Terms and Conditions

(A) HFD DATAVITA LIMITED is a company registered in Scotland with company number SC467509 and registered office at Fortis Datacentre, Unit 1, York Road, Chapelhall, Airdrie, Lanarkshire, ML6 8HW (the "Service Provider") which provides Co-locate Services, Connect Services and Cloud Services (and related services).

(B) These Conditions shall apply to and be incorporated into each Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied.

(C) Each Order Form and these Conditions shall form a separate Contract.

1.1 In these Conditions, unless otherwise specified or inconsistent with the context, the following definitions shall apply.

2.1 References to Clauses are to the clauses of these Conditions.

2.2 Clause and paragraph headings shall not affect the interpretation of these Conditions or the relevant Order Form.

2.3 Unless the context otherwise requires:

2.3.1 Words in the singular shall include the plural and in the plural shall include the singular;

2.3.2 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time;

2.3.3 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

2.4 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's personal representatives, successors and permitted assigns.

2.5 In the event of any discrepancy, inconsistency or divergence arising between the provisions of these Conditions, any Order Form, or any document referred to in these Conditions or an Order Form, then (subject as expressly provided in these Conditions) the order of precedence shall be as follows:

2.5.1 The relevant Order Form;

2.5.2 These Conditions; and

2.5.3 Any other document expressly referred to in these Conditions or an Order Form.

3.1 These Conditions commence on the Effective Date and shall continue in force until terminated in accordance with the terms of these Conditions.

3.2 Each Service will have its own term, and that term will be specified in the relevant Order Form.

3.3 Each Service will have its own minimum term as set out in the relevant Order Form (the "Service Initial Term").

3.4 Upon expiry of a Service Initial Term, that Service Initial Term shall automatically renew for successive Extension Periods until either Party gives the requisite notice as detailed in the relevant Order Form for such Service to the other Party in writing.

3.5 In addition, the Service Provider may terminate the relevant Contract if the Customer fails to pay any amount due regarding any Service on the due date for payment and remains in default not less than fourteen (14) days after being notified by the Service Provider in writing to make such payment.

4.1 During the Term, the Customer may place a request for Services by contacting the Service Provider and completing an Order Form (a "Service Request").

4.2 On placing the first Service Request, the Parties will enter into an Order Form setting out the Services to be provided. Further Order Forms may be completed between the Parties from time to time depending on the Services requested.

4.3 If the Service Provider is unable to accept a Service Request, the Service Provider will inform the Customer of this, and the Service Request will not be processed by the Service Provider.

4.4 For the avoidance of doubt, by making a Service Request the Customer acknowledges and agrees that the terms and conditions of these Conditions and the relevant Order Form applicable to the Services in scope of the Service Request entered into by the Parties shall apply in full in respect of any provision of Services to the Customer resulting from such Service Request.

4.5 Each signed Order Form shall constitute a separate contract, incorporating the terms and conditions of these Conditions, for the performance of the Services referred to in the relevant Order Form.

5.1 The Service Provider shall provide the Services to the Customer:5.1.1 In accordance with the provisions of these Conditions and the relevant Order Form;

5.1.2 Using reasonable care and skill;

5.1.3 In accordance with Good Industry Practice including in accordance with such certifications held by the Service Provider as at the Live Date; and

5.1.4 In accordance with all reasonable and lawful directions given to the Service Provider by the Customer during the Term, provided that those directions are not inconsistent with these Conditions or the relevant Order Form.

5.2 If it is stated in the relevant Order Form applicable to the Services that Service Credits shall be payable for failure to meet certain Service Levels, the Service Provider shall (as the Customer's sole and exclusive remedy, and the Service Provider's entire liability, in respect of such failure) credit such Service Credits to the Customer in accordance with that Order Form. The Service Provider agrees that Service Credits are not a penalty or liquidated damages but are a reduction in the price for the Services.

5.3 The Service Provider is under no obligation to accept any orders placed (in whole or in part) and reserves the right, at its discretion and at any time and notwithstanding any order acknowledgement issued, to reject any order or require additional or alternative terms to apply to any order including a minimum commitment. This includes if an order exceeds existing available resources or capacity.

6.1 The Service Provider shall undertake any set up activities it considers are necessary in order that the Services are capable of being ready for use by the Customer on and from the Live Date ("Set Up").6.2 If at any time prior to the Live Date:

6.2.1 The Service Provider reasonably believes that there will be a delay in the Services commencing on the Live Date, it shall notify the Customer of that fact (and summarise the reasons for it) as soon as reasonably practicable; or

6.2.2 The Customer notifies the Service Provider that it wishes to postpone the Live Date, the parties shall, as soon as reasonably practicable, agree a revised Live Date.

