Project Services Terms & Conditions

The Customer’s attention is particularly drawn to the provisions of clause 13 (Limitation of liability).

Any defined terms used in these Terms of Business have the meanings as set out in Appendix 1 (Defined Terms).

1. About us

1.1 Virtuoso IT Limited (“Virtuoso”, “we” and “us”) is a company incorporated and registered in England and Wales with company number 07598800 whose registered office is at 37 Warren Street, London, W1T 6AD, UK. Our VAT number is GB118036242.

2. Basis of Agreement

2.1 These Terms of Business apply to the Agreement between the Customer and Virtuoso 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 Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with this Agreement.

2.3 Unless otherwise specified in the Quotation, the pricing set out in the Quotation shall only be valid for a period of 10 Business Days from the date of issue of the Quotation.

2.4 The Customer’s submission of a duly executed Quotation constitutes an offer by the Customer to receive the Services from Virtuoso in accordance with these Terms of Business. The Customer is responsible for ensuring that the terms of the Quotation are complete and accurate.

2.5 The Agreement shall commence on the date when Virtuoso issues a written (including by electronic means) confirmation of its acceptance of the Quotation signed by an authorised representative of the Customer (“Commencement Date”), and shall continue, unless terminated earlier in accordance with clause 15, until the completion of all Services or the expiry of the term specified in the Quotation (if any), whichever is later.

2.6 Virtuoso shall provide the Services from the date specified in the Quotation.

3. Virtuoso’s responsibilities

3.1 In providing the Services, Virtuoso shall at all times:

3.1.1 provide the Services the degree of skill, diligence, prudence, foresight and care which would reasonably be expected from a skilled, experienced and properly resourced person providing services similar to the Services in similar circumstances;

3.1.2 allocate sufficient resources to provide the Services in accordance with the terms of this Agreement;

3.1.3 use reasonable endeavours to ensure that any of its personnel engaged in the provision of the Services comply with any health and safety and security requirements notified to Virtuoso under clause 4.1.7;

3.1.4 provide such reasonable co-operation and information in relation to the Services to such of the Customer’s other suppliers as the Customer may reasonably require for the purposes of enabling any such person to create and maintain any interfaces that the Customer may reasonably require; and

3.1.5 provide the Services in compliance with all Applicable Laws.

3.2 Virtuoso shall use reasonable endeavours to: (i) provide the Services, and deliver the Deliverables (if applicable) to the Customer, in accordance with this Agreement in all material respects; (ii) meet any performance dates specified in the Quotation (if any) but any such dates shall be estimates only and time for performance by Virtuoso shall not be of the essence of this Agreement; (iii) observe all health and safety and security requirements that apply at any of the Customer’s premises (if this is relevant to the provision of the Services) and that have been communicated to it under clause 4.1.7 (provided that it shall not be liable under this Agreement if, as a result of such observation, it is in breach of any of its obligations under this Agreement).

3.3 Virtuoso shall appoint a Project Manager in respect of the Services, who shall have authority to contractually bind Virtuoso on all matters relating to the Services (including by signing Change Orders). Virtuoso shall use all reasonable endeavours to ensure that the same person acts as Virtuoso’s Project Manager throughout the term of the Agreement, but may replace that person from time to time where reasonably necessary in the interests of Virtuoso’s business.

4. Customer’s obligations

4.1 The Customer shall:

4.1.1 co-operate with Virtuoso in all matters relating to the Services;

4.1.2 appoint a Project Manager in respect of the Services, who shall have authority to contractually bind the Customer on all matters relating to the Services (including by signing Change Orders). The Customer shall use all reasonable endeavours to ensure that the same person acts as the Customer’s Project Manager throughout the term of the Agreement, but may replace that person from time to time where reasonably necessary in the interests of the Customer’s business;

4.1.3 provide in a timely manner and at no charge, access to the Customer’s premises, office accommodation, data and other facilities during Business Hours, as required by Virtuoso in connection with the provision of the Services. Any access required outside of the Business Hours shall be agreed by the parties in advance;

