Hallmark shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 12.
12.6 Hallmark may, at any time on not less than 30 days’ notice, revise this clause 12 by replacing it with any applicable controller to processor standard clauses or similar terms forming party of an applicable certification scheme (which shall apply when replaced by attachment to this Agreement).
12.7 Hallmark reserves the right to refuse to provide all or any of the Relevant Services to the Client, where Hallmark believes that all or any of the Personal Data provided to it by the Client breaches or, could potentially lead to a breach of the Data Protection Legislation.
12.8 Where Hallmark processes Personal Data as part of the Relevant Services the parties shall enter into and comply with the provisions of a Data Processing Addendum.
13 CONFIDENTIALITY AND PUBLICITY
13.1 Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, Clients, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by Clause 13.2(a).
13.2 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this Clause 13; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
13.3 No party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
13.4 Neither party shall refer to the other or the Contract in any publicity or advertising material without first obtaining the other party’s prior written consent, save that Hallmark may inform any of its potential Clients / clients of the business relationship with the Client, for the purposes of securing new business.
14 LIMITATION OF LIABILITY
14.1 Nothing in the Contract and/or these conditions shall limit or exclude either party’s liability for:
(a) death or personal injury caused by its negligence;
(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 any other liability which cannot be limited or excluded by applicable law.
14.2 Subject to Clauses 11.3, 14.1 and 14.5, neither party shall be liable to the other, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
(a) loss of sales or business;
(b) loss of agreements or contracts;
(c) loss of anticipated savings;
(d) loss of or damage to goodwill;
(e) loss of use or corruption of software, data or information; and
(f) any indirect or consequential loss.
14.3 Subject to Clause 14.1, Hallmark’s liability to the Client for loss and/or damage to tangible property shall be limited to £20,000 per claim for any one incident.
14.4 Subject to Clause 14.1 and Clause 14.3, each party’s liability to other, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract (but excluding liability under Clauses 10, 11, 12 and/or 13) shall be limited to the lesser of £1,000,000 and one hundred per cent 100% of the average annual charges (calculated by reference to the charges in successive 12-month periods from the date of the Contract) paid by the Client under such Contract
14.5 Subject to Clause 14.1 and Clause 14.2, each Client’s liability to Hallmark, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract (but excluding liability under Clauses 7.1(d), 10, 11, 12 and/or 13) shall be limited to the lesser of £1,000,000 and one hundred per cent 100% of the average annual charges (calculated by reference to the charges in successive 12-month periods from the date of the Contract) paid by the Client under such Contract, provided always that the liability to pay the SoW Charges shall not be included in any calculation of liability under this Clause 14.5.
14.6 The terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract and these conditions.
14.7 Whilst all advice, guidance and opinion offered by Hallmark (whether in writing or otherwise) is given in good faith it shall not (unless expressly stated otherwise in a Statement or Work) be contractually binding and is not guaranteed to produce, if implemented, any particular result (including, but not limited to, any increase in revenue or market share or any savings).
15.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the Contract and/or these conditions and such breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 28 days after being notified in writing to do so;
(b) the other party repeatedly breaches any of the terms of the Contract and/or these conditions in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract and/or these conditions;
(c) 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;
(d) 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 other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(e) 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 that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(f) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company);
(g) the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(h) 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;
(i) 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 14 days;
(j) 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 15.1(c) to Clause 15.1(i) (inclusive); or
(k) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
15.2 Without affecting any other right or remedy available to it, Hallmark may terminate the Contract with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment or in the event that the Client defaults on the terms of a debt repayment plan offered to it by Hallmark in accordance with clause 9.10 above.
16 CONSEQUENCES OF TERMINATION
16.1 On termination or expiry of the Contract:
(a) all existing Statements of Work shall terminate automatically;
(b) the Client shall immediately pay to Hallmark all of Hallmark’s outstanding unpaid invoices and interest and, in respect of the Works supplied but for which no invoice has been submitted, Hallmark may submit an invoice, which shall be payable immediately on receipt;
(c) Hallmark shall on request return any of the Client Materials not used up in the provision of the Works; and
(d) the following clauses shall continue in force: Clause 1 (Interpretation), 4 (TUPE), Clause 10 (Intellectual property rights), Clause 13 (Confidentiality), Clause 14 (Limitation of liability), Clause 16 (Consequences of termination), Clause 20 (Waiver), Clause 22 (Severance), Clause 27 (Governing law) and Clause 28 (Jurisdiction).
16.2 Save in circumstances where Hallmark has terminated the Contract for breach by the Client the parties shall work together in accordance with Hallmark’s standard exit plan.
16.3 Termination or expiry of the Contract shall not affect 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 damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
17 FORCE MAJEUR
17.1 Force Majeure Event means any circumstance not within a party’s reasonable control including, without limitation:
(a) acts of God, flood, inclement weather, drought, earthquake or other natural disaster;
(b) epidemic or pandemic;
(c) 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;
(d) nuclear, chemical or biological contamination or sonic boom;
(e) 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;
(f) collapse of buildings, fire, explosion or accident; and
(g) any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause, or companies in the same group as that party); and
(h) non-performance by suppliers or subcontractors (other than by companies in the same group as the party seeking to rely on this clause); and
(i) interruption or failure of utility service.
17.2 Provided it has complied with Clause 17.4, if a party is prevented, hindered or delayed in or from performing any of its obligations under the Contract by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of the Contractor 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.
17.3 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.
17.4 The Affected Party shall:
(a) 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 Contract; and
(b) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
17.5 If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than 6 weeks, the party not affected by the Force Majeure Event may terminate the Contract by giving 2 weeks’ written notice to the Affected Party.
18 ASSIGNMENT AND OTHER DEALING
18.1 The Client may not assign, transfer, mortgage, charge, sub-contract, declare a trust over or deal in any other matter with any of its rights or its obligations under the Contract and/or these conditions without the prior written consent of Hallmark (such consent not to be unreasonably withheld or delayed).
18.2 Hallmark may assign, transfer, mortgage, charge, sub-contract, declare a trust over or deal in any other matter with any of its rights or its obligations under the Contract and/or these conditions.
Subject to Clause 8, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
20.1 A waiver of any right or remedy under the Contract, these conditions or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
20.2 A failure or delay by a party to exercise any right or remedy provided under the Contract, these conditions 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 Contract, these conditions or by law shall prevent or restrict the further exercise of that or any other right or remedy.
20.3 A party that waives a right or remedy provided under the Contract, these conditions or by law in relation to one party, or takes or fails to take any action against that party, does not affect its rights in relation to any other party.
21 RIGHTS AND REMEDIES
The rights and remedies provided under the Contract and/or these conditions are in addition to, and not exclusive of, any rights or remedies provided by law.
22.1 If any provision or part-provision of these conditions is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of these conditions.
22.2 If any provision or part-provision of these conditions is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
23 ENTIRE AGREEMENT
23.1 The Contract together with these conditions 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.
23.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract and/or these conditions. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these conditions.
24 NO PARTNERSHIP OR AGENCY
24.1 Nothing in these conditions is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
24.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
25 THIRD PARTY RIGHTS
No one other than a party to the Contract, their successors and permitted assignees, shall have any right to enforce any of its terms.
26.1 Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or sent by pre-paid first-class registered post at its registered office (if a company) or its principal place of business (in any other case) or, to such address as that party may have specified to the other party in writing.
26.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and
(b) if sent by pre-paid first-class registered post, at 9.00 am on the second Business Day after posting.
26.3 This clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
27 GOVERNING LAW
The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.