Terms and Conditions of Supply
These terms and conditions (as amended under clause 23.3) (“Conditions”) govern the supply of services (including associated licensing of software) by Andrew Goddard Associates Ltd registered in England and Wales with company number 04576753 and with registered address at Samuel House, Chinnor Road, Thame, Oxfordshire OX9 3NU (“AGA”) to the person/firm who buys such services (“Customer”). These Conditions apply to the exclusion of any other terms that the Customer seeks to impose, or which are implied by trade, custom, practice or course of dealing.
*Note particularly clause 14 (Limitation of Liability)*
1. basis of contract
1.1. Each Order Form provided to the Customer constitutes an invitation to treat by AGA.
1.2. Each Order constitutes an offer by the Customer for the provision of Services. Following receipt of an Order, AGA may, at its option, submit an order acknowledgement to the Customer, which shall form a contract subject to the terms of the applicable Order Form and these Conditions (“Contract”), and the Contract shall come into existence immediately upon sending of the order acknowledgement (“Start Date”).
1.3. Should the Order (or any other correspondence from the Customer) contradict in any way the Order Form or any of these Conditions (“Contradictory Terms”), such Contradictory Terms shall not be incorporated unless and to the extent that a revised Order Form is issued by AGA incorporating any of the Contradictory Terms.
1.4. If there is an inconsistency between any of the provisions of the Contract, the provisions of the Order Form shall take precedence over these Conditions.
1.5. Each party warrants that: (i) it has full capacity to enter into and perform its obligations under the Contract; and (ii) the Contract is executed by a duly authorised representative of that party.
1.6. In consideration for the payment of the Charges, AGA will provide the Services in accordance with the Contract, from the applicable Effective Date.
2. services
2.1. The terms of this clause 2 apply with respect to any Services supplied pursuant to the Contract, whether:
2.1.1. Professional Services;
2.1.2. AGA Hub Services; or
2.1.3. Other Services (such as implementation support, or training relating to the AGA Hub Services).
2.2. During the applicable Service Term, in consideration for the payment of all applicable Charges, AGA shall provide or procure the provision of the applicable Services to the Customer.
2.3. AGA will provide the Services: (i) using reasonable skill and care; (ii) in accordance with Applicable Law; (iii) in accordance with the Specification in all material respects; and (iv) using appropriately skilled and qualified personnel.
2.4. Where AGA is present at the Customers premises, AGA shall use reasonable endeavours to observe all reasonable health and safety and security requirements that apply at such premises and that have been communicated to it in advance of the provision of the Services, provided that it shall not be liable under the Contract if:
2.4.1. as a result of such observation; or
2.4.2. observance of the same hinders or restricts AGA’s performance of its obligations under the Contract.
2.5. AGA will use its reasonable endeavours to supply all relevant Services in accordance with any performance metrics set out in the Order Form in respect of such Services (provided that the consequence of any failure shall be limited to those also detailed in the Quote).
2.6. In respect of the Services, AGA shall use reasonable endeavours to meet any performance dates specified in the Order Form/Specification, but any such dates are estimates only and time is not of the essence for the performance of the Services.
2.7. If performance of the Services is delayed at the request of the Customer, or because of any acts or omissions of the Customer, the parties may agree revised dates for performance. At its discretion, AGA may apply a reasonable increase to the Charges as a result of such delay.
2.8. AGA shall have the right to make any changes to the Services which: (i) improve the nature or quality of AGA Services; (ii) are necessary to comply with Applicable Law; (iii) result from a Sourcing Issue; or (iv) do not materially negatively affect the nature or quality of the Services, and AGA shall notify the Customer in any such event. Such notification shall include any variations to the Charges which AGA reasonably considers to be necessary in light thereof pursuant to (ii) or (iii) above.
2.9. The Customer assumes sole responsibility for results obtained from the use of the Services, and for conclusions drawn from such use.
2.10. Where there is a Default on the part of the Customer, AGA (without limiting its other rights or remedies) may suspend performance (and is relieved from its performance obligations) until the Customer remedies the same. The Customer shall be liable for any costs incurred by AGA.
2.11. AGA may at any time, and at its sole option, replace any individual identified in the Order Form or otherwise allocated to the performance of the Services with another qualified individual.
2.12. Transfer Regulations: The parties do not envisage that the Transfer Regulations will apply to the Contract. Should any person claim to transfer to AGA (or any Affiliate of AGA) or any subcontractor of the same (“Indemnified Entity”) as a result of the provision of any Services under a Contract, the Indemnified Entity shall be entitled to terminate such individual and the Customer hereby indemnifies the Indemnified Entity from and against any and all costs, losses and expenses incurred as a result of such individual claiming to transfer to the Indemnified Entity.
3. AGA Hub Services
3.1. The terms of this clause 3 apply where the Customer orders AGA Hub Services from AGA.
3.2. The Customer's access to the AGA Hub Services shall be limited to the Authorised Users who are licensed to use the applicable AGA Hub Services.
3.3. The Customer shall ensure that each Authorised User keeps a secure password for its use of the AGA Hub Services, that such password is changed no less frequently than monthly and that each Authorised User keeps its password confidential.
3.4. In the event of a failure to comply with its obligations relating to the AGA Hub Services, AGA will use all reasonable commercial endeavours to correct the same promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of this clause. The obligations in this clause shall not apply to the extent any failure is caused by a Force Majeure Event or any Customer Default.
3.5. AGA does not warrant that:
3.5.1. the Customer’s use of the AGA Hub Services will be uninterrupted or error-free; or
3.5.2. the Customer’s access to the Customer Data will be uninterrupted or error-free.
3.6. The following shall not reduce Availability: (i) availability of the portion of the circuit that does not transit the hosting provider's backbone network, as the Customer is responsible for its own internet access; (ii) Permitted Maintenance Events; (iii) Customer-caused or third party-caused outages or disruptions (except to the extent that such outages or disruptions are caused by those duly authorised third parties sub-contracted by AGA to perform the AGA Hub Services); and (iv) outages or disruptions attributable in whole or in part to Force Majeure Events.
