Terms & Conditions
In this Agreement:
1.1 The following terms shall have the following meanings unless the context otherwise requires:
Account: The account that we allocate to you, which sets out details of the Check Requests that you have submitted to us and, where applicable, details of each Check Result;
Account Manager: The individual at Checks Direct, whose contact details are set out in the Key Details Document or are available to view through the Portal, and who is responsible for the oversight and management of our provision of Services to you under this Agreement;
Agreement: These Terms and Conditions together with the Key Details Document and any document referred to in these Terms and Conditions or the Key Details Document;
API: The application programming interface which enables access to the Portal directly through your computer system;
API Key: The access key provided by us to you to enable your API to access the Portal;
Applicant: The individual, who is the subject of, and who shall be required to submit personal information to us in respect of, a personnel check that you have requested us to carry out;
Authorised Users: Applicants and/or Client Users;
Business Day: A day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
Check: A single personnel check, carried out by us on your behalf;
Check Price: Means the amount paid or payable by you (or the Applicant) to us for a Check, as detailed to you through the Portal from time to time, and which, if applicable, is exclusive of VAT;
Check Result: The report, certificate, or other outcome document generated as a result of us carrying out a Check for you;
Check Request: A request submitted by you, using the functionality available through the Portal, for us to carry out a Check;
Check Request Confirmation: Has the meaning given to it in Clause 4.6;
Checks Direct, we, us or our: New Directions Holdings Limited t/a Checks Direct, whose company number is 05714010 and whose registered office is at Lambourne House, Lambourne Crescent, Cardiff, Wales, CF14 5GL;
Client, you or your: The recipient of Services under this Agreement, as set out in the Key Details Document;
Client Administrator: The individual identified in the Key Details Document as having full capacity and authority to enter into this Agreement on your behalf;
Client Data: The data inputted by you, the Authorised Users, or us on your behalf in providing the Services (which may include Personal Data), as well as information and other materials in any form relating to you and which may be accessed, generated, collected, stored or transmitted by us in the course of the performance of the Services;
Client Materials: Any Client Systems, Client Data, calculations, algorithms, methods, information and other materials created or supplied by you and made available to us for use in the performance of the Services;
Client Systems: Means any computer program (in object code or source code form), program interfaces and any tools or object libraries embedded in that software supplied by you and made available to us for use in the performance of the Services;
Client Users: Those of your employees, agents and independent contractors, who are authorised by you to access the Portal and submit Check Requests, as further described in Clause 3.3 and as stipulated in the Key Details Document;
Commencement Date: The date of your acceptance of the Key Details Document submitted by us to you in accordance with Clause 2.2;
Confidential Information: Any information in any form or medium obtained by or on behalf of either Party from or on behalf of the other Party in relation to this Agreement, which is expressly marked as confidential or which a reasonable person would consider to be confidential, and which may concern the other Party’s business, plans, ideas, methodologies, specifications, data, financial condition or clients and whether any of the foregoing information is disclosed or obtained before, on or after the date of this Agreement, together with any reproductions of such information or any part of it;
Controller: Has the meaning set out in the Data Protection Act 2018;
Data Subject: Has the meaning set out in the Data Protection Act 2018;
Data Protection Laws: In relation to any Personal Data which is processed in the performance of this Agreement, the Data Protection Act 2018 and the General Data Protection Regulation (EU) 2016/679 (GDPR), in each case together with any national implementing laws, regulations, secondary legislation and any other applicable or equivalent data protection or privacy laws, as amended or updated from time to time, in the UK, and any successor legislation to such laws;
Event of Force Majeure: Has the meaning given to it in Clause 14.1;
Good Industry Practice: In relation to any undertaking and any circumstances, the exercise of that degree of professionalism, skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced person or an internationally recognised company engaged in the same type of activity under the same or similar circumstances;
Intellectual Property Rights: Copyright and related rights, trade marks and service marks, trade names and domain names, rights under licences, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, patents, rights to inventions, rights in designs, rights in computer software, database 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 (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
Key Details Document: The form we provide to you setting out certain commercial details about the Services we are to provide to you;
Parties: Us and you, and Party shall mean either us or you;
Personal Data: Has the meaning set out in the Data Protection Act 2018, and relates only to personal data, or any part of such personal data, of which you are the Controller and in relation to which we are the Processor and providing services under this Agreement;
Personal Data Breach: Has the meaning set out in the GDPR;
Portal: The cloud-based website, SaaS platform, API or any other medium we make available, through which you are able to access your Account and submit Check Requests to us;
Processing: Has the meaning set out in the Data Protection Act 2018 and Process shall be interpreted accordingly;
Processor Has the meaning set out in the Data Protection Act 2018;
Services: Our provision to you of access to the Portal and the services that we provide to you, upon your request, in carrying out various personnel checks;
Special Categories of Personal Data: Those categories of data listed in Article 9(1) GDPR;
Supervisory Authority: (a) An independent public authority which is established by a Member State pursuant to Article 51 GDPR; and (b) any similar regulatory authority responsible for the enforcement of Data Protection Laws;
Virus: Anything or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices;
Welcome Email: The email that we send to the Client Administrator which contains (i) the Key Details Document and (ii) details of how to access the Portal;
1.2 Reference to Clauses shall be to clauses of this Agreement;
1.3 Clause headings shall not affect the interpretation of this Agreement;
1.4 In the event of a conflict between these Terms and Conditions and the Key Details Document, the Key Details Document shall prevail over these Terms and Conditions;
1.5 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.6 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular;
1.7 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders;
1.8 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time;
1.9 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision;
1.10 A reference to writing or written includes e-mail; and
1.11 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 or following those terms and shall be deemed to be followed by the words without limitation unless the context requires otherwise.
