The customer’s attention is drawn in particular to the provisions of condition 7.
- Definitions and Interpretation
In these Conditions, the following definitions apply:
|Applicable Law||in any jurisdiction in which the Services are to be performed under this Contract any and all applicable laws, regulations and industry standards or guidance (including without limitation any applicable British Standard) and any applicable and binding judgment of a relevant court of law;|
|Business Day||a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;|
|Charges||the charges payable by the Customer for the supply of the Services in accordance with condition 5;|
|Commencement Date||has the meaning given in condition 2.3;|
|Conditions||the terms and conditions set out in this document as amended from time to time in accordance with condition 12.3;|
|Confidential Information||any and all know-how, documentation and information, whether commercial, financial, technical, operational or otherwise, relating to the business, affairs, customers, suppliers, employees, affiliates, products and/or methods of the other party in connection with the Contract;|
|Contract||the contract between Tonica and the Customer for the supply of Services in accordance with these Conditions, the Order and the Specification;|
|Customer||the person or firm who purchases Services from Tonica;|
|Data Protection Legislation||unless and until the GDPR is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 2018;|
|Deliverables||all documents, products and materials developed by Tonica or Tonica Personnel as part of or in relation to the Services in any form or media, including drawings, plans, diagrams, designs, images, computer programs, data, specifications, guidance, information and reports (including drafts);|
|Force Majeure Event||has the meaning given in condition 11;|
|GDPR||General Data Protection Regulation ((EU) 2016/679);|
|Intellectual Property Rights||patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted renewals or extensions of, and rights to claim priority from, 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;|
|Operational Day||a day when Tonica is open for business (which shall, except as Tonica decides otherwise, be limited to Tuesdays, Wednesdays and Thursdays that are also Business Days);|
|Order||the Customer’s order for the supply of the Services, as set out in the Customer’s written or verbal acceptance of Tonica’s proposal;|
|Services||the services, including any Deliverables to be provided by Tonica under the Contract in accordance with the Specification;|
|Specification||the description or specification for the Services provided in Tonica’s written proposal to the Customer, or as otherwise agreed or updated in writing between the parties from time to time;|
|Tonica||Tonica CRM and Insight Limited (Company Number 11355181), whose registered office address is Suite 9, Chandos Business Centre, 87a Warwick Street, Leamington Spa, Warwickshire CV32 4RJ;|
|Tonica Materials||all materials, equipment, tools, drawings, specifications, data and other property supplied or made available by Tonica to the Customer;|
|Tonica Personnel||the personnel including subcontractors engaged by Tonica in the performance of the Contract.|
In these Conditions, the following rules apply:
a) a reference to a statute or statutory provision is a reference to such statute or provision as amended, re-enacted or superseded and includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
b) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
c) a reference to writing or written includes email, but not fax.
2. Basis of contract
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Services in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.
2.3 The Order shall only be deemed to be accepted when Tonica issues a written acceptance of the Order, at which point the Contract shall come into existence (Commencement Date).
2.4 Unless stated otherwise, a proposal for the Services given by Tonica shall not constitute an offer. A proposal shall only be valid for a period of 2 calendar months from its date of issue.
2.5 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any document that is inconsistent with these Conditions.
3. Performance of the Services
3.1 Tonica shall from the Commencement Date and for the duration of the Contract provide the Services to the Customer in accordance with the Contract in all material respects.
3.2 Tonica shall use reasonable endeavours to perform the Services by the date(s) agreed between the parties to the Contract, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 Tonica reserves the right to amend the Specification if necessary to comply with any Applicable Law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and Tonica shall notify the Customer in any such event.
3.4 Tonica warrants that it shall provide the Services with reasonable care and skill. The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
3.5 The Customer acknowledges and agrees that Tonica’s performance of the Services in accordance with the Contract does not guarantee the realisation of any results, objectives or outcomes that the parties may expect or anticipate will arise from the performance of the Services, including, where applicable, response rates to surveys, and Tonica shall not be liable should any expected or anticipated results, objectives or outcomes not be realised save to the extent that the Services are not performed in accordance with condition 3.4.
