1                Definitions and interpretation

    1. In these Conditions the following definitions apply:

Affiliate

means any entity that directly or indirectly Controls, is Controlled by or is under common Control with, another entity;

Background IPR

means all Intellectual Property Rights or other proprietary rights owned by the , its subcontractors or any third party, the use of which is necessary for or incidental to the provision of the Services or Goods.  

Booking Form

means the Client's order for certain Deliverables included within the Subscription in substantially the same form as set out at Appendix A;

Bribery Laws

means the Bribery Act 2010 and associated guidance published by the Secretary of State for Justice under the Bribery Act 2010 and all other applicable UK legislation, statutory instruments and regulations in relation to bribery or corruption and any similar or equivalent legislation in any other relevant jurisdiction;

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;

Conditions

means the Supplier’s terms and conditions of sale set out in this document;

Confidential Information

means any commercial, financial or technical information, information relating to the Deliverables, plans, know-how or trade secrets which is obviously confidential or has been identified as such, or which is developed by the Client in performing its obligations under, or otherwise pursuant to a Booking Form; any information related to the Services, and any other information provided to the Client by or on behalf of the Company which is marked as confidential;

Control

means the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the management of the company;

Controller

shall have the meaning given in applicable Data Protection Laws from time to time;

Client

means the person who purchases the Deliverables from the Supplier and whose details are set out in the Order;

Client Materials

all documents, information, items and materials in any form, whether owned by the Client or a third party, which are provided by the Client to the Supplier in connection with the goods or Services;

Data

means personal data processed by the Supplier pursuant to a Booking Form;

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, re-enact, consolidate or amend any of the foregoing;

Data Subject

shall have the meaning in applicable Data Protection Laws from time to time;

Deliverables

means the Goods or Services or both as the case to be provided as part of the Services;

Foreground IPR

means all Intellectual Property Rights arising, or which subsist in materials created, in relation to the Subscription;

Force Majeure

means an event or sequence of events beyond any party’s reasonable control (after exercise of reasonable care to put in place robust back-up and disaster recovery arrangements) preventing or delaying it from performing its obligations under a Booking Form including an act of God, fire, flood, lightning, earthquake or other natural disaster; war, riot or civil unrest; interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service; or material required for performance of the Contract; strike, lockout or boycott or other industrial action including strikes or other industrial disputes involving the Supplier’s or its suppliers’ workforce, but excluding the Client’s inability to pay or circumstances resulting in the Client’s inability to pay;

GDPR

means the General Data Protection Regulation, Regulation (EU) 2016/679;

Goods

means the documentation and other physical material set out in the Booking Form or understood by the parties to be included in the Services and to be supplied by the Supplier to the Client;

Intellectual Property Rights

means copyright, patents, know-how, trade secrets, trade marks, trade names, design rights, rights in get-up, rights in goodwill, rights in confidential information, rights to sue for passing off, domain names and all similar rights and, in each case:

(a)            whether registered or not

(b)            including any applications to protect or register such rights

(c)            including all renewals and extensions of such rights or applications

(d)            whether vested, contingent or future

(e)            to which the relevant party is or may be entitled, and

(f)             in whichever part of the world existing;

International Organisation

has the meaning given in the applicable Data Protection Laws from time to time;

Location

means the address(es) for delivery of the Goods and performance of the Services as set out in the Order;

Modern Slavery Policy

means the Supplier's anti-slavery and human trafficking policy in force and notified to the Client from time to time;

Personal Data

has the meaning given in the applicable Data Protection Laws from time to time;

Price

has the meaning given in clause 3.1;

processing  

has the meaning given to it in applicable Data Protection Laws from time to time (and related expressions, including process, processed, processing, and processes shall be construed accordingly);

Protected Data

means Personal Data received from or on behalf of the Client in connection with the performance of the Supplier’s obligations under a Booking Form;

Services

means the services set out in the Booking Form and to be supplied by the Supplier to the Client during the Subscription Term;

Specification

means the description or specification of the Deliverables set out or referred to in the Order;

Subscription Term

means a period of one year from the date of execution by the Client of a Booking Form for Deliverables which form part of the Subscription;

Supplier

means QA Limited (company number 02413137) with registered office at Rath House, 55-65 Uxbridge Road, Slough, Berkshire SL1 1SG;

VAT

means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the sale of the Deliverables.