2.1 The terms of this Agreement apply to the exclusion of any terms and conditions submitted, proposed or stipulated by you in whatever form and at whatever time. If you provide to us a purchase order for your receipt of the Services, that purchase order (and any terms and conditions attached or referred to in it) shall be purely for your administrative purposes and shall not form part of this Agreement.
2.2 Our submission to you of the Key Details Document (as an attachment to the Welcome Email) shall be deemed to be an offer made by us for you to receive the Services, subject to the provisions of these Terms and Conditions, and you shall accept such offer by confirming that you agree to be bound by the terms of this Agreement when you register for access to the Portal. This Agreement shall be legally formed and the Parties shall be legally bound when you register for access to the Portal following your receipt of the Welcome Email.
2.3 Save as expressly provided in this Agreement, this Agreement shall operate to the entire exclusion of any other agreement, understanding or arrangement of any kind between the Parties preceding the date of this Agreement and in any way relating to the subject matter of this Agreement and to the exclusion of any representations not expressly stated in this Agreement except for any fraudulent misrepresentations or any misrepresentation as to a fundamental matter. Each of the Parties acknowledges that it has not entered into this Agreement based on any representation that is not expressly incorporated into this Agreement.
2.4 This Agreement constitutes the whole agreement and understanding of the Parties as to the subject matter of this Agreement and there are no provisions, terms, conditions or obligations, whether oral or written, express or implied, other than those contained or referred to in this Agreement.
3. Portal access licence
3.1 We hereby grant to you a non-exclusive, non-transferable right to permit the Authorised Users to access the Portal, from the Commencement Date for the term of this Agreement solely for your internal business operations.
3.2 The Welcome Email shall provide the Client Administrator with instructions as to how to access the Portal.
3.3 The Client Administrator will be able to add individual sub-user accounts, for Client Users to access the Portal, by using functionality available through the Portal. In relation to the Client Users, you undertake that:
3.3.1 Each Client User shall keep a secure password for use of the Portal, and that each Client User shall keep his/her password confidential;
3.3.2 Only one Client User may access the Portal using a Client User account at any one time;
3.3.3 You shall maintain a written, up to date list of current Client Users and provide such list to us within five Business Days of our written request at any time or times;
3.3.4 You shall permit us to audit your use of the Portal in order to establish the name and password of each Client User;
3.3.5 If any audit referred to in Clause 3.4 reveals that any password has been provided to any individual who is not a Client User, then without prejudice to our other rights (whether under this Agreement or at law), you shall promptly disable such passwords and we shall not issue any new passwords to any such individual; and
3.3.6 Any act or omission of any Client User shall be considered as if it was your act or omission; you must promptly notify us if you become aware of any suspected breaches of this Agreement by any Client User.
3.4 You shall not, and you shall ensure that all Authorised Users shall not, access, store, distribute or transmit any Viruses, or any material during the course of your use of the Portal that:
3.4.1 Is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
3.4.2 Facilitates illegal activity;
3.4.3 Depicts sexually explicit images;
3.4.4 Promotes unlawful violence;
3.4.5 Is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
3.4.6 In a manner that is otherwise illegal or causes damage or injury to any person or property;
3.4.7 And we reserve the right, without liability (subject to Clause 2) and without prejudice to our other rights and remedies whether under this Agreement or at law, to disable your access to the Portal if you or any Authorised User is in breach of this Clause 3.4.
