In these conditions the words and expressions have the following meanings:
1.1 “Agreement” means the contract between RNIB and the Customer for the services comprising of these Terms and Conditions and any Specification;
"Affiliate" means; in relation to a party, any other entity which directly or indirectly Controls, is Controlled by, or is under direct or indirect common Control with, that party from time to time;
"Authorised Expenses" means any expenses that RNIB or its agents, employees, contractors or representatives incurs in providing the Services;
“Commencement Date" means the start date of the provision of services or such other date as is agreed by the parties in writing;
"Confidential Information" means any information of a confidential nature (including information relating to the disclosing party's products, operations, processes, plans or intentions, product information, know- how, methodologies, design rights, trade secrets, market opportunities and business affairs) which is disclosed to a party to this agreement by the other party (whether directly or indirectly) under or in connection with this Agreement;
"Control" means the ability to direct the affairs of another, whether by virtue of the ownership of shares, contract or otherwise and "Controls" and "Controlled" shall be construed accordingly;
"Customer" means the company, firm or person identified as such within the specification
"Fees" means the fees for the Services set out within the specification;
"Force Majeure" means, in relation to either party, any circumstances beyond the reasonable control of that party (including, without limitation, any strike, lock-out or other form of industrial action);
"Intellectual Property" includes patents, inventions, know-how, trade secrets and other confidential information, registered designs, copyrights, database rights, design rights, rights affording equivalent protection to copyright, trade marks, service marks, logos, domain names, business names, trade names, moral rights, and all registrations or applications to register any of the aforesaid items, rights in the nature of any of the aforesaid items in any country or jurisdiction, rights in the nature of unfair competition rights and rights to sue for passing-off and any renewals, revivals or extensions of any of these rights;
"Rate Card" means the list of agreed charges for different types of Services
"RNIB" means RNIB Charity, a registered charity with its principal offices at 105 Judd Street, London WC1H 9NE, and registered as a charity under number 1156629 in England and Wales and its Affiliates
"Services" means the services provided by RNIB to the Client as outlined within the Specification;
“Specification” means any document supplied by RNIB setting out the specification and other details of the Services to be provided to the Client and that is signed by both parties (if applicable).
"Terms and Conditions" means these RNIB Solution Conditions of Business;
"Working Day" means any weekday which is not a UK public holiday;
"Work" means any services conducted by RNIB under the Agreement;
1.1 Any reference in this Agreement to any statute shall be construed as a reference to it as amended, re-enacted or extended
1.2 Reference to any gender includes the other genders and words denoting the singular include the plural and vice versa. Reference to a "person" includes any individual, firm, unincorporated association or body corporate.
1.3 The headings in this Agreement are for convenience only and shall not affect its interpretation.
1.4 In this Agreement (unless the context otherwise requires), the words "including" and "include" and words of similar effect shall not be deemed to limit the general effect of the words which precede them.
2.1 The Agreement will be subject to these Terms and Conditions to the exclusion of all other terms, conditions, provisions and/or statements including any terms and conditions which the Customer purports to apply under any quotation, purchase order, acknowledgement or any other document issued by the Customer (whether introduced or made prior to or subsequent to the Agreement) or which are implied by trade, custom, practice or course of dealing.
2.2 This Agreement shall commence on the Commencement Date and endure for a specified period if set out in the Specification unless terminated as set forth in clause 10
3.1 RNIB shall use reasonable endeavours to provide the Services as described in the Specification.
3.2 The Customer acknowledges that RNIB’s primary object is the furtherance of its charitable aims, and the provision of the Services is a secondary function. Accordingly, to the extent that RNIB has used reasonable endeavours to meet its obligations as set out under this agreement and the Customer shall have no claim against RNIB where the Services are not completed on the date(s) and at the time(s) set out in the agreement.
3.3 Each party represents and warrants that:
3.3.1 it has full capacity and authority to enter into this Agreement; and
3.3.2 it is not aware of any circumstances which will, or which are likely to; prevent it from complying in full with all of its obligations under this Agreement.
3.4 Except to the extent set out in the Agreement, and subject to clause 8, RNIB excludes all warranties, conditions and representations to the maximum extent which is legally allowed.
