1. INTERPRETATION
1.1 Definitions. In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Charges: the charges payable by the Client for the supply of the Services in accordance with clause 5.
Commencement Date: has the meaning set out in clause 2.2.
Company: Atlas Mapping Limited registered in England and Wales with company number 07476407.
Company Materials: has the meaning set out in clause 4.1.5.
Conditions: these terms and conditions as amended from time to time in accordance with clause 13.8.
Contract: the contract between the Company and the Client for the supply of Services in accordance with these Conditions and the Proposal.
Controller: the person or people who or organisation which determines the purposes for which, and the manner in which, any Personal Data is processed.
Client: the person or firm who purchases Services from the Company.
Data Protection Law: means (a) prior to 25 May 2018, the Data Protection Act 1998; (b) from 25 May 2018, the GDPR and any legislation which amends, re-enacts or replaces it in England and Wales; and (c) at all times, any other data protection laws and regulations applicable in England and Wales.
Data Subject: an individual who is the subject of Personal Data
Deliverables: the deliverables set out in the Proposal (if any) produced by the Company for the Client.
GDPR: General Data Protection Regulation (EU 2016/679).
Personal Data: any information relating to an identifiable natural person who can be directly or indirectly identified in particular by reference to an identifier and in these Conditions shall relate only to such Personal Data, in respect of which the Client is the Controller and which the Company is processing on behalf of the Client as part of the Services.
Processor: any person or organisation that is not a data user that processes personal data on our behalf and on our instructions.
Process: has the meaning set out in article 4(2) of the GDPR (and Processing shall be construed accordingly).
Proposal: the Proposal from the Company to the Client confirming its instruction to provide the Services to which these Conditions are attached.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Services: the franchise mapping services, including any Deliverables, supplied by the Company to the Client as set out in the Proposal.
1.2 In these Conditions, the rules of construction in this clause apply
1.2.1 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.2.2 A reference to a party includes its personal representatives, successors or permitted assigns;
1.2.3 A reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
1.2.4 Any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
1.2.5 A reference to writing or written includes faxes and e-mails.
2. BASIS OF CONTRACT
2.1 The Company has agreed to supply the Services to the Client in accordance with the Proposal and these Conditions.
2.2 The Contract shall come into existence upon the Client’s acceptance of the Proposal (Commencement Date).
2.3 The Contract constitutes the entire agreement between the parties. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract.
2.4 Any samples, drawings, descriptive matter or advertising issued by the Company, and any descriptions or illustrations contained in the Company's catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.6 If there is any conflict between the terms of these Conditions and the Proposal, the terms of the Proposal shall apply.
3. SUPPLY OF SERVICES
3.1 The Company shall supply the Services to the Client in accordance with these Conditions.
3.2 The Company shall use all reasonable endeavours to meet any performance dates specified in the Proposal, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 The Company shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Company shall notify the Client in any such event.
3.4 The Company warrants to the Client that the Services will be provided using reasonable care and skill.
3.5 If the Client wishes to change the scope or execution of the Services, it shall submit details of the proposed change to the Company. The Company shall, within a reasonable time, provide a written estimate to the Client of the time to implement the change and any change in the Charges.
3.6 The Company shall in their absolute discretion be entitled to charge the Client in respect of any such change of its then standard rates.
4. CLIENT'S OBLIGATIONS
4.1 The Client shall:
4.1.1 ensure that the terms of the Proposal and any information it provides to the Company is complete and accurate;
4.1.2 co-operate with the Company in all matters relating to the Services;
4.1.3 provide the Company with such information and materials as the Company may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects; and
4.1.4 make itself available for periodic reviews, if requested to do so by the Company; and
4.1.5 keep and maintain all materials, equipment, documents and other property of the Company (Company Materials) at the Client's premises in safe custody at its own risk, maintain the Company Materials in good condition until returned to the Company, and not dispose of or use the Company Materials other than in accordance with the Company's written instructions or authorisation.
4.2 If the Company's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):
4.2.1 the Company shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays the Company's performance of any of its obligations;
4.2.2 the Company shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Company's failure or delay to perform any of its obligations as set out in this clause 4.2; and
4.2.3 the Client shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Client Default.
5. CHARGES AND PAYMENT
5.1 The Charges for the Services are set out in the Proposal.
5.2 Unless otherwise specified in the Proposal, the Charges shall be payable in two equal instalments as to:
5.2.1 50% upon order; and
5.2.2 50% on completion of the Services.
5.3 The Company shall be entitled to charge the Client for any expenses reasonably incurred by the individuals whom the Company engages in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Company for the performance of the Services, and for the cost of any materials.