3.5 You shall not, and you shall ensure that all Authorised Users shall not:
3.5.1 Attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Portal in any form or media or by any means;
3.5.2 Attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Portal;
3.5.3 Access all or any part of the Portal in order to build a product or service which competes with the Portal and/or the Services;
3.5.4 Use the Portal and/or the Services to provide services to third parties;
3.5.5 License, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Portal and/or the Services available to any third party; or
3.5.6 Attempt to obtain, or assist third parties in obtaining, access to the Portal and/or the Services, except as expressly provided for by this Agreement.
3.6 You must not use any automated means to access the Portal or collect any information from it unless you have requested the option to access the Portal through an API on registration of your Account and we have consented to this request.
3.7 If you access the Portal through an API, subject to your compliance with your obligations under this Agreement and more specifically Clause 8, you are hereby granted a non-transferable limited licence to:
3.7.1 Access the Portal through your website or your computer system using the API Key that we shall make available to you; and
3.7.2 Reproduce our trade marks, logos and any other Intellectual Property Rights embedded in the Portal or otherwise described in these Terms and Conditions;
3.8 If you access the Portal through an API, you agree to:
3.8.1 Not edit, adapt, amend or otherwise alter the Portal;
3.8.2 Not share the API Key with any third-party;
3.8.3 Not present the Portal in a way that seeks to replicate or pass off your own website or computer system as a resource belonging to or endorsed by us; and
3.8.4 Include the “Powered by Check Direct” logo, that we will provide to you upon registration of your Account, on the same webpage or the relevant tool or function embedded in your computer system that enables access to the Portal.
3.9 You shall prevent any unauthorised access to, or use of, the Portal and, in the event of any such unauthorised access or use, immediately notify us.
3.10 The rights provided under this Clause 3 are granted to you only and shall not be considered granted to any subsidiary or holding company of you.
3.11 We reserve the right, at any time, to carry out repairs, maintenance or introduce new facilities and functions in respect of all or any part of the Portal.
3.12 We do not warrant that your use of the Portal will be uninterrupted, timely, error-free or secure from unauthorised access, or that it will meet your individual requirements. Whilst we use our reasonable endeavours to make the Portal available, we shall not have any liability (subject to Clause 2) if for any reason the Portal is unavailable for any time or for any period.
3.13 It is your responsibility to ensure that you provide us with the information required to enable us to properly make the Portal available, and to perform our obligations under this Agreement. We shall not be responsible or have any liability (subject to Clause 2) for any failure to make the Portal available to the extent caused by your failure to properly ensure the provision of the relevant information to us.
3.14 We may, at our absolute discretion, from time to time either host the Portal on our own servers or use third party suppliers to do so in whole or in part. You acknowledge that we may from time to time without prior notice and without the need for prior agreement provide reasonable additional obligations or requirements on you or reasonably restrict your rights due to the requirements of a third-party supplier.
3.15 Whilst we endeavour to ensure that information and materials on or provided through the Portal (including information about the Services) are correct, no warranty or representation, express or implied, is given that they are complete, accurate, up-to-date, fit for a particular purpose and, to the extent permitted by law and we shall not have any liability (subject to Clause 2) for any errors or omissions.
3.16 Access to the Portal may be suspended or withdrawn from you or all Authorised Users temporarily at any time without notice. We may also impose restrictions on the length and manner of usage of any part of the Portal or access for any reason. If we impose restrictions on you, you must not attempt to use the Portal under any other name or user.
3.17 Except as expressly stipulated in this Agreement:
3.17.1 We shall not, at any point or within a particular time, be responsible for providing or achieving any particular results or outcomes from your use of the Portal; and
3.17.2 We exclude all conditions, warranties, terms and obligations, whether express or implied by statute, common law or otherwise, to the fullest extent permitted by law in respect of the Portal.
4. Check Request process
4.1 This Agreement governs the overall relationship of the Parties in relation to the Services provided by us to you and sets out in this Clause 4 the procedure for you to submit Check Requests.
4.2 You shall be entitled to submit a Check Request, using the functionality available through the Portal, by submitting the necessary information we require to carry out the relevant Check, and (where applicable) paying the relevant Check Price.
4.3 You warrant that, by submitting a Check Request to us, you have obtained the necessary consents, rights and permissions required to enable us to contact the relevant Applicant and obtain from such Applicant the necessary information we required to carry out the relevant Check.
4.4 You warrant that, prior to submission of a Check Request, you are in receipt of evidence of the Applicant’s identity, and, where the relevant Check shall be in relation to the Applicant’s criminal history, you have recorded this in the manner required by the UK’s Disclosure and Barring Service.
