FLR SPECTRON LIMITED (COMPANY NUMBER 04085164) – GENERAL TERMS AND CONDITIONS FOR THE SUPPLY OF SERVICES TO BUSINESS CUSTOMERS
THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 12 (LIMITATION OF LIABILITY) AND THE LIMITATION OF LIABILITY PROVISIONS SET OUT IN THE ADDITIONAL TERMS (ANNEXED TO THE SUMMARY OF WORKS).
1. Interpretation
The following definitions and rules of interpretation apply in these General Terms and Conditions.
Definitions:
Additional Terms: means the additional terms and conditions that apply to the Contract for the supply of the Services, which apply in addition to, and in priority to, these General Terms and Conditions. Such additional terms and conditions for the relevant Services are annexed to the Summary of Works (depending upon which Services are to be supplied).
Annexures: means all annexures attached to and listed in the Summary of Works, which set out additional terms and conditions that apply to the provision of the Services, and each of the Annexures shall apply to and be incorporated in the Contract, including without limitation, the Additional Terms.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Charges: the charges payable by the Customer for the supply of the Services as set out in the Quotation for the applicable Services in accordance with clause 8 of these General Terms and Conditions (including any other charges or fees set out in and referred to under the Contract).
Commencement Date: means:
the date included in the Summary of Works;
if no such date referred to above is included in the Summary of Works, the date on which FLR Spectron commences the supply of the Services to the Customer on the terms of these General Terms and Conditions and any Summary of Works; or
if neither of the above apply, the date the Customer signs or agrees in writing to the Quotation (and attached to it are the Summary of Works and the Annexures).
Confidential Information: all information (however recorded or preserved) that one party (discloser) or its Representatives discloses or makes available to the other party (recipient) or its Representatives in connection with the Contract and which would be regarded as confidential by a reasonable business person. It includes any information of a confidential nature relating to the Charges or FLR Spectron’s operations, products, processes, specifications, trade secrets or know-how. It includes any such information which was disclosed or made available by the discloser (or its Representatives) to the other party (or its Representatives) prior to or after the Commencement Date. It does not include information that:
(a) is or becomes generally available to the public (other than as a result of the recipient’s (or their Representatives’) breach);
(b) was available to the recipient (or their Representative) on a non-confidential basis before disclosure by the discloser (or its Representatives);
(c) was, is or becomes available to the recipient (or its Representative) on a non-confidential basis from a person who, to the recipient’s knowledge, is not bound by a confidentiality agreement with the discloser or otherwise prohibited from disclosing the information to the recipient;
(d) is developed by or for the recipient independently of the information disclosed by the discloser (or its Representatives); or
(e) the parties agree in writing it is not confidential or may be disclosed.
Contract: means the contract between FLR Spectron and the Customer for the supply of Services in accordance with these General Terms and Conditions, the Quotation, the Summary of Works and the Annexures attached to the Summary of Works (and any other documents referred to in those documents which are stated to apply to the Contract).
Contract Year: means a 12-month period commencing on the Commencement Date of the Contract or an anniversary of it.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Customer: the company or firm who purchases the Services from FLR Spectron whose details are set out in the Quotation and the Summary of Works.
Customer Data: data which FLR Spectron, its Representatives, or a third party, process in connection with the Contract (including any Customer Personal Data).
Customer Materials: all documentation, information, items and materials in any form (whether owned by the Customer or a third party), which are provided by the Customer to FLR Spectron in connection with the Services.
Customer Personal Data: any personal data (as defined in the UK GDPR) which FLR Spectron processes in connection with the Contract, in the capacity of a processor on behalf of the Customer and any personal data which FLR Spectron India processes in connection with the Contract in the capacity as sub-processor on behalf of FLR Spectron.
Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
Deliverables: the output(s) of the Services to be provided by FLR Spectron to the Customer as specified in the Summary of Works, the Quotation, and any other documents, products, designs, software, reports, specifications, plans and other materials developed by FLR Spectron for the Customer in the performance of the Services (excluding any FLR Equipment).
Due Date: means (unless varied by the Summary of Works or the Quotation):
if the Charges (or part of them) are paid monthly by direct debit, within 14 days of the date specified in the Summary of Works (or as otherwise notified to the Customer in writing);
for any other Charges, within 30 days of the date of receipt by the Customer of FLR Spectron’s invoice for such Charges, or the date of such invoice (if earlier).
Extended Term: the period on which the Contract is automatically extended (on expiry of the Minimum Term and expiry of each extended term in accordance with clause 4.1 of these General Terms and Conditions) in each case for the period specified in the Summary of Works.
FLR Equipment: any equipment, including hardware, tools, systems, cabling or devices, used by FLR Spectron or its subcontractors in the supply of the Services, including any equipment specified and defined in the Annexures for the Services but excluding any items which are hired or loaned from the Customer.