    1. In these Conditions, unless the context otherwise requires:

      1. a reference to a Booking Form includes these Conditions, and their respective schedules, appendices and annexes (if any);

      2. any clause, schedule or other headings in these Conditions are included for convenience only and shall have no effect on the interpretation of these Conditions;

      3. a reference to a ‘party’ means either the Supplier or the Client and includes that party’s personal representatives, successors and permitted assigns;

      4. a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;

      5. a reference to a ’company’ includes any company, corporation or other body corporate, wherever and however incorporated or established;

      6. a reference to a gender includes each other gender;

      7. words in the singular include the plural and vice versa;

      8. any words that follow 'include', 'includes', 'including', ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;

      9. a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form;

      10. without prejudice to the provisions of clause 16, a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time except to the extent that any such amendment, extension or re-enactment would increase or alter the liability of a party under a Booking Form; and

      11. a reference to any English action, remedy, method of judicial proceeding, court, official, legal document, legal status, legal doctrine, legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English equivalent in that jurisdiction.

2                Application of these Conditions

    1. These Conditions apply to and form part of any Booking Form between the Supplier and the Client for the sole and exclusive purpose of a Client’s utilisation of the Supplier’s “Limitless Learning Offering” (the “Subscription”).

    2. These Conditions shall be deemed separate to any do not in whole or in part override or amend any current terms and conditions or other such agreement the Client may have in place with the Supplier for the provisions of other services or deliverables not within the Subscription offering.

    3. No terms or conditions endorsed on, delivered with, or contained in the Client's purchase conditions, order, confirmation of order, specification or other document shall form part of the a Booking Form except to the extent that the Supplier otherwise agrees in writing.

    4. No variation of these Conditions or to a Booking Form, shall be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of the Client.

    5. Each Booking Form entered into by the Client to the Supplier shall be an offer to purchase the Deliverables subject to these Conditions.

    6. A Booking Form may be withdrawn or amended by the Client at any time before acceptance by the Supplier. A Booking Form shall lapse unless accepted by the Supplier before the expiry of 14 days after the date of the Order. If the Supplier is unable to accept a Booking Form, it shall notify the Client promptly.

    7. The offer constituted by a Booking Form shall remain in effect and capable of being accepted by the Supplier five (5) Business Days from the date on which the Client submitted the Booking Form, after which time it shall automatically lapse and be withdrawn.

    8. The Supplier may accept or reject a Booking Form at its discretion. A Booking Form shall not be accepted, and no binding obligation to supply any Deliverables shall arise, until the earlier of:

      1. the Supplier’s written acceptance of the Booking Form; or

      2. the Supplier delivering or performing the Deliverables or notifying the Client that they are ready to be delivered or performed (as the case may be).

    9. Rejection by the Supplier of a Booking Form, including any communication that may accompany such rejection, shall not constitute a counter-offer capable of acceptance by the Client.

    10. Marketing and other promotional material relating to the Deliverables are illustrative only and do not form part of a Booking Form.

    11. Each Booking Form shall comprise and incorporate:

      1. these Conditions;

      2. if applicable, the Software Assurance Supplementary Terms and Conditions applicable to Microsoft Software Assurance Training Voucher Programme found at Microsoft Software Assurance Terms and Conditions; and

      3. any of the Company's web portal access terms and conditions applicable to the Services or Goods;

3                Price

    1. The price for the Subscription shall be set at £[•] per annum excluding VAT (the “Fees”)

    2. The Fees are exclusive of:

      1. any amounts incurred in relation to travel, subsistence, or other expenses, which shall be payable by the Client upon presentation of invoices by the Supplier (the Supplier’s policy on expenses is available on request); which shall be charged in addition at the Supplier’s standard rates;

      2. any bespoke or specific requirements needing to be made to the Deliverables for the Client on request;

      3. any Deliverables not included within the Subscription (including fees and charges for third party suppliers) and

      4. VAT.

    3. The Client shall pay any applicable VAT to the Supplier on receipt of a valid VAT invoice.

    4. The Supplier may increase the Fees at any time for any reason by giving the Client not less than fourteen (14) Business Days’ notice in writing.