4.5 We shall either:
4.5.1 Reject the Check Request and provide you with our reasons as to why such Check Request has been rejected; or
4.5.2 Accept the Check Request.
4.6 When we accept a Check Request in accordance with Clause 5.2, we shall update your Account so that you can view the following information in respect of the relevant Check we are to carry out:
4.6.1 A description of the agreed Check(s) to be carried out by us;
4.6.2 Details of the Applicant who shall be the subject of the particular Check; and
4.6.3 The current status of the Check;
(referred to as a Check Request Confirmation).
4.7 No Check Request shall be deemed to be accepted by us until we have provided you with a Check Request Confirmation.
5. Fees and payment
Payment in advance
5.1 If the Key Details Document stipulates that payment for our Services shall be made in advance and, as part of your submission of a Check Request, you do not specify that the relevant Applicant shall be responsible for such payment, then the Portal shall prompt you for such payment prior to your submission of each Check Request and you will be unable to submit the relevant Check Request until you have paid the relevant Check Price.
Payment by the Applicant
5.2 If the Key Details Document stipulates that payment for our Services shall be made in advance and, as part of your submission of a Check Request, you specify that the relevant Applicant shall be responsible for such payment, then we shall attempt to collect payment from such Applicant prior to carrying the relevant Check. You acknowledge and agree that we shall be under no obligation to carry out the Check until the Applicant has paid the relevant Check Price.
Payment in arrears
5.3 If the Key Details Document stipulates that payment for our Services shall be made in arrears, then the following provisions shall apply:
5.3.1 We shall invoice you on a weekly basis for the Checks carried out by us in the preceding seven-day period.
5.3.2 Payment shall be made by you within 14 days of receipt of our invoice to the bank account nominated in writing by us.
5.3.3 In the event that at any time two invoices which are due and payable under this Agreement are outstanding and have not been paid on their due date for payment, we shall not be obliged to accept any Check Requests under this Agreement until all outstanding invoices have been paid in full.
5.3.4 If you are late in paying any invoice due under this Agreement and such payment remains outstanding for 10 (ten) Business Days following us notifying you of such outstanding payment then, without prejudice to any other rights we have under this Agreement, we shall be entitled to:
(a) Charge interest on the overdue amount at the rate of 4 (four) per cent per annum above the Bank of England’s base rate from time to time from the due date until payment (after as well as before judgment), such interest to run from day to day and to be compounded monthly;
(b) Recover our costs and expenses and charges (including legal and debt collection fees and costs) in collecting the late payment; and
(c) Suspend performance of this Agreement, and/or any Services until payment in full has been made.
5.4 You may not at any time, set off any amount owing to us by you against any amount payable by us to you.
6.1 We shall perform the Services within a reasonable time or as otherwise agreed between the Parties from time to time. For the avoidance of doubt, time is not of the essence in respect of our performance of the Services.
6.2 We warrant that:
6.2.1 We shall use our reasonable skill and care in providing the Services;
6.2.2 Our employees, agents and subcontractors have the necessary skill to provide any Services;
6.2.3 Any Services will be provided in a professional, competent and workmanlike manner;
6.2.4 We have all necessary consents, rights and permission to enter into, and perform our obligations under, this Agreement;
6.2.5 We shall ensure that our employees, agents and subcontractors co-operate with, and make themselves available at all reasonable times for, discussion and meetings with, you;
6.2.6 We shall fully, frequently and promptly update you as to progress with use of the Services, including reporting on any concerns, issues, comments or queries that need to be addressed or resolved; and
6.2.7 We shall comply with all applicable laws, statutes, regulations and bye-laws in relation to the exercise of our rights and performance of our obligations under this Agreement.
6.3 We do not warrant or represent that the Services will be free from errors and interruptions.
6.4 We are not responsible for any people, equipment, deliverables or services that we are not expressly stipulated to provide in this Agreement. You are responsible for any people, equipment, deliverables and services that you need to obtain from someone other than us. Except for any matter in relation to which we specifically agree in writing to advise or do, we shall not be responsible, or have any liability (subject to Clause 2) for advising on, or failing to advise on, or doing, or failing to do, anything else.
6.5 Subject to us performing the Services within any timeframe agreed as being necessary for the performance of the Services, we may select our own working times and location provided that the nature of particular services does not require those particular services to be undertaken during particular working times or at a particular location (in which situation you shall be entitled to request that we perform the Services at such working times and location as are reasonable in the circumstances).
6.6 We shall use our reasonable endeavours to perform our obligations under this Agreement within any timescales set out in this Agreement. However, subject to Clause 2, we shall not have any liability for any delays or failures to accurately perform our obligations:
6.6.1 If we have used those endeavours;
6.6.2 If caused by any failure or delay on your part or on the part of your employees, agents or subcontractors, or by any breach by you of this Agreement or any other agreement; and/or
6.6.3 If we experience an Event of Force Majeure.
6.7 If we are delayed or hindered in providing any Services as a result of any breach, delay or failure by you to perform any of your obligations under this Agreement or of any other agreement between us and you, then we may charge you at our time and materials rates from time to time for:
6.7.1 Any time reasonably incurred as a result of the hindrance or breach (including any wasted time for which we had anticipated that our personnel would provide Services under this Agreement but become unable to provide the Services at that time as a result of your act or omission); and
6.7.2 Any time that we were going to spend in providing the Services, in addition to the time we actually do spend in providing the Services.