FLR Personnel: all employees, workers, agents, consultants, contractors and other representatives of FLR Spectron, or any of its subcontractors, who are engaged in the performance of the Contract from time to time, and FLR Person means any of them.
FLR Spectron: FLR Spectron Limited registered in England and Wales with company number 04085164.
FLR Spectron India: means Remote Software Solutions Private Limited incorporated and registered in Goa, India with registered number U72900GA2004PTC003449, whose registered office address is at H.No.1661, Survey No.128/7, Alto Betim Nr.Tarun Bharat Pres, Penha De France, Alto Porvorim, North Goa, India, 403521 or such other entity as nominated from time to time by FLR Spectron to provide Support Services and Software Services.
General Terms and Conditions: these terms and conditions for the supply of Services as amended from time to time in accordance with clause 20 and clause 5.3.
IT Services: means the IT services set out in the Quotation and the Summary of Works.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Losses: means all liabilities, damages, losses (including loss of profits, loss of business, loss of reputation, loss of savings and loss of opportunity), fines, expenses and costs (including all interest, penalties, legal costs (calculated on a full indemnity basis) and reasonable professional costs and expenses).
Minimum Term: the minimum period for the Term of the Contract, as specified in the Summary of Works.
Mobile Telephone Services: the mobile telephone services set out in the Quotation and the Summary of Works.
Quotation: the Customer’s order for Services as set out in the Customer’s written acceptance (including by electronic means) of a quotation by FLR Spectron, as the case may be, which also sets out a description of the Services, any equipment to be supplied to the Customer, the Charges and the Customer’s name.
Relevant Requirements: all applicable laws, statutes, regulations relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010.
Representatives: has the meaning given in clause 11.2(a).
Services: the IT Services, Telecoms Services, Software Services, or Mobile Telephone Services, including the Deliverables, agreed to be supplied by FLR Spectron to the Customer as specified and set out in the Summary of Works and the Quotation.
Summary of Works: means the document titled “Summary of Works” provided by FLR Spectron to the Customer in the form attached to the Quotation which incorporates the Annexures and these General Terms and Conditions and sets out specific terms relating to the Services.
Software Services: the software services set out in the Quotation and the Summary of Works.
Support Services: any support services to be supplied under the Contract in connection with the relevant Services as stipulated in the Contract.
Telecoms Services: the telecoms services set out in the Quotation and the Summary of Works.
Term: the Minimum Term and any Extended Term as set out in clause 4 of these General Terms and Conditions.
UK GDPR: has the meaning given in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
VAT: value added tax or any equivalent tax chargeable in the UK or elsewhere.
In the event of any conflict, ambiguity or inconsistency between:
the Quotation, and the Summary of Work, the Additional Terms and the General Terms and Conditions, the terms set out in the Quotation shall prevail;
the Summary of Works, and these General Terms and Conditions, the terms set out in the Summary of Works shall prevail;
the Additional Terms and these General Terms and Conditions, the terms set out in the Additional Terms shall prevail; and
the Summary of Works and the Additional Terms, the terms set out in the Summary of Works shall prevail.
References to:
clauses, are to clauses, of these General Terms and Conditions; and
paragraphs, are to paragraphs of the relevant Annexures;
Clause, Annexure and paragraph headings do not affect their interpretation.
Unless the context otherwise requires, words in the singular include the plural and in the plural include the singular.
The Contract is binding on, and enures to the benefit of, the parties to the Contract and their respective personal representatives, successors and permitted assigns, and references to any party include that party’s personal representatives, successors and permitted assigns.
Unless expressly stated otherwise in the Contract, a reference to legislation or a legislative provision:
is a reference to it as amended or re-enacted; and
includes all subordinate legislation made under that legislation or legislative provision.
A reference to writing or written excludes fax but not email.
Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
Any words following the terms including, include, in particular, for example, or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
A reference to the Summary of Works shall, where the context requires, also be a reference to the Annexures.
A reference in the Contract to FLR Spectron, shall also be taken to mean a reference to FLR Spectron India in the context of Support Services or Software Services (or otherwise when the context requires).
Application of these General Terms and Conditions, the Summary of Works and Additional Terms
These General Terms and Conditions shall:
apply to and be incorporated in the Contract; and
subject to clause 1.2 above, prevail over any inconsistent terms or conditions contained in, or referred to in, the Customer’s purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing.
The Contract is made up of the following (each as may be amended or varied in writing from time to time):
the Quotation;
the Summary of Works including its Annexures; and
these General Terms and Conditions.