    5. Where the Client’s accounting practices require the use of a purchase order number, the Client shall provide a valid purchase order number to the Supplier immediately upon signing each Booking Form.

4                Where a third party, including but not limited to vendors, certification bodies and other third party suppliers, materially increases the cost of their courseware, examination fees, courses prices or operating model, the Supplier reserves the right to increase the fees for the relevant courses either by adjustment to course prices or pre-existing discount rates, notwithstanding any agreed fixed pricing or discount rates given to the Client for these courses.

5                Payment

    1. The Supplier shall invoice the Client for the Fees in advance of any booking made via a Booking Form for any Deliverable that is included within the Subscription. Except as otherwise stated in the Booking Form, the Fees shall be due and payable by the Client with fifteen (15) Business Days prior to the Commencement of the Services.

    2. The Client shall pay all invoices:

      1. in full without deduction or set-off, in cleared funds within five (5) of the date of each invoice; and

      2. to the bank account nominated by the Supplier.

    3. Time of payment is of the essence. Where sums due under these Conditions are not paid in full by the due date:

      1. the Supplier may, without limiting its other rights, charge interest on such sums at five per cent (5%) a year above the base rate of the Bank of England from time to time in force, and

      2. interest shall accrue on a daily basis, and apply from the due date for payment until actual payment in full, whether before or after judgment.

6                Credit limit

The Supplier may set and vary credit limits from time to time and withhold all further supplies if the Client exceeds such credit limit.

7                Delivery and performance

    1. If applicable, the Goods shall be delivered by the Supplier to the Location on the date(s) specified in the Booking Form. The Goods shall be deemed delivered by the Supplier only on arrival of the Goods at the Location.

The Services shall be performed by the Supplier at the Location on the date(s) specified in the Order. The Services shall be deemed delivered by the Supplier only on commencement of the performance of the Services at the Location.

    1. The Supplier may deliver or perform the Deliverables in instalments. Any delay in performance or defect in an instalment shall not entitle the Client to cancel any other instalment.

    2. Time is not of the essence in relation to the performance or delivery of the Deliverables. The Supplier shall use its reasonable endeavours to meet estimated dates for delivery and performance, but any such dates are approximate only.

    3. The Supplier shall not be liable for any delay in or failure of performance caused by:

      1. the Client's failure to: (i) make the Location available, (ii) prepare the Location in accordance with the Supplier's instructions or (iii) provide the Supplier with adequate instructions for performance or delivery or otherwise relating to the Deliverables;

      2. Force Majeure.

8                Upon the Client's request and in order to meet the Client's requirements, the Supplier may from time to time book courses (and / or accommodation) provided by third parties on the Client's behalf. In such instances the third party contractual terms shall govern the booking of those third party courses (and / or accommodation) and in particular, the third party payment and cancellation terms shall prevail over terms of this Agreement with respect to those third party courses (and / or accommodation). The Supplier will provide to the Client a copy of relevant third party contractual terms upon the Client's request. In the event that the Client wishes to reschedule or cancel such third party course (and / or accommodation) booking(s) the Client will be required to pay any cancellation or rescheduling fees levied by the third party along with an administration fee (minimum £25). The Client shall indemnify the Supplier for all costs incurred in booking such courses (and / or accommodation), and for any loss or expense suffered or incurred by the Company as a result of the Client's acts or omissions in relation to such third party courses (and / or accommodation).

9                Risk

Risk in the Goods shall pass to the Client on delivery.

10             Title

    1. Title to the Goods shall pass to the Client once the Supplier has received payment in full and cleared funds for the Goods.