4.1.4 be responsible (at its own cost) for preparing the relevant premises for the supply of the Services (if applicable);

4.1.5 provide to Virtuoso in a timely manner all documents, items and materials in any form (whether owned by the Customer or a third party) reasonably required by Virtuoso in connection with the Services (including prior to the commencement of the Services) and ensure that they are accurate, up-to-date and complete;

4.1.6 provide Virtuoso with all necessary access to such information as may be reasonably required by Virtuoso in order to provide the Services, including Customer Data, security access information, and software interfaces to the Customer’s other business applications;

4.1.7 if applicable, inform Virtuoso in writing of all health and safety and security requirements that apply at the relevant Customer’s premises prior to the commencement of the Services. If the Customer wishes to make a change to those requirements which will materially affect provision of the Services, it can only do so via the change control procedure set out in clause 6 (Change Control);

4.1.8 ensure that all Customer Equipment is in good working order, is subject to a valid manufacturer or other third party warranty, and is suitable for the purposes for which it is used and conforms to all relevant standards and requirements;

4.1.9 obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable Virtuoso to provide the Services;

4.1.10 comply with all Applicable Laws with respect to its activities under this Agreement; and

4.1.11 comply with any additional responsibilities of the Customer as set out in the Quotation (if any).

4.2 If Virtuoso’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees (“Customer Cause”) then, without prejudice to any other right or remedy it may have, Virtuoso shall be allowed an extension of time to perform its obligations equal to the delay caused by the Customer Cause. The Customer shall reimburse Virtuoso for all reasonable additional costs and expenses properly incurred by Virtuoso as a result of any such Customer Cause, subject to Virtuoso confirming such costs, charges and losses to the Customer in writing.

5. Non-solicitation

5.1 In order to protect the legitimate business interests of Virtuoso, the Customer covenants with Virtuoso for itself and as agent for each of the Customer’s Affiliates, that it shall not (and shall procure that its Affiliates shall not) (except with the prior written consent of Virtuoso): (a) attempt to solicit or entice away; (b) solicit or entice away; or (c) employ or engage or otherwise facilitate the employment or engagement of, any Restricted Person (as defined in clause 5.4).

5.2 The Customer shall be bound by the covenant set out in clause 5.1 during the term of this Agreement and for a period of 12 months after termination or expiry of this Agreement.

5.3 The Customer shall not be in breach of clause 5.1, if it hires a Restricted Person as a result of a recruitment campaign not specifically targeted to any Restricted Person.

5.4 For the purposes of this clause 5, a Restricted Person shall mean any firm, company or person employed or engaged by Virtuoso or any of its Affiliates during the term of this Agreement, who has been engaged in the provision of the Services or the management of this Agreement either as principal, agent, employee, independent contractor or in any other form of employment or engagement.

5.5 If the Customer commits any breach of this clause 5, the Customer shall, on demand, pay to Virtuoso a sum equal to one year’s basic salary or the annual fee that was payable by Virtuoso or its Affiliate to the Restricted Person plus the recruitment costs incurred by Virtuoso or its Affiliate in replacing such person.

6. Change control

6.1 Either party may propose changes to the scope or execution of the Services but no proposed changes shall come into effect until a relevant Change Order has been signed by both parties. A Change Order shall be a document setting out the proposed changes and the effect that those changes will have on: (a) the Services; (b) the Charges; (c) the timetable for the Services; and (d) any of the other terms of the Quotation.

6.2 If Virtuoso wishes to make a change to the Services it shall provide a draft Change Order to the Customer.

6.3 If the Customer wishes to make a change to the Services: (a) it shall notify Virtuoso and provide as much detail as Virtuoso reasonably requires of the proposed changes, including the timing of the proposed change; and (b) Virtuoso shall, as soon as reasonably practicable after receiving the information set out in (a), provide a draft Change Order to the Customer.

