Terms & Conditions

WICRESOFT UK LIMITED

GENERAL TERMS AND CONDITIONS OF BUSINESS 

PLEASE NOTE THE LIMITATION OF LIABILITY PROVISIONS IN CONDITION 10.

PART A (GENERAL)

1. DEFINITIONS & INTERPRETATION

1.1 In these terms and conditions, the following words and phrases shall have the meanings ascribed to them below:

“Charges” means the charges detailed in the Work Package;

“General Conditions” means these terms and conditions;

“Confidential Information” means any information (whether disclosed orally or in writing) that relates to the business, affairs, operations, customer, processes, budgets, pricing, product, information, strategies, developments, trade secrets, know-how, personnel and suppliers of the disclosing party and any other information designated as confidential or which ought to be reasonably considered to be confidential;

“Customer” means the company, person or party detailed in the Work Package;

“Data Protection Laws” means (i) the Data Protection Act 2018 and any laws or regulations implementing Directive 95/46/EC (Data Protection Directive) and/or (ii) the General Data Protection Regulation, and/or any corresponding or equivalent national laws or regulations;

“Deliverables” means the deliverables set out in the Work Package;

“Expenses” means the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the Supplier and agreed in writing in advance with the Customer in connection with the Work Package;

“Force Majeure Event” means an event which arises in circumstances beyond the reasonable control of the Supplier including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, pandemic, lock-outs, strikes or other employment disputes (whether or not relating to either party’s workforce);

“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trademarks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;

“Protected Data” means Personal Data (as defined in the Data Protection Laws) received from or on behalf of the Customer in connection with the Work Package;

“Supplier” means Wicresoft UK Limited (company number 12222889) whose registered office is at Croft Myl Office 5a, West Parade, Halifax, England, HX1 2EQ.

1.2 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.3 Words in the singular include the plural and in the plural include the singular.

1.4 A reference to a party or the parties shall be a reference to the Supplier and the Customer, or as the context permits, both of them.

1.5 Condition headings do not affect the interpretation of these terms and conditions.

1.6 Defined terms, which are not defined in these General Conditions, shall have the meanings given to them in the “Master Supply Agreement”, to which these conditions are attached.

2. APPLICATION

2.1 Any variation to these General Conditions and any representations about the Work Package shall have no effect unless expressly agreed in writing and signed by the parties.

2.2 The Work Package is valid for that number of days specified in the Work Package or if no such number of days is specified, seven (7) days from the date of issue. Prior to its acceptance, the Supplier may withdraw the Work Package at any time by written notice to the Customer.

2.3 Unless otherwise provided for in the Work Package, the Customer acknowledges that in entering into the Work Package, it has:

(a)not relied on any statement, promise or representation made or given by or on behalf of the Supplier; and

(b)fully satisfied itself that the Deliverables are suitable for its own requirements.

3. DESCRIPTION

3.1 The description and/or quantity of the Deliverables shall be detailed or referenced in the Work Package.

3.2 All samples, drawings, descriptive matter, scoping and advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier’s catalogues or brochures are issued or published for illustrative purposes only and they do not form part of the Work Package.

3.3 Any typographical, clerical or other error or omission in the Work Package, any sales literature, price list, acceptance of offer, invoice or other document or information issued by the Supplier shall be subject to correction without any liability.

3.4 In entering into the Work Package, the Customer acknowledges that it does not rely on, and waives any claim for breach of any such representations which have not first been confirmed in writing by the Supplier.

3.5 Any advice or recommendation given by the Supplier or its employees, contractors or agents to the Customer or its employees, contractor’s or agents about the Deliverables which are not confirmed in writing by a director of the Supplier is followed or acted on entirely at the Customer’s own risk.

4. SUPPLY

4.1 The Supplier shall supply and/or perform the Deliverables:

(a)in accordance with the Work Package;

(b)for the minimum term specified in the Work Package, if applicable;

(c)to a professional standard, using good industry practice;

(d)using reasonable skill and care;

(e)using its own policies, processes and internal quality control measures;

(f)on the dates agreed; and

(g)in compliance with the law.

5. PRICING AND PAYMENT

5.1 In consideration for the Deliverables, the Suppler will invoice the Customer the Charges.

5.2 All Charges exclude value added tax and Expenses, which are payable by the Customer in addition.

5.3 Unless otherwise agreed in the Work Package, the Customer shall without any right of set off, pay the Charges and all pre-approved Expenses incurred, within thirty (30) days of receipt of the applicable invoice.

5.4 If the Customer fails to pay the Supplier any invoice, without prejudice to any other right or remedy available to the Supplier:

(a)the Customer shall be liable to pay interest to the Supplier on such sum from the due date for payment at the annual rate of 8% above the base lending rate from time to time of the Bank of England, accruing on a daily basis until payment is made, whether before or after any judgment. The Supplier reserves the right to claim interest, compensation and costs under the Late Payment of Commercial Debts (Interest) Act 1998; and/or

(b)the Supplier may suspend further performance of the Work Package; and/or

(c)the Supplier may exercise a general lien on all goods and property belonging to the Customer in its possession, exercisable in respect of all sums lawfully due from the Customer to the Supplier. The Supplier shall be entitled, on the expiry of fourteen (14) days’ notice in writing, to dispose of such goods or property in such manner and at such price as it thinks fit and to apply the proceeds towards the amount outstanding.

6. CUSTOMER OBLIGATIONS

6.1 The Customer shall fully use reasonable endeavours to co-operate with the Supplier in its performance of the Work Package and the supply of the Deliverables.

6.2 Neither the Customer nor the Suppliers without the prior written consent of the other party, at any time from the date of the Work Package to the expiry of six (6) months after the completion of the Deliverables, solicit or entice away or employ or attempt to employ any person who is, or has been, engaged as an employee or sub-contractor of the Customer or the Supplier. The respective party in breach will reimburse the other party any recruitment fee and 6-months basic salary to replace the employee enticed away.

6.3   Customer shall provide the Supplier in a timely manner with such:

(a)access to its systems, premises and data, and such office accommodation and other facilities, as is requested by the Supplier to perform the Work Package;

(b)information as the Supplier may request, and ensure that such information is accurate in all material respects.

6.4 Where the Work Package is performed at the Customer’s premises or any third premises site, the Customer shall be responsible (at its own cost) for preparing such premises by:

(a)obtaining any necessary easements, wayleaves, permissions, consents or licenses;

(b) providing suitable secure space for keeping tools, fittings and materials;

(c)making electrical power, sanitary facilities and running water available to the Supplier;

(d)ensuring that its employees, agents or contractors do not interfere with anything installed pursuant to the Deliverables;

(e)complying with all obligations and responsibilities under the Health and Safety at Work Act 1974, the Management of Health and Safety at Work Regulations 1999, the Construction (Design & Management) Regulations 2007, any approved codes of practice, industry guidance, standards and best practice, each as amended from time to time.

6.6 The Customer shall at all times take all steps which a reasonable and prudent person responsible for computer systems and computer data would take to maintain the integrity, performance and accuracy, including but without limitation, taking regular backups of all data software and configuration, and having available suitable alternative computerised and manual systems.

7. INTELLECTUAL PROPERTY RIGHTS

7.1 All Intellectual Property Rights shall remain the property of the party creating or owning them and nothing shall, or shall be deemed to, confer any assignment or licence of the Intellectual Property Rights of one party to the other party.

8. DATA PROTECTION LAWS

8.1 Both parties shall comply with the Data Protection Laws. This condition 8 is in addition to, and does not relieve, remove or replace a party’s obligation under the Data Protection Laws.

8.2 The Supplier and the Customer acknowledge that for the purposes of the Data Protection Laws and in respect of any Protected Data, the Customer is the “Data Controller” and the Supplier is the “Data Processor” as each term may be defined in the Data Protection Laws.

8.3 For the purposes of this condition 8, “process” and “processing” shall have the meaning given in the Data Protection Laws.

8.4 Unless required to do otherwise, the Supplier shall process the Protected Data only in accordance with the Customers written instructions and shall not process the Protected Data for any other purposes other than those expressly authorised by the Customer.

8.5 Each party shall process the Protected Data in compliance with all applicable laws including the Data Protection Laws.

8.6 The Supplier agrees that, having regard to the state of technological development and the cost of implementing any measures, it will take appropriate technical and organisational measures against the unauthorised or unlawful processing of Protected Data and against the accidental loss or destruction of, or damage to, Protected Data to ensure a level of security appropriate to: (i) the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage; and (ii) the nature of the data to be protected.