3.7. AGA reserves the right to modify the AGA Hub Services in any manner which: (i) is necessary to comply with any Applicable Law or safety requirement; (ii) results from a Sourcing Issue; or (iii) does not materially affect the nature or quality of the same, and AGA shall notify the Customer in any such event. Any other modification required by AGA shall be implemented pursuant to the Change Procedure.
3.8. AGA shall follow the archiving procedures for Customer Data as described in the Specification. However, it is the responsibility of the Customer to ensure Customer Data is appropriately backed-up.
4. Other services
4.1. The terms of this clause 3 apply where AGA has agreed under the Contract to provide any Other Services, and in this clause 4 “Output” shall mean, as applicable, the deliverables/results of the provision of such Services, as more particularly detailed in the Order Form.
4.2. The Customer shall in a timely manner:
4.2.1. provide all the Customer Content and Customer Materials (as appropriate);
4.2.2. as necessary, prepare its premises, equipment and existing systems (or those of a relevant third-party); and
4.2.3. facilitate such access to the Customer's premises, equipment and existing systems (or those of a relevant third-party),
as may be needed by AGA in order to perform the relevant Services.
4.3. AGA shall subject the Output to such tests as are specified in the Order Form.
4.4. The Customer shall be deemed to have accepted any Output if either: (i) the acceptance testing is certified by AGA to be successful; (ii) the Customer fails to provide the data or results necessary for acceptance testing to be undertaken within the time limits specified in the Order Form (in respect of which, time shall be of the essence); or (iii) the Customer commences operational use of the Output.
5. AGA Software
5.1. The terms of this clause 5 apply where the Customer licences any Software from AGA (which includes software made available to the Customer as part of the provision of any AGA Hub Services, including any Apps).
5.2. In consideration for the payment of all applicable Charges, AGA hereby grants to the Customer a non-exclusive licence for the licence term set out on the Order Form to use the Software.
5.3. Use of the Software shall be restricted to: (i) the Licence Type restrictions set out in the Order Form for the same; (ii) the use restrictions set out in the Order Form for the same; (v) object code form; (vi) the purpose described in the Order Form; (vii) the normal business purposes of the Customer; and (viii) employees of the Customer.
5.4. During the Service Term for the applicable Subscription Service, AGA warrants that the related Software will perform so as to enable the Subscription Service to comply with the Contract. The Customer’s sole remedy for breach of the warranty under this clause 5.4 shall be the correction of the Defect by AGA within a reasonable time from notification by the Customer of the same.
5.5. Delivery of the Software shall be deemed to occur when AGA makes available login details for the Software.
5.6. AGA shall provide to the Customer, from time to time, copies of the Documentation containing sufficient up-to-date information for the proper use and maintenance of the Software. Such Documentation may be supplied in electronic form.
5.7. The Customer may make such further copies of the Documentation as are reasonably necessary for the use and maintenance of AGA Software and for training the Customer Personnel in use of the Software. The Customer shall ensure that all of AGA’s proprietary notices are reproduced in any such copy.
5.8. Any unauthorised modifications, use or improper installation of the Software by the Customer (or on behalf of the Customer, other than by AGA Personnel) shall render all AGA’s warranties and obligations under the Contract null and void. AGA shall not be obliged to rectify any particular Defect if attempts to rectify such Defect other than normal recovery or diagnostic procedures have been made by the Customer Personnel or third parties without the permission of AGA.
5.9. Notwithstanding any other provision, AGA specifically denies any implied or express term or representation that the Software will:
5.9.1. be fit to operate in conjunction with any hardware items or software products; or
5.9.2. operate uninterrupted or error-free.
5.10. The Customer shall: (i) ensure that the number of persons using the Software does not exceed the number specified in the Order Form and use reasonable endeavours to prevent any unauthorised use; (ii) notify AGA as soon as it becomes aware of any unauthorised use of the Software by any person; (iii) pay, for broadening the scope of the licences granted under this licence to cover the unauthorised use, an amount equal to the fees which AGA would have levied (in accordance with its normal commercial terms then current) had it licensed any such unauthorised use on the date when such use commenced together with interest at the rate provided for under these Conditions, from such date to the date of payment.
5.11. Use of any App shall also be subject to compliance with any applicable App Terms and Download Store Terms.
6. customer obligations
6.1. The Customer shall:
6.1.1. provide all necessary co-operation reasonably required in relation to the Contract;
6.1.2. comply with any and all obligations which are set out in the Order Form, including in the applicable Specification which are stated to be performed by the Customer and any other obligations which are apparent or would be ordinarily expected to be complied with by the Customer in the ordinary course of receipt of similar services (from a competent provider, acting reasonably and in good faith);
6.1.3. promptly provide such assistance from the Customer Personnel or any decision, guidance, information or instruction as may be reasonably requested by AGA from time to time;
6.1.4. ensure that the terms of the Contract (including any specification) are complete and accurate;
6.1.5. not to do or permit anything to be done that will or may damage the business, reputation, image and/or goodwill of AGA;
6.1.6. comply with the Acceptable Use Policies (if any);
6.1.7. only use the Services for lawful purposes and shall not use the Services: (i) in any way that breaches any Applicable Law; (ii) in any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect; (iii) for the purpose of harming or attempting to harm minors in any way; (iv) to send, knowingly receive, upload, download, store, use or re-use any material which does not comply with the content standards set out in clause 6.2; (v) to transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam); (vi) to knowingly store, distribute, transmit, send or upload any data or material that contains a Virus; and (vii) to (or attempt to) probe, scan, penetrate or test the vulnerability of any of AGA’s systems or networks or to breach any of AGA’s security or authentication measures, whether by passive or intrusive techniques, without AGA’ prior written consent;
6.1.8. except as expressly licensed, not (and not permit any third party to) copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software or AGA Hub Services, in whole or in part, or access all or any part of the Software or AGA Hub Services in order to build any software, product or service which competes with the same.
6.1.9. ensure that there are in place all necessary consents, licences and permissions required to permit AGA to access and use all the Customer Content, Customer Materials and Customer Personal Data and any other items as may be appropriate in connection with each and every Contract; and
6.1.10. be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to AGA’s data centres (or, where appropriate, the third-party portal through which AGA provides Services to the Customer).
6.2. The content standards are as follows:
6.2.1. content must: (i) be accurate (where it states facts); (ii) be genuinely held (where states opinions); and (iii) comply with Applicable Law; and
6.2.2. content must not: (i) contain any material which is defamatory of any person, obscene, offensive, hateful, harmful, threatening, harassing or otherwise inflammatory; (ii) promote sexually explicit material; (iii) promote violence; (iv) promote discrimination based on race, sex, religion, nationality, disability, sexual orientation or age; (v) be used to impersonate any person, or to misrepresent identity of any person or their affiliation with any other person; (vi) infringe the copyright, database right or trade mark of any other person; (vii) give the impression that it emanates from AGA, if this is not the case; or (viii) advocate, promote or assist any unlawful act.
7. Feedback
7.1. The Customer may, in its discretion, provide Feedback to AGA in relation the any Services or Software, but AGA shall not be obliged to take any action in response to the Feedback.
7.2. Feedback, even if marked confidential, will not create any confidentiality obligations on AGA unless AGA has otherwise agreed in writing, signed by an authorised signatory of AGA.
7.3. Without prejudice to its other rights and remedies (including under this Agreement), AGA will be free to use, disclose, reproduce, distribute, implement in its products and/or services and otherwise commercialise all Feedback provided by the Customer without obligation or restriction of any kind, and the Customer hereby waives all rights to be compensated or seek compensation for the Feedback and will ensure that any relevant moral rights are waived.
8. charges
8.1. The price for Services is the price set out in the Order Form. Where no price is quoted, it shall be:
8.1.1. the price set out in AGA’s published price list as at the Start Date for performance of the relevant Services; or
8.1.2. where applicable in respect of Services, on a time and materials basis in accordance with the Standard Rates.
8.2. Except where expressly agreed in writing to the contrary, the Charges shall not include travel or accommodation expenses, which shall become payable upon production of mileage claims/appropriate receipts.
8.3. Where the Order Form specifies one or more Minimum Amounts with respect to the Services or Software (or any part of them) such Minimum Amount(s) must be complied with by the Customer. If the Customer does not purchase the Minimum Amount specified during the period to which it applies, AGA shall be entitled to invoice the Customer for the full Minimum Amount on expiry of that period.
8.4. Pricing changes:
8.4.1. On no less than 2 months’ written notice to the Customer prior to a Term Extension, AGA may, (in addition to any other pricing change permitted pursuant to these Conditions) adjust the Charges by a percentage equal to the percentage increase in the CPI since the prices were last set/revised, as appropriate.
8.4.2. AGA reserves the right to increase any of its Standard Rates from time to time upon giving the Customer 30 days written notice before applying the increase. Should the Customer object to such increase, the Customer may terminate the Contract or the affected part of the Contract within such 30 day notice period on written notice to AGA.
8.5. If it is reasonably apparent that any of the pricing in the Order Form is incorrect (“Obvious Pricing Error”), the Customer must notify AGA of the same. When AGA becomes aware of an Obvious Pricing Error, it shall promptly notify the Customer of the error together with the correct price (“Correct Price”). Following notification of the Correct Price, such price shall apply in place of the Obvious Pricing Error. If the Customer objects to the Correct Price, it may terminate the Contract on written notice to AGA.
8.6. Where a failure of the Customer to comply with its obligations in the Contract (including those set out in these terms and conditions as well as the Order Form) results in additional costs for AGA and/or wasted time, AGA may charge the Customer for the same on a time and materials basis. In order to calculate the same, AGA’s Standard Rates shall apply unless other rates are specified in the Order Form.
8.7. Unless otherwise specified to the contrary in the Order Form, AGA will invoice the Customer as described in the table below:
Professional Services (excl Contractor Plans)
Monthly in arrears
Professional Services (Contractor Plans)
In advance
AGA Hub Services
Annually in advance
Other Services
Monthly in arrears
8.8. If Services are not performed as a result of the acts or omissions of the Customer, AGA may invoice the same on the date upon which performance was attempted.
8.9. The Customer shall pay each invoice which is properly due and submitted to it by AGA within 30 days of invoice date to a bank account nominated in writing by AGA. Time for payment is of the essence. If AGA has not received a payment which is validly due within such period, and without prejudice to any other rights and remedies it may have (but subject to any Applicable Law in force at the time which restrict or exclude the same), AGA may charge interest on a daily basis on such due amounts at an annual rate equal to 8% over the base rate of the Bank of England from time to time, commencing on the Due Date and continuing until fully paid, whether before or after judgment. Such interest shall accrue on a daily basis and be compounded quarterly.
8.10. In respect of any Other Services ordered by the Customer, a minimum cancellation period of 14 days is required, otherwise the agreed consulting fee will be charged in full.
8.11. All Charges stated or referred to in the Contract are exclusive of:
8.11.1. value added tax or other sales taxes, which shall be added to AGA’s invoice(s) at the appropriate rate; and
8.11.2. any import or export duties or similar taxes, which shall be paid by the Customer (unless the same is expressly stated to be included within the price in the Order Form).
8.12. AGA may, without limiting its other rights or remedies, set off any amount owing to it by the Customer or any Affiliate against any amount payable by AGA to the Customer.
9. intellectual property AND MATERIALS
9.1. AGA warrants that it has, and will continue to have, all necessary rights in and to any and all Intellectual Property Rights that it purports to grant to the Customer pursuant to the Contract. The Customer warrants to AGA that AGA’s possession and use in accordance with these Conditions of any materials (including third-party materials supplied by the Customer to AGA) shall not cause AGA to infringe the rights, including any Intellectual Property Rights, of any third party.
9.2. The Customer acknowledges and agrees that AGA and/or its licensors own all Intellectual Property Rights in AGA Services and the Software.
9.3. Nothing in these Conditions shall be construed so as to prevent AGA from using in the furtherance of its own business general know-how or expertise gained in its performance of the Contract, provided that any such use does not constitute or result in a disclosure of any Confidential Information in breach of clause 10 (Confidentiality) or infringement of any Intellectual Property Rights.
9.4. Except as expressly stated herein, these Conditions do not grant the Customer any Intellectual Property Rights or any other rights or licences to, in or in respect of the Services or Software.
9.5. Any materials provided in respect of the Services are licensed to the Customer solely for the purposes of the receipt of such Services, unless and to the extent that wider use is stated on the Order Form.
9.6. AGA acknowledges and agrees that the Customer and/or its licensors own all Intellectual Property Rights in the Customer Content. Except as expressly stated herein or as is necessary to perform AGA’s obligations under the Contract, these Conditions do not grant AGA any Intellectual Property Rights or any other rights or licences to or in respect of any Customer Content.
10. confidentiality
10.1. Each party undertakes that it shall during the Contract (and thereafter), keep confidential and not disclose to any person any Confidential Information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the other party’s Group, except as permitted by clause 10.2 below.
10.2. Each party may disclose the other party's Confidential Information:
10.2.1. to its Affiliates, 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 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 10; and
10.2.2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority, provided that, to the extent where it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 10.2.2, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
10.3. No party shall use any 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.
10.4. Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any unconnected third party.
10.5. AGA may publicise its involvement with the Customer for its own marketing purposes, and any such publication shall not constitute an unlawful disclosure of Confidential Information for the purposes of this clause 10.
11. Audit
11.1. AGA, or its representative, may physically (or remotely as applicable) monitor and audit the Customer's use of the AGA Hub Services, Outputs and Software to ensure the Customer is complying with the terms of the Contract, provided any physical audit shall take place on reasonable advance notice and at reasonable times.
11.2. The Customer shall keep complete and accurate records to demonstrate its compliance with the Contract, and the fulfilment of its obligations under it and shall make such records available for inspection by AGA, or AGA's representative, as part of the audit referred to in clause 11.1.
12. data protection ARRANGEMENTS
12.1. The parties acknowledge that the factual arrangement between them dictates the classification of each party in respect of the Data Protection Legislation. However, the parties anticipate that the Customer shall act as a controller and AGA shall act as a processor and in any such case:
12.1.1. AGA shall be a controller where it is collecting and using personal data in relation to the management of its Customer accounts; and
12.1.2. AGA shall be a processor where it is processing personal data in relation to the Data Processing Particulars in connection with performing its obligations under the Contract.
12.2. AGA shall comply with, and shall procure that any Affiliates comply with, the provisions of the Data Protection Legislation in relation to all Customer Personal Data that is processed by it in connection with the Contract.
12.3. AGA shall be permitted to appoint sub-contractors, and to disclose personal data to them for processing in accordance with the Contract, provided always that the sub-contractor's right to process the personal data terminates automatically on expiry or termination (for whatever reason) of the Contract for which the sub-contractor was engaged.
13. data processing obligations
13.1. To the extent that AGA is acting as a Processor for and on behalf of the Customer, it shall:
13.1.1. only process the Customer Personal Data on the Customer’s documented instructions except insofar as required to do so by Data Protection Legislation
13.1.2. inform the Customer on becoming aware of:
13.1.2.1. any legal requirement that requires AGA to process Customer Personal Data otherwise than on the Customer’s documented instructions, unless Applicable Laws prohibit such information on important grounds of public interest; or
13.1.2.2. any instruction from the Customer in relation to the processing of personal data which, in AGA’s reasonable opinion, infringes Data Protection Legislation;
13.1.3. taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk to the rights and freedoms of natural persons, and in particular the risks from accidental or unlawful destruction, loss, alteration, unauthorised disclosure or, or access to personal data, implement and maintain appropriate technical and organisational measures to ensure a level of security appropriate to the risk;
13.1.4. ensure that its employees, and any other persons with access to Customer Personal Data are made aware of their data protection and security obligations and are subject to binding obligations of confidentiality;
13.1.5. not engage another person to process any Customer Personal Data (a “sub-processor”) without the Customer’s prior specific or general written authorisation, and in the case of a general written authorisation, inform the Customer of any intended changes concerning the addition or replacement of any sub-processor and allow the Customer reasonable opportunity to object to such change;
13.1.6. ensure that any sub-processor is engaged on terms equivalent to those which AGA itself is subject under this clause 13 (and any other confidentiality or similar obligations contained in the Contract), and provides sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of Data Protection Legislation;
13.1.7. where a sub-processor fails to fulfil its data protection or confidentiality obligations, remain fully liable to the Customer for the performance of (or failure to perform) those obligations;
13.1.8. if a data subject makes a request relating to the exercise of his or her legal rights in relation to personal data, at the Customer’s reasonable cost, provide the Customer with any information and assistance reasonably required by the Customer in order to respond to the request;
13.1.9. if it becomes aware of a personal data breach relation to any Customer Personal Data, notify the Customer immediately upon becoming aware of the breach and thereafter provide details of the nature of the personal data breach, and provide the Customer with such information and assistance as it requires in relation to the personal data breach;
13.1.10. taking into account the nature of the processing and the information available to AGA, at the Customer’s cost, provide the Customer with such information and assistance as the Customer reasonably requires in order to carry out any privacy impact assessments, consult with a supervisory authority prior to processing, or meet any obligations under Data Protection legislation which derive from such activities;
13.1.11. upon the termination of the Contract for any reason, after completing any processing of personal data on the Customer’s behalf, or on the Customer’s written request, delete or return all such personal data (and any copies of the same) unless AGA is required to store such copies to comply with a requirement imposed by Applicable Laws, and where AGA is required to delete personal data, to the extent that it is not practical to do so immediately, AGA will do so as soon as possible, and in the meantime shall ensure appropriate safeguards are put in place and the data is not retained for a longer period than is appropriate;
13.1.12. not transfer any of the Customer’s personal data to a third country or international organisation without having the Customer’s prior written consent to that transfer and either (i) the UK Government having decided that country or organisation ensures adequate protection under article 45; (ii) having other appropriate safeguards in place as set out in article 46; (iii) one or more of the derogations in article 49 applies; or the transfer is made in compliance with standard contractual clauses; and
13.1.13. subject to the Customer providing appropriate confidentiality undertakings, make available to the Customer all assistance and information necessary to demonstrate compliance with article 28, save that this shall not require AGA to disclose or permit access to any of its (or any third party’s) confidential or commercially sensitive information,
and the Customer shall ensure that it has all necessary appropriate consents and notices in place to enable the lawful transfer of the Customer Personal Data to AGA and/or lawful collection of the Customer Personal Data by AGA on behalf of the Customer for the duration and purposes of the Contract.
13.2. Where the Customer makes any such request under clause 13.1.1 to delete or return personal data prior to the termination of the Contract, and it serves to hinder or prevent AGA’s obligations thereunder, the Contract shall continue despite such reduced performance, and the Charges which have been paid or which will become payable shall not be affected thereby.
14. Warranties, Indemnities and Limitation of Liability
14.1. AGA warrants that it has the necessary rights to enter into and perform its obligations under the Contract.
14.2. All representations, warranties or terms (whether written or oral, express or implied by statute, common law or otherwise) apart from those expressly set out in these Conditions are hereby excluded. In particular, but without prejudice to the generality of the foregoing, AGA makes no representation or gives any warranty (whether express or implied, statutory and/or otherwise), and will have no liability, regarding the fitness of the Services or Software for any purpose, whether or not such purpose is disclosed to AGA.
14.3. The Customer hereby indemnifies AGA from and against any and all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by AGA in connection with:
14.3.1. AGA’s storage/handling of any Customer Personal Data in accordance with the terms of the Contract and the Customer’s use of the same;
14.3.2. any failure of the Customer to obtain appropriate licences and/or consents in accordance with its obligations under these Conditions or any subsequent revocation or non-renewal of any such licence and/or permit;
14.3.3. any failure of the Customer to ensure its compliance with Applicable Law in accordance with its obligations under these Conditions;
14.3.4. any use of the Services or the Software by the Customer other than as envisaged under the Contract; and
14.3.5. failure of an Authorised User to comply with the Download Store Terms or the App Terms.
14.4. AGA shall defend the Customer, its officers, directors and employees against any claim that the Software or AGA Services infringe any United Kingdom patent effective as of the Start Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts finally awarded against the Customer in judgment or settlement of such claims, provided that:
14.4.1. AGA is given prompt notice of any such claim;
14.4.2. the claim does not result from the Customer’s failure to install an update or New Version of any AGA Software as soon as is practicable following its release by AGA;
14.4.3. the Customer provides reasonable co-operation to AGA in the defence and settlement of such claim (at AGA’s expense, provided such expenses are reasonable and can be evidenced to AGA’s satisfaction); and
14.4.4. AGA is given sole authority to defend or settle the claim.
14.5. In the defence or settlement of any claim, AGA may procure the right for the Customer to continue using AGA Software or AGA Services, replace or modify the Software or AGA Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Contract on 2 Business Days' notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer. In no event shall AGA, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on: (a) a modification of the Software or AGA Services by anyone other than AGA; (b) the Customer's use of the Software or AGA Services in a manner contrary to the instructions given to the Customer by AGA; or (c) the Customer's use of the Software or AGA Services after notice of the alleged or actual infringement from AGA or any appropriate authority. The foregoing states the Customer's sole and exclusive rights and remedies, and AGA’s (including its employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
14.6. The following provisions set out the entire financial liability of either party (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the other in respect of:
14.6.1. any breach of these Conditions howsoever arising; and
14.6.2. any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) or breach of statutory duty arising under or in connection with the Contract.
14.7. Nothing in these Conditions shall limit or exclude AGA’s or the Customer’s liability for:
14.7.1. death or personal injury caused by its negligence, or the negligence of its employees, agents or sub-contractors;
14.7.2. fraud or fraudulent misrepresentation; and
14.7.3. any other liability which cannot be limited or excluded by Applicable Law.
14.8. In the event of a Default by AGA, AGA’s liability in respect of loss or damage to tangible property of the Customer shall not exceed £100,000.
14.9. Subject to clauses 14.6 and 14.7, AGA’s liability in respect of loss or damage under the Contract in any 12 month period shall not exceed a sum equal to the total Charges paid and payable to AGA by the Customer under the Contract during the period of 12 months immediately prior to the event giving rise to the claim.
14.10. Subject to clause 14.6, in no event will AGA be liable to the Customer (whether in contract, tort, negligence or otherwise):
14.10.1. for any loss of revenue, use, anticipated savings, data, goodwill or opportunity or damage to reputation;
14.10.2. for any indirect, special or consequential loss or damage;
14.10.3. to the extent that any delay in performing or failure to perform AGA’s obligations is due to a failure by the Customer to perform its own obligations under the Contract or if delay results from a failure by the Customer to comply with reasonable requests by AGA for instructions, information or action required by it to perform its obligations within a reasonable time; or
14.10.4. for the consequences of any other acts or omissions of the Customer or the Customer Personnel.
14.11. In no event shall AGA be liable for any loss, destruction, alteration or disclosure of Customer Content caused by any third party (except those third parties sub-contracted by AGA to perform services related to maintenance and back-up).]