3.5 Where performance of the Services is dependent upon the Customer performing certain obligations or making information, personnel, facilities and/or equipment available, then subject to clause 8, RNIB shall not be liable to the extent any failure is caused by a failure by the Customer to provide the relevant dependencies.
4.1 The Customer shall pay RNIB the Charges and Authorised Expenses in accordance with this clause 4 and as detailed in the Agreement.
4.2 The Customer acknowledges that the Charges and Authorised Expenses are estimates only. Where performance of the Services involves more effort than has been anticipated, RNIB shall be entitled to increase the Charges proportionately. Where RNIB incurs expenses in the course of the Services it shall be entitled to recover them as Authorised Expenses.
4.3 RNIB shall re-charge Authorised Expenses at cost only, and shall use reasonable endeavours to provide a valid VAT receipt for the amounts claimed.
4.4 RNIB shall be entitled to invoice the Charges and Authorised Expenses:
(i) at the end of each month whilst Services are being provided; and (ii) at the end of the provision of the Services to the extent any Charges have not been invoiced within the monthly invoices.
4.5 All invoices are payable within 30 days of the date of the invoice.
4.6 The Customer shall not have any right of set off in relation to the Charges or Authorised Expenses.
4.7 If the Customer disputes any element of the Charges and/or Authorised Expenses, it shall notify RNIB of the nature of the dispute within five (5) Working Days of receipt of the relevant invoice, giving relevant details. Pending the resolution of the dispute the Customer shall be entitled to withhold payment of the disputed portion of the Charges and/or Authorised Expenses, but shall pay any undisputed portion.
4.8 The Charges pursuant to this Agreement are exclusive of any VAT, sales taxes, withholding taxes or any other tax, duty or levy applied by any authority.
4.9 RNIB may charge interest on the late payment of any undisputed amount properly invoiced in accordance with the rate specified from time to time in the Late Payment of Commercial Debts (Interest) Act 1998.
5.1 Subject to the Customer paying the Charges and Authorised Expenses, RNIB hereby grants to the Customer a non-exclusive licence within the United Kingdom to use only those elements of RNIB's Intellectual Property which it is absolutely necessary for the Customer to use in order to receive the Service, for the sole purpose of receiving the Services in accordance with this Agreement, for the duration of the relevant contract provided always that:
5.1.1 the Customer complies with RNIB's directions regarding the use of RNIB's Intellectual Property;
5.1.2 the Customer does not incorporate any aspect of any of RNIB's Intellectual Property into any of its own work;
5.1.3 the Customer may not, grant any third party any right to use any element of RNIB's Intellectual Property;
5.1.4 where RNIB has reasonable grounds to believe that RNIB's Intellectual Property is being exploited other than as permitted by this Agreement, the Customer shall allow RNIB's representative (which may include lawyers retained by RNIB) to audit its use of RNIB's Intellectual Property on reasonable notice and to enter any of its premises for such purposes;
5.2 The Customer shall promptly and fully notify RNIB of any actual, threatened or suspected infringement of any Intellectual Property of RNIB which comes to the Customer's notice
5.3 The Customer agrees to obtain the prior written permission of RNIB before it uses any of RNIB's names, logos or trademarks. In addition, under no circumstances shall the Customer be entitled to use any of RNIB's names, logos or trademarks as part of any company or trading name or as part of the name of any product or service.
5.4 The Customer shall not use any trademarks or trade names so resembling the trademarks or trade names of RNIB as to be likely to cause confusion or deception.
5.5 The Customer shall not do or authorise any third party to do any act which would or might invalidate or be inconsistent with the Intellectual Property of RNIB and shall not omit or authorise any third party to omit to do any act which, by its omission, would have that effect or character.
5.6 RNIB agrees that other than any of RNIB's pre-existing Intellectual Property, all Intellectual Property and all other rights of any nature subsisting in any materials (regardless of format) which are newly created, or arise out of the performance of this Agreement (the "New IP") shall vest absolutely in the Customer from the date on which they are created. Accordingly RNIB undertakes, at the request and cost of the Customer to sign all documents and to do all other acts, which may be necessary to give full effect to this clause 5.6.
5.7 The Customer hereby grants RNIB a worldwide, royalty-free licence to use the New IP in the course of RNIB's operations and in order to publicise and demonstrate RNIB's various services and offerings.
6.1 Except as provided by clauses 6.2 and 6.3 of this Agreement, each party shall at all times during the continuance of this Agreement and after its termination:
6.1.1 keep all of the other party's Confidential Information confidential and shall not disclose any Confidential Information to any other person; and
6.1.2 not use any of the other party's Confidential Information for any purpose other than the performance of its obligations under this Agreement.
6.2 Any Confidential Information may be disclosed to:
6.2.1 any professional advisor, provided that such professional advisor owes a duty of confidence similar to that imposed in this clause 6; or
6.2.2 as is required by law; and subject in the case of clauses 6.2.1 to the disclosing party using its best endeavours to ensure that the person in question keeps the same confidential and does not use the same except for the purposes for which the disclosure is made.
6.3 Any Confidential Information disclosed by a party to this agreement may be used by the recipient for any purpose, or disclosed by the recipient to any other person, to the extent only that:
6.3.1 it is on the date of this Agreement, or becomes public knowledge through no fault of the recipient (provided that in doing so the recipient shall not disclose any Confidential Information which is not public knowledge); or
6.3.2 it can be shown by the recipient, to the reasonable satisfaction of the disclosing party, to have been known to the recipient prior to its being disclosed by the disclosing party to the recipient and not to be subject to any confidentiality obligation;
6.4 Each party shall, at all times, comply with the Data Protection Act 1998 ("DPA") and all subordinate and related legislation and guidelines that may apply from time to time as if that party were based in the United Kingdom and fully subject to such legislation (regardless of where that party may be established or where the Services may be provided). The terms "personal data"; "data subject"; "data controller"; "data processor"; "processing"; and any related terms; when used in this clause 6, shall each bear the meaning given to such terms in the DPA
6.5 Each party (the "Assisting Party") shall, at the other party's request (the "Requesting Party"), provide such reasonable assistance as the Requesting Party may request in order for the Requesting Party to comply with its obligations under the DPA. Where the Assisting Party incurs material costs in comply with any request from the Requesting Party it shall be entitled to be reimbursed those costs by the Requesting Party.
6.6 When processing personal data in respect of which the other party is the data controller, each party shall comply with its obligations as a data processor under the DPA and shall:
6.6.1 only process that personal data for the purpose of performing its obligations under this Agreement and in accordance with any reasonable instructions received from the data controller from time to time;
6.6.2 implement appropriate technical and organisational measures to protect such personal data;
6.6.3 not send any of the personal data outside of the European Economic Area without the data controller's specific prior written consent;
6.6.4 pass any and all access requests received from data subjects relating to that personal data promptly to the data controller;
6.6.5 not knowingly or recklessly cause the data controller to breach any of its statutory obligations.
6.7 Where the Customer is based outside the European Economic Area or the Services are to be carried out outside the European Economic
Area, then the Customer shall, promptly upon written notice from RNIB to do so, enter into a data transfer agreement with RNIB based upon any standard or model clauses, terms or contracts published from time to time by the European Commission (or any other body empowered under relevant laws to publish such clauses) as RNIB may determine.
7.1 Neither party shall be deemed to be in breach of this Agreement, or otherwise be liable to the other, by reason of any delay in performance, or non-performance, of any of its obligations under this Agreement to the extent that such a delay or non-performance is due to any Force Majeure; and the time for performance of that obligation shall be extended accordingly, provided that the party claiming protection under this clause:
7.1.1 notifies the other party promptly upon becoming aware of the Force Majeure, providing reasonable detail regarding the circumstances, effects and likely duration of the Force Majeure to the extent known;
7.1.2 keeps the other party informed at reasonably frequent intervals regarding the Force Majeure and any efforts to correct, mitigate or work around its effects; and
7.1.3 implements such reasonable workarounds or mitigation strategies, and at all times seeks to fulfil (wholly or partially) its obligations under this Agreement to the greatest extent reasonably practicable.
8.1 This clause sets out each party's entire liability arising out of this Agreement and the performance or non-performance of its obligations under this Agreement whether such liability arises in contract, tort, statute or otherwise, in law, equity or otherwise or is direct, indirect, special, consequential or otherwise.