4. Customer Obligations
4.1 The Customer shall:
a) co-operate with Tonica in all matters relating to the Services including the provision of prompt written feedback on Tonica’s reasonable request;
b) provide Tonica and Tonica Personnel with access to the Customer’s premises, office accommodation and other facilities reasonably required by Tonica for the purpose of providing the Services, including procuring the right for Tonica and Tonica Personnel to use the Customer’s IT facilities where required;
c) prepare the Customer’s premises, office accommodation and other relevant facilities for the supply of the Services including, where applicable, ensuring that adequate space, privacy and resources are provided to allow the Services to be effectively provided by Tonica;
d) provide such information to Tonica as Tonica may reasonably request for the purpose of providing the Services and ensure that such information is accurate in all material respects;
e) obtain and maintain all necessary licences, permissions and consents which may be required before the Commencement Date;
f) comply with all Applicable Law with respect to its activities under the Contract; AND
g) comply with any additional obligations as set out in the Specification.
4.2 If Tonica’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission of the Customer (including the cancellation or postponement of arranged Services) or failure by the Customer to perform any relevant obligations (Customer Default):
a) Tonica shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default;
b) Tonica shall not be liable for any losses sustained or incurred by the Customer arising directly or indirectly from Tonica’s failure or delay to perform any of its obligations as set out in this condition 4.2; and
c) the Customer shall reimburse Tonica on demand for any losses sustained or incurred by Tonica arising directly or indirectly from the Customer Default.
5. Charges and Payment
5.1 Where the Tonica proposal provides a fixed-price for the Services these shall be the Charges and conditions 2 and 5.4 shall not apply.
5.2 Where condition 1 is not applicable, the Charges for the Services shall be calculated on a time and materials basis in accordance with this condition 5.2:
a) the Charges shall be calculated in accordance with Tonica’s standard daily fee rates, as set out in Tonica’s proposal;
b) Tonica’s standard daily fee rates for each individual are calculated on the basis of a 7 hour day from 09:30 to 17:30 worked on Operational Days (Working Hours);
c) Tonica shall be entitled to charge the Customer for any expenses reasonably incurred by Tonica Personnel in connection with the Services, including travelling expenses, hotel costs, subsistence and any associated expenses, the cost of services provided by third parties and materials.
5.3 The Charges exclude amounts in respect of UK value added tax (VAT), which the Customer shall additionally be liable to pay to Tonica at the prevailing rate, subject to the receipt of a valid VAT invoice.
5.4 Tonica reserves the right to increase its standard daily fee rates once in any 6 month period. Tonica shall give the Customer written notice of any such increase 1 month before the proposed date of the increase. If such increase is not acceptable to the Customer, it shall notify Tonica in writing within 2 weeks of the date of Tonica’s notice and Tonica shall have the right without limiting its other rights or remedies to terminate the Contract by giving 1 weeks’ written notice to the Customer.
5.5 Where Tonica’s proposal quotes prices which are in currency other than British Pound Sterling, Tonica reserves the right to adjust the Charges to reflect changes in exchange rates.
5.6 Where the Services require Tonica to perform work outside of the United Kingdom, Tonica reserves the right to amend the Charges to cover any unforeseen costs to Tonica incurred as a result of statutory amendment to rates of pay, taxes and/or duties, or other circumstances outside the reasonable control of Tonica.
5.7 Tonica shall be entitled to invoice the Customer a proportion of the Charges plus VAT at the prevailing rate (if applicable) that Tonica, acting reasonably, considers fairly reflects the proportion of the Services performed under the Contract at the date of invoice at any time.
5.8 Tonica shall invoice the Customer on completion of the Services for any Charges plus VAT at the prevailing rate (if applicable), or any remaining part thereof, which Tonica has not already invoiced in accordance with condition 5.7.
5.9 The Customer shall pay each invoice in full and in cleared funds within 30 calendar days of the date of the invoice. Payment shall be made to the bank account nominated in writing by Tonica. Time of payment is of the essence.
5.10 If the Customer fails to make any payment due to Tonica under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank PLC’s base rate from time to time. Such interest whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
5.11 The parties shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law).
6. Intellectual Property Rights
6.1 Unless otherwise agreed in writing, all Intellectual Property Rights arising in the performance of the Services (including the Deliverables) shall be owned by Tonica.