    2. Until title to the Goods has passed to the Client, the Client shall:

      1. hold the Goods as bailee for the Supplier;

      2. store the Goods separately from all other material in the Client's possession;

      3. take all reasonable care of the Goods and keep them in the condition in which they were delivered;

      4. insure the Goods from the date of delivery: (i) with a reputable insurer (ii) against all risks (iii) for an amount at least equal to their Fees (iv) noting the Supplier's interest on the policy;

      5. ensure that the Goods are clearly identifiable as belonging to the Supplier;

      6. not remove or alter any mark on or packaging of the Goods;

      7. inform the Supplier immediately if it becomes subject to any of the events or circumstances set out in clauses 20.2.1 to 20.2.4 or 20.3.1 to 20.3.11; and

      8. on reasonable notice permit the Supplier to inspect the Goods during the Client’s normal business hours and provide the Supplier with such information concerning the Goods as the Supplier may request from time to time.

    3. The Client may not use or resell the Goods and/or copy, record or re-transmit the Services except in any manner whatsoever except upon the Client’s prior written consent. The Client warrants, represents and undertakes that the Supplier that will not use the Services, Deliverables or Goods in any manner other than in accordance with these Conditions, for its internal business purposes and not for any commercial exploitation. 

11             Warranty

    1. The Client warrants that it has provided the Supplier with all relevant, full and accurate information as to the Client’s business and needs.

    2. Each party warrants and represents that, as at date of each Booking Form, it has full capacity and authority to enter into that Booking Form.

    3. The Supplier warrants that it will provide the Services with reasonable skill and care.

    4. Except as set out in this clause 11, the Supplier gives no warranty and makes no representations in relation to the Deliverables; and all warranties and conditions (including the conditions implied by ss 12–16 of the Supply of Goods and Services Act 1982 and ss 13–15 of the Sale of Goods Act 1979), whether express or implied by statute, common law or otherwise are excluded to the extent permitted.

12             Anti-bribery

    1. For the purposes of this clause 12 the expressions 'adequate procedures' and 'associated with' shall be construed in accordance with the Bribery Act 2010 and legislation or guidance published under it.

    2. Each party shall comply with applicable Bribery Laws including ensuring that it has in place adequate procedures to prevent bribery and ensure that:

      1. all of that party’s personnel;

      2. all others associated with that party; and

      3. all of that party’s subcontractors;

involved in performing or receiving the Deliverables or Services as applicable, so comply.

    1. Without limitation to clause 12.2, 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, either in the United Kingdom or elsewhere, 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.

    2. Each party shall immediately notify the other as soon as it becomes aware of a breach or possible breach of any of the requirements in this clause 12.

13             Anti-slavery

    1. The Client undertakes, warrants and represents that:

      1. neither the Client nor any of its officers, employees, agents or subcontractors has:

        1. committed an offence under the Modern Slavery Act 2015 (an MSA Offence);

        2. been notified that it is subject to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015; or

        3. 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;

      2. it shall comply with the Modern Slavery Act 2015 and the Modern Slavery Policy; and

      3. it shall notify the Supplier immediately in writing if it 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 Client’s obligations under clause 12.1. Such notice to set out full details of the circumstances concerning the breach or potential breach of the Client’s obligations.

    2. Any breach of clause 13.1 by the Client shall be deemed a material breach of these Conditions and shall entitle the Supplier to terminate the Subscription and any Booking Form with immediate effect.

14             Indemnity and insurance

    1. The Client shall indemnify, and keep indemnified, the Supplier from and against any losses, damages, liability, costs (including legal fees) and expenses incurred by the Supplier as a result of or in connection with the Client’s breach of any of the Client’s obligations under these Conditions.

    2. The Client shall have in place contracts of insurance with reputable insurers incorporated in the United Kingdom to cover its obligations under these Conditions and any Booking Form hereunder. On request, the Client shall supply so far as is reasonable evidence of the maintenance of the insurance and all of its terms from time to time applicable.

15             Limitation of liability

    1. Notwithstanding any contrary provision in an Agreement, neither party limits or excludes its liability in respect of:

      1. any death or personal injury caused by its negligence;

      2. any fraud or fraudulent misrepresentation; or

      3. any statutory or other liability which cannot be excluded under applicable law;

    2. The Supplier shall not be liable to the Client for any loss of profit or loss of revenue arising out of or in connection with

      1. the Subscription;

      2. the Services;

      3. the Deliverables; or

      4. any breach or non-performance of Services or Deliverables scheduled to be provided under a Booking Form

    1. no matter how fundamental (including by reason of that party's negligence).