8.7 In relation to the Protected Data the Supplier shall:

1. ensure that all personnel who have access to and/or process Protected Data are obliged to keep the Protected Data confidential;
2. not transfer any Protected Data outside of the European Economic Area;
3. assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject (as that term may be defined in the Data Protection Laws) and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
4. notify the Customer without undue delay on becoming aware of a Protected Data breach;
5. at the written direction of the Customer delete or return Protected Data and any copies to the Customer on termination of the Work Package unless required by any law to store the Protected Data; and
6. maintain complete and accurate records and information to demonstrate its compliance with this condition 8.

8.8 The Customer authorises the Supplier to hold Protected Data in a computerised database to the extent it is necessary for the performance by the Supplier of its obligations under the Work Package. The Customer consents to the processing of that Protected Data by third-party processors appointed by the Supplier solely in connection with the provision of Services to the Customer and the Supplier confirms that it has entered or (as the case may be) will enter with each third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause. As between the Customer and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third-party processor appointed by under this condition 8.

8.9 The Customer warrants, represents and undertakes that:

(a)All data sourced or provided by the Customer for use in connection with the Work Package shall comply in all respects, including in terms of its collection, storage and processing (which shall include the Customer providing all of the required fair processing information to, and obtaining all necessary consents from, Data Subjects), with Data Protection Laws; and

(b)All instructions given by it to the Supplier in respect of Protected Data shall at all times be in accordance with Data Protection Laws.

8.10 The Customer shall indemnify and keep indemnified and hold harmless, the Supplier from and against all losses suffered or incurred by, awarded against or agreed to be paid by the Supplier arising out of or in connection with any non­compliance by the Customer with the Data Protection Laws.

9. CONFIDENTIALITY

9.1 The Supplier shall keep in strict confidence all Confidential Information.

9.2 The Supplier will use the Confidential Information solely to perform its obligations under the Work Package.  Accordingly, the Supplier will disclose the other’s Confidential Information only to those of its agents, contractors, and employees who need to know the information for purposes of performing the Work Package, provided that they are legally bound, in writing, not to disclose the Confidential Information except as permitted by the Work Package.

9.3 The obligations of confidentiality in this condition 9 shall not extend to any matter which:

(a)is in or becomes part of the public domain otherwise than by reason of a beach of the obligations of confidentiality in the Work Package

(b)the receiving party can show was in its written records and/or possession prior to the date of disclosure of the same by the disclosing party;

(c)is after the date of the Work Package received without any duty of confidentiality from a third party independently entitled to disclose it free from any obligations of confidentiality; and/or

(d)is required by law or a regulatory authority to be disclosed provided that the receiving party gives to the disclosing party as much advance notice of the required disclosure as possible.

10. LIMITATION OF LIABILITY

10.1 The following provisions set out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of the Work Package.

10.2 Nothing in these General Conditions excludes or limits the liability of the Supplier:

(a)for death or personal injury caused by the Supplier’s negligence;

(b)under section 2(3), Consumer Protection Act 1987 or section 12 of the Sale of Goods Act 1979;

(c)for any matter which it would be illegal for the Supplier to exclude or attempt to exclude its liability; or

(d)for fraud or fraudulent misrepresentation.

10.3 Subject to conditions 10.1 and 10.2 the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Work Package for:

(a)loss of profits;

(b)loss of sales or business;

(c)loss of agreements or contracts;

(d)loss of anticipated saving;

(e)loss of or damage to goodwill;

(f)loss of use or corruption of software, data or information;

(g)any damage to property;

(h)any indirect or consequential loss.

10.4 The Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Work Package, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed the Charges payable under the Work Package in the twelve (12) month preceding the date on which the liability arose.

10.4 Except as otherwise provided for under these General Conditions, all other warranties, conditions and other terms implied by statute (including the Sale of Goods Act 1979 and the Supply of Goods and Services Act 1982) or common law are, to the fullest extent permitted by law, excluded from the Work Package.

11. TERMINATION

11.1 Without prejudice to any other rights the parties may have under the Work Package, at any time during the Work Package, either party shall have the right to terminate the Work Package on written notice to the other party with immediate effect, if the other party

(a)breaches any of the terms and conditions relating to the Work Package and such breach is not capable of remedy after reasonable consultation;

(b)breaches any of the terms and conditions relating to the Work Package and if such breach is remediable, fails to remedy that breach within a period of thirty calendar days (30) days after being notified in writing to do so;

(c)(being a person) has a bankruptcy order made against `him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors;

(d)(being a body corporate) shall have a receiver or administrative receiver appointed over it or over any part of its undertaking or assets or shall pass a resolution for winding-up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or shall become subject to an administration order or shall enter into any voluntary arrangement with its creditors; or

(e)suspends or ceases or threatens to suspend or cease, to carry on all or a substantial part of its trade or business.

11.2 Termination of the Work Package (however occasioned) shall not affect any accrued rights or liabilities of either party.

12. UNFORSEEABLE DELAYS

12.1 The Supplier reserves the right to defer the performance of each Work Package (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business due to a Force Majeure Event.

13. REGULATORY COMPLIANCE

13.1 If a licence, consent, permission or any government or other authority is required in relation to the Work Package, the Customer shall obtain the licence or consent at its own expense and if requested, produce the evidence to the Supplier on demand. Failure to obtain any licence or consent shall not entitle the Customer withhold or delay payment or terminate the Work Package.

14. COMMUNICATIONS

14.1 All communications between the Supplier and the Customer regarding the Work Package shall be either via email, or in writing and delivered by first class post to the nominated trading office, failing that:

(a)(in case of communications to the Supplier) its registered address or any other address notified in writing from time to time; or

(b)(in the case of the communications to the Customer) the address detailed in the Work Package or any other address notified in writing from time to time.

15. DISPUTE RESOLUTION

15.1 In the event of any bona fide dispute or difference arising between the parties in connection with the Work Package (excluding any dispute relating to non-payment of the price by the Customer, for whatever reason), the parties shall attempt to resolve such dispute or difference in good faith and without recourse to legal proceedings.

15.2 If the parties are unable to resolve such dispute or difference within fourteen (14) days of initial discussions between the parties taking place, either party may request the other in writing that the matter be referred to senior representatives of the parties with authority to settle the dispute, who shall attempt to resolve the dispute within thirty (30) days of the written request to do so.

15.3 If the dispute or difference is not resolved as a result of a meeting of the senior representatives of the parties pursuant to condition 15.2 above, or if no meeting of the senior representatives occurs within the prescribed time periods set out in that condition, either party may request the Centre for Dispute Resolution (“CEDR”) in writing to appoint an independent expert.

15.4 If either party so requests CEDR to appoint an independent expert, such party must instruct CEDR to ensure that the expert:

(a)acts as an expert and not an arbitrator;

(b)affords the parties the opportunity within reasonable time limits to make representations to him;

(c)informs each party of the representations of the other;

(d)affords each party the opportunity within reasonable time limits to make submissions to him on the representations of the other; and

(e)notifies the parties of his decision, with reasons as quickly as practicable.

15.5 The fees and expenses of the expert including the cost of his nomination shall be borne equally by the parties who shall bear their own costs as to the submission and determination of the dispute or difference by the expert, save as where otherwise directed by the expert.

15.6 The expert determination is to be conclusive and binding on the parties except where there is fraud or a manifest error or on a matter of law.

16. GENERAL

16.1 The Supplier may assign the Work Package or any part of it to a third party upon written consent of the Customer, such consent not to be unreasonable withheld.

16.2 The Supplier shall have the right to sub-contract the performance of the Work Package. The obligations and liabilities under the Work Package remain with the Supplier.

16.3 Each right or remedy of the Supplier under the Work Package is without prejudice to any other right or remedy of the Supplier whether under the Work Package or not.

16.4 If any provision of the Work Package is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Work Package and the remainder of such provision shall continue in full force and effect.

16.5 Failure or delay by the Supplier in enforcing or partially enforcing any provision of the Work Package shall not be construed as a waiver of any of its rights under the Work Package.

16.6 Any waiver by the Supplier of any breach of, or any default under, any provision of the Work Package by the Customer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Work Package.

16.7 Each of the parties acknowledges and agrees that in entering into the Work Package it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) other than as expressly set out in the Work Package.  The only remedy available to either party in respect of any such statement, representation, warranty or understanding shall be for breach of contract under the terms of the Work Package.

16.8 The parties to the Work Package do not intend that any term of the Work Package shall be enforceable by virtue of the Work Packages (Rights of Third Parties) Act 1999 by any person that is not a party to it.

16.9 The formation, existence, construction, performance, validity and all aspects of the Work Package shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.