6.3 To the extent that such delay in achieving the Live Date is attributable to a Customer Fault, an act or omission of a third party, or a request by the Customer to delay the Live Date, then, if such a delay continues for four (4) weeks or more from the original Live Date:

6.4 Any Charges payable on achievement of the Live Date shall become due and payable by the Customer on the expiry of that four (4) week period, and the Service Provider shall be entitled to issue an invoice for the relevant Charges; and

6.5 In respect of Co-locate Services, the Reservation Charge shall be due and payable and the Service Provider shall be entitled to invoice the Customer for the Reservation Charge. The Service Provider may, in its sole discretion, waive payment of all or any part of such Reservation Charge.

7.1 If at any time following commencement of the Services, the Service Provider is unable to comply with any of its obligations under these Conditions (excluding meeting the SLA), it shall notify the Customer of that fact (and summarise the reasons for it).

7.2 If the Service Provider is unable to meet its obligations under these Conditions (including meeting the SLA) due to a Customer Fault, then the Service Provider shall:

7.2.1 Be entitled to relief from its obligation and shall be allowed an extension of time to achieve the relevant obligation equal to the delay;

7.2.2 Be treated as though the relevant Services had met the relevant SLA;

7.2.3 Not be liable to pay any Service Credits; and7.2.4 Be entitled to the Charges in respect of the Services affected by the Customer Fault, for such period of time as the Customer Fault endures.

7.3 The Service Provider shall ensure that it provides the Services such that they meet or exceed any applicable SLAs detailed on the relevant Order Form.

7.4 In the event the Service Provider fails to achieve any SLA in respect of which a Service Credit is due (as specified on the relevant Order Form), a Service Credit in respect of the corresponding SLA shall be payable, as set out on the relevant Order Form.

7.5 The Service Credits will be applied as a credit against the next Charges invoiced by the Service Provider and payable by the Customer in respect of the Services.

7.6 In relation to Cloud and Connect Services, any planned downtime or downtime caused by third party fault shall not be included in any availability calculation regarding the Services unless the Services operate in more than one Availability Zone.

8.1 The Service Provider shall ensure that there shall be at all times sufficient Service Provider Personnel engaged in provision of the Services with the requisite level of skill, experience and suitable background checks.

9.1 The Customer shall pay the Charges due in respect of the Services to the Service Provider in accordance with this Clause 9, Clause 10, and the relevant Order Form.

9.2 The Service Provider shall, in respect of each product or service detailed in any Order Form, be entitled at its discretion to increase the Charges payable by the Customer in respect of each such product or service to reflect any increase in the Third Party Costs charged to the Service Provider;

9.2.1 The Service Provider will apply increases annually in line with the Consumer Price Inflation rate (CPI);

9.2.2 The Service Provider will give the Customer at least thirty (30) days' notice of such increase; and

9.2.3 The Service Provider may exercise its rights to further increase the Charges for each product and service under this Clause if deemed applicable.

9.3 The Service Provider shall issue invoices to the Customer in accordance with these Conditions and the relevant Order Form. Notwithstanding the terms of an Order Form, the Service Provider reserves the right at its sole discretion and on giving notice to the Customer to vary from time to time when any of the Charges are payable by a Customer and when invoices will be issued. This may include requiring payment to be made in advance by the Customer. If the Service Provider gives any such notice to the Customer, the Customer acknowledges and agrees that the new payment terms referred to in that notice will supersede the payment terms set out in the applicable Order Form.

9.4 Subject to Clause 9.7, the Customer shall pay the Charges stated in each invoice within thirty (30) days of receipt of such invoice from the Service Provider. Payment will be made to a bank nominated in writing by the Service Provider.

9.5 For the purpose of these Conditions, all Charges shall be in pounds sterling and are shown exclusive of value added tax (which shall be payable by the Customer in addition subject to receipt of a valid VAT invoice).

9.6 The Customer acknowledges that it is always possible that, despite the Service Provider's reasonable efforts, some or all of the Charges set out in an invoice may be incorrect. If the Service Provider discovers an error in the Charges, it will inform the Customer and issue an invoice to the Customer for any additional Charges due by the Customer or a credit note to the Customer in the event of an overcharge. The Service Provider will, at the request of the Customer, provide reasonable evidence regarding why the additional Charges are due. The Customer shall pay such additional Charges within thirty (30) days of receipt of the invoice from the Service Provider.

9.7 If the Customer disputes any invoice, the Customer shall immediately notify the Service Provider in writing. The Parties shall negotiate in good faith to attempt to resolve the dispute promptly. The Service Provider shall provide such evidence as may be reasonably necessary to verify the disputed invoice. Where only part of an invoice is disputed, the undisputed amount shall be paid on the due date as referred to in Clause 9.1.

9.8 All Charges are to be paid without any deduction or withholding other than as required by law and the Customer will not be entitled to assert any credit, set-off or counterclaim against the Service Provider in order to justify withholding payment of any such amount in whole or in part.