6.4 If the parties:

6.4.1 agree to a Change Order, they shall sign it and that Change Order shall amend the Agreement accordingly; or
6.4.2 are unable to agree a Change Order, either party may require the disagreement to be dealt with in accordance with the dispute resolution procedure in clause 18.4.
6.5 Virtuoso may charge for the time it spends on preparing and negotiating Change Orders regarding changes proposed by the Customer pursuant to clause 6.3 on a time and materials basis at Virtuoso’s standard daily rates specified in the then current Rate Card.

7. Charges and payment

7.1 In consideration of the provision of the Services by Virtuoso, the Customer shall pay the Charges.

7.2 Where the Charges are calculated on a time and materials basis:

7.2.1 Virtuoso’s standard daily fee rates for each individual person as set out in the Quotation, or, if not set out in the Quotation, in the then current Rate Card, are calculated on the basis of an seven and a half hour day, worked during Business Hours; and

7.2.2 unless otherwise specified in the Quotation, Virtuoso shall be entitled to charge an overtime rate of
(a) 150% of the applicable daily fee rate on a pro-rata basis for any time worked by individuals whom it engages on the Services outside Business Hours on weekdays or Saturdays.
(b) 200% of the applicable daily fee rate on a pro-rata basis for any time worked by individuals whom it engages on the Services on Sundays.

7.3 Where the Charges are calculated on a fixed price basis, the amount of those Charges shall be as set out in the Quotation.

7.4 The Charges exclude the following, which shall be payable by the Customer monthly in arrears, following submission of an appropriate invoice:

7.4.1 the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom Virtuoso engages in connection with the Services; and

7.4.2 the cost to Virtuoso of any materials or services procured by Virtuoso from third parties (including any third party software licences) for the provision of the Services as such items and their cost are set out in the Quotation or approved by the Customer in advance from time to time.

7.5 Save to the extent specified in the Quotation, any single item of cost or expense exceeding £250 shall require prior written approval by the Customer.

7.6 Virtuoso may increase the Charges (other than those calculated in accordance with the Rate Card, in which case clause 7.7 shall apply) on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Consumer Prices Index in the preceding 12-month period.

7.7 Any increase in the Rate Card shall affect all Charges calculated in accordance with the Rate Card.

7.8 Virtuoso shall invoice the Customer for the Charges in advance at the intervals specified in the Quotation (each a “billing period”). If no billing periods are so specified, Virtuoso shall invoice the Customer at the beginning of each month for Services to be performed during that month. For the avoidance of doubt, the first invoice issued following the date the Quotation is signed by the Customer shall be on a pro rata basis for the Services to be performed during the first billing period or month, as applicable.

7.9 Unless otherwise specified in the Quotation, the Customer shall pay each invoice submitted to it by Virtuoso within 30 days of the date of the invoice to a bank account nominated in writing by Virtuoso from time to time.

7.10 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay Virtuoso any sum due under this Agreement on the due date:

7.10.1 the Customer shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount; and

7.10.2 Virtuoso may suspend part or all of the Services until payment has been made in full.

7.11 All sums payable to Virtuoso under this Agreement:

7.11.1 are exclusive of VAT, and the Customer shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and

7.11.2 shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

8. Intellectual Property Rights

8.1 In relation to the Deliverables:

8.1.1 Virtuoso and its licensors shall retain ownership of all Intellectual Property Rights in the Deliverables;

8.1.2 Virtuoso grants the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable, non-sublicensable licence during the term of this Agreement to use and copy the Deliverables for the purpose of receiving and using the Services and the Deliverables in its business.

8.2 In relation to the Customer Data, Customer Materials and the Customer Software, the Customer:

8.2.1 and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Data, Customer Materials and/or the Customer Software; and

8.2.2 grants (or shall procure the grant) to Virtuoso a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Customer Data, Customer Materials and/or the Customer Software for the term of this Agreement to the extent necessary to provide the Services to the Customer.