5.4 The Company reserves the right to increase the Charges. The Company will give the Client written notice of any such increase 2 months before the proposed date of the increase. If such increase is not acceptable to the Client, it shall notify the Company in writing within 2 weeks of the date of the Company's notice and the Company shall have the right without limiting its other rights or remedies to terminate the Contract by giving 1 week’s written notice to the Client.
5.5 Unless otherwise specified in the Proposal, the Client shall pay each invoice submitted by the Company:
5.5.1 within 30 days of the date of the invoice; and
5.5.2 in full and in cleared funds to the bank account set out in the Proposal, and time for payment shall be of the essence of the Contract.
5.6 All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Company to the Client, the Client shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.7 Without limiting any other right or remedy of the Company, if the Client fails to make any payment due to the Company under the Contract by the due date for payment (Due Date), the Company shall have the right to charge interest on the overdue amount at the rate of 4 percent per annum above the then current Barclays Bank Plc's base rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
5.8 The Client shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Client shall not be entitled to assert any credit, set-off or counterclaim against the Company in order to justify withholding payment of any such amount in whole or in part. The Company may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by the Company to the Client.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Company.
6.2 The Client acknowledges that, in respect of any third party Intellectual Property Rights, the Client's use of any such Intellectual Property Rights is conditional on the Company obtaining a written licence from the relevant licensor on such terms as will entitle the Company to license such rights to the Client.
6.3 All Company Materials are the exclusive property of the Company.
7. INFORMATION
7.1 The Client acknowledges that the information (including but not limited to map boundaries and statistical data) accumulated for it by the Company as part of the Services is derived from third party sources. The information shall be taken at the Client’s own risk and is not a recommendation or confirmation by the Company that such information is accurate. The Company shall not be responsible for any loss or damage incurred by the Client acting upon the information.
7.2 The Company offers no guarantee or warranty as to the accuracy of the information. Any action of the Client arising in relation to the information is at the Client’s own risk and the Company shall have no liability to the Client in respect thereof.
8. DATA PROTECTION
8.1 Through the course of providing the Services the Company may handle, use and process Personal Data on behalf of the Client. The parties agree that, for the purpose of Data Protection Law the Client shall be the Controller and the Company shall be a Processor in respect of the Personal Data which the Company is required to Process in the course of providing the Services.
8.2 The Company shall Process the Personal Data in compliance with Data Protection Law.
8.3 The Company shall process Personal Data only in accordance with the Client’s instructions (except where required to do otherwise by law).
8.4 The Company shall take such technical and organisational steps as reasonably necessary to ensure a level of security as may be appropriate to guard against loss or destruction of or damage to Personal Data or unauthorised or unlawful Processing. In determining the technical and organisation steps are appropriate, the parties shall have regard to:
8.4.1 the state of technological development;
8.4.2 the cost of implementing any measures and the resources available to the Company;
8.4.3 the nature, scope, context and purposes of Processing; and
8.4.4 the risk of varying likelihood and severity for the rights and freedoms of natural persons.
8.5 The Company shall take reasonable steps to ensure that any person authorised by the Company to Process Personal Data is bound to keep the Personal Data confidential.
8.6 The Company shall provide reasonable assistance to the Client in responding to requests from Data Subjects exercising their rights under the GDPR upon reasonable notice from the Client.
8.7 The Company shall, upon reasonable request and upon reasonable written notice, provide the Client with assistance with any data protection impact assessments. Any written request for information or assistance by the Client must sufficiently specify the information or assistance required.
8.8 The Company shall allow the Client to conduct necessary inspections for the purposes of ensuring the Company’s compliance with Data Protection Laws at reasonable times and after the Client has given reasonable written notice to the Company. The Company shall be entitled to determine the date and time of any inspection requested by the Client.
8.9 The Company agrees to notify the Client without undue delay after it becoming aware of a data breach or breach of Data Protection Law in respect of the Personal Data.
8.10 The Client acknowledges that it is solely responsible for notifying the relevant supervisory authority and the Data Subject(s) of any suspected data breach of breach of Data Protection Law in respect of the Personal Data. Consequently, the Client indemnifies the Company against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Company arising out of or in connection to any failure of the Client to notify the relevant supervisory authority or the Data Subject of a breach of Data Protection Law in respect of the Personal Data.
8.11 The Client authorises the Client to appoint third-party sub-contractors and sub-processors to Process the Personal Data.
8.12 The Client warrants to the Company that it will Process the Personal Data in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments.
8.13 The Client warrants to the Company that it has sought all necessary consents of the Data Subjects under Data Protection Law, including the GDPR, to entitle the Company to legally Process the Personal Data as Processor for the Client.