6.8 We expressly exclude all liability (subject to Clause 13.2) for the content or accuracy of the information that we receive or provide to you in providing the Services, whether from the UK Disclosure and Barring Service or any other third party, and under no circumstance shall we be liable for any failure to verify the accuracy and completeness of the information provided by the UK Disclosure and Barring Service or such other third party, or conducting any further investigations or controlling the time taken by the UK Disclosure and Barring Service or such other third party to provide us with the information necessary for us to provide a Check Result to you.
6.9 Except for providing you with the Check Result in respect of each Check we carry out, or as specifically stipulated in this Agreement, we:
6.9.1 Shall not be responsible for providing or achieving any particular results or outcomes or within a particular time; and
6.9.2 Exclude all conditions, warranties, terms and obligations, whether express or implied by statute, common law or otherwise, to the fullest extent permitted by law in respect of the Services.
6.10 We have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, and we shall notify you in writing as soon we become aware of any such event.
7. Your obligations
7.1 You shall:
7.1.1 Ensure that the instructions or directions that you provide to us in respect of the Services are complete and accurate;
7.1.2 Ensure that the Client Materials do not and shall not infringe the Intellectual Property Rights of any third party;
7.1.3 Ensure that the Client Materials do not contain any Viruses;
7.1.4 Ensure that your Computer Systems comply with the relevant specifications provided by us from time to time;
7.1.5 Ensure that your employees, agents and subcontractors fully co-operate with, and make themselves available at all reasonable times for discussion and meetings with, us and our employees, agents and subcontractors and to enable us to promptly perform our obligations under this Agreement;
7.1.6 Promptly provide to us such data, information and assistance that will enable us to carry out fully, accurately and promptly our obligations under this Agreement to the best of our ability;
7.1.7 Promptly comply with all of our reasonable requests in connection with this Agreement; and
7.18 Comply with all applicable laws, statutes, regulations and bye-laws in relation to the exercise of your rights and performance of your obligations under this Agreement.
7.2 You warrant and undertakes that at all times during the term of this Agreement you will ensure that:
7.2.1 You will store, handle and retain and dispose of the Check Result, where the relevant Check is in relation to the Applicant’s criminal history, strictly in accordance with the UK Disclosure and Barring Service’s explanatory Guide – “Handling of DBS certificate information”.
7.2.2 You will comply with all other UK Disclosure and Barring Service’s codes, policy requirements and regulations as amended from time to time when submitting Check Requests and handling Check Results when the relevant Check is in relation to an Applicant’s criminal history.
7.3 You are responsible for ensuring that you provide us with the information required to enable us to properly provide the Services. We shall not be responsible or, subject to Clause 2, have any liability for any failure to provide the Services to the extent caused by your failure to properly ensure the provision of the relevant information.
7.4 It is your responsibility to ensure that the Services are sufficient and suitable for your purposes.
7.5 It is your responsibility to ensure that any decision or implementation made by you and/or your employees, agents and other contractors as a result of any Check Result, or any other advice, recommendation or course of action proposed by us in the provision of the Services, is made in your best interests and you shall be responsible (and, subject to Clause 2, we shall not have any liability) for such decision and/or implementation and the consequences of any such decision and/or implementation.
8. Commencement and term
This Agreement shall commence on the Commencement Date and shall continue until it is terminated in accordance with the termination provisions set out in Clause 9.
9. Termination and consequences of termination
9.1 Without affecting any other right or remedy available to it, either Party may terminate this Agreement with immediate effect by giving written notice to the other Party if:
9.1.1 The other Party is in material breach of any of its obligations under this Agreement, or any other agreement between the Parties, which is incapable of remedy;
9.1.2 The other Party fails to remedy, where capable of remedy, any material breach of any of its obligations under this Agreement, or any other agreement between the Parties, after having been required in writing to do so within a period of no less than 10 (ten) Business Days;
9.1.3 The other Party is in persistent breach of any of its obligations under this Agreement or any other agreement between the Parties;
9.1.4 The other Party gives notice to any of its creditors that it has suspended is about to suspend payment or if such Party shall be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or an order is made or a resolution is passed for its winding-up or an administration order is made or an administrator is appointed to manage its affairs, business and property or a receiver and/or manager or administrative receiver is appointed in respect of all or any of its assets or undertaking or circumstances arise which entitle the court or a creditor to appoint a receiver and/or manager or administrative receiver or administrator or which entitle the court to make a winding-up or bankruptcy order or it takes or suffers any similar or analogous action in consequence of debt in any jurisdiction;
9.1.5 The other Party’s financial position deteriorates to such an extent that in the terminating Party’s reasonable opinion the other Party’s capability to adequately fulfil its obligations under the Agreement has been placed in jeopardy; or
9.1.6 The other Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
9.2 Without affecting any other right or remedy available to it, either Party may give 60 days’ prior written notice to terminate this Agreement with immediate effect upon the expiry of such written notice.