    1. The Supplier shall not be liable to the Client for:

      1. loss of profits;

      2. loss of use;

      3. loss of production;

      4. loss of contract;

      5. loss of opportunity;

      6. loss of savings, discount or rebate (whether actual or anticipated);

      7. any indirect loss;

      8. any loss of goodwill, business, reputation or opportunity;

      9. any loss caused by supply of inaccurate or incomplete information by the Client; or

      10. any loss of or corruption of data or software,

    1. in each case arising out of or in connection with these Conditions, the Subscription or any Booking Form or any breach or non-performance of it no matter how fundamental (including by reason of that party's negligence) whether or not that party had been informed of or was aware that there was a serious possibility of such loss.

    1. Subject to clause 15.5, the Supplier’s total aggregate liability in a twelve (12) month period arising or in connection with any Booking Form entered into as part of the Subscription or any breach or non-performance of it, no matter how fundamental (including by reason of that party’s negligence) in contract, tort or otherwise shall be limited to any amount equal to the Fees paid by the Client.

    2. Notwithstanding any other provision of the Booking Form, the liability of the parties shall not be limited in any way in respect of the following:

      1. death or personal injury caused by negligence;

      2. fraud or fraudulent misrepresentation;

      3. any other losses which cannot be excluded or limited by applicable law;

      4. any losses caused by wilful misconduct.

16             Intellectual property

    1. Use of the Supplier's name or logo is prohibited except with the Supplier's prior written consent except as provided by applicable law.

    2. The Supplier and its licensors shall retain all right, title and interest in and to all Background IPR.  The Client shall not acquire any rights the Background IPR or to any materials in which Background IPR subsists, including any Goods, including and without limitation, all documents, training guides, instruction manuals, drawings, diagrams, videos or any other materials provided by the Supplier in connection with Services or Goods.

    3. The Supplier hereby grants to the Client a non-exclusive licence during the term of the Subscription to use the Background IPR in those materials which the Supplier provides to the Client solely to the extent necessary for the Client to receive the Services.  The Client shall not copy, reproduce, sell, licence, distribute, publish or otherwise circulate any Background IPR except with the Supplier's prior written consent.

    4. All Foreground IPR shall vest in the Supplier upon creation and the Client hereby assigns with full title guarantee all Foreground IPR which relates to Services and/or Deliverables provided under a Booking Form.  Such assignment shall take effect as a present assignment of future rights.

    5. The Supplier hereby grants to the Client a non-exclusive license during the term of the Services and/or Deliverables under each Booking Form to use the Foreground IPR for the Client's internal business purposes only, and provided always that the Client shall not commercialise Foreground IPR and in particular shall not sell, licence, distribute, publish or otherwise circulate Foreground IPR to any third party except with the Supplier's prior written consent.

    6. The Client shall promptly inform the Supplier in writing of any infringement or alleged infringement of Background IPR or Foreground IPR, or any allegation coming to the Client's attention that the Services, Background IPR or Foreground IPR infringe any person's intellectual property rights.

    7. In relation to the Client Materials the Client and its licensors shall retain ownership of all IPRs in the Client Materials; and grants to the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Client Materials for the term of the relevant Booking Form for the purpose of providing the Services and/or Goods to the Client.

    8. The Client warrants, represents and undertakes that the receipt and use in the performance of the Services by the Supplier, its agents, subcontractors or consultants of the Customer Materials shall not infringe the rights, including any Intellectual Property Rights, of any third party and shall indemnify the Supplier 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 or paid by the Supplier arising out of or in connection with any claim brought against the Supplier, its agents, subcontractors or consultants for actual or alleged infringement of a third party’s Intellectual Property Rights or in connection with, the receipt or use in the performance of its obligations of the Customer Materials. The indemnification obligation of this Clause 16.8 shall not be capped or limited in any respect.