9.9 If the Customer fails to pay any amount properly due and payable by it under these Conditions or an Order Form, the Service Provider shall have the right:

9.9.1 Upon giving written notice to the Customer, to suspend the Services to which the relevant invoice relates until such date of actual payment of the invoice, and the Service Provider shall thereupon resume performance of the Services; and9.9.2 To charge interest on the overdue amount at the rate of three (3) per cent per annum above the base rate for the time being of the Bank of England accruing on a daily basis from the due date up to the date of actual payment, whether before or after judgment. This Clause

9.9.2 shall not apply to payments that the Customer disputes in good faith pursuant to Clause 9.7.

9.9.3 All prices quoted are exclusive of VAT. Services that have a fixed quantity for the term are invoiced quarterly in advance (except where otherwise indicated). Services that have a variable quantity during the term are invoiced monthly in arrears according to usage.

10.1 The Customer will:

10.1.1 co-operate with the Service Provider and provide such information and assistance asthe Service Provider may reasonably require to enable the Service Provider to comply withits obligations (if any) under the CRC.

11.1 The Service Provider shall, in respect of the Site, provide a level of security which is in accordance with Good Industry Practice, Law and the [ISO/IEC 27001:2013] SecurityStandards.

11.2 In the event that either Party becomes aware of a security breach impacting the Site, the Services, the Customer Assets and / or the Service Provider Assets, it will notify the other Party of such breach immediately.

12.1 The Service Provider, in its sole discretion, reserves the right to carry out maintenance at any time in respect of the Site, the Services or the Service Provider Assets where the Service Provider considers this is necessary in connection with the Service Provider' provision of the Services and / or operation of the Site. The Customer should refer to the Datacentre Policy for further details regarding such maintenance. Wherever possible and practical, the Service Provider shall ensure that the maintenance is non-disruptive is respect of providing the Services to the Customer.

13.1 The Customer shall:

13.1.1 Provide such information to the Service Provider in a timely manner as the Service Provider may reasonably request for the purpose of providing the Services;

13.1.2 Provide the Service Provider with access to appropriate members of the Customer’s staff, as such access is reasonably requested by the Service Provider in order for the Service Provider to discharge its obligations under these Conditions or the relevant Order Form;

13.1.3 Be responsible for ordering all services the Customer requires from third party suppliers to receive the benefit of the Services and shall be responsible for paying their charges;

13.1.4 Be responsible for obtaining and maintaining insurance against all risks in respect of the Customer Assets whilst located in the Site and any other insurances as may be required by the Customer whilst the Customer Assets are in transit to and from the Site and provide the Service Provider with a copy of the certificate of insurance on request;

13.1.5 Not re-sell the Services unless with the prior consent of the Service Provider (such consent not to be unreasonably withheld or delayed), and only then under a written agreement the terms of which have been approved in writing in advance by the Service Provider;

13.1.6 Be responsible for ensuring its data is backed up;

13.1.7 Comply with Law in respect of its use of the Services and / or use or access to the Site, the Service Provider Assets and the Customer Assets;

13.1.8 Carry out any other activity specified in an Order Form as being the responsibility of the Customer;

13.1.9 Not make any statement, warranty or representation regarding the Services, the Service Provider, the Service Provider Assets and / or the Site to any third party without the Service Provider's prior written consent;

13.1.10 Ensure that its third-party customers that are permitted by the Service Provider to use the Services comply with the terms of these Conditions and each applicable Order Form. The Customer agrees that it will remain primarily responsible for any failure by any such third-party customer to comply with the terms of these Conditions or an Order Form;

13.2 The Customer shall ensure that the person or persons placing orders or self-provisioning in respect of the relevant Services has the necessary authority, power and capacity to do so on behalf of the Customer.

13.3 The Customer acknowledges that it is responsible for the use of the relevant Services including by those authorised by the Customer to use the relevant Services and for all activities that occur under the Customer's or its users' applicable usernames, passwords or accounts.

13.4 The Customer shall, and shall procure that all its staff, contractors, sub-contractors and end users shall comply with the Service Provider's fair usage policy, acceptance use policy, datacentre policy and any other policy or procedure notified to the Customer by the Service Provider from time to time.

13.5 In the event the Customer or any of its staff, contractors, sub-contractors or end users fail to comply with any of the Service Provider's policies, procedures or requirements, the Service Provider will alert the Customer. If such failure is not remedied within the period stated in the applicable policy or within such period notified to the Customer by the Service Provider, the Service Provider may, at its discretion:

13.5.1 Suspend the relevant Services (to the extent reasonably necessary in the circumstances). The Service Provider will endeavour to provide reasonable notice to the Customer of any suspension except where the Service Provider reasonably believes that the provision of notice would not in the circumstances be appropriate or feasible; and / or

13.5.2 Impose additional Charges, which will be payable by the Customer (and in such case, the Service Provider will issue an invoice to the Customer for those additional Charges); and / or

13.5.3 Terminate the relevant Service where the Service Provider considers that such failure constitutes a material breach of such policies, procedures, or requirements (in the Service Provider's reasonable opinion).