9.3 On termination of this Agreement:
9.3.1 We shall carry out each outstanding Check if we have already provided you with a Check Request Confirmation in respect of such Check;
9.3.2 Any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination, shall not be affected;
9.3.3 All licences granted under this Agreement shall immediately terminate and you must immediately cease, and ensure all of your Authorised Users cease, to access or use the Portal;
9.3.4 Outstanding unpaid invoices rendered by us shall become immediately payable by you; and
9.3.5 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination of this Agreement shall remain in full force and effect.
10. Intellectual Property Rights
10.1 You acknowledge and agree that we, or our licensors, own all the Intellectual Property Rights in the Portal and any rights arising out of in connection with it.
10.2 We acknowledge that you or your licensors own and shall retain all rights, title and interest in and to the Client Data and the Client Materials. We shall not have any rights to access, use or modify the Client Data and/or the Client Materials without your prior written consent, except to the extent necessary for you to receive the Services.
10.3 We hereby irrevocably assign (and shall assign by way of future assignment) to you, with full title guarantee, absolutely and free from all encumbrances, all our rights, title and interest in any and all Intellectual Property Rights in or relating to any Client Data or Client Materials modified by or on behalf of us in performance of the Services under this Agreement.
10.4 In the event that your use of the Portal or your receipt of our Services infringe any third party’s Intellectual Property Rights, we shall be entitled to procure the right for you to:
10.4.1 Continue to receive the Services;
10.4.2 Replace or modify the Portal and/or the Services so that they become non-infringing; or
10.4.3 If the remedies set out in Clause 4.1 and Clause 10.4.2 are not reasonably available, terminate this Agreement on no less than five Business Days’ notice to you.
10.5 You agree to indemnify us, keep us indemnified and defend us at your own expense, against all costs, claims, damages or expenses incurred by us or for which we may become liable, in the event that our use of the Client Data or Client Materials, or your use of the Portal in a manner not consistent with our instructions, infringe any third party’s Intellectual Property Rights.
11. Personal Data
11.1 You are exclusively responsible for the legality, reliability, integrity, accuracy and quality of the Client Data.
11.2 The Parties acknowledge that, for the purposes of Data Protection Laws, you are the Controller and we are the Processor of any Personal Data.
11.3 Details of the scope, nature and purpose of Processing by us, the duration of the Processing, the types of Personal Data that we are to Process, the categories of Data Subject and the sub-Processors that we have appointed are as set out in Key Details Document.
11.4 Each Party confirms that it holds, and during the term of this Agreement will maintain, all registrations and notifications required in terms of the Data Protection Laws which are appropriate to the performance of its obligations under this Agreement.
11.5 Each Party confirms that, in the performance of this Agreement, it will comply with the Data Protection Laws.
11.6 We will:
11.6.1 Process Personal Data only on documented instructions from you, unless required to do so by Data Protection Laws or any other applicable law to which we are subject; in such a case, we shall inform you of that legal requirement before Processing, unless that law prohibits us to so inform you;
11.6.2 Ensure that persons authorised to Process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
11.6.3 Take all measures required pursuant to Article 32 of the GDPR in respect of security of Processing;
11.6.4 Notify you as soon as reasonably practicable before appointing any subcontractor in respect of Processing of Personal Data, and ensure that any such subcontractor complies with the provisions of this Clause 11 as if it was a Party; if you (acting reasonably) disagree with the appointment of the subcontractor for reasons relating to the Processing of Personal Data, you shall have the right to terminate this Agreement on no less than 30 (thirty) days’ written notice; for the avoidance of doubt, any appointment of subcontractors in the same corporate group or banner as an existing subcontractor (for example, a subsidiary in the UK, in a different country within the European Economic Area or otherwise any adequate jurisdictions for data processing purposes) shall not require further approval from you;
11.6.5 Taking into account the nature of the Processing, assist you by putting in place appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of your obligation to respond to requests for exercising the Data Subject’s rights laid down in Data Protection Laws, to the extent that such requests relate to this Agreement and our obligations under it;
11.6.6 Assist you in ensuring compliance with your obligations pursuant to Articles 32 to 36 of the GDPR taking into account the nature of Processing and the information available to us;
11.6.7 At your option, delete (to the extent practicable) or return all the Personal Data to you after termination of this Agreement or otherwise on your request, and delete existing copies (to the extent practicable) unless applicable law requires our ongoing storage of the Personal Data;
11.6.8 Make available to you all information necessary to demonstrate our compliance with this Clause 11, and allow for and contribute to audits, including inspections, conducted by you or another auditor mandated by you; and
11.6.9 Inform you immediately if, in our opinion, an instruction from you infringes (or, if acted upon, might cause an infringement of) Data Protection Laws.