    9. Subject to the limitation at Clause 15.4, the Supplier shall indemnify the Client from and against any losses, damages, liability, costs and expenses (including reasonable professional fees) incurred by it as a result of any action, demand or claim that use of the Deliverables infringes the Intellectual Property Rights of any third party (IPR Claim) to the extent that the infringement or alleged infringement results from copying, provided that the Supplier shall have no such liability if the Client:

      1. does not notify the Supplier in writing setting out full details of any IPR Claim of which it has notice as soon as is reasonably possible;

      2. makes any admission of liability or agrees any settlement or compromise of the relevant IPR Claim without the prior written consent of the Supplier;

      3. does not let the Supplier at its request and own expense have the conduct of or settle all negotiations and litigation arising from the IPR Claim at its sole discretion;

      4. does not take all reasonable steps to minimise the losses that may be incurred by it or by any third party as a result of the IPR Claim;

      5. does not, at the Supplier's request, provide the Supplier with all reasonable assistance in relation to the IPR Claim (at the Client’s expense) including the provision of prompt access to any relevant premises, officers, employees, contractors or agents of the Client.

    10. If any IPR Claim is made or is reasonably likely to be made, the Supplier may at its option:

      1. procure for the Client the right to continue receiving the benefit of the relevant Deliverables; or

      2. modify or replace the infringing part of the Deliverables so as to avoid the infringement or alleged infringement, provided the Deliverables remain in material conformance to their Specification.

    11. The Supplier's obligations under clause 16.9 shall not apply to Deliverables modified or used by the Client other than in accordance with the Booking Form or the Supplier’s instructions.

17             Confidentiality and announcements

    1. The Client shall keep confidential all Confidential Information of the Supplier and of any Affiliate of the Supplier and shall only use the same as required to perform the Services and/or provide the Deliverables. The provisions of this clause shall not apply to:

      1. any information which was in the public domain at the date of the relevant Booking Form;

      2. any information which comes into the public domain subsequently other than as a consequence of any breach of these Conditions or any related agreement;

      3. any information which is independently developed by the Client without using information supplied by the Supplier or by any Affiliate of the Supplier; or

      4. any disclosure required by law or a regulatory authority or otherwise by the provisions of these Conditions and/or any Booking Form.

except that the provisions of clauses 17.1.1 to 17.1.3 shall not apply to information to which clause 15.4 relates.

    1. This clause shall remain in force in perpetuity.

    2. The Client shall not make any public announcement or disclose any information regarding the these Conditions, the Services, the Deliverables and/or any Booking Form, except to the extent required by law or regulatory authority.

    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 does not conflict with any provisions of clause 18.

18             Data Protection

    1. The parties acknowledge that the Supplier is a separate and independent controller of Data it processes in connection with the Services. Both parties shall process Data in accordance with Data Protection Laws. The Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of Personal Data to the Supplier for the duration and purposes of the Subscription.

    2. The Supplier and Client shall implement and maintain appropriate technical and organisational measures to protect the Data against Security Incidents. If it becomes aware of a confirmed Security Incident, each party shall inform the other without undue delay and shall provide reasonable information and cooperation to each other so that each party, as applicable, can fulfil any data breach reporting obligations it may have under (and in accordance with the timescales required by) Applicable Data Protection Law in connection with the Security Incident.

    3. In the event that either party receives any correspondence, enquiry or complaint from a data subject, regulator or other third party ("Correspondence") related to the processing of Data by the other party under this Agreement, it shall promptly inform the other party giving full details of the same, and the parties shall cooperate reasonably and in good faith in order to respond to the Correspondence in accordance with any requirements under Data Protection Laws.

    4. The Supplier and Client shall not transfer the Data outside of the European Economic Area ("EEA") unless it has taken such measures as are necessary to ensure the transfer is in compliance with Data Protection Laws.

    5. The Supplier's privacy notice (which sets out information about how the Supplier processes Data) is available at www.qa.com/notices/privacy-policy.

    6. The Client shall indemnify the Supplier and keep indemnified and hold harmless the Supplier, its Affiliates and each of its officers, directors, employees and agents, from and against all loss, cost, harm, expense (including reasonable legal fees), liabilities, fines or damage suffered or incurred by Supplier as a result of the Client's breach of this Clause 18. The indemnification obligation of this Clause 18.6 shall not be capped or limited in any respect.

19             Force Majeure

    1. A party shall not be liable if delayed in or prevented from performing its obligations due to Force Majeure, provided that it:

      1. promptly notifies the other of the Force Majeure event and its expected duration; and

      2. uses best endeavours to minimise the effects of that event.