8.3 The Customer:

8.3.1 warrants that the receipt and use in the performance of this Agreement by Virtuoso, its agents, subcontractors or consultants of the Customer Materials, the Customer Equipment and/or the Customer Software shall not infringe the rights, including any Intellectual Property Rights, of any third party; and

8.3.2 shall keep Virtuoso indemnified in full against all costs, expenses, damages and losses awarded against or incurred or paid by Virtuoso as a result of or in connection with any claim brought against Virtuoso, its agents, subcontractors or consultants for actual or alleged infringement of a third party’s rights, including Intellectual Property Rights arising out of, or in connection with, the receipt or use in the performance of this Agreement of the Customer Materials, the Customer Equipment and/or the Customer Software.

9. Data protection and data processing

9.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 9 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.

9.2 Without prejudice to clause 9.1, the parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Data Controller and, to the extent Virtuoso processes Personal Data in connection with the provision of the Services under this Agreement on behalf of the Customer, Virtuoso is the Data Processor (where Personal Data, Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation). The Quotation sets out the scope, nature and purpose of processing by Virtuoso, the duration of the processing and the types of Personal Data and categories of Data Subject (both as defined in the Data Protection Legislation).

9.3 Without prejudice to the generality of clause 9.1, the Customer will ensure that it has all necessary appropriate consents (or other lawful grounds, as determined in accordance with the Data Protection Legislation) and notices in place to enable lawful transfer of the Personal Data to Virtuoso, if necessary for the purposes of the provision of the Services under this Agreement.

9.4 Virtuoso shall, to the extent it is acting as Data Processor for the Customer in relation to any Personal Data processed in connection with the performance by Virtuoso of its obligations under this Agreement:

9.4.1 process the Personal Data only to the extent, and in such a manner, as is necessary to fulfil its obligations under this Agreement and in accordance with the Customer’s reasonable lawful written instructions from time to time and shall not process any such Personal Data for any other purpose, unless Virtuoso is required by the laws of any member of the European Union or by the laws of the European Union applicable to Virtuoso to process Personal Data (“Applicable Data Processing Laws”). Where Virtuoso is relying on the Applicable Data Processing Laws as the basis for processing of Personal Data, Virtuoso shall promptly notify the Customer of this before performing the processing required by the Applicable Data Processing Laws unless such Applicable Data Processing Laws prohibit Virtuoso from so notifying the Customer;

9.4.2 ensure that it has in place appropriate technical and organisational measures 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;

9.4.3 ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and

9.4.4 not transfer any Personal Data outside of the European Economic Area (otherwise than to the UK in the event UK is no longer part of the European Economic Area) unless Virtuoso has put in place appropriate safeguards in relation to the transfer and the Data Subjects have enforceable rights and effective legal remedies, as required by the Data Protection Legislation;

9.4.5 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;

9.4.6 notify the Customer without undue delay on becoming aware of a Personal Data breach;

9.4.7 at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the Agreement unless required by any Applicable Laws to store the Personal Data; and

9.4.8 maintain complete and accurate records and information to demonstrate its compliance with this clause 9 and allow for audits by the Customer or the Customer’s designated auditor, provided that any such audits shall be carried out in accordance with clause 10 (Audit).

9.5 The Customer consents to Virtuoso appointing the third parties listed in the Quotation as third party processors of Personal Data under this Agreement and Virtuoso shall not appoint any other third parties as third party processors of Personal Data under this Agreement without prior written consent from the Customer (which shall not be unreasonably withheld or delayed). Virtuoso confirms that it has entered or (as the case may be) will enter with the third party processor into a written agreement substantially on that third party’s standard terms of business or incorporating terms which are substantially similar to those set out in this clause 9 (as applicable). As between the Customer and Virtuoso, Virtuoso shall remain fully liable for all acts or omissions of any third party processor appointed by it pursuant to this clause 9.

10. Audit

10.1 Virtuoso shall, subject to Virtuoso’s obligations