6.2 The Customer may use the Deliverables only for the purpose of receiving and taking the benefit of the Services. The Customer shall not supply the Deliverables to any third party or use the Services or the Deliverables to provide a service to any third party.
6.3 All Tonica Materials are Tonica’s exclusive property.
7.1 Nothing in these Conditions shall limit or exclude Tonica’s liability for:
a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
b) fraud or fraudulent misrepresentation; or
c) any matter in respect of which it would be unlawful for Tonica to exclude or restrict liability.
7.2 Subject to condition 7.1.
a) Tonica shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), misrepresentation, breach of statutory duty, or otherwise, for:
- any indirect, special, consequential or pure economic loss or damage;
- any loss of profits, anticipated profits, revenue, turnover, business or business opportunities;
- damage to goodwill or reputation; or
- loss of anticipated savings or wasted expenditure (including management time)
(in each case arising as a direct or indirect result of the relevant claim); and
b) Tonica’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed £50,000.
8.1 Subject to condition 2, each party to the Contract (the Recipient) shall:
a) use the other party’s (the Disclosing Party’s) Confidential Information solely for the performance of the Contract; and
b) keep the Disclosing Party’s Confidential Information strictly confidential and not, without the Disclosing Party’s prior written consent, disclose it to any other person.
8.2 The Recipient may disclose the Disclosing Party’s Confidential Information:
a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the Recipient’s rights or carrying out its obligations under or in connection with the Contract and the Recipient shall ensure that such persons comply with this condition 8;
b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority; and
c) if such information is public knowledge or already known to the Recipient at the time of disclosure or subsequently becomes public knowledge other than by breach of any duty of confidentiality (contractual or otherwise).
8.3 This condition 8 shall survive termination of the Contract.
9. Data protection and data processing
9.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This condition 9 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
9.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the data controller and Tonica is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
9.3 Without prejudice to the generality of condition 1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data (as defined in the Data Protection Legislation) to Tonica for the duration and purposes of the Contract.
9.4 Without prejudice to the generality of condition 1, the Customer shall ensure that it transfers any Personal Data being provided to Tonica in a safe and secure manner appropriate to the type of Personal Data being transferred and, as a minimum, in accordance with Applicable Law and the Data Protection Legislation. The Customer shall remain responsible for taking back-ups of any Personal Data transferred or accessed by Tonica during the provision of the Services.
9.5 Without prejudice to the generality of condition 1, Tonica shall, in relation to any Personal Data processed in connection with the performance by Tonica of its obligations under the Contract:
a) process that Personal Data only on the written instructions of the Customer unless Tonica is required by the laws of any member of the European Union or by the laws of the European Union applicable to Tonica to process Personal Data (Applicable Data Processing Laws). Where Tonica is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, Tonica shall promptly notify the Customer of this before performing the processing required by the Applicable Data Processing Laws unless those Applicable Data Processing Laws prohibit Tonica from so notifying the Customer;
b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
d) not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
i) the Customer or Tonica has provided appropriate safeguards in relation to the transfer;
ii) the Data Subject (as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies;
iii) Tonica complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
iv) Tonica complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
e) assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
f) notify the Customer without undue delay on becoming aware of a Personal Data breach;
g) at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the Contract unless required by Applicable Data Processing Law to store the Personal Data; and
h) maintain complete and accurate records and information to demonstrate its compliance with this condition 9.
9.6 Tonica may at any time appoint any third party processor of Personal Data under the Contract, provided that Tonica gives prior written notice of such dealing to the Customer and the Customer is provided at least 5 Business Days from the date of the notice to object to the appointment.
9.7 Customer shall remain responsible for organising regular back-ups of the CRM system.
10.1 Without limiting its other rights or remedies, either party may terminate the Contract in whole or in part by giving the other party at least 1 month’s written notice.
10.2 If the Customer terminates the Contract under condition 10.1 it shall pay Tonica fair and reasonable compensation for any work in progress on the Services at the time of termination, including anticipated profits, consequential loss, committed costs and inability to fill time reserved for the provision of the Services.