    2. If, due to Force Majeure, a party:

      1. is or shall be unable to perform a material obligation; or

      2. is delayed in or prevented from performing its obligations for a continuous period exceeding fourteen (14) days.

the parties shall, within thirty (30) days, renegotiate the Booking Form to achieve, as nearly as possible, the original commercial intent.

20             Termination

    1. Following the Subscription Term, the Subscription shall automatically terminate unless

    2. The Supplier may termination the Subscription at any time on giving four (4) week’s written notice to the Client.

    3. The term of each Service and/or Deliverable shall be set out in the relevant Booking Form. Notwithstanding anything else stated herein, the Supplier may terminate any Booking Form in whole or in part for convenience at any time (subject to giving one (1) week’s written notice).

    4. The Supplier may terminate the Subscription or any other Booking Form or agreement which it has with the Client at any time by giving notice in writing to the Client if:

      1. the Client commits a material breach of these Conditions and such breach is not remediable;

      2. the Client commits a material breach of the Booking Form which is not remedied within fourteen (14) days of receiving written notice of such breach;

      3. the Client has failed to pay any amount due under the Booking Form on the due date and such amount remains unpaid within thirty (30) days after the Supplier has given notification that the payment is overdue; or

      4. any consent, licence or authorisation held by the Client is revoked or modified such that the Client is no longer able to comply with its obligations under these Conditions and/or any Booking Form or receive any benefit to which it is entitled;

      5. the Client stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;

      6. the Client is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if the Supplier reasonably believes that to be the case;

      7. the Client becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;

      8. the Client has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;

      9. the Client has a resolution passed for its winding up;

      10. the Client has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it;

      11. the Client is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within [seven] days of that procedure being commenced;

      12. the Client has a freezing order made against it;

      13. the Client is subject to any recovery or attempted recovery of items supplied to it by a supplier retaining title in those items;

      14. the Client  is subject to any events or circumstances analogous to those in clauses 20.2.1 to 20.2.9 in any jurisdiction;

      15. the Client takes any steps in anticipation of, or has no realistic prospect of avoiding, any of the events or procedures described in clauses 20.3.5 to 20.3.14 including for the avoidance of doubt, but not limited to, giving notice for the convening of any meeting of creditors, issuing an application at court or filing any notice at court, receiving any demand for repayment of lending facilities, or passing any board resolution authorising any steps to be taken to enter into an insolvency process.

    5. The Supplier may terminate the Subscription and/or any Booking Form at any time by giving not less than four (4) weeks’ notice in writing to the Client if the Client undergoes a change of Control or if it is realistically anticipated that it shall undergo a change of Control within two months.

    6. If the Client becomes aware that any event has occurred, or circumstances exist, which may entitle the Supplier to terminate the Subscription and/or Booking Form under this clause 20, it shall immediately notify the Supplier in writing.

    7. Termination or expiry of the Booking Form shall not affect any accrued rights and liabilities of the Supplier at any time up to the date of termination.

21             Governing Law and Dispute Resolution

    1. The Subscription and each Booking Form shall be governed by and construed in accordance with English Law.  The parties hereby submit to the exclusive jurisdiction of the English courts in relation to all matters arising out of these Conditions and/or any Booking Form.

22             Notices

    1. Notices must be given in writing. A notice shall be deemed effectively served:

      1. if sent by email, on the date when receipt has been personally acknowledged by return email (electronically generated receipts shall not be valid);

      2. if delivered personally, on the date when left at the Client's registered office or the Client's address (as applicable) and signed for; or

      3. if given by post, on the date when the notice has been signed for at the Supplier's registered office or the Client's address.

    2. For the Supplier, notices shall be sent to: The Supplier Secretary, 55-65 Uxbridge Road, Slough, Berkshire SL1 1SG.

    3. For the Client, notices shall be sent to the attention of the person and address/email identified in the relevant Booking Form.

    4. In the event of general queries, the Supplier may be contacted as follows:

  1. by telephone: +44 (0) 1753 898320;

  2. by e-mail: mailto:info@qa.com; or

  3. via our website: http://www.qa.com/contact-us.

 

23             Cumulative remedies

The rights and remedies provided in these Conditions are cumulative and not exclusive of any rights and remedies provided by law.

24             Time

Unless stated otherwise, time is of the essence for any date or period specified in the Conditions in relation to the Client’s obligations only.

25             Further assurance

The Client shall at the request of the Supplier, and at the Client’s own cost, do all acts and execute all documents which are necessary to give full effect to the Subscription and/or Booking Form

26             Entire agreement

    1. The parties agree that with respect to the Services and/or Deliverables forming part of the Subscription, these Conditions and any documents entered into pursuant to it (including a relevant Booking Form) 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.

    2. Each party acknowledges that it has not entered into these Conditions and/or Booking Form or any documents entered into pursuant to it in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in these Conditions or any Booking Form or any documents entered into pursuant to it. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Booking Form.

    3. Nothing in these Conditions and/or any Booking Form purports to limit or exclude any liability for fraud.

27             Variation

No variation of these Conditions and/or any Booking Form shall be valid or effective unless it is in writing, refers to these Conditions and/or any Booking Form (as applicable) and is duly signed or executed by, or on behalf of, the Supplier.

28             Assignment

    1. The Client may not assign, subcontract or encumber any right or obligation under these Conditions and/or any Booking Form, in whole or in part, without the Supplier’s prior written consent.

    2. Notwithstanding clause 28.1, the Client may perform any of its obligations and exercise any of its rights granted under a Booking Form through any Affiliate provided that it gives the Supplier prior written notice of such subcontracting or assignment including the identity of the relevant Affiliate. The Client acknowledges and agrees that any act or omission of its Affiliate in relation to the Client’s rights or obligations under these Conditions and/or any Booking Form shall be deemed to be an act or omission of the Client itself.

29             Set off

    1. The Supplier shall be entitled to set-off under these Condition and/or any Booking Form any liability which it has or any sums which it owes to the Client under these Condition and/or any Booking Form or under any other contract which the Supplier has with the Client.

    2. The Client shall pay all sums that it owes to the Supplier under these Conditions and/or any Booking Form without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.

30             No partnership or agency

The parties are independent persons and are not partners, principal and agent or employer and employee and these Conditions or the provision of Services under any Booking Form 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.

31             Equitable relief

The Client recognises that any breach or threatened breach of these Conditions may cause the Supplier irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to the Supplier, the Client acknowledges and agrees that the Supplier is entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.

32             Severance

    1. If any provision of the Conditions (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Conditions shall not be affected.

    2. If any provision of the Conditions (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.

33             Waiver

    1. No failure, delay or omission by the Supplier in exercising any right, power or remedy provided by law or under these Conditions and/or any Booking Form 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.

    2. No single or partial exercise of any right, power or remedy provided by law or under these Conditions and/or any Booking Form by the Supplier shall prevent any future exercise of it or the exercise of any other right, power or remedy by the Supplier.

    3. A waiver of any term, provision, condition or breach of these Conditions or under any term or condition of any Booking Form by the Client shall only be effective if given in writing and signed by the Supplier, and then only in the instance and for the purpose for which it is given.

34             Compliance with law

The Client shall comply with all laws, enactments, regulations, regulatory policies, guidelines and industry codes applicable to it and shall maintain such authorisations and all other approvals, permits and authorities as are required from time to time to perform its obligations under or in connection with these Conditions and/or any Booking Form.

35             Conflicts within contract

If there is a conflict between the terms contained in the Conditions and the terms of the Booking Form, schedules, appendices or annexes to the Booking Form, the terms and conditions of these Conditions shall prevail.

36             Costs and expenses

The Client shall pay its own costs and expenses incurred in connection with the negotiation, preparation, signature and performance of these Conditions and/or any Booking Form (and any documents referred to in it).

37             Third party rights

    1. Except as expressly provided for in clause 37.2, 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 these Conditions and/or the Booking Form.

    2. Any Affiliate of the Supplier shall be entitled under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of these Conditions and/or Booking Form. The consent of any such Affiliate is not required in order to rescind or vary these Conditions and/or Booking Form or any provision of it.