Basis of Contract
The Customer’s acceptance of a Quotation constitutes an offer by the Customer to purchase Services in accordance with the Quotation, the Summary of Works, the Annexures and these General Terms and Conditions.
The Quotation shall only be deemed to be accepted by FLR Spectron when both the Customer and FLR Spectron have signed, or agreed in writing to, the Quotation and attached to the Quotation is the Summary of Works and the Annexures, at which point the Contract shall come into existence on the Commencement Date.
Any samples, drawings, descriptive matter or advertising issued by FLR Spectron, and any descriptions or illustrations contained in the FLR Spectron’s catalogues or brochures or on FLR Spectron’s website, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
These General Terms and Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
The Quotation given by FLR Spectron shall not constitute an offer, and is only valid for the period specified in the Quotation (and in the absence of any period so specified, 30 days) (in each case unless otherwise agreed by FLR Spectron).
Term
The Contract commences on the Commencement Date and continues, unless terminated earlier in accordance with clause 13 or clause 14 or in accordance with the termination provisions set out in the Additional Terms, for the Minimum Term, and unless otherwise specified in the Summary of Works, the Contract shall automatically extend at the end of the Minimum Term for the Extended Term, at the end of the Minimum Term and at the end of each Extended Term.
The automatic extension of the Term as referred to above, is subject to any express terms to the contrary set out in the Annexures, or the Summary of Works.
Services
FLR Spectron shall supply the Services specified in the Quotation and in the Summary of Works to the Customer in accordance with the same in all material respects.
FLR Spectron shall use reasonable endeavours to meet any performance dates specified in the Summary of Works and the Quotation (should any be specified), but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
FLR Spectron reserves the right to amend the Quotation, the Summary of Works, the General Terms and Conditions, or the Annexures (including the Additional Terms) if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and FLR Spectron shall provide the Customer with at least one month’s prior written notice in any such event.
FLR warrants to the Customer that the Services will be provided using reasonable care and skill.
FLR Spectron’s responsibilities
FLR Spectron shall:
use reasonable endeavours to provide the Services and Deliverables to the Customer in accordance with the Contract in all material respects;
perform the Services with reasonable skill and care in accordance with the generally recognised standards and practices in its industry;
comply with all laws and regulations in force and in effect as at the Commencement Date, which are applicable to FLR Spectron, in performing its obligations under the Contract, including those set out in clause 17;
use reasonable endeavours to meet any performance dates specified in the Contract (or agreed in writing between the parties), but these dates are estimates only. Time is not of the essence for the performance of any of FLR Spectron’s obligations in the Contract;
maintain all licences, consents and permissions needed to supply the Services in accordance with these General Terms and Conditions, excluding any licences, consents and permissions that the Customer is expressly responsible for maintaining under the Contract or should reasonably be responsible for maintaining; and
take reasonable steps to keep the Customer Materials (if any) safe and secure while in the possession or control of FLR Spectron. Subject to this, the Customer Materials shall remain at the sole risk and responsibility of the Customer.
Customer’s obligations
The Customer shall:
ensure that the terms of the Quotation and the Summary of Works are complete and accurate;
comply with any obligations set out in the Summary of Works, the Annexures, the Additional Terms and these General Terms and Conditions;
comply with all applicable laws and regulations with respect to its activities under the Contract, including those set out in clause 17 of these General Terms and Conditions;
co-operate with FLR Spectron in all matters relating to the Services;
notify FLR Spectron immediately if the Customer’s name, address, bank account, direct debit instruction, or credit card details change;
provide FLR Personnel, in a timely manner and at no charge, with access to the Customer’s premises and other facilities as required by FLR Spectron for the performance of the Services;
provide FLR Spectron, in a timely manner, with all documents, data, information and materials required by FLR Spectron to provide the Services, and ensure that they are accurate and complete in all material respects;
provide FLR Spectron, with reasonable access to the appropriate members of the Customer’s staff, at such reasonable times, as FLR Spectron requires to provide the Services;
if applicable to the Services, prepare the Customer’s premises for the supply of the Services;
inform FLR Spectron of all health and safety hazards and security requirements which may exist or arise at any of the Customer’s premises which FLR Personnel access;
obtain and maintain all licences, consents, permissions and authorisations (together the Consents) that are necessary to enable FLR Spectron to provide the Services, including, if applicable, all Consents needed to allow FLR Spectron to use the Customer Materials (if any) and to install and operate FLR Equipment in connection with the performance of the Services; and
maintain any FLR Equipment in the Customer’s possession or control in good condition and in accordance with FLR Spectron’s instructions from time to time and shall not dispose of or use the FLR Equipment other than in accordance with FLR Spectron’s written instructions or authorisations.
If FLR Spectron’s performance of its obligations under the Contract is prevented, hindered or delayed by any act or omission by the Customer or the Customer’s agents, subcontractors or employees or the failure by the same to perform any relevant obligation (Customer Default) or by any act or omission by any third party or that third party’s agents, subcontractors or employees (Third Party) which directly or indirectly prevents, hinders or delays in whole or in part FLR Spectron’s performance of its obligations under the Contract (Third Party Default):
without limiting or affecting any other right or remedy available to it, FLR Spectron shall have the right to suspend (either in whole or in part) the performance of any Services until the Customer remedies the Customer Default or the Third Party remedies the Third Party Default, and to rely on the Customer Default or Third Party Default to relieve FLR Spectron from the performance of any of its obligations in each case to the extent the Customer Default or Third Party Default prevents, hinders or delays FLR Spectron’s performance of any of its obligations under the Contract;
FLR Spectron shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from FLR Spectron’s failure or delay to perform any of its obligations as set out in this clause 7.2; and
in relation only to a Customer Default, the Customer shall continue to pay the Charges for the period of suspension or delay (but shall not be so obliged for a Third Party Default), and shall be liable to pay to FLR Spectron in all circumstances on demand all reasonable costs, charges or losses sustained or incurred by it, subject to FLR Spectron confirming such costs, charges and losses to the Customer in writing arising from or resulting from the Customer Default. Such losses shall include, without limitation, any direct, indirect or consequential losses, loss of profits and loss of reputation, loss or damage to property, injury to or death of any person and loss of opportunity to deploy resources elsewhere.
For the purposes of clause 7.2, where the Customer fails to pay any Charges under the Contract on the Due Date for payment this shall constitute a Customer Default.
The Customer shall not, without the prior written consent of FLR Spectron, at any time from the Commencement Date to the expiry of 6 months after termination or expiry of the Contract, solicit or entice away from FLR Spectron or employ or attempt to employ any person who is, or has been, engaged as an employee or subcontractor of FLR Spectron.
The Customer warrants and represents that it has the full capacity and authority to enter into and perform the Contract and that the Contract is executed by a duly authorised representative of the Customer.
Charges and payments
In consideration of the provision of the Services by FLR Spectron the Customer shall pay the Charges by the Due Date for payment.
The Customer shall pay any monthly Charges by way of direct debit (unless otherwise agreed by FLR Spectron), and accordingly, the Customer shall instruct its bank to pay such monthly Charges by direct debit and complete a direct debit instruction mandate for the same. Should the Customer for any reason not pay the Charges by direct debit when required (unless otherwise agreed by FLR Spectron):
FLR Spectron may charge a monthly fee of £10.00 if the Customer does not pay any of the monthly Charges by direct debit; and
if the Customer cancels its existing direct debit for any reason (without FLR Spectron’s prior written consent), FLR Spectron may charge an administration fee of £25.00.
Save for clause 8.2 above, the Customer shall pay all Charges under the Contract on receipt of FLR Spectron’s invoice for such Charges by the Due Date.
FLR Spectron shall invoice the Customer in accordance with the Summary of Works (and should the Summary of Works not provide for any such terms, monthly in arrear), and the Customer shall pay each invoice submitted by FLR Spectron in full and in cleared funds by the Due Date to a bank account nominated in writing by FLR Spectron and time for payment shall be of the essence of the Contract.
Unless expressly stated otherwise in the Additional Terms (which will apply in substitution for this clause 8.5), FLR Spectron may increase the Charges with effect from each anniversary of the Commencement Date. FLR Spectron shall give the Customer not less than 30 days’ prior notice of each increase in the Charges.
Without prejudice to any other right or remedy that FLR Spectron may have, and unless the Summary of Works provides otherwise, if the Customer fails to pay FLR Spectron any sum due under the Contract by the Due Date for payment:
the Customer 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 8.6(a) will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 8% a year for any period when the base rate is below 0%; and
FLR Spectron may suspend all or part of the Services until payment has been made in full.
All sums payable to FLR Spectron under the Contract:
are exclusive of VAT and the Customer shall, in addition, pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and
shall be paid in full without set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). If any deduction or withholding is required by law, the Customer shall pay to FLR Spectron such amount as will, after the deduction or withholding has been made, leave FLR Spectron with the same amount as it would have been entitled to receive in the absence of a requirement to make a deduction or withholding.
If applicable, the Customer shall reimburse FLR Spectron for the following expenses and costs which are excluded from the Charges:
the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by FLR Personnel in connection with the Services (Expenses); and
the cost to FLR Spectron of any materials or services procured by FLR Spectron from third parties for the provision of the Services (Third Party Costs).
Intellectual property rights
Unless expressly stated otherwise in the Additional Terms, or the Summary of Works, FLR Spectron and its licensors shall retain ownership of all Intellectual Property Rights in or arising out of the Services, excluding any Customer Materials contained within them.
Subject to FLR Spectron receiving payment of all Charges attributable to the Services, and unless otherwise provided for in the Additional Terms for the specific Services (in which case insofar as varied, the Additional Terms which relate to Intellectual Property Rights and ownership of the same, shall apply in substitution insofar as varied), FLR Spectron grants the Customer, or shall procure the direct grant to the Customer of, a non-exclusive, royalty-free, non-transferrable, licence during the Term to use, copy, and modify the Deliverables (excluding the Customer Materials) for the purpose of receiving and using the Services and Deliverables in its business.
Except for as expressly provided for in the Contract, the Customer shall not sub-licence, assign or otherwise transfer the rights granted under clause 9.2.
The Customer and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials. The Customer grants FLR Spectron a non-exclusive, royalty-free, non-transferrable licence to use, copy and modify the Customer Materials during the Term for the purpose of providing the Services to the Customer. FLR Spectron may grant sublicences of the Customer Materials to its subcontractors and other suppliers where necessary for the performance of the Services.
If any third party brings a claim against the Customer or FLR Spectron, or notifies of its intention to do so, which relates to third party Intellectual Property Rights infringement (Claim), the Customer shall:
as soon as reasonably practicable, give written notice of the Claim to FLR Spectron, specifying the nature of the Claim in reasonable detail;
allow FLR Spectron to conduct all negotiations and proceedings in relation to the Claim and to settle or compromise the Claim;
provide FLR Spectron with all reasonable information, assistance and co-operation in relation to the Claim; and
not make any admission of liability, settlement or compromise in relation to the Claim without FLR Spectron’s prior written consent.
For the avoidance of doubt, clause 9.4 and clause 9.5 shall not be varied by the Additional Terms pursuant to clause 9.2 above.
Data protection
For the purposes of this clause 10, the terms controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures shall have the meanings given to them in the Data Protection Legislation. In addition, the following defined terms shall have the following meanings when used in this clause 10:
Addendum: means the international data transfer addendum to the EU SCCs issued by the Information Commissioner under section 119A(1) of the Data Protection Act 2018 (version B1.0 licensed under the Open Government Licence v3.0).
EU SCCs: means the standard contractual clauses for the transfer of personal data to third countries as approved and issued by the European Commission under Commission Implementing Decision (EU) 2021/914 of 4 June 2021.
Each party shall comply with all applicable requirements of the Data Protection Legislation. This clause 10 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
The parties acknowledge that, in the provision of the Services and for the purposes of the Data Protection Legislation, the Customer is the Controller and FLR Spectron is the Processor. The processing that the Customer has authorised FLR Spectron to do, is described in the Annexures to the Summary of Works for the applicable Services.
Without prejudice to the generality of clause 10.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of any Customer Personal Data to FLR Spectron and lawful collection of the same by FLR Spectron for the duration and purposes of the Contract.
Without prejudice to the generality of clause 10.1, FLR Spectron shall, in relation to any Customer Personal Data processed in connection with the performance by FLR Spectron of its obligations in the Contract:
process Customer Personal Data only in accordance with the Contract and for the purposes of providing the Services to the Customer, unless FLR Spectron is required by applicable law to otherwise process that Customer Personal Data. If FLR Spectron is so required, it shall notify the Customer before processing the Customer Personal Data unless prohibited by law;
ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of Customer Personal Data and against accidental loss or destruction of, or damage to, Customer Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Customer Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Customer Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
ensure that any FLR Personnel engaged and authorised by FLR Spectron to process Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality.
not transfer any Customer Personal Data outside of the UK unless it is made in accordance with clause 10.6 or the Customer provides its prior written consent to such international transfer, and FLR Spectron ensures that all such transfers are effected in accordance with the Data Protection Legislation. For these purposes, the Customer shall promptly comply with any reasonable request of FLR Spectron, including any request to agree to the entry of standard data protection clauses adopted by the UK Information Commissioner (or equivalent) from time to time;
assist the Customer insofar as this is possible (taking into account the nature of the processing and the information available to FLR Spectron), and at the Customer’s cost and expense, in responding to any request from a Data Subject and in ensuring the Customer’s compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
notify the Customer without undue delay on becoming aware of a Personal Data Breach involving Customer Personal Data;
subject to anything expressed to the contrary in the Contract, at its discretion, delete or return Customer Personal Data and copies thereof to the Customer on termination of the Contract unless FLR Spectron is required by applicable law or pursuant to regulatory requirements to continue to process that Customer Personal Data. For the purposes of this clause 10.4(h) Customer Personal Data shall be considered deleted where it is put beyond further use by FLR Spectron; and
maintain records to demonstrate its compliance with this clause 10 and allow for audits by the Customer or the Customer’s designated auditor, for this purpose, on reasonable written notice.
The Customer hereby provides its prior, general authorisation for FLR Spectron to:
appoint processors to process Personal Data, provided that FLR Spectron:
shall ensure that the terms on which it appoints such processors comply with the requirements of the Data Protection Legislation, and are consistent with the obligations imposed on FLR Spectron in this clause 10;
shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of FLR Spectron; and
shall provide the Customer promptly upon written request with a list of the current processors used by FLR Spectron in respect of the Contract.
The Customer acknowledges and agrees that for the purposes of the Contract:
FLR Spectron may transfer (or otherwise make available) Customer Personal Data to FLR Spectron India (based in India) (as FLR Spectron’s authorised sub-processor, appointed in accordance with these General Terms and Conditions) (“International Transfer”) and FLR Spectron India may process such Customer Personal Data on FLR Spectron’s behalf, for the purposes of providing Support Services (and where applicable Software Services) to the Customer under the Contract;
if FLR Spectron (or its authorised sub-processors) processes, accesses, stores or if FLR Spectron India otherwise receives any Customer Personal Data in a third country (as defined in the UK GDPR) from the Customer, then both parties agree that the EU SCCs and the Addendum shall apply to the International Transfer. If the foregoing is not applicable, or the Data Protection Legislation requires a different approach, the parties agree that they will work together in good faith to ensure the protection of Customer Personal Data being transferred meet the requirements of the Data Protection Legislation, including the Customer providing its consent (not to be unreasonably withheld) to FLR Spectron to allow FLR Spectron to lawfully comply with its obligations under the UK GDPR with respect to the International Transfer;
FLR Spectron shall ensure that it has in place a contract which imposes data protection obligations on FLR Spectron India which are equivalent to those imposed on FLR Spectron under the General Terms and Conditions, and which also incorporates (by reference or otherwise) the Addendum and EU SCCs (save for where such terms are not appropriate and a different approach is required as referred to in this clause 10.6);
the Customer shall be responsible for updating and providing sufficient privacy notices or policies to its data subjects whose Customer Personal Data will be subject to the International Transfer and the Customer shall ensure that it has in place appropriate consents, lawful bases and compliance with UK GDPR for such collection of, and sharing of Customer Personal Data with FLR Spectron or FLR Spectron India (as the case may be). FLR Spectron will not accept responsibility for any failure of the Customer to adhere to this clause 10.6 and the Customer’s own obligations under UK GDPR and FLR Spectron shall be entitled to assume that the Customer has so complied with all such obligations. The Customer shall indemnify and hold FLR Spectron harmless against any Losses which FLR Spectron may suffer or incur in connection with any failure or default of the Customer to comply with its obligations under UK GDPR and this clause 10.6(d);
the Customer consents to, authorises and instructs FLR Spectron to perform the International Transfer of Customer Personal Data in accordance with this clause 10.6; and
to the extent that the Addendum or EU SCCs or the UK GDPR is amended, superseded, repealed or replaced, which has the effect of requiring a change to the Addendum and/or the EU SCCs, the Customer agrees to work together with FLR Spectron in good faith to implement a suitable replacement to implement the International Transfer in compliance with UK GDPR (or if superseded or amended, its successor or amended legislation).
Confidentiality
Each party shall keep the other party’s Confidential Information secret and confidential and shall not:
use that Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with the Contract (Permitted Purpose); or
disclose that Confidential Information in whole or in part to any person, except as permitted by clause 11.2.
Each party may disclose the other party’s Confidential Information:
to its employees, officers, representatives, independent contractors, subcontractors and advisers who need to know that information for the Permitted Purpose (Representatives). Each party shall ensure that its Representatives comply with confidentiality obligations which are substantially equivalent to those set out in this clause 11; and
as may be required by law, a competent jurisdiction or any governmental or regulatory authority.
The provisions of this clause 11 shall continue to apply for a period of five years after termination or expiry of the Contract.
LIMITATION OF LIABILITY: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
The limits and exclusions in this clause 12 reflect the risk accepted under the Contract, is proportionate to the value of the Contract and is within the level of insurance cover FLR Spectron has been able to arrange, and the Customer is responsible for making its own insurance arrangements for the insurance of any excess loss.
References in this clause 12 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
Nothing in this clause 12 shall limit the Customer’s payment obligations under the Contract.
Nothing in the Contract limits or excludes any liability which cannot legally be limited, including liability for:
death or personal injury caused by negligence;
fraud or fraudulent misrepresentation; and
breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
Unless this clause 12.5 is varied and superseded by the special terms set out in a Summary of Works, and subject to clause 12.4 (liabilities which cannot legally be limited), FLR Spectron’s total aggregate liability to the Customer in respect of all claims and defaults under the Contract shall not exceed the lower of:
an amount which is equal to 150% the total sum of the Charges paid by the Customer under the Contract in the Contract Year in which the claim or default occurred; or
£10,000,000 (ten million pounds) being the total level of insurance coverage FLR Spectron has in place.
Subject to clause 12.4 (liabilities which cannot legally be limited), FLR Spectron shall not have any liability to the Customer for:
loss of profits (including loss of anticipated savings);
loss of sales or business;
loss of agreements or contracts;
loss of anticipated savings;
loss of use or corruption of software, data or information;
loss of or damage to goodwill; and
indirect or consequential loss.
FLR Spectron has given commitments as to compliance of the Services with relevant specifications in clause 5. In view of these commitments, all conditions, warranties, representations or other terms that might otherwise be implied into the Contract are, to the fullest extent permitted by law, excluded from the Contract, including the conditions and term implied by sections 3 to 5 (inclusive) and 13 of the Supply of Goods and Services Act 1982.
Unless the Customer notifies FLR Spectron that it intends to make a claim in respect of an event within the notice period, FLR Spectron shall have no liability for that event. The notice period for an event shall start on the date on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire 2 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
This clause 12 shall survive termination of the Contract.
Customer termination
The Customer may:
terminate the Contract, with immediate effect, by giving written notice to FLR Spectron, if FLR Spectron commits a material breach of any term of the Contract and (if such breach is remediable) FLR Spectron fails to remedy the breach within a period of 30 days after being notified in writing by the Customer to do so; and
terminate the Contract by giving FLR Spectron at least 90 days’ prior written notice before the end of the Minimum Term or the relevant Extended Term, with such termination taking effect at the end of the Minimum Term or at the end of the relevant Extended Term, as the case may be.
FLR Spectron termination
Without affecting any other right or remedy available to it, FLR Spectron may terminate the Contract with immediate effect, by giving written notice to the Customer, if:
the Customer fails to pay any amount due under the Contract on the Due Date for payment and remains in default not less than 7 days after being notified in writing to make such payment;
the Customer commits a material breach of any term of the Contract and (if such breach is remediable) fails to remedy the breach within a period of 30 days after being notified in writing to do so;
the Customer 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 of the Contract;
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 (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 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 Insolvency Act 1986 (being an individual) is deemed either unable to pay their debts or as having no reasonable prospect of doing so, in either case, within the meaning of section 268 of the Insolvency Act 1986 (being a partnership) has any partner to whom any of the foregoing apply;
the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors;
the Customer applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the Customer’s winding up (being a company, limited liability partnership or partnership);
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 Customer (being a company, partnership or limited liability partnership);
the holder of a qualifying floating charge over the assets of the Customer (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
a person becomes entitled to appoint a receiver over all or any of the assets of the Customer or a receiver is appointed over all or any of the assets of the other party;
a creditor or encumbrancer of the Customer 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 Customer’s assets and such attachment or process is not discharged within 14 days;
the Customer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
there is a change of control of the Customer (within the meaning of section 1124 of the Corporation Tax Act 2010); or
the warranty given by the Customer in clause 7.5 is found to be untrue or misleading.
Obligations on termination and survival
On termination or expiry of the Contract:
FLR Spectron shall immediately cease provision of the Services;
the Customer shall immediately pay to FLR Spectron all of FLR Spectron’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted FLR Spectron shall submit an invoice, which shall be payable by the Customer on receipt for any other amounts due under the Contract (including any third party costs which have been committed to or otherwise provided for under the Contract);
the Customer shall return all materials, equipment, documents and all other property of FLR Spectron and any Deliverables which have not been fully paid for and any FLR Equipment to FLR Spectron. If the Customer fails to do so, then FLR Spectron may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract;
subject to anything stated expressly to the contrary in the Additional Terms or the Summary of Works in relation to Customer Data, FLR Spectron shall at its own discretion either return to the Customer at the Customer’s cost or delete or destroy at its own cost, all documents and materials containing, reflecting, incorporating or based on any Customer Data and all of the Customer’s Confidential Information; and
the licence granted by FLR Spectron under clause 9.2 of these General Terms and Conditions shall terminate.
Nothing in clause 15.1(d) or elsewhere under the Contract shall require FLR Spectron to return (or for the avoidance of doubt, destroy or erase) any documents and materials containing or based on any Customer Data or the Customer’s Confidential Information that FLR Spectron is required to retain by applicable law, or to satisfy the requirements of any regulatory authority or body of competent jurisdiction or the rules of any listing authority or stock exchange to which it is subject, or otherwise as is reasonably necessary for FLR Spectron’s internal compliance and auditing procedures.