10.3 Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if the other party:
a) commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 10 Business Days of being notified in writing to do so;
b) (being a body corporate) is declared or becomes insolvent, has a moratorium declared in respect of any of its indebtedness, enters into administration, receivership, administrative receivership or liquidation or threatens to do any of these things, takes or suffers any similar action in any jurisdiction or any step is taken (including the making of an application, the entering into of a board resolution or the giving of any notice) by it or by any other person in respect of any of these circumstances (an Insolvency Event);
c) (being an individual) is declared bankrupt, enters into any composition or arrangement with his creditors, has a receiver appointed to any of his assets, or ceases to carry on business, takes or suffers any similar action in any jurisdiction or any step is taken (including the making of an application or the giving of any notice) by him or any other person in respect of any of these circumstances (also an Insolvency Event) (or, the other party being a partnership, has a partner to whom any Insolvency Event applies);
d) (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation; or
e) suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
10.4 Without limiting its other rights or remedies, Tonica may suspend provision of the Services under the Contract or any other contract between Tonica and the Customer if the Customer becomes subject to an Insolvency Event or Tonica reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under the Contract on the due date for payment.
10.5 On termination of the Contract for any reason:
a) the Customer shall immediately pay to Tonica all Tonica’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Tonica shall submit an invoice, which the Customer shall pay immediately on receipt;
b) the Customer shall return all of Tonica Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, Tonica may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose other than receiving and using the Services;
c) the parties’ rights and remedies that have accrued as at termination shall be unaffected; and
d) conditions that expressly or by implication survive termination of the Contract shall continue in full force and effect.
11. Force Majeure
11.1 Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event which hinders, delays or prevents performance of a party’s obligations and which is either beyond that party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable by taking reasonable precautions, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure or interruption of energy sources, other utility service or transport network, acts of God, war, threat of or preparation for war, armed conflict, terrorism, riot, civil commotion, interference by civil or military authorities, sanctions, embargo, export or import restriction, quota or prohibition, breaking off of diplomatic relations, national or international calamity, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosion, collapse of building structures, fire, flood, drought, storm, earthquake, volcanic eruption, loss at sea, epidemic, pandemic or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
12.1 Assignment and Subcontracting
a) Subject to condition 6, Tonica may at any time assign, transfer, mortgage, charge, declare a trust over, subcontract, delegate or deal in any other manner with any or all of its rights or obligations under the Contract.
b) The Customer shall not assign, transfer, mortgage, charge, declare a trust over, subcontract, delegate or deal in any other manner with any or all of its rights or obligations under the Contract without Tonica’s written consent.
12.2 Entire agreement The Contract (incorporating these Conditions) constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Tonica which is not set out in the Contract.
12.3 Variation Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by Tonica.
12.4 Waiver Except as set out in condition 2.5, no failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of or 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.
12.5 Severance If any provision of the Contract 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 shall be deemed deleted. Any modification or deletion of a provision under this condition shall not affect the validity and enforceability of the rest of the Contract.
a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered both:
i) by hand or pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); and
ii) to the email address specified in or used in providing Tonica’s proposal, used by the Customer in placing the Order, or as otherwise notified or updated in writing to the other party from time to time.
b) Any notice shall be deemed to have been received on the later of:
i) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the correct address; or if sent by pre-paid first-class post or other next working day delivery service, at 09:30 on the second Business Day after posting or at the time recorded by the delivery service; and
ii) the time of transmission of the email.
c) If deemed receipt under condition 6(b) would occur outside business hours in the place of receipt, it shall be deferred until business hours resume. In this condition 12.6(c), business hours means 09:30 to 17:30 on a Business Day.
d) This condition does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
e) A notice given under the Contract is not valid if sent by fax.
12.7 Third party rights No one other than a party to the Contract and their permitted assignees shall have any right to enforce any of its terms.
12.8 Relationship Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between Tonica and the Customer, constitute either party the agent of the other party or authorise either party to make or enter into any commitments for or on behalf of the other party.
12.9 Governing law The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the law of England and Wales.
12.10 Jurisdiction The Customer irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims). Nothing in this condition shall limit Tonica’s right to take proceedings against the Customer in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdictions.