Apparatus Terms and Conditions
The Contract
1.1 These Terms apply to the Contract between Apparatus and the Customer for the supply of the Services (as defined in clause 26 below). They supersede any previously issued terms of supply. Any other terms, whether implied by custom or practice, or which the Customer may seek to include, are specifically excluded.
1.2 Capitalised words used in these Terms (such as ‘Contract’), have a specific meaning. These are as set out in Clause 26 below.
1.3 These Terms apply to and form part of the Contract between Apparatus and the Customer.
1.4 Each Order by the Customer to Apparatus shall be an offer to purchase Services subject to the Contract including these Terms.
1.5 Apparatus will not be obliged to supply any Services until Apparatus provides written acceptance of the Order or notifies the Customer that they are ready to perform the Services.
1.6 Quotations provided by Apparatus are indicative only. They are not an offer to supply Services and are incapable of being accepted by the Customer.
1.7 Marketing and other promotional material relating to the Services are illustrative only and do not form part of the Contract.
2 Commencement and duration
2.1 The Contract will commence on the Commencement Date and (subject to Clause 15) shall continue until the completion of the Services.
2.2 Apparatus shall notify the Customer when the relevant project described in the Proposal is ready to go live, and the parties will agree a go live date.
3 Price
The price for the Services shall be as set out in the Proposal (the Price) and is exclusive of VAT.
4 Payment
4.1 Apparatus shall invoice the Customer for the Price in the amounts and at the times specified in the Proposal which, unless otherwise agreed, is to be paid in full. Proposals over £5,000 are subject to staged payment terms, outlined below.
4.1.1 75% of the Price to be paid before the Services commence, which sum is nonreturnable; and
4.1.2 25% of the Price to be paid before the go live date for the Services.
4.2 The Customer shall pay all invoices to the bank account nominated by Apparatus in full, without deduction or set-off, in cleared funds and (unless otherwise agreed) within 5 Business Days of the date of each invoice.
4.3 Time of payment is of the essence. Where sums due under these Terms are not paid in full by the due date Apparatus may, charge interest on such sums at 8% a year above the base rate of the Bank of England from time to time in force. Such interest shall accrue on a daily basis and apply from the due date for payment until actual payment in full.
5 The Services
5.1 The Services shall be supplied by Apparatus, or on its behalf by Apparatus’s appointed subcontractors:
5.1.1 in the manner described in the Proposal; and
5.1.2 with reasonable care and skill within the meaning of the Supply of Goods and
Services Act 1982, Part II s 13.
5.2 Apparatus shall not be liable for any breach of any term of this Contract, or delay in or failure of performance:
5.2.1 caused by the Customer’s breach of any of its obligations in clauses 7.1, in which case Apparatus may suspend performance of the Services until such time as the Customer fully remedies its breach or default;
5.2.2 resulting from the failure of any third party responsibilities which affect the Services and which are outside of Apparatus’s control; or
5.2.3 for any Unforeseen Events.
6 Changes, cancellation and postponement
6.1 The Customer acknowledges that any work or services not specified in the Proposal does not form part of the Services, and that accordingly, Apparatus shall have no obligation to undertake such services. In the event that the Customer desires to change the Services or requires additional services to be performed, such services must first be agreed in writing with Apparatus, including the additional cost for services. If appropriate, an amended or an additional proposal will be issued by Apparatus.
6.2 The Customer acknowledges that Apparatus schedules resources for the Services for performance on the date(s) specified in the Proposal (“Date”), and that it may suffer losses in the event that the Customer cancels or postpones the Services. Accordingly, if the Customer wishes to cancel or postpone the Services, it will give prompt written notice to Apparatus of that fact (“Notice”), and will pay the following charges to Apparatus (less any recoverable costs):
6.2.1 if Notice is given 10 to 6 Business Days from the Date, 25% of the Price; and
6.2.2 if Notice is given 5 to 1 Business Days from the Date, 50% of the Price.
7 Customer responsibilities
7.1 The Customer shall:
7.1.1 carry out any steps and be responsible for any actions or duties specifically designated to it in the Proposal;
7.1.2 notify Apparatus in writing and in advance of the supply of the Services of any security or other policies or procedures which it requires Apparatus to observe in the provision of the Services;
7.1.3 provide Apparatus with the Customer Materials in a timely manner and ensure that the same is relevant, accurate and complete;
7.1.4 inform Apparatus in a timely manner of any matters (including, for example, security implications) which may affect the provision of the Services; and
7.1.5 obtain and maintain all necessary third party licences, permits and consents required to enable Apparatus to perform the Services and otherwise comply with its obligations under this Contract.
8 Anti-bribery
8.1 For the purposes of this clause 8 the expressions ‘adequate procedures’ and ‘associated with’ shall be construed in accordance with the Bribery Act 2010 and legislation or guidance published under it.
8.2 Each party shall comply with applicable Bribery Laws including ensuring that it has in place adequate procedures to prevent bribery and ensure that all of that party’s personnel, all others associated with that party, and all of that party’s sub-contractors involved in performing the Contract so comply.
8.3 Without limitation to clause 8.2, neither party shall make or receive any bribe (as defined in the Bribery Act 2010) or other improper payment, or allow any such to be made or received on its behalf, and shall implement and maintain adequate procedures to ensure that such bribes or payments are not made or received directly or indirectly on its behalf.
8.4 The Customer shall immediately notify Apparatus as soon as it becomes aware of a breach by the Customer of any of the requirements in this clause 8.
9 Anti-slavery
9.1 Each party confirms and agrees that:
9.1.1 neither it nor any of its officers, employees, agents or subcontractors has:
(a) committed an offence under the Modern Slavery Act 2015 (an MSA Offence); or
(b) been notified that it is subject to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015; or
(c) is aware of any circumstances within its supply chain that could give rise to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015;
9.1.2 it shall comply with the Modern Slavery Act 2015 and the Modern Slavery Policy; and
9.1.3 it has implemented due diligence procedures to ensure compliance with the Modern Slavery Act 2015 and the Modern Slavery Policy in its business and supply chain, and those of its officers, employees, agents or subcontractors, which will be made available to the other party on request.
9.2 If a party becomes aware or has reason to believe that it, or any of its officers, employees, agents or subcontractors have breached or potentially breached any of its obligations under clause 9.1, it shall notify the other party immediately in writing.
10 Indemnity and insurance
10.1 Apparatus shall have in place contracts of insurance with reputable insurers to cover its obligations under these Terms. On request, Apparatus shall supply evidence of the maintenance of such insurance and all of its terms from time to time applicable.
10.2 The Customer shall indemnify, and keep indemnified, Apparatus from and against any losses, damages, liability, costs (including legal fees) and expenses incurred by Apparatus as a result of or in connection with the Customer’s breach of any of the Customer’s obligations under the Contract.
11 Limitation of liability
11.1 The extent of Apparatus’s liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 11.
11.2 Subject to clause 11.4, Apparatus’s total liability in relation to the performance of the Services
shall not exceed the Price.
11.3 Subject to clause 11.4, Apparatus shall not be liable for consequential, indirect or special losses, nor for any of the following (whether direct or indirect):
11.3.1 loss of profit;
11.3.2 loss or corruption of data;
11.3.3 loss of use;
11.3.4 loss of production;
11.3.5 harm to reputation or loss of goodwill.
11.4 The liability of the parties shall not be limited in any way in respect of the following:
11.4.1 death or personal injury caused by negligence;
11.4.2 fraud or fraudulent misrepresentation; or
11.4.3 any other losses which cannot be excluded or limited by Applicable Law.
11.5 Unless otherwise expressly stated in these Terms, all warranties and terms (including the Terms implied by ss 12–16 of the Supply of Goods and Services Act 1982), whether express or implied by statute, common law or otherwise are excluded from the Contract to the extent permitted by law.
12 Confidentiality and publicity
12.1 The parties shall keep confidential any information that is confidential in nature concerning the
other party, including details of its business, affairs, customers, clients, suppliers, plans or strategy (Confidential Information) and shall only use the same as required by the Contract.
The provisions of this clause shall not apply to:
12.1.1 any information which was in the public domain at the date of the Contract;
12.1.2 any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract; or
12.1.3 any disclosure required by law or a regulatory authority or otherwise by the provisions of the Contract except that the provisions of clauses 12.1.1 to 12.1.3 shall not apply to information to which clause 12.3 relates.
12.2 This clause shall remain in force for a period of 5 years from the date of the Contract.
12.3 To the extent any Confidential Information is Protected Data, such Confidential Information may be disclosed or used only to the extent such disclosure or use is in compliance with and does not conflict with any of the provisions of clause 12.1.