8.2 Nothing in this Agreement shall limit a party's liability for:
8.2.1 death or personal injury caused by its negligence;
8.2.2 fraud, including fraudulent misrepresentation; or
8.2.3 any other form of liability which cannot lawfully be limited or excluded.
8.3 Subject to clauses 8.1 and 8.2, RNIB shall not be liable for any indirect, consequential or special losses, costs, claims, damages or other expenses, (in each case whether such liability arises in contract, tort, statute or otherwise, in law, equity or otherwise).
8.4 Subject to clauses 8.1, 8.2 and 8.3, RNIB shall not be liable for any of the following categories of loss, in each case whether the loss is direct, indirect, special, consequential or otherwise:
8.4.1 loss of profit;
8.4.2 loss of business;
8.4.3 loss of opportunity;
8.4.4 loss of savings;
8.4.5 loss of data;
8.4.6 loss of goodwill; or
8.4.7 any other economic loss.
8.5 Subject to clauses 8.1, 8.2, 8.3 and 8.4, RNIB's maximum aggregate liability 125% of the total of the fees paid to RNIB for the Services.
8.6 The Customer acknowledges that RNIB, as a charitable institution, is engaged in Service provision in furtherance of its aims, and not solely from a profit motive. Accordingly, the Customer agrees that the limitations on RNIB's liability set out in this Agreement are reasonable having regard to the circumstances and the need to protect RNIB's other charitable activities from exposure to high value claims. The Customer agrees to insure itself against these risks in accordance with clause 9
9.1 The Customer shall maintain in force from the Effective Date of Agreement to remain in force full and comprehensive insurance policies o protect the Customer against the potential for any delay or failure in the provision of the Services.
10.1 Either party shall be entitled to terminate this Agreement immediately by written notice to the other if:
10.1.1 the other party has committed a material breach, and if such material breach is capable of remedy, has failed to remedy the default within 30 Working Days of receiving a notice specifying the default and requiring its remedy;
10.1.2 the other party has failed to pay an undisputed amount due under this Agreement, and has failed to remedy the default within 15 Working Days of receiving a notice specifying the default and requiring its remedy;
10.1.3 the other party is unable to pay its debts as they fall due within the meaning of section 123 of the Insolvency Act 1986 or if any step or proceeding is taken or made with regard to it for:
10.1.3.1 a voluntary arrangement or composition or reconstruction of its debts;
10.1.3.2 its winding-up or dissolution;
10.1.3.3 the appointment of a liquidator, trustee, receiver, administrator, administrative receiver or similar officer of it or the whole or any part of its undertakings, assets, rights or revenues; or
10.1.3.4 any similar step or proceeding is taken or made in any jurisdiction to which it is subject.
However, neither party shall be entitled to terminate this agreement pursuant to this clause 10.1.3 where a resolution by the other or court order that the other be wound up is for the purpose of a bona fide reconstruction or amalgamation.
10.2 Any waiver by either party of a breach of any provision of this Agreement shall not be considered as a waiver of any subsequent breach of the same or any other provision of this agreement.
11.1 Upon the termination of this Agreement for any reason:
11.1.1 any right of action or remedy which shall have accrued, or shall afterwards accrue, to either party shall not be prejudiced or affected;
11.1.2 the licences and rights granted pursuant to clause 5 shall immediately terminate;
11.1.3 each party shall within 30 days send to the other party, or otherwise dispose of in accordance with the directions of that other party, all Confidential Information and all property of that other party of whatever nature;
11.1.4 the provisions of clauses 1, 3, 5, 6, 8, 11, 12, 14, 16, 17 and 18 and any others which are expressly or impliedly intended to continue shall continue in force;
11.1.4 subject as otherwise provided in this Agreement and to any rights or obligations which have accrued prior to termination, neither party shall have any further obligation to the other under this Agreement.
11.2 If the Services include training, the Client must confirm training dates one month prior to the date of the training course. If more than seven Working Days notice is given for cancellation of training Services, any costs and expenses incurred by RNIB will be payable by the Client. If less than seven Business Days notice is given for a cancellation of training Services, then the full fee due to RNIB in relation to the training Services will be payable along with any costs and expenses incurred by RNIB.
12.1 The Customer shall:
12.1.1 comply with (i) all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including (without limitation) the Bribery Act 2010 and the Money Laundering Regulations 2007; and RNIB's Anti-bribery Policy as updated from time to time; (together the "Relevant Requirements");
12.1.2 not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 (the "2010 Act") if such activity, practice or conduct had been carried out in the UK;
12.1.3 maintain in place its own policies and procedures to ensure compliance with the Relevant Requirements and will enforce them where appropriate;
12.1.4 promptly report to RNIB any request or demand for any undue financial or other advantage of any kind received by the Customer in connection with the performance of this Agreement; and
12.1.5 within two (2) months of the Effective Date, and annually thereafter, certify in writing to RNIB compliance with this clause 2 by the Customer and all persons associated with it under clause 12.2. The Customer shall provide such supporting evidence of compliance as RNIB may reasonably request.
12.2 The Customer shall ensure that any person associated with it in connection with this Agreement does so only on the basis of a written contract which imposes on, and secures from, such person terms equivalent to those imposed on The Customer in this clause 12("Relevant Terms"). The Customer shall be responsible for the observance and performance by such persons of the Relevant Terms, and shall be directly liable to RNIB for any breach by such persons of any of the Relevant Terms.
12.3 Breach of this clause 2 by the Customer shall be deemed a non-curable material breach.
13.1 RNIB may, by written notice to the Customer, assign, novate, sub- contract or otherwise transfer this Agreement and the rights and obligations under this Agreement, and the Customer hereby consents to any such assignment, novation, sub-contracting or other transfer.
13.2 This Agreement is personal to the Customer, which may not without the prior written consent of RNIB, assign, mortgage, charge or dispose of any of its rights, or otherwise delegate any of its obligations under this Agreement.
13.3 This Agreement appoints RNIB to provide the Services as an arm's- length subcontractor the Customer. Nothing in this Agreement shall create, or be deemed to create, a partnership or the relationship of employer and employee between the parties.
13.4 This Agreement contains the entire agreement between the parties with respect to its subject matter, supersedes all previous agreements and understandings between the parties with respect to that subject matter, and may not be modified except in writing signed by the duly authorised representatives of the parties.
13.5 Each party acknowledges that, in entering into this Agreement, it does not do so on the basis of, and does not rely on, any representation, warranty or other provision except as expressly provided in this Agreement.
13.6 If any provision of this Agreement is determined by legal authority to be void or unenforceable in whole or part, the rest of this Agreement and the remainder of the affected provision shall remain in force.
14.1 Any notice to be given under this Agreement must be in writing and may be hand-delivered, sent by prepaid post, or email to the party to be served at the address for that party given in this Agreement, or another address for service as that party may notify to the other.
14.2 Any item shall be deemed served: if delivered, at the time of delivery; if posted, 48 hours after posting; if sent by email, at the time of successful transmission as evidenced by a successful transmission receipt.
15.1 Without Prejudice to clause 14.1, where either party wishes the Services under these Terms and Conditions to be altered, it shall notify the other party, providing such details of the change as it is able to (a "Change Request"), and the parties shall then follow the procedure set out in this clause.
15.2 Reasonably promptly following receipt of a Change Request, RNIB shall prepare a report in a form suitable to be appended to the relevant Call Off Contract setting out the details of the Change, the impact on the Services, any deadlines and the estimated Charges and Authorised Expenses (the "Change Report"), sign the Change Report and send it to the Customer.
15.3 The Customer shall, reasonably promptly after receiving the Change Report, notify RNIB whether the Change Report is:
15.3.1 accepted; in which case the Customer shall sign the Change Report and return it to RNIB, and the relevant Call Off Contract shall be amended; or
15.3.2 rejected, in which case this process shall end and the Call Off Contract shall not be amended.
16.1 The Agreement is made for the benefit of the parties and their successors and permitted assigns and are not intended to benefit or create any right enforceable by any other person (whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise).
17.1 This Agreement shall be governed by the laws of England and, except as specified in clause 17.2, each party hereby submits to the exclusive jurisdiction of the English courts.
17.2 Nothing in this Agreement shall prevent either party bringing an action in any jurisdiction:
17.2.1 for injunctive relief or specific performance (or any similar remedies) in connection with any Intellectual Property infringement or any breach of confidence; or
17.2.2 to enforce any judgement previously awarded by the English courts.