8.14 The Client acknowledges that the Company is reliant on the Client for direction as to the extent to which it is entitled to use and process the Personal Data. Consequently, the Client indemnifies the Company against any claim brought by a Data Subject arising from any action or omission by the Client, to the extent that such action or omission resulted directly or indirectly from the Client's instructions.
8.15 The Client shall indemnify the Company against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Company arising out of or in connection with any breach of the warranties contained in clauses 8.12 to 8.13.
8.16 The Company may terminate the Contract with immediate effect by serving written notice if the Client fails to comply with Data Protection Law.
8.17 Upon termination of the Contract (for any reason), the Client shall immediately notify the Company whether it requires:
8.17.1 the Company to return all the Personal Data at the expense of the Client within 30 days of termination of the Contract. The Client shall immediately confirm receipt of the Personal Data to the Company. The Company shall delete all copies of the Personal Data following confirmation of receipt of the Personal Data by the Client; or
8.17.2 the Company to delete all the Personal Data as soon as reasonably practicable.
8.18 The Company shall not be required to delete any Personal Data which they are required to retain under laws, enactments, regulations, orders, standards and other similar instruments.
8.19 The Company’s total liability arising under or in connection with its obligations under this clause, whether arising in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, shall in all circumstances be limited to the aggregate sum of the charges for the Services incurred by the Client in the prior 12 months.
9. CONFIDENTIALITY
9.1 A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party's business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party's obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 9 shall survive termination of the Contract.
10. LIMITATION OF LIABILITY
10.1 Nothing in these Conditions shall limit or exclude the Company's liability for:
10.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
10.1.2 fraud or fraudulent misrepresentation; or
10.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
10.2 Subject to clause 10.1:
10.2.1 the Company shall under no circumstances whatever be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
10.2.2 the Company's total liability to the Client in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the aggregate Charges payable by the Client in respect of the Services.
10.3 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
10.4 This clause 10 shall survive termination of the Contract.
11. TERMINATION
11.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
11.1.1 the other party commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing of the breach;
11.1.2 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 or 268 of the Insolvency Act 1986;
11.1.3 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
11.1.4 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
11.1.5 the other party is the subject of a bankruptcy petition or order;
11.1.6 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
11.1.7 an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party;
11.1.8 a floating charge holder over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
11.1.9 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
11.1.10 any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 11.1.2 to clause 11.1.9 (inclusive);
11.1.11 the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
11.1.12 the other party dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
11.2 Without limiting its other rights or remedies, the Company may terminate the Contract with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under this Contract on the due date for payment.
11.3 Without limiting its other rights or remedies, each party shall have the right to terminate the Contract by giving the other party 2 months' written notice.
11.4 Without limiting its other rights or remedies, the Company shall have the right to suspend provision of the Services under the Contract or any other contract between the Client and the Company if the Client becomes subject to any of the events listed in clause 11.1.2 to clause 11.1.12, or the Company reasonably believes that the Client is about to become subject to any of them, or if the Client fails to pay any amount due under this Contract on the due date for payment.
12. CONSEQUENCES OF TERMINATION
12.1 On termination of the Contract for any reason:
12.1.1 the Client shall immediately pay to the Company all of the Company's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Client immediately on receipt;
12.1.2 the Client shall return any Company Materials and any Deliverables which have not been fully paid for. If the Client fails to do so, then the Company may enter the Client's premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
12.1.3 the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
12.1.4 clauses which expressly or by implication have effect after termination shall continue in full force and effect.
13. GENERAL
13.1 Force majeure:
13.1.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Company including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Company or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of Companies or subcontractors.
13.1.2 The Company shall not be liable to the Client as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
13.1.3 If the Force Majeure Event prevents the Company from providing any of the Services for more than 4 weeks, the Company shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Client.
13.2 Assignment and subcontracting:
13.2.1 The Company may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
13.2.2 The Client shall not, without the prior written consent of the Company, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
13.3 Notices:
13.3.1 Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party's main fax number.
13.3.2 Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed, or if sent by fax, on the next Business Day after transmission.
13.3.3 This clause 13.3 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, "writing" shall not include e-mails and for the avoidance of doubt notice given under this Contract shall not be validly served if sent by e-mail.
13.4 Waiver:
13.4.1 A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
13.4.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
13.5 Severance:
13.5.1 If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
13.5.2 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
13.6 No partnership
13.6.1 Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
13.7 Third parties
13.7.1 A person who is not a party to the Contract shall not have any rights under or in connection with it.
13.8 Variation
13.8.1 Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing and signed by an authorised signatory of the Company.
13.9 Governing law and jurisdiction
13.9.1 This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.