11.7 Each Party will notify the other Party as soon as is reasonably practicable if it becomes aware of a Personal Data Breach relating to either Party’s obligations under this Agreement.
11.8 You shall undertake appropriate data protection impact assessments to ensure that Processing of Personal Data complies with Data Protection Laws. We will provide you with reasonable assistance, where necessary and upon your request, in carrying out any data protection impact assessment and undertaking any necessary prior consultation of the Supervisory Authority.
11.9 It is your responsibility to ensure that Personal Data is dealt with in a way that is compliant with Article 5(1) of the GDPR.
11.10 It is your responsibility to ensure that:
11.10.1 You are able to justify the Processing of Personal Data in accordance with Article 6(1) of the GDPR (including, where applicable, obtaining any and all consents of Data Subjects required in order to commence the Processing), and that you have recorded or documented this in accordance with the record keeping requirements of the GDPR;
11.10.2 Where Personal Data falls within the Special Categories of Personal Data, Article 9(2) of the GDPR applies to that Personal Data before Processing takes place;
11.10.3 Where Article 9(2) of the GDPR does not apply to any Personal Data falling within the Special Categories of Personal Data, no such data will be sent to us; and
11.10.4 You have all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to us for the duration and purposes of this Agreement.
12.1 Each Party shall keep the other Party’s Confidential Information confidential and shall not:
12.1.1 Use such Confidential Information except for the purpose of exercising or performing its rights and obligations under this Agreement; or
12.1.2 Disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this Agreement.
Each Party shall use adequate procedures and security measures to protect the other Party’s Confidential Information from inadvertent disclosure or release to unauthorised persons.
12.2 A Party may disclose the other Party’s Confidential Information to those employees, agents and sub-contractors who need to know such Confidential Information provided that:
12.2.1 It informs such employees, agents and sub-contractors of the confidential nature of the Confidential Information before disclosure; and
12.2.2 It does so subject to obligations equivalent to those set out in this Clause 12.
12.3 A Party may disclose the Confidential Information of the other Party to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other Party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this Clause 3, it takes into account the reasonable requests of the other Party in relation to the content of such disclosure.
12.4 The obligations of confidentiality in this Agreement shall not extend to any matter which either Party can show:
12.4.1 Is in, or has become part of, the public domain other than as a result of a breach of the confidentiality obligations of this Agreement; or
12.4.2 Was independently developed by it; or
12.4.3 Was independently disclosed to it by a third party entitled to disclose the same; or
12.4.4 Was in its written records prior to receipt.
12.5 Each Party reserves all rights in its Confidential Information. No rights or obligations in respect of a Party’s Confidential Information other than those expressly stated in this Agreement or are granted to the other Party, or to be implied from this Agreement.
12.6 On termination of this Agreement, each Party shall:
12.6.1 Return to the other Party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other Party’s Confidential Information;
12.6.2 Erase all the other Party’s Confidential Information from its computer systems (to the extent possible); and
12.6.3 At the request of the other Party, certify in writing to the other Party that it has complied with the requirements of this Clause 6, provided that a recipient Party may retain documents and materials containing, reflecting, incorporating or based on the other Party’s Confidential Information to the extent required by law or any applicable governmental or regulatory authority. Clause 12 shall continue to apply to any such documents and materials retained by a recipient Party following termination of this Agreement for any reason.