Termination or expiry of the Contract shall not affect any rights, remedies or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
Any provision of the Contract, that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect, including clause 7.4 (non-solicitation), clause 9 (intellectual property rights), clause 11 (confidentiality), clause 12 (limitation on liability), this clause 15 and clause 16 (dispute resolution).
Dispute resolution
The parties shall attempt in good faith to negotiate a settlement to any dispute between them arising out of or in connection with the Contract and such efforts shall involve the escalation of the dispute to an appropriate senior representative of each party.
If the dispute cannot be resolved by the parties within one month of being escalated as referred to in clause 16.1, the dispute may by agreement between the parties be referred to a neutral advisor or mediator (the “Mediator”) chosen by agreement between the parties. All negotiations in connection with the dispute shall be conducted in confidence and without prejudice to the rights of the parties in any further proceedings.
If the parties fail to appoint a Mediator within one month, or fail to enter into a written agreement resolving the dispute within one month of the Mediator being appointed, either party may exercise any remedy it has under applicable law.
Anti-bribery
FLR Spectron and the Customer shall each during the term of the Contract:
comply with the Relevant Requirements;
establish, maintain and enforce its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements and clause 17.1; and
notify the other party (in writing) if it becomes aware of any breach of clause 18.1(a) or has reason to believe that it has received a request or demand for any undue influence or other advance in connection with the performance of the Contract.
FLR Spectron shall, comply with the Customer’s Ethics, Anti-bribery and/or Anti-corruption Policies to which the Customer supplies to FLR Spectron in writing (Relevant Policies), subject in each case to FLR Spectron confirming in writing to the Customer it will comply with such Relevant Policies.
FLR Spectron shall use reasonable efforts to ensure that any of its agents, consultants, contractors, subcontractors or other persons engaged in performance of FLR Spectron’s obligations under the Contract do so on the basis of a written contract which imposes on such person terms equivalent to those imposed on FLR Spectron in this clause 17 (Relevant Terms).
Force majeure
For the purposes of this clause 18, Force Majeure Event means any circumstance not within FLR Spectron’s reasonable control, including without limitation:
acts of God, flood, drought, earthquake or other natural disaster;
epidemic or pandemic;
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;
nuclear, chemical or biological contamination or sonic boom;
any law or action taken by a government or public authority, including imposing an expert or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
any change in applicable law which materially affects FLR Spectron’s ability to perform any obligation under the Contract and/or significantly increases the costs to be incurred and/or effort to be expended by FLR Spectron in performing its obligations under the Contract;
collapse of buildings, fire, explosion or accident;
any labour or trade dispute, strikes, industrial action or lockouts;
interruption or failure of utility service or telecommunications network and/or breakdown of plant or machinery; and
non-performance by its suppliers or subcontractors.
FLR Spectron shall not be liable for any failure or delay in performing any of its obligations under the Contract for so long as, and to the extent that, its performance is prevented, hindered or delayed by a Force Majeure Event.
FLR Spectron shall notify the Customer of the start of a Force Majeure Event and use reasonable endeavours to limit the effect of the Force Majeure Event insofar as it is able to do so, on the performance of its obligations.
If FLR Spectron has not resumed full performance of a significant part of its obligations suspended under clause 18.2 within 90 days after giving notice of the start of the Force Majeure Event, either party may terminate the Contract by giving not less than 30 days’ notice to the other party.
Assignment and other dealings
FLR Spectron may at any time assign, novate, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
The Customer 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 the Contract.
Variation
Subject to clause 20.2, no variation of the Contract shall be effective unless it is in writing and signed by both parties (or their authorised representatives).
In the event of any changes to the law (including without limitation, VAT and any other applicable laws or regulations that apply to the Services from time to time) FLR Spectron may amend the Contract without the Customer’s consent, to the extent necessary, to ensure that FLR Spectron complies with such law or regulation. Such amendment may be perfected by FLR Spectron providing written notice of the changes made to the Contract to the Customer.
Waiver
A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed to be a waiver of any subsequent right or remedy.
A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
Severance
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it will be deemed deleted, but that will not affect the validity and enforceability of the rest of the Contract.
If any part-provision of the Contract is deemed deleted under clause 22.1, 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.
Entire agreement
The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances, and understandings between them, whether written or oral, relating to its subject matter.
Each party acknowledges that in entering into the Contract it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract.
Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
Notices
Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered 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 sent by email to the addresses specified in the Summary of Works.
Any notice shall be deemed to have been received:
if delivered by hand, at the time the notice is left at the proper address;
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
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, business hours means 9:00 am to 5:00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
This clause 24 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
Third party rights
Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
Governing law
The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
Jurisdiction
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.