12.4 Apparatus may, with the prior written approval of the Customer, include a brief description of the Services in its promotional materials, and make reference to the Customer in case studies and other marketing materials.
13 Processing of personal data
13.1 The parties agree that the Customer is a Controller and that Apparatus is a Processor for the purposes of processing Protected Data pursuant to the Contract. The Customer shall at all times comply with all Data Protection Laws in connection with the processing of Protected Data. The Customer shall ensure all instructions given by it to Apparatus in respect of Protected Data (including the terms of the Contract) shall at all times be in accordance with Data Protection Laws.
13.2 Apparatus shall process Protected Data in compliance with the obligations placed on it under Data Protection Laws and the terms of the Contract.
13.3 Apparatus shall only process the Protected Data in accordance with the Contract, except to the extent that alternative processing instructions are agreed between the parties in writing, or otherwise required by Applicable Law.
13.4 Taking into account the state of technical development and the nature of processing, Apparatus shall implement and maintain appropriate technical and organisational measures to protect the Protected Data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure or access.
13.5 The Customer authorises the appointment of any Sub-Processors listed in the Proposal.
13.6 Apparatus shall:
13.6.1 not permit any processing of Protected Data by any agent, subcontractor or other third party (except its or its Sub-Processors’ own employees in the course of their employment that are subject to an enforceable obligation of confidence with regards to the Protected Data) without the written authorisation of the Customer; and
13.6.2 prior to the relevant Sub-Processor carrying out any processing activities in respect of the Protected Data, appoint each Sub-Processor under a written contract containing materially the same obligations as under this clause 13.
13.7 Apparatus shall not process and/or transfer, or otherwise directly or indirectly disclose, any Protected Data in or to countries outside the United Kingdom without the prior written authorisation of the Customer.
13.8 Apparatus shall, in accordance with Data Protection Laws, make available to the Customer such information that is in its possession or control as is necessary to demonstrate Apparatus’s compliance with the obligations placed on it under this clause 13, and allow for audits by the Customer (or another auditor mandated by the Customer) for this purpose.
13.9 At the end of the provision of the Services relating to the processing of Protected Data, at the Customer’s cost and the Customer’s option, Apparatus shall either return all of the Protected Data to the Customer or securely dispose of the Protected Data (and thereafter promptly delete all existing copies of it) except to the extent that any Applicable Law requires Apparatus to store such Protected Data. This clause 13 shall survive termination or expiry of the Contract.
14 Unforeseen Events
Neither party shall have any liability under or be deemed to be in breach of the Contract for any delays or failures in performance of the Contract which result from Unforeseen Events. The party subject to an Unforeseen Event shall promptly notify the other party in writing when it causes a delay or failure in performance and when it ceases to do so. If the Unforeseen Event continues for a continuous period of more than 14 days, the party not affected may terminate the Contract by written notice to the other party.
15 Termination
15.1 Either party may terminate the Contract at any time by giving notice in writing to the other
party if the other party:
15.1.1 commits a material breach of Contract and such breach is not remediable; or
15.1.2 Customer commits a material breach of the Contract which is capable of being remedied and such breach is not remedied within 14 days of receiving written notice
of such breach.
15.2 Either party may terminate the Contract at any time by giving notice in writing to the other if the other party:15.2.1 stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;
15.2.2 is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986;
15.2.3 becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;
15.2.4 has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;
15.2.5 has a resolution passed for its winding up;
16 VariationsNo variation of these Terms or to the Contract shall be binding unless expressly agreed in writing.
17 Entire agreement
17.1 The parties agree that the Contract constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.
17.2 Each party acknowledges that it has not entered into the Contract in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Contract. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Contract.
17.3 Nothing in these Terms purports to limit or exclude any liability for fraud.
18 No partnership or agency
The parties are independent persons and are not partners, principal and agent or employer and employee and the Contract does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it.
None of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party’s behalf.
19 Severance
If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Contractshall not be affected.
20 Waiver
No failure, delay or omission by Apparatus in exercising any right, power or remedy provided by law or under the Contract shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
21 Conflicts within contract
If there is any conflict or inconsistency between any provision of these Terms and the Proposal, the Proposal shall take precedence to the extent of the conflict.
22 Third party rights
A person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract.
23 Dispute resolution
23.1 Any dispute arising between the parties out of or in connection with the Contract shall be dealt with in accordance with the provisions of this clause 23.
23.2 The dispute resolution process may be initiated at any time by either party serving a notice in writing on the other party that a dispute has arisen. The notice shall include reasonable information as to the nature of the dispute.
23.3 The parties shall use all reasonable endeavours to reach a negotiated resolution through the following procedure:
23.3.1 Within 15 Business Days of service of the notice, the project managers of each of the parties shall discuss the dispute and attempt to resolve it.
23.3.2 If the dispute has not been resolved within 15 Business Days of the first meeting of the project managers, then the matter shall be referred to the relevant director (or persons of equivalent seniority) of each of the parties. The relevant directors shall discuss within 15 Business Days to discuss the dispute and attempt to resolve it.
24 Governing law
The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
25 Jurisdiction
The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation.
26 Definitions and interpretation
26.1 In these Terms the following definitions apply:
Applicable Law means all applicable laws, legislation, statutory instruments, regulations and governmental guidance having binding force whether local or national in any relevant jurisdiction;
Bribery Laws means the Bribery Act 2010 and all Applicable Laws in connection with bribery or anti
corruption;
Business Day means a day other than a Saturday, Sunday or bank or public holiday when banks generally are open for non-automated business in England and/or Ireland;
Contract means the contract between Apparatus and the Customer for the supply of the Services, comprising these Terms and the Proposal, as further described in Clause 1;
Confidential Information has the meaning given in clause 12.1;
Commencement Date means the date specified for the commencement of the Services specified in the Proposal;
Contract means the agreement between Apparatus and the Customer for the supply and purchase of
the Services incorporating these Terms and the Proposal;
Controller shall have the meaning given to it in applicable Data Protection Laws from time to time;
Customer means the named party in the Proposal which has agreed to purchase the Services from
Apparatus;
Customer Materials means any documentation, description, instructions, manuals, literature, technical
details or other related information and/or materials provided by the Customer to Apparatus and which are necessary for the provision of the Services;
Data Protection Laws means, as binding on either party or the Services:
(a) the GDPR;
(b) the Data Protection Act 2018;
(c) any laws which implement any such laws; and
(d) any laws that replace, extend, reenact, consolidate or amend any of the
foregoing;
Data Subject shall have the meaning given to it in applicable Data Protection Laws from time to time;GDPR means the General Data Protection Regulation, Regulation (EU) 2016/679 or, after 31 December 2020, the equivalent UK legislation known as ‘UK GDPR’;
MSA Offence has the meaning given in clause 9.1.1;
Order means the purchase order for the Services issued by the Customer;
Personal Data shall have the meaning given to it in applicable Data Protection Laws from time to time;
Price has the meaning set out in clause 3;
Proposal means the scope issued by Apparatus to the Customer which sets out the Services, including the Price and any other special terms applicable to the Contract;
processing has the meaning given to it in applicable Data Protection Laws from time to time (and related
expressions, including process, processing, processed, and processes shall be construed
accordingly);
Processor shall have the meaning given to it in applicable Data Protection Laws from time to time;
Protected Data means Personal Data received from or on behalf of the Customer in connection with the performance of Apparatus’s obligations under the Contract;
Services means the technical project management and IT engineering services, support and related services set out in the Proposal and to be provided by Apparatus to the Customer;
Sub-Processor means any agent, sub-contractor or other third party (excluding its employees) engaged by Apparatus for carrying out any processing activities on behalf of the Customer in respect of the Protected Data;
Apparatus means Apparatus Limited, a company incorporated and registered in Ireland whose
registered address is at 57 Main Street, Dublin 14, Dundrum, Dublin, Ireland;
Terms means Apparatus’s terms of service set out in this document; and
Unforeseen Events means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under the Contract including an act of God, fire, flood, lightning, earthquake or other natural disaster, pandemic, war, riot or civil unrest, interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service, strike or other industrial action;
26.2 In these Terms, unless the context requires otherwise:
26.2.1 any clause or heading in these Terms is included for convenience only and shall have no effect on the interpretation of the Terms;
26.2.2 a reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns;
26.2.3 a reference to a ‘company’ includes any company, corporation or other body corporate, wherever and however incorporated or established;
26.2.4 words in the singular include the plural and vice versa;
26.2.5 a reference to ‘writing’ or ‘written’ includes email and any method of reproducing words in a legible and non-transitory form; and
26.2.6 a reference to legislation is a reference to that legislation as in force at the date of the Contract