13. Limitation of liability
13.1 This Clause 13 prevails over all of this Agreement and sets forth our entire liability, and your sole and exclusive remedies, in respect of:
13.1.1 Our performance, non-performance, purported performance, delay in performance or mis-performance of this Agreement or any goods, services or deliverables in connection with this Agreement; or
13.1.2 Otherwise in relation to this Agreement or entering into this Agreement.
13.2 We do not exclude or limit our liability for:
13.2.1 Our fraud or fraudulent misrepresentation;
13.2.2 Death or personal injury caused by our negligence; or
13.2.3 Any other liability which cannot be excluded or limited by applicable law.
13.3 Subject to Clause 2, we shall have not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any:
13.3.1 Loss of actual or anticipated profits;
13.3.2 Loss of revenue;
13.3.3 Loss of business;
13.3.4 Loss of contracts;
13.3.5 Loss of opportunity;
13.3.6 Loss of goodwill;
13.3.7 Loss of, damage to, or corruption of, data; or
13.3.8 indirect or consequential losses, damages, costs or expenses,
whether or not such losses were reasonably foreseeable or we or our agents or contractors had been advised of the possibility of such losses being incurred.
13.4 Subject to Clause 2, our total aggregate liability arising out of or in connection with all claims in aggregate (including warranty claims and losses relating to the breach of warranty) shall be limited to 100 (one hundred) per cent of all amounts paid and total other sums payable, in aggregate, by you to us under this Agreement in the 12 (twelve) months prior to the date on which the claim first arose.
13.5 The limitation of liability under Clause 4 has effect in relation both to any liability expressly provided for under this Agreement and to any liability arising by reason of the invalidity or unenforceability of any term of this Agreement.
14. Force majeure
14.1 Subject to Clause 2, neither Party shall have any liability for any breach, hindrance or delay in performance of its obligations under this Agreement which is caused by an Event of Force Majeure, regardless of whether the circumstances in question could have been foreseen. An Event of Force Majeure means any cause outside of the Party’s reasonable control, including act of God, actions or omissions of third parties (including hackers, suppliers, couriers, governments, quasi-governmental, supra-national or local authorities), insurrection, riot, civil war, civil commotion, war, hostilities, threat of war, warlike operations, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions, national emergencies, terrorism, nuclear, chemical or biological contamination or sonic boom, piracy, arrests, restraints or detainments of any competent authority, blockade, strikes or combinations or lock-out of workmen, epidemic, pandemic, fire, explosion, storm, flood, drought, adverse weather conditions, loss at sea, earthquake, natural disaster, accident, collapse of building structures, failure of plant machinery or machinery or third party computers or third party hardware, software or vehicles, failure or problems with public utility supplies (including general: electrical, telecoms, water, gas, postal, courier, communications or Internet disruption or failure), shortage of or delay in or inability to obtain supplies, stocks, storage, materials, equipment or transportation.
14.2 Each of the Parties agrees to inform the other upon becoming aware of an Event of Force Majeure, such information to contain details of the circumstances giving rise to the Event of Force Majeure.
14.3 The performance of each Party’s obligations shall be suspended during the period that the circumstances persist and such Party shall be granted an extension of time for performance equal to the period of the delay.
14.4 Each Party shall bear its own costs incurred by the Event of Force Majeure.
14.5 If the performance of any obligations under this Agreement are delayed under Clause 1, each Party shall nevertheless accept performance as and when the other shall be able to perform.
14.6 If the breach, hindrance or delay caused by an Event of Force Majeure continues without a break for more than one month, either Party may terminate this Agreement immediately by notice to the other, in which event neither Party shall have any liability (subject to Clause 2) to the other Party by reason of such termination.
14.7 If we have contracted to provide identical or similar services to more than one customer and we are prevented from fully meeting our obligations to you due to an Event of Force Majeure, we may decide at our absolute discretion which contracts we will perform and to what extent.
No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
17. Rights and remedies
Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
18.1 If any provision or part-provision of this is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this Clause 18 shall not affect the validity and enforceability of the rest of this Agreement.
18.2 If any provision or part-provision of this Agreement is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
19. No partnership or agency
Nothing in this Agreement is intended to or shall operate to create a partnership between the Parties, or authorise either Party to act as agent for the other, and neither Party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
20. Third party rights
This Agreement does not confer any rights on any person or party (other than the Parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
21.1 Any notice given to either Party under or in connection with this Agreement shall be in writing, addressed to the relevant Party at its registered office or such other address as that Party may have specified to the other Party in writing, and shall be delivered personally, sent by pre-paid first-class post, recorded delivery or commercial courier.
21.2 A notice shall be deemed to have been received: if delivered personally, when left at the address referred to in Clause 1; 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.
21.3 The provisions of this Clause 1 and 21.2 shall not apply to the service of any proceedings or other documents in any legal action.
No variation of this Agreement shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).
You may not assign, transfer, charge or otherwise encumber, create any trust over, or deal in any manner with, this Agreement or any right, benefit or interest under it, nor transfer, novate or sub-contract any of your obligations under it, without our prior written consent.
24. Governing law and jurisdiction
24.1 This Agreement, and any dispute or claim arising out of or in connection with it or them or its or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England.
24.2 Each Party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation.