Terms & Conditions

1. Background

1.1. The Supplier is in the business of providing the Managed Services.
1.2. The Client wishes to obtain and the Supplier wishes to provide the Managed Services on the terms set out in this agreement.

2. Agreed terms

2.1. Interpretation
2.1.1. The following definitions and rules of interpretation apply in this agreement:
2.2. Applicable Data Protection Laws: means:
2.2.1. To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data.
2.2.2. To the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the Supplier is subject, which relates to the protection of personal data.
2.3. Applicable Laws: all applicable laws, statutes, regulation from time to time in force.
2.4. Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
2.5. Business Hours: the period from 08.30 am to 5.30 pm on any Business Day.
2.6. Change Order: has the meaning given in clause 6.1.
2.7. Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and controls, controlled and the expression change of control shall be construed accordingly.
2.8. 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.
2.9. 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 the Supplier in connection with the Works, including the items provided pursuant to clause 4.1(d).
2.10. Client Personal Data: any personal data which the Supplier processes in connection with this agreement, in the capacity of a processor on behalf of the Client.
2.11. Client Site: [ADDRESS] Additional Client locations may be attended if remote support is not possible and both Supplier and Client agree.
2.12. Deliverables: any output of the Works to be provided by the Supplier to the Client as specified in a Proposal, agreement and any other documents, products and materials provided by the Supplier to the Client in relation to the Works (excluding the Supplier’s Equipment).
2.13. EU GDPR: the General Data Protection Regulation ((EU) 2016/679).
2.14. Intellectual Property Rights: any rights, title and interest in any and all now known or hereafter known tangible and intangible (a) rights associated with works of authorship throughout the universe, including but not limited to copyrights, moral rights, and mask-works, (b) trademark and trade-name rights, service marks and similar rights, (c) trade secret rights, (d) patents, designs, algorithms and other industrial property rights, (e) all other intellectual and industrial property rights (of every kind and nature throughout the universe and however designated) (including logos, “rental” rights, and rights to remuneration, rights in design, utility models, copyright, database rights, know-how (including trade secrets and Confidential Information), whether arising by operation of law, contract, license, or otherwise, and all registrations, initial applications, renewals, extensions, continuations, divisions, or reissues hereof now or hereafter in force including any rights to the foregoing)applied for or in relation to which there is a right to apply for registration and any analogous rights to any of the preceding rights under any other jurisdiction.
2.15. Managed Services: the services as set out in this agreement.
2.16. Reference Charges: the standard charges for the Managed Services or the framework for calculating them as set out in this agreement.
2.17. Supplier’s Equipment: any equipment, including tools, systems, cabling or facilities, provided by the Supplier to the Client and used directly or indirectly in the supply of the Works.
2.18. Supplier Personal Data: any personal data that the Supplier processes in connection with this agreement, in the capacity of a controller.
2.19. UK GDPR: has the meaning give to it in the Data Protection Act 2018.
2.20. VAT: value added tax or any equivalent tax chargeable in the UK.
2.21. Works: the Managed Services which are provided by the Supplier and detailed in this agreement.
2.22. Clause and paragraph headings shall not affect the interpretation of this agreement.
2.22.1. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
2.22.2. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
2.22.3. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
2.22.4. Unless the context otherwise requires, a reference to one gender shall include a reference to the other gender.
2.22.5. This agreement shall be binding on, and endure to the benefit of, the parties to this agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.
2.22.6. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
2.22.7. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
2.22.8. Unless the context otherwise requires, any reference to European Union law that is directly applicable or directly effective in the UK at any time is a reference to it as it applies in England and Wales from time to time including as retained, amended, extended, re-enacted or otherwise given effect.
2.22.9. A reference to writing or written includes email but not fax.
2.22.10. Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
2.22.11. A reference to this agreement or to any other agreement or document is a reference to this agreement or such other agreement or document, in each case as varied or novated from time to time.
2.22.12. References to clauses are to the clauses of this agreement.
2.22.13. 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.

3. Commencement and duration

3.1. This agreement shall commence on the agreed Start Date and shall continue, unless terminated earlier in accordance with clause 13 (Termination), until either party gives to the other party written notice to terminate. Such notice shall be served no earlier than the first anniversary of the date of this agreement.
3.2. The Supplier shall provide the Works from the start date specified in this agreement.

4. Supplier’s responsibilities

4.1. The Supplier shall use reasonable endeavours to provide the Works, and deliver the Deliverables to the Client, in accordance with this agreement.
4.2. The Supplier shall use reasonable endeavours to observe all health and safety and security requirements that apply at the Client’s premises and that have been communicated to it under clause 4.1(e), provided that it shall not be liable under this agreement if, as a result of such observation, it is in breach of any of its obligations under this agreement.

5. Client’s obligations

5.1. The Client shall:
5.1.1. co-operate with the Supplier in all matters relating to the Works;
5.1.2. appoint a manager in respect of the Works to be performed under the Managed Services. That person shall have authority to contractually bind the Client on all matters relating to the relevant Works (including by signing Change Orders);
5.1.3. provide, for the Supplier, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Client’s premises, office accommodation, data and other facilities as required by the Supplier;
5.1.4. provide to the Supplier in a timely manner all documents, information, items and materials in any form (whether owned by the Client or a third party) required in connection with the Works and ensure that they are accurate and complete;
5.1.5. inform the Supplier of all health and safety and security requirements that apply at the Client’s premises;
5.1.6. 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;
5.1.7. obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable the Supplier to provide the Works, including in relation to the installation of the Supplier’s Equipment, 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, premises, staff and equipment, in all cases before the date on which the Works are to start.
5.1.8. If the Supplier’s performance of its obligations under this agreement 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, the Supplier shall be allowed an extension of time to perform its obligations equal to the delay caused by the Client.

6. Non-solicitation and employment

6.1. The Client shall not, without the prior written consent of the Supplier, at any time from the date on which any Works commence to the expiry of 12 months after the completion of such Works, solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of the Supplier in the provision of such Works.
6.2. Any consent given by the Supplier in accordance with clause 5.1 shall be subject to the Client paying to the Supplier a sum equivalent to 20% of the then current annual remuneration of the Supplier’s employee, consultant or subcontractor or, if higher, 20% of the annual remuneration to be paid by the Client to that employee, consultant or subcontractor.

7. Change control

7.1. 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 signed by both parties. A Change Order shall be a document setting out the proposed changes and the effect that those changes will have on:
7.1.1. the Works;
7.1.2. the Charges;
7.1.3. the timetable for the Works; and
7.1.4. any other relevant terms.
7.2. If the Supplier wishes to make a change to the Works it shall provide a draft Change Order to the Client.
7.3. If the Client wishes to make a change to the Works:
7.4. it shall notify the Supplier and provide as much detail as the Supplier reasonably requires of the proposed changes, including the timing of the proposed change; and
7.5. the Supplier shall, as soon as reasonably practicable after receiving the information at clause 6.3(a), provide a draft Change Order to the Client.
7.6. If the parties:
7.7. agree to a Change Order, they shall sign it and that Change Order shall amend the relevant agreement; or
7.8. 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 25 (Multi-tiered dispute resolution procedure).
7.9. The Supplier may charge for the time it spends on preparing and negotiating Change Orders which implement changes proposed by the Client pursuant to clause 6.3 on a time and materials basis at the Supplier’s rates specified in this agreement.

8. Charges and payment

8.1. In consideration of the provision of the Works by the Supplier, the Client shall pay the Charges.
8.2. Where the Charges are calculated on a time and materials basis:
8.3. the Supplier’s hourly fee rates for each individual person as set out in this agreement are calculated on the basis of an eight-hour day, worked during Business Hours;
8.4. the Supplier shall be entitled to charge an overtime rate of 150% of the daily fee rate set out in this agreement on a pro rata basis for any time worked by individuals whom it engages on the Works outside Business Hours; and
8.5. the Supplier shall ensure that every individual whom it engages on the Works completes time sheets to record time spent on the Works, and the Supplier shall indicate the time spent per individual in its invoices.
8.6. Where the Charges are calculated on a fixed price basis, the amount of those charges shall be as set out in this agreement.
8.7. The Charges exclude the following, which shall be added to monthly invoices:
8.8. the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Works; and
8.9. the cost to the Supplier of any materials or services procured by the Supplier 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.
8.10. The Supplier may increase the Reference Charges and any Charges not calculated in accordance with the Reference Charges on an annual basis with effect from each anniversary of the date of this agreement up to 8%.
8.11. The Supplier shall invoice the Client for the Charges at the start of each month for Works to be delivered that month, and for any additional Out-of-Scope Services performed during the previous month.
8.12. The Client shall pay each invoice submitted to it by the Supplier within 30 days of receipt to a bank account nominated in writing by the Supplier from time to time.
8.13. Without prejudice to any other right or remedy that it may have, if the Client fails to pay the Supplier any sum due under this agreement on the due date:
8.14. the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%; and
8.15. the Supplier may suspend part or all of the Works until payment has been made in full.
8.16. All sums payable to the Supplier under this agreement:
8.17. 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; and
8.18. 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. Intellectual property rights

9.1. In relation to the Deliverables:
9.1.1. the Supplier and its licensors shall retain ownership of all IPRs in the Deliverables, excluding the Client Materials;
9.1.2. the Supplier grants the Client, or shall procure the direct grant to the Client of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of this agreement 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
9.1.3. the Client shall not sub-license, assign or otherwise transfer the rights granted in clause 8.1(b).
9.2. In relation to the Client Materials, the Client:
9.3. and its licensors shall retain ownership of all IPRs in the Client Materials; and
9.4. grants to the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Client Materials for the term of this agreement for the purpose of providing the Works to the Client.
9.5. The Supplier:
9.6. warrants that the receipt and use of the Works and the Deliverables by the Client shall not infringe the rights, including any Intellectual Property Rights, of any third party;
9.7. shall, subject to clause 12.6, indemnify the Client against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all other reasonable professional costs and expenses) suffered or incurred or paid by the Client arising out of or in connection with any claim brought against the Client for actual or alleged infringement of a third parties Intellectual Property Rights arising out of, or in connection with, the receipt or use of the Works and Deliverables;
9.8. shall not be in breach of the warranty at clause 8.3(a), and the Client shall have no claim under the indemnity at clause 8.3(b) to the extent the infringement arises from:
9.9. the use of Client Materials in the development of, or the inclusion of the Client Materials in, the Works or any Deliverable;
9.10. any modification of the Works or any Deliverable, other than by or on behalf of the Supplier; and
9.11. compliance with the Client’s specifications or instructions.
9.12. The Client:
9.13. warrants that the receipt and use in the performance of this agreement by the Supplier, its agents, subcontractors or consultants of the Client Materials shall not infringe the rights, including any Intellectual Property Rights, of any third party; and
9.14. shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred or paid by the Supplier arising out of or in connection with any claim brought against the Supplier, 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 this agreement of the Client Materials.
9.15. If either party (Indemnifying Party) is required to indemnify the other party (Indemnified Party) under this clause 8, the Indemnified Party shall:
9.16. notify the Indemnifying Party in writing of any claim against it in respect of which it wishes to rely on the indemnity at clause 8.3(b) or clause 8.4(b) (as applicable) (IPRs Claim);
9.17. allow the Indemnifying Party, at its own cost, to conduct all negotiations and proceedings and to settle the IPRs Claim, always provided that the Indemnifying Party shall obtain the Indemnified Party’s prior approval of any settlement terms, such approval not to be unreasonably withheld;
9.18. provide the Indemnifying Party with such reasonable assistance regarding the IPRs Claim as is required by the Indemnifying Party, subject to reimbursement by the Indemnifying Party of the Indemnified Party’s costs so incurred; and
9.19. 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. Compliance with laws

10.1. In performing its obligations under this agreement, the Supplier shall comply with the Applicable Laws.
10.2. 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 6 (Change control).

11. Data protection

11.1. For the purposes of this clause 10, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the UK GDPR.
11.2. Both parties will comply with all applicable requirements of Applicable Data Protection Laws. This clause 10 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under Applicable Data Protection Laws.
11.3. The parties have determined that, for the purposes of Applicable Data Protection Laws:
11.4. the Supplier shall process the personal data as defined in this agreement as processor on behalf of the Client; and
11.5. the Supplier shall act as controller of the personal data.
11.6. Should the determination in clause 10.3 change, the parties shall use all reasonable endeavours to make any changes that are necessary to this clause 10.
11.7. The Client consents to, (and shall procure all required consents, from its personnel, representatives and agents, in respect of) all actions taken by the Supplier in connection with the processing of Supplier Personal Data, provided these comply with the then-current version of the Supplier’s privacy policy available at www.torosolutions.co.uk/privacy (Privacy Policy). In the event of any inconsistency or conflict between the terms of the Privacy Policy and this agreement, the Privacy Policy will take precedence.
11.8. Without prejudice to the generality of clause 10.2, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Client Personal Data to the Supplier and lawful collection of the same by the Supplier for the duration and purposes of this agreement.
11.9. Without prejudice to the generality of clause 10.2, the Supplier shall, in relation to Client Personal Data:
11.10. process that Client Personal Data only on the documented instructions of the Client, which shall be to process the Client Personal Data for the purposes solely related to these Managed Services unless the Supplier is required by Applicable Laws to otherwise process that Client Personal Data (Purpose);
11.11. implement the technical and organisational measures set out in the Privacy Policy to protect against unauthorised or unlawful processing of Client Personal Data and against accidental loss or destruction of, or damage to, Client Personal Data, which the Client has reviewed and confirms are 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;
11.12. ensure that any personnel engaged and authorised by the Supplier to process Client Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
11.13. assist the Client insofar as this is possible (taking into account the nature of the processing and the information available to the Supplier), and at the Client’s cost and written request, in responding to any request from a data subject and in ensuring the Client’s compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
11.14. notify the Client without undue delay on becoming aware of a personal data breach involving the Client Personal Data;
11.15. at the written direction of the Client, delete or return Client Personal Data and copies thereof to the Client on termination of the agreement unless the Supplier is required by Applicable Law to continue to process that Client Personal Data. For the purposes of this clause 10.7(f) Client Personal Data shall be considered deleted where it is put beyond further use by the Supplier; and
11.16. maintain records to demonstrate its compliance with this clause 10.
11.17. The Client provides its prior, general authorisation for the Supplier to:
11.18. appoint processors to process the Client Personal Data, provided that the Supplier:
11.19. shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on the Supplier in this clause 10;
11.20. shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of the Supplier; and
11.21. shall inform the Client of any intended changes concerning the addition or replacement of the processors, thereby giving the Client the opportunity to object to such changes provided that if the Client objects to the changes and cannot demonstrate, to the Supplier’s reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, the Client shall indemnify the Supplier for any losses, damages, costs (including legal fees) and expenses suffered by the Supplier in accommodating the objection.
11.22. transfer Client Personal Data outside of the UK as required for the Purpose, provided that the Supplier shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Client shall promptly comply with any reasonable request of the Supplier, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the Commissioner from time to time (where the UK GDPR applies to the transfer).
11.23. Either party may, at any time on not less than 30 days’ notice, revise clause 10 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).
11.24. The Supplier’s liability for losses arising from breaches of this clause 10 is as set out in clause 12.6(b).

12. Confidentiality

12.1. Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, Clients, clients or suppliers of the other party, except as permitted by clause 11.2(a).
12.2. Each party may disclose the other party’s confidential information:
12.3. to its employees, officers, representatives, contractors, subcontractors 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 this agreement. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 11; and
12.4. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.5. 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 this agreement.

13. Limitation of liability

13.1. Background to the limits and exclusions on the Supplier’s liability. The Supplier has obtained insurance cover in respect of its own legal liability for individual claims not exceeding £5,000,000 per claim. The limits and exclusions in this clause reflect the insurance cover the Supplier has been able to arrange and the Client is responsible for making its own arrangements for the insurance of any excess loss.
13.2. Scope of this clause. References to liability in this clause 12 (Limitation of liability) include every kind of liability arising under or in connection with this agreement including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
13.3. No limitation of the Client’s payment obligations. Nothing in this clause 12 shall limit the Client’s payment obligations under this agreement.
13.4. Liability under identified clauses. Nothing in this agreement shall limit the Client’s liability under clause 8.4 (IPR indemnities).
13.5. Liabilities which cannot legally be limited. Nothing in this agreement limits any liability which cannot legally be limited, including but not limited to liability for:
13.6. death or personal injury caused by negligence;
13.7. fraud or fraudulent misrepresentation; and
13.8. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
13.9. Cap on the Supplier’s liability. Subject to clause 12.5 (liabilities which cannot legally be limited), the Supplier’s total liability to the Client:
13.10. for damage to property caused by the negligence of its employees and agents in connection with this agreement shall not exceed £5,000,000 for any one event or series of connected events;
13.11. for loss arising from the Supplier’s failure to comply with its data processing obligations under clause 10 (Data protection) shall not exceed £250,000 and
13.12. for all other loss or damage which does not fall within subclause (a) or (b) shall not exceed £5,000,000.
13.13. Cap on the Client’s liability. Subject to clause 12.4 (liability under identified clauses) and clause 12.5 (liabilities which cannot legally be limited), the Client’s total liability to the Supplier:
13.14. for damage to property caused by the negligence of its employees and agents in connection with this agreement shall not exceed £5,000,000 for any one event or series of connected events;
13.15. for loss arising from the Supplier’s failure to comply with its data processing obligations under clause 10 (Data protection) shall not £250,000; and
13.16. for all other loss or damage which does not fall within subclause (a) or (b) shall not exceed £5,000,000.
13.17. Payment reducing caps. The caps on the Client’s liabilities shall not be reduced by amounts awarded or agreed to be paid under clause 8 (IPR indemnities); or amounts awarded by a court or arbitrator, using their procedural or statutory powers in respect of costs of proceedings or interest for late payment.
13.18. Specific heads of excluded loss. Subject to 12.3 (No limitation on the Client’s payment obligations), clause 12.4 (liability under identified clauses) and clause 12.5 (Liabilities which cannot legally be limited), this clause 12.9 specifies the types of losses that are excluded:
13.18.1. loss of profits;
13.18.2. loss of sales or business;
13.18.3. loss of agreements or contracts;
13.18.4. loss of anticipated savings;
13.18.5. loss of use or corruption of software, data or information;
13.18.6. loss of or damage to goodwill; and
13.18.7. indirect or consequential loss.
13.19. Exclusion of statutory implied terms. The Supplier has given commitments as to compliance of the Services with relevant specifications in clause 3.1 (Supplier’s responsibilities). In view of these commitments, 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 this agreement.
13.20. No liability for claims not notified within 3 months. Unless the Client notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Client became, or ought reasonably to have become, aware of the event having occurred and shall expire 3 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.

14. Termination

14.1. This agreement shall commence on the Start Date. Unless terminated earlier in accordance with this clause 13, this agreement shall continue in force for the Initial Term and shall automatically extend for successive 12-month periods (Extended Term). A party may give written notice to the other party to terminate this agreement not later than 3 months before the end of the Initial Term or the relevant Extended Term.
14.2. Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
14.2.1. the other party commits a material breach of any term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
14.2.2. the other party repeatedly breaches any of the terms of this agreement 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 this agreement;
14.2.3. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 1986;
14.2.4. 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 agreement 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;
14.2.5. the other party applies to court for, or obtains, a moratorium under Part A1 of the IA 1986;
14.2.6. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company, limited liability partnership or partnership) 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;
14.2.7. an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
14.2.8. the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
14.2.9. a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
14.2.10. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
14.2.11. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13.2(c) to clause 13.2(j) (inclusive);
14.2.12. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
14.2.13. 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 this agreement is in jeopardy.
14.3. For the purposes of clause 13.2(a) material breach means a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which the terminating party would otherwise derive from a substantial portion of this agreement over the term of this agreement. In deciding whether any breach is material no regard shall be had to whether it occurs by some accident, mishap, mistake or misunderstanding.
14.4. Without affecting any other right or remedy available to it, the Supplier may terminate this agreement with immediate effect by giving written notice to the Client if:
14.5. the Client fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment; or
14.6. there is a change of Control of the Client.

15. Obligations on termination and survival

15.1. Obligations on termination or expiry
15.1.1. On termination or expiry of this agreement:
15.1.2. the Client shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of the Works supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt;
15.1.3. the Client shall return all of the Supplier’s Equipment. If the Client fails to do so, then the Supplier may enter the Client’s premises and take possession of the Supplier’s Equipment. Until the Supplier’s Equipment has been returned or repossessed, the Client shall be solely responsible for its safe keeping; and
15.1.4. the Supplier shall on request return any of the Client Materials not used up in the provision of the Works.

16. Survival

16.1. Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.
16.2. Termination or expiry of this agreement 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 agreement which existed at or before the date of termination or expiry.

17. Force majeure

17.1. Force Majeure Event means any circumstance not within a party’s reasonable control including, without limitation:
17.1.1. acts of God, flood, drought, earthquake or other natural disaster;
17.1.2. epidemic or pandemic;
17.1.3. 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;
17.1.4. nuclear, chemical or biological contamination or sonic boom;
17.1.5. 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;
17.1.6. collapse of buildings, fire, explosion or accident; and
17.1.7. 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
17.1.8. non-performance by suppliers or subcontractors (other than by companies in the same group as the party seeking to rely on this clause); and
17.1.9. interruption or failure of utility service.
17.2. Provided it has complied with clause 15.4, if a party is prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of this agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
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:
17.4.1. as soon as reasonably practicable after the start of the Force Majeure Event but no later than 5 days from its start, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the agreement; and
17.4.2. 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 4 weeks, the party not affected by the Force Majeure Event may terminate this agreement by giving 4 weeks’ written notice to the Affected Party.

18. Assignment and other dealings

18.1. The Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.
18.2. The Supplier may at any time assign, mortgage, charge, delegate, declare a trust over or deal in any other manner with any or all of its rights under this agreement, provided that the Supplier gives prior written notice of such dealing to the Client.

19. Variation

19.1. Subject to clause 6 (Change control), no variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

20. Waiver

20.1. A waiver of any right or remedy under this agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
20.2. A failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this agreement 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 this agreement 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

21.1. The rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

22. Severance

22.1. If any provision or part-provision of this agreement 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 this agreement.
22.2. If any provision or part-provision of this agreement is deemed deleted under clause 20.1 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. Entire agreement

23.1. This agreement 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.
23.2. 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 this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.

24. Third party rights

24.1. This agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
24.2. The rights of the parties to rescind or vary this agreement are not subject to the consent of any other person.

25. Notices

25.1. Any notice given to a party under or in connection with this agreement shall be in writing and shall be emailed to toroaccounts@torosolutions.co.uk.
25.2. Any notice shall be deemed to have been received at the time of transmission, or, if this time falls outside Business Hours, when Business Hours resume.
25.3. 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.

26. Counterparts

26.1. This agreement may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
26.2. The executed signature page of a counterpart of this agreement by email (in PDF, JPEG or other agreed format) shall take effect as the transmission of an executed “wet-ink” counterpart of this agreement. If this method of transmission is adopted, without prejudice to the validity of the agreement thus made, each party shall on request provide the other with the “wet ink” hard copy original of their counterpart.

27. Multi-tiered dispute resolution procedure

27.1. If a dispute arises out of or in connection with this agreement or the performance, validity or enforceability of it (Dispute) then the parties shall follow the procedure set out in this clause:
27.2. either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, the representative of the Client and the Supplier shall attempt in good faith to resolve the Dispute;
27.3. if the representatives are for any reason unable to resolve the Dispute within 30 days of service of the Dispute Notice, the Dispute shall be referred to the Finance and Operations Partner of the Client and Director of Cyber of the Supplier who shall attempt in good faith to resolve it; and
27.4. if the Client and Supplier are for any reason unable to resolve the Dispute within 30 days of it being referred to them, 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. To initiate the mediation, a party must serve notice in writing (ADR notice) to the other party to the Dispute, requesting a mediation. A copy of the ADR notice should be sent to CEDR. The mediation will start not later than 30 days after the date of the ADR notice.
27.5. No party may commence any court proceedings under this Clause in relation to the whole or part of the Dispute until 30 days after service of the ADR notice, provided that the right to issue proceedings is not prejudiced by a delay.
27.6. If the Dispute is not resolved within 90 days after service of the ADR notice, or either party fails to participate or to continue to participate in the mediation before the expiration of the said period of 90 days, or the mediation terminates before the expiration of the said period of 90 days, the Dispute shall be finally resolved by the courts of England and Wales.

28. Governing law and Jurisdiction

28.1. This agreement 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.