15. Term and Termination
15.1. The Contract shall commence on the Start Date and continue for the Initial Term stated in the relevant Order Form (or until performance of Services has been completed) and each Term Extension (the “Term”) unless terminated in accordance with its terms.
15.2. Without prejudicing 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:
15.2.1. the other party fails to pay any amount due under the Contract on the Due Date for payment and remains in default not less than 10 Business Days after being notified in writing to make such payment;
15.2.2. the other party commits a material breach of any other term of the Contract which breach is irremediable or (if remediable) fails to remedy it within a period of 10 Business Days after being notified in writing to do so; or
15.2.3. the other party repeatedly breaches any of the terms of the Contract 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 under the Contract; or
15.2.4. the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
15.3. Without prejudicing any other right or remedy available to it, AGA may terminate the Contract should an Insolvency Event occur.
15.4. Without prejudicing any other right or remedy available to it, AGA may terminate the Contract with immediate effect by giving written notice to the Customer if there is a change of control of the Customer (within the meaning of section 1124 of the Corporation Tax Act 2010).
15.5. Without prejudicing any right to terminate which AGA may have, AGA will be entitled to suspend any Services without notice if:
15.5.1. there is a Default on the part of the Customer; or
15.5.2. any of the events set out in clauses 15.2, 15.3 or 15.5 occur in relation to the Customer.
15.6. AGA may rely on the suspension to relieve it from the performance of any of its obligations in each case to the extent the suspension prevents or delays the performance by AGA of any of its obligations and AGA shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from any failure or delay by AGA to perform any of its obligations as set out in this clause.
15.7. Where AGA acquires the right to terminate or suspend Services under the Contract pursuant to this clause 15, such right shall extend to any other contracts concluded between the parties incorporating these Conditions, whether prior or subsequent to the Contract.
16. Consequences of Termination
16.1. On termination for any reason:
16.1.1. all rights granted to the Customer under the Contract shall cease;
16.1.2. for the avoidance of doubt, all rights granted to the Customer under any End User Agreement shall continue in accordance with the terms of that agreement;
16.1.3. the Customer shall immediately pay any sums due to AGA (including sums on a time and materials basis for any work in progress) without set off or deduction;
16.1.4. subject to AGA’s obligations with respect to any other Contract which remains in force, each party shall return and make no further use of any equipment, property, documentation and other items (and all copies of them) belonging to the other; and
16.1.5. provided all sums due to AGA’s Group from the Customer’s Group have been paid, AGA shall make available to the Customer a copy of all Customer Content in a commonly-readable electronic format for a period of no more than 30 days following termination. After such period, AGA may permanently delete all Customer Content residing on its systems.
17. INSPECTION
17.1. The Customer shall permit AGA to inspect and have access to any premises (and to the computer equipment located there) at or on which the Software is being kept or used, and have access to any records kept in connection with the licence of the Software under clause 5, for the purposes of ensuring that the Customer is complying with the terms of this licence, provided that AGA provides reasonable advance notice to the Customer of such inspections, which shall take place at reasonable times. This right shall continue beyond termination/expiry to enable AGA to verify that use of the Software has ceased.
18. assignment
18.1. The Customer may not assign, sub-contract, sub-license, charge or otherwise deal in any other manner with all or any of its rights or obligations under the Contract, nor provide any of the Services directly or indirectly to third parties, without the consent of AGA, such consent not to be unreasonably withheld or delayed. The Customer shall not allow any of its rights under the Contract to become the subject of any charge, lien or encumbrance.
18.2. AGA may freely assign, sub-contract, charge or otherwise deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Customer.
18.3. The Customer agrees that it shall co-operate and undertake all matters at AGA’s cost and expense that are necessary to novate or assign any Contract or any parts thereof to any third party when requested to do so by the Customer.
19. force majeure
19.1. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure results from events, circumstances or causes beyond its reasonable control, including strikes; lock-outs or other industrial disputes (except with respect to that party's own employees); acts of God; war; riot; civil commotion; pandemic or epidemic; compliance with any law or governmental order, rule, regulation or direction; accident; fire, flood, or storm; in each case whether or not foreseeable (“Force Majeure Event”).
19.2. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for 2 months, the party not affected may terminate the Contract by giving 10 Business Days' written notice to the other party.
20. notices
20.1. Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
20.1.1. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
20.1.2. sent by email to AGA at: info@aga-ltd.co.uk and the Customer at the email address set out in the Order Form (as may be updated from time to time on written notice to the other)
20.2. Any notice shall be deemed to have been received:
20.2.1. if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
20.2.2. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and
20.2.3. if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 20.2.3, business hours means 9.00 am to 5.00 pm Monday to Friday on a day that is not a public holiday in the place of receipt.
20.3. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
21. dispute resolution
21.1. If a dispute arises out of or in connection with these Conditions or the performance, validity or enforceability of the Contract (a “Dispute”) then the parties shall follow the procedure set out in this clause 21:
21.1.1. either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (a “Dispute Notice”), together with relevant supporting documents. On service of the Dispute Notice, the parties shall attempt in good faith to resolve the Dispute; and
21.1.2. if the parties are for any reason unable to resolve the Dispute within 20 Business Days from service of the Dispute Notice, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator shall be nominated by CEDR Solve. To initiate the mediation, a party must serve notice in writing (an “ADR Notice”) to the other party to the Dispute, requesting mediation. A copy of the ADR Notice should be sent to CEDR Solve. The mediation will start not later than 10 Business Days after the date of the ADR Notice.
21.2. If the Dispute is not resolved within 1 month of the mediator’s appointment, then either party may commence court proceedings, but provided that nothing in this clause 21.2 shall prevent either party from either continuing with any means of alternative dispute resolution as may be agreed in writing from time to time, or seeking an injunction or other interim relief at any time if it reasonably believes such action is necessary to prevent irreparable damage.
22. change procedure
22.1. Where a party identifies a need to change the Contract, they may at any time request such a change.
22.2. The party proposing the change shall notify the other party in writing specifying in as much detail as is reasonably practicable the nature of the requested change.
22.3. Where the Customer has requested the change, AGA shall, as soon as reasonably practicable, provide a written estimate to the Customer of:
22.3.1. the likely time required to implement the change;
22.3.2. any necessary variations to the Charges arising from the change;
22.3.3. any necessary variations to the resources of either party arising from the change; and
22.3.4. any other impact of the change on the hardware/services provided under the Contract.
23. General
23.1. Entire agreement
23.1.1. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
23.1.2. Neither party shall have any remedy in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Conditions. Neither party shall have any claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
23.2. Third party rights
23.2.1. A natural or legal person who is not a party to the Contract shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms. This clause does not alter any right or remedy of any person which exists or is available otherwise than pursuant to that Act.
23.3. Variations
23.3.1. Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by AGA. AGA may vary these Conditions from time to time on giving the Customer at least 60 days’ notice in writing.
23.4. Waiver
23.4.1. A waiver of any right is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or Default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. 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. Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
23.5. Severance
23.5.1. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract.
23.5.2. If any provision or part-provision of the Contract is deemed deleted under clause 23.5.1 above, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
23.6. No partnership or agency
23.6.1. Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between the parties, nor constitute any party the agent of the other party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
23.7. Governing law and jurisdiction
23.7.1. 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.
23.7.2. Each party irrevocably agrees that the courts of England and Wales shall have non-exclusive jurisdiction to settle any such dispute or claim.
Schedule 1 – Definitions and Interpretation
In these Conditions: (i) person includes a natural person, corporate or unincorporated body; (ii) a reference to Supplier or Customer includes its personal representatives, successors and permitted assigns; (iii) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted and includes any subordinate legislation; (iv) any phrase introduced by the terms including or include shall be illustrative and shall not limit the sense of the preceding words; (v) a reference to writing or written includes emails but excludes faxes; (vi) the terms ‘personal data’, ‘data subject’, ‘processor’, ‘controller’, ‘processing’, ‘personal data breach’, ‘pseudonymisation’, ‘special categories of data’ and ‘supervisory authority’ have the meanings set out in Data Protection Law; and (vii) the following definitions apply:
“Acceptable Use Policy”
the acceptable use policy (if any) applicable to the relevant Services/AGA Software, set out at [insert hyperlink], as may be amended or updated by AGA from time to time on written notice to the Customer.
“Affiliates”
each agent, employee, contractor or sub-contractor of a party or the party's Group.
“AGA Hub Services”
the making available by AGA to the Customer of access to the remotely hosted AGA Site Safety Hub via hosting services as set out in the Order Form.
“Applicable Law”
the laws of England and Wales, together with any other mandatory laws, regulations, regulatory policies, guidelines or industry codes which apply to the performance of each party’s obligations under the Contract.
“App”
the element of a Subscription Solution available for download to a mobile device through a Download Store.
“App Terms”
the specific user terms made available to the user at the time of download of the App, as updated from time to time and notified to the user via the Download Store/App.
“Authorised Users”
those employees and independent contractors of the Customer who are entitled to use the AGA Hub Services under the Contract.
“Availability”
the availability of an access point on the Customer’s hosting provider's backbone network, subject to clauses 3.7 and 3.8.
“Business Day”
a day other than a Saturday, Sunday or public holiday in England when banks in London would usually be open for business.
“Change Procedure”
the procedure detailed in clause 22.
“Change Request”
a request to change the terms of the Contract, as made in accordance with the Change Procedure.
“Charges”
the charges payable by the Customer to AGA, as set out in the Order Form.
“Confidential Information”
information of commercial value, in whatever form or medium, disclosed by a party to the other party, including commercial or technical know-how, technology, information pertaining to business operations and strategies, information pertaining to clients, pricing and marketing information relating to the business of either party, information which is marked as confidential, or information which ought reasonably to be considered confidential in light of the nature of the information and/or circumstances of its disclosure, including Customer Data, but excluding information that:
(i) is or becomes publicly known other than through any act or omission of the receiving party;
(ii) was in the other party’s lawful possession before the disclosure;
(iii) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(iv) is independently developed by the receiving party, as shown by written evidence.
“Contract”
the contract (as defined in clause 1.2) between the Customer and AGA relating to the provision of Services, governed by these Conditions.
“Customer Content”
any data, documents, text, drawings, diagrams, images or sounds (together with any database made up of any of these), embodied in any medium, that are provided to AGA by or on behalf of the Customer, in order to perform its obligations pursuant to the Contract.
“Customer Data”
the data inputted into the information fields of the AGA Hub Services by the Customer, by Authorised Users, or by AGA on the Customer’s behalf.
“Customer Materials”
any and all materials, other equipment (including cabling, network interfaces, power and power adapters) and software necessary for AGA to perform its obligations pursuant to the Contract, save to the extent the same is expressed to be supplied by AGA pursuant to the Contract.
“Customer Personal Data”
any personal data disclosed by the Customer to AGA or collected by AGA on the Customer’s instructions in connection with the Contract.
“Customer Personnel”
employees, directors and agents of the Customer, together with employees, directors and agents of any contractor undertaking activities on behalf of the Customer who are not Supplier Personnel.
“Delivery Location”
the relevant location identified in the Order Form (where applicable).
“Data Processing Particulars”
the data processing particulars set out in the applicable Order Form.
“Data Protection Legislation”
any law, statute, regulation, rule or other binding restriction regarding the protection of individuals with regards to the Processing of their Personal Data to which a party is subject, including the DPA and the GDPR (to the extent it remains applicable) and any code of practice or guidance published by the Information Commissioner’s Office from time to time.
“Default”
any act or omission of a party, or failure by a party to perform a relevant obligation under the Contract.