13.6 The Customer must comply with, and may not work around, any technical limitations in a relevant Cloud Service that only allow the Customer to use it in certain ways. The Customer may not download or otherwise remove copies of software or source code from a relevant Service except as authorised by the Service Provider in writing.

13.7 Without prejudice to the Service Provider's acceptance use policy, neither the Customer, nor any person accessing a Cloud Service on behalf of or with the permission of the Customer, may use a Cloud Service:

13.7.1 In a way prohibited by law, regulation, governmental order or decree;

13.7.2 To violate the rights of others;

13.7.3 To try to gain unauthorised access to or disrupt any service, device, data, account or network;

13.7.4 To spam or distribute malware;

13.7.5 In a way that could harm the online Service or impair anyone else’s use of it; or

13.7.6 In any application or situation where failure of the online Service could lead to the death or serious bodily injury of any person, or to severe physical or environmental damage.

14.1 Provided it has complied with Clause 14.2, if the Service Provider is prevented, hindered, or delayed in or from performing any of its obligations under these Conditions or the relevant Order Form by a Force Majeure Event, the Service Provider shall not be in breach of these Conditions or the relevant Order Form or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.

14.2 The Service Provider shall:

14.2.1 As soon as reasonably practicable after the start of the Force Majeure Event, notify the Customer of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under these Conditions or the relevant Order Form; and

14.2.2 Use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.

14.3 If the Force Majeure Event prevails for a continuous period of more than thirty (30) days, either Party may terminate the relevant Contract affected by such Force Majeure Event only by giving fourteen (14) days' written notice to the other Party.

15.1 Each of the Parties shall appoint a representative who shall be the initial point of contact for the other Party for the overall management of these Conditions ("Representative").  The initial Representatives of the Customer and the Service Provider shall be as set out on the Order Form.  Any changes to a Party's representative shall be notified to the other Party.

16.1 Each Party warrants and represents to the other Party that for the duration of the Term:

16.1.1 It has the necessary authority, power, and capacity to enter into these Conditions and the Order Form and Contract; and

16.1.2 These Conditions is (and the Order Form will be) executed by a duly authorised representative of the relevant Party.

16.2 The Service Provider warrants and represents to the Customer that for the duration of the Term:

16.2.1 It has and will continue to have all licences and consents which are required for the performance of any of the Service Provider's obligations under these Conditions and the relevant Order Form;

16.2.2 In relation to these Conditions and/or its subject matter, neither the Service Provider nor any of the Service Provider Personnel performing services on behalf of the Service Provider has done (or agreed to do) or will do (or agree to do) anything in connection with these Conditions which constitutes a breach by the Parties of any Bribery Legislation;

16.2.3 It has in place and will at all times during the Term continue to have in place, adequate procedures designed to prevent any person associated with the Service Provider from committing an offence under the Bribery Legislation.

16.3 Except as expressly stated in these Conditions, all warranties and conditions whether express or implied by statute, common law or otherwise are excluded to the extent permitted by Law.

17.1 Except as expressly set out in these Conditions:

17.1.1 The Customer shall not acquire any right, title or interest in or to the IPRs of the Service Provider or its licensors, including the Service Provider IPR; and

17.1.2 The Service Provider shall not acquire any right, title or interest in or to the IPRs of the Customer or its licensors, including the Customer IPR.

17.2 The Service Provider hereby grants to the Customer a royalty-free, non-exclusive, revocable, licence for the term of the relevant Order Form to use the Service Provider IPR which has been made available by the Service Provider to the Customer. The licence granted in this Clause 17.2:

17.2.1 Does not include the right to grant any sub-licences; and

17.2.2 Is granted solely to the extent necessary for the receipt by the Customer of the Services in accordance with these Conditions. The Customer shall not use the Service Provider IPR for any other purpose or for the benefit of any person other than the Customer.

17.3 The Customer hereby grants to the Service Provider a royalty-free, non-exclusive, irrevocable, licence for the term of the relevant Order Form to use the Customer IPR. The licence granted in this Clause 17.3:

17.3.1 Includes the right to grant sub-licences to Service Provider Personnel; and17.3.2 Is granted solely to the extent necessary for the performance of the Services, to monitor the Customer's assets and in the event of an emergency. The Service Provider shall not use the Customer IPR for any other purpose or for the benefit of any person other than the Service Provider or the Service Provider Personnel.

17.4 On termination or expiry of the relevant Order Form, the licences granted by the Service Provider and the Customer pursuant to Clauses 17.2 or 17.3 shall automatically terminate.

18.1 For the avoidance of doubt:

18.1.1 The Service Provider shall not by virtue of these Conditions or any Order Form acquire title to or rights in the Customer Assets or the Customer's Confidential Information; and

18.1.2 The Customer shall not by virtue of these Conditions or the Order Form acquire title to or rights in the Service Provider Assets or the Service Provider's Confidential Information.

18.2 All Customer Assets and other property of the Customer or its licensors located in the Site shall remain at the sole risk and responsibility of the Customer. The Customer warrants and represents that the Customer Assets are in good working order, fit for their intended purpose, and comply with all Law.

18.3 These Conditions and the relevant Order Form are not intended and do not grant a lease or licence over any real or personal property. In particular, the Customer acknowledges that it has not been granted any property interest in the Site.

18.4 The Customer shall permit the Service Provider to have access to and use the Customer Assets subject to the following:

18.4.1 The Service Provider shall only use or access, and permit the Service Provider Personnel to use or access, the Customer Assets to the extent necessary in order to provide the Services, in order for the Service Provider to monitor the Customer Assets and in the event of an emergency; and

18.4.2 The Service Provider shall not move any of the Customer Assets from the Site to another location without the Customer's prior written consent (not to be unreasonably withheld or delayed).

19.1 If and to the extent the Services require the Service Provider to Process any Personal Data on the Customer's behalf, the Parties agree that the Service Provider acts as a Data Processor for such Personal Data and the Service Provider shall comply with the terms of this Clause in Processing any such Personal Data. As such, where the Service Provider acts as Data Processor for such Personal Data, the Service Provider shall:

19.1.1 Ensure that the Personal Data is only Processed in accordance with these Conditions and instructions from the Customer;

19.1.2 Ensure that the Personal Data is only Processed to the extent, and in such manner, as is necessary for the provision of the Services;

19.1.3 Ensure that all appropriate technical and organisational measures are implemented to protect the Personal Data against unauthorised or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure;

19.1.4 Take reasonable steps to ensure the reliability of any Service Provider Personnel who have access to the Personal Data;

19.1.5 If at any time during the Term the Service Provider appoints a sub-contractor to carry out Processing of any of the Customer's Personal Data on its behalf, ensure that all of the following conditions are fulfilled:

(a) The Service Provider obtains the Customer’s prior consent;
(b) The Service Provider provides the Customer with details of the sub-contractor on request;
(c) The sub-contractor contract is on terms which (in respect of the Processing of Personal Data) are substantially the same as the terms set out in these Conditions;
(d) The sub-contractor's right to Process the Personal Data terminates automatically on termination of these Conditions for whatever reason; and
(e) The Service Provider shall remain primarily liable to the Customer for the acts, errors and omissions of any such third party;

19.1.6 Notify the Customer within two (2) Working Days if it receives:

(a) A request from a Data Subject to have access to that person's Personal Data; or
(b) A complaint or request relating to the Customer's obligations under the Data Protection Legislation;

19.1.7 Provide the Customer with reasonable cooperation and assistance in relation to any complaint or request made;

19.1.8 Permit the Customer to inspect and audit the Service Provider's Processing activities in accordance with Clause 27 and any relevant Order Form; and

19.1.9 Not Process Personal Data outside the EEA without the prior written consent of the Customer.

19.2 The Customer may request access to the Site if and to the extent that such access is required in connection with the Customer receiving the benefit of the Co-locate Services. Such access to the Site will be in accordance with the Service Provider’s datacentre policy provided to the Customer from time to time.

19.3 On termination of these Conditions, howsoever caused, the Service Provider shall cease Processing any Personal Data within the scope of these Conditions and, at the Customer’s option or direction, shall arrange for the safe return and/or destruction of all Personal Data. If the Customer fails to provide direction in relation to the Personal Data then the Service Provider shall be entitled to destroy it and shall not be liable to the Customer for any losses, claims or expenses in respect of this.

20.1 Each Party undertakes that for the Term and thereafter it shall keep confidential and (except for the purposes of these Conditions) shall not use or disclose (without the prior written consent of the other Party) to any third party any Confidential Information of the other Party which may become known to it in connection with these Conditions.

20.2 The obligations in Clause 20.1 shall not prohibit disclosure of the other Party's Confidential Information to HM Revenue & Customs and any other person having a statutory or regulatory right to request and receive that Confidential Information provided that (to the extent not prohibited by applicable Law or by a Regulatory Body) the disclosing Party promptly notifies and consults with the other Party in advance in relation to the timing and content of such disclosure.

20.3 The obligations in Clause 20.1 shall not prohibit either Party from disclosing the other Party's Confidential Information to the receiving Party's own employees, agents and sub-contractors who need to know it for the purposes of these Conditions, to the receiving Party’s auditors and professional advisors, and to any person to whom an assignment has been permitted under these Conditions, provided that the disclosing Party makes the recipient aware that the information is confidential and that it owes a duty to the owner of it to keep it confidential. The receiving Party shall be responsible for procuring that such person complies with the duty of confidentiality imposed by these Conditions as if they were a party to it.

20.4 The obligations in Clause 20.1 do not apply to information which the receiving Party can show by reference to documentary or other evidence:

20.4.1 Was rightfully in its possession prior to disclosure to it by the other Party and in respect of which that Party is not under an existing obligation of confidentiality;

20.4.2 Is already public knowledge or which becomes so at a future date (otherwise than as a result of breach of this Clause 20) or of any other duty of confidentiality relating to that information;

20.4.3 Is received from a third party who is not under an obligation of confidentiality (express or implied) in relation to the information; or

20.4.4 Is developed independently without access to, or use or knowledge of, the Confidential Information.

20.5 The obligations in this Clause 20 shall survive expiry or termination for any reason of these Conditions.

21.1 In the event that the Customer is subject to the requirements of FOIA, the Service Provider shall, subject to the Customer meeting the Service Provider's reasonable costs and expenses notified to the Customer, provide reasonable assistance and co-operation to the Customer to enable it to comply with its obligations under FOIA. In particular, the Service Provider shall:

21.1.1 Transfer to the Customer all Requests for Information that it receives as soon as practicable and in any event within two (2) Working Days of receiving such request; and

21.1.2 Provide the Customer with reasonable assistance in complying with Requests for Information including the provision of Information held on behalf of the Customer and covered by the request, in the form that the Customer requires. Such assistance shall be provided promptly and in any event within three (3) Working Days of the Customer making a Request for Information.

22.1 Nothing in these Conditions limits or excludes:

22.1.1 A Party's liability for death or personal injury caused by its negligence, or that of its employees, agents, or sub-contractors (as applicable);

22.1.2 A Party's liability for fraud or fraudulent misrepresentation by it or its employees;

22.1.3 The Customer's liability to pay the Charges due and payable to the Service Provider; and

22.1.4 A Party's liability for any other matter in respect of which liability cannot by applicable law be limited or excluded.

22.2 Subject to Clause 22.1, each Party's aggregate liability to the other in respect of all claims arising out of or in connection with these Conditions and under all Contracts (whether for breach of contract, in negligence or any other delict/tort, under statute or otherwise) shall be limited as follows:

22.2.1 In respect of loss of or damage to tangible property (which for the avoidance of doubt excludes loss of or damage to data), shall be limited to ten million pounds sterling (£10,000,000) per claim or series of related claims; and

22.2.2 In respect of all other claims arising out of or in connection with these Conditions and under all Contracts, shall be limited for each Contract Year to:

(a) The amount set out on the Order Form,
(b) A sum equal to one hundred per cent (100%) of the aggregate Charges paid and payable by the Customer under all Contracts in the preceding twelve (12) months, whichever is the greater.

22.3 The Parties acknowledge and agree that, subject to Clause 22.1, the sums referred to in Clause 22.2 represent the maximum liability of each Party to the other Party under these Conditions and under all Contracts in the aggregate, notwithstanding that each Contract constitutes a separate contract for the performance of Services referred to in the Order Form.

22.4 Subject to Clause 22.1, neither Party shall be liable to the other Party for any indirect, special, or consequential loss or damages whether caused by breach of contract or delict/tort (including negligence or breach of statutory duty) or arising in any other way.

23.1 The Service Provider shall maintain at its own cost such insurance policies with a reputable insurance company as it determines, at its discretion, are appropriate to cover normal business risks relating to its businesses generally and shall, on the Customer's request, produce evidence of the insurance cover it has in place.

24.1 These Conditions or any Contract may be terminated by either Party with immediate effect on giving written notice as follows:

24.1.1 If the other Party is in material breach of any provision of these Conditions or the particular Contract which is incapable of remedy; or

24.1.2 If the other Party is in material breach of any provision of these Conditions or the particular Contract which is capable of remedy but which the Party fails to remedy within thirty (30) days after receipt of a notice specifying the breach and requiring it to be remedied; or

24.1.3 If the other Party ceases trading, or becomes apparently insolvent, or has a trustee in sequestration appointed, combines with its creditors, or has a liquidator, receiver or administrator appointed (or an application is made either for the appointment of an administrator or for an administration order, an administrator is appointed, or notice of intention to appoint an administrator is given over all or any of its assets) over all or any of its assets other than for the purposes of a solvent amalgamation or reconstruction, or undergoes any analogous act or proceeding under foreign law to any of those mentioned in this Clause 24.1.3; or

24.1.4 If that Party:

(a) Becomes aware that a Change Event has taken or is due to take place in relation to the other Party; and

(b) Considers (acting reasonably) that such Change Event will have a materially adverse impact upon either the relationship between the Parties or that continuing with these Conditions following such Change Event will be detrimental to that Party, its business or customers;

24.1.5 In accordance with Clause 14.

24.2 Any Contract may be terminated by the Service Provider and/or the Service Provider may, at its discretion, suspend the Services and access by the Customer to the Site with immediate effect on giving written notice if the Customer breaches Law in relation to its use of the Services and/or use or access to the Site, the Service Provider Assets, or the Customer Assets.

24.3 If either Party terminates a Contract, these Conditions shall continue in full force and effect in accordance with its terms in relation to all other Contracts in force at that time.

24.4 Termination of these Conditions shall have no effect on individual Contract, which shall continue in full force and effect as separate contracts subject to termination in accordance with these Conditions and the relevant Contract. The provisions of these Conditions shall continue to apply to those Contracts notwithstanding earlier termination of these Conditions.

25.1 In the event of termination or expiry of a Contract:

25.1.1 The Service Provider shall cease to provide the Services under the relevant Contract;

25.1.2 The Customer shall immediately pay to the Service Provider all the Service Provider's outstanding unpaid invoices and interest in respect of the relevant Contract and, in respect of Services supplied but for which no invoice has been submitted, the Service Provider may submit an invoice, which shall be payable immediately on receipt;

25.1.3 The Customer shall ensure that all Customer Assets are removed from the Site prior to the expiry or date of termination of the relevant Contract and shall return the Site to the condition that it was in at the Live Date. If the Customer fails to do so within thirty (30) days of the expiry or date of termination of the relevant Contract, then the Supplier may, at its discretion, remove such Customer Assets from the Site and the Customer shall be liable for all costs and expenses incurred by the Service Provider in returning the Site to the condition it was at the Live Date and/or in removing and storing the Customer Assets.

25.2 Without prejudice to Clause 25.1, in the event that the Service Provider terminates a Contract for any reason, unless the Service Provider notifies the Customer that the following charge is not payable, the Customer also agrees to pay to the Service Provider a termination charge equal to the remaining charges that would have been payable to the Service Provider up to the end of the term of that Contract had that Contract not been terminated and the Service Provider may submit an invoice for such termination charge which shall be payable immediately on receipt. For the purposes of this clause, the term of a Contract will be specified in the relevant Contract.

25.3 Notwithstanding the termination of these Conditions for any reason, these Conditions shall continue in force to the extent necessary to give effect to those of its provisions which expressly or by implication have effect after termination, including Clauses 1; 2; 9; 20; 22; 24; 25; 30; 31; 35; and 37.25.4 The termination of these Conditions or its expiry shall not affect the accrued rights of either Party.

26.1 The Service Provider maintains a BCDR Plan in respect of the Services and shall provide a copy of the BCDR Plan to the Customer on written request from the Customer forsame.26.2 The Service Provider shall update and test the BCDR Plan on a regular basis and, in any event, not less than once in every twelve (12) month period.  At the request of the Customer, the Service Provider will send to the Customer a written report summarising the results of the test and shall (as soon as practicable) implement any actions or remedial measures which are identified as a result of those tests.

27.1 Subject to Clauses 27.2, 27.3, and 27.4, the Customer may, not more than twice annually during the Term, request an audit of the Service Provider's records specifically relating to the Services and/or the Site for the following purposes:

27.1.1 To verify the accuracy of Charges (and proposed or actual variations to them in accordance with these Conditions); and/or

27.1.2 To review the Service Provider's compliance with its obligations under these Conditions including its compliance with the Security Standards and its quality management system.

27.2 Any such audit will be subject to the prior agreement of the Service Provider and shall be on such date and time as has been pre-agreed with the Service Provider. The Customer shall, and shall procure that all its staff, agents, and representatives requiring such access shall, comply with all security, health and safety and/or other policies and regulations notified to the Customer by the Service Provider.

27.3 The two (2) audits referred to in Clause 27.1 shall represent the maximum number of audits the Customer is entitled to in aggregate across all Order Forms. Where the Customer is re-selling the Services, the Customer may request up to an additional one (1) audit for each end-customer to whom the Customer has re-sold the Services. At the request of the Service Provider, the Customer will provide evidence to the Service Provider of the number of such end-customers and that the additional audit requested has been requested by the end-customer. Further audits may be granted at the discretion of the Service Provider and may attract additional charges.

27.4 The Customer shall act reasonably in exercising its right to audit in accordance with this Clause 27 and shall ensure that the conduct of each audit does not disrupt the Service Provider or any of its other customers or delay the provision of the Services.

27.5 Subject to the Customer's obligations of confidentiality in Clause 20, the Service Provider shall provide the Customer (and/or its agents or representatives) with all reasonable co-operation and assistance in relation to each audit.

28.1 Subject to Clause 28.2 below, any variation to these Conditions, Services shall only be binding when agreed in writing and signed by an authorised representative of each Party.

28.2 The Service Provider may make changes to these Conditions or the Services from time to time to reflect any applicable changes in Law and / or industry practice or processes and the Customer shall be subject to such amended Conditions or Services (as applicable) from the date that those changes are notified to the Customer.

28.3 The Parties shall be free to vary the terms of these Conditions in an Order Form for the purposes of that Order Form only.

29.1 Neither Party shall at any time assign or transfer all or any of its rights or obligations under these Conditions without the prior written consent of the other Party (such consent not to be unreasonably withheld or delayed).

30.1 If a dispute arises out of or in connection with these Conditions, or the performance, validity or enforceability of these Conditions ("Dispute"), then the Parties shall follow the procedure set out in this Clause 30:

30.1.1 Either Party shall give to the other written notice of the Dispute, setting out its nature and full particulars ("Dispute Notice"), together with relevant supporting documents. On service of the Dispute Notice, the Service Provider Representative and the Customer Representative shall attempt in good faith to resolve the Dispute;

30.1.2 If the Service Provider Representative and the Customer Representative are for any reason unable to resolve the Dispute within thirty (30) days (or such longer period as the Parties may agree, acting reasonably) of service of the Dispute Notice, the Dispute shall be referred to a senior representative of the Service Provider and a senior representative of Customer, who shall attempt in good faith to resolve it; and

30.1.3 If the senior representative of the Service Provider and the senior representative of Customer are for any reason unable to resolve the Dispute within thirty (30) days (or such longer period as the Parties may agree, acting reasonably) of it being referred to them, the Parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the Parties, the mediator shall be nominated by CEDR Solve. To initiate the mediation, a Party must serve notice in writing ("ADR notice") to the other Party to the Dispute, requesting mediation. A copy of the ADR notice should be sent to CEDR Solve. The mediation will start not later than thirty (30) days after the date of the ADR notice. Each Party shall bear its own costs and expenses incurred in these proceedings unless a different agreement is reached as part of any settlement arrived at the conclusion of the proceedings.

30.2 The commencement of mediation shall not prevent the Parties from commencing or continuing court proceedings in relation to the Dispute under Clause 37, which Clause shall apply at all times.

31.1 Subject to Clause 31.4, any notice given under or in relation to these Conditions will be served by delivering it personally, by sending by email to the email address set out in Clause 31.3 or by sending by recorded delivery post to the address and for the attention of the relevant representative set out in Clause 31.3 or in the event that another address or email address has been notified by a Party hereunder in accordance with and making specific reference to this Clause 31 then to that other address or email address.

31.2 Any such notice will be deemed to have been received:31.2.1 If delivered personally, at the time of delivery provided that it has been signed as received on behalf of the receiving Party; or

31.2.2 If sent by email, at the time of transmission, provided a confirmatory copy is sent by recorded delivery or by personal delivery before the end of the next Working Day; or

31.2.3 If sent by recorded delivery post, two Working Days after posting it, provided that if deemed receipt occurs before 9:00 am on a Working Day the notice will be deemed to have been received at 9:00 am on that day, and if deemed receipt occurs after 5:00 pm on a Working Day, or on a day which is not a Working Day, the notice will be deemed to have been received at 9:00 am on the next Working Day.31.3 The addresses of the Parties for the purposes of Clause 31.1 are:31.3.1 As set out on the Order Form.

31.4 Clause 31.1 shall not apply to notices of an informal nature which relate to day-to-day management of the Services (which may be delivered in whatever form is agreed from time to time by the Parties).

32.1 No failure or delay in the exercise or non-exercise by either Party of any of its rights or remedies under or in connection with these Conditions or the relevant Contract nor anything said, done or written by any person, or anything omitted to be said, done or written by any person including any servant or agent of either Party, shall in any way affect the rights of that Party, modify, affect, reduce or extinguish the obligations and liabilities of the other Party under these Conditions or the relevant Contract, or be deemed to be a waiver or release of any of the rights or remedies of the relevant Party.

33.1 The Contract constitutes the entire agreement and understanding between the Parties as to the subject matter hereof and supersedes all previous understandings and undertakings in such respect.

33.2 Each Party hereby acknowledges that it is not entering into the Contract in reliance on any warranties, representations or undertakings howsoever or to whomsoever made except in so far as such are set out in these Conditions.

34.1 Nothing in these Conditions or the relevant Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the Parties, constitute any Party the agent of another Party, nor authorise any Party to make or enter into any commitments for or on behalf of any other Party.

35.1 If any provision of these Conditions or an Order form or Contract (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall nevertheless remain legal, valid, and enforceable.

36.1 These Conditions does not create any rights in favour of third parties under the Contract (Third Party Rights) (Scotland) Act 2017 to enforce or otherwise invoke any provision of these Conditions.

37.1 These Conditions and the relevant Order Form, and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, the laws of Scotland, and, subject to the Dispute Resolution Procedure, the Parties irrevocably submit to the exclusive jurisdiction of the Scottish courts.