“Defect”
an error in the applicable software that causes the Subscription Service to fail to operate materially in accordance with its Specification/Documentation.
“Documentation”
any operating manuals, user instruction manuals/guides, technical literature and all other related materials in human-readable or machine-readable forms supplied by AGA as specified in the Order Form.
“Download Store”
in respect of Apps made available for iOS based devices, the App Store (made available by Apple) and in respect of Android based devices, the Google Play Store (made available by Google).
“Download Store Terms”
the standard terms and conditions of the applicable Download Store relating to the installation and use of apps made available for use on the relevant platform.
“DPA”
the Data Protection Act 2018.
“Due Date”
in respect of a payment under the Contract, the date on which such payment is due pursuant to these Conditions.
“Effective Date”
in respect of the provision of a particular Service, the effective date for the same specified in the Order Form, or if none is specified, the effective date for the Contract, or if none is specified, the Start Date of the Contract.
“Feedback”
all current and future suggestions, comments or other feedback regarding the Services, Software and/or Output provided by or on behalf of the Customer.
“Force Majeure Event”
as defined in clause 19.1.
“Group”
each and every entity that directly or indirectly controls, is controlled by, or is under common control with a party, for so long as such control exists. In the case of companies and corporations, control means beneficial ownership of more than 50% of the voting stock, shares, interest or equity in an entity; in the case of any other legal entity, “control” and “controlled” shall exist through the ability to directly or indirectly control the management and/or business of the legal entity.
“GDPR”
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the Processing of Personal Data and repealing Directive 95/46/EC (General Data Protection Regulation) OJ L 119/1, 4.5.2016, together with any implementation of the above into UK law. Any reference to “articles” are references to the GDPR.
“Initial Term”
the initial term described as such in the Order Form.
“Insolvency Event”
(a) the Customer 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 is deemed unable to pay its debts under section 123 of the Insolvency Act 1986 or is deemed either unable to pay its debts or as having no reasonable prospect of so doing within the meaning of section 268 of the Insolvency Act 1986 or (if a partnership) has any partner to whom any of the above applies; (b) the Customer starts negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for/enters into any arrangement with its creditors; (c) a petition is filed, a notice is given, a resolution is passed, or an order is made, for/in connection with the winding up of the Customer; (d) the Customer is the subject of a bankruptcy petition or order; (e) a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other process is levied or enforced on or sued against, the whole or part of its assets which is not discharged within 14 days; (f) an application is made to court, or an order is made to appoint an administrator, or notice of intention to appoint an administrator is given or an administrator is appointed over the Customer; (g) a floating charge holder over the assets of the Customer becomes entitled to appoint or has appointed an administrative receiver; (h) a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer; (i) any event analogous to those mentioned in (a)-(h) above in another jurisdiction.
“Intellectual Property Rights”
patents, utility models, rights to inventions, copyright and related 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, rights in designs, 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.
“Location”
the location for performance of the applicable Services set out in the Order Form (if any), or any other location agreed between the parties in writing from time to time.
“Maintenance Event”
maintenance of the AGA Hub Services that may require interruption of the AGA Hub Services.
“Minimum Amounts”
minimum spend, volumes and/or quantities detailed in the Order Form either: (i) across all Services and licensing of Software provided by AGA; or (ii) with respect to the specific Hardware, Services or licensing of Software to which a minimum spend applies, as stated in the Order Form.
“Normal Business Hours”
9.00am to 5.30pm UK time, each Business Day.
“Order”
the Customer’s agreement to the terms of an Order Form, which may include signing and returning an Order Form or a communication from the Customer to AGA agreeing to the terms of the Order Form (within the period during which the terms of the Order Form remain valid).
“Order Form”
AGA’s written quotation relating to the supply of Services, which may be described as an “order form”, “fee proposal” or “form of appointment”.
“Other Services”
Services to be provided by AGA pursuant to a Contract, other than AGA Hub Services or Professional Services, which relate to the AGA Hub Services such as:
- implementation support; and/or
- training,
as more particularly detailed in the applicable Order Form.
“Professional Services”
professional services provided by AGA pursuant to a Contract, such as:
- CDM advisory services;
- construction phase plans;
- health and safety inspections;
- face fit testing;
- e-learning courses,
(excluding for the avoidance of doubt the AGA Hub Services and Other Services) as more particularly detailed in the Order Form.
“Security Requirements”
the requirements regarding the security of the Personal Data, as set out in the Data Protection Legislation (including, in particular, the seventh data protection principle of the DPA and/or the measures set out in Article 32(1) of the GDPR (taking due account of the matters described in Article 32(2) of the GDPR) as applicable.
“Services”
together:
- Professional Services;
- AGA Hub Services; and
- Other Services.
“Service Term”
the term for the provision of the applicable Services (or where different elements of the Services are to be provided for differing terms, the term for that element), as set out in the Order Form.
“Software”
any software referred to in the Order Form and all subsequent amendments and updates to, or new versions of, such software as may be licenced to the Customer under the Contract.
“Sourcing Issue”
an inability on the part of AGA to source particular materials or resources (including Supplier Personnel) on terms similar or identical to those available at the Effective Date (including due to exchange rate fluctuations, increases in taxes or duties) or a change in Applicable Law.
“Specification”
the specification for the applicable Services as set out (or referred to) in the Order Form (including in any applicable statement of work).
“Standard Rates”
AGA’s standard rates for AGA Services as made available by AGA from time to time.
“Start Date”
as defined in clause 1.2.
“Subject Access Request”
an actual or purported subject access request or notice or complaint from (or on behalf of) a Data Subject exercising his rights under the Data Protection Legislation.
“Supplier Personnel”
AGA’s employees, directors and agents, together with employees, directors and agents of any contractor undertaking activities on behalf of AGA in relation to the performance of its obligations under the Contract.
“Term”
the period described as such in clause 15.1.
“Term Extension”
each extension to the Term, as detailed in the Order Form.
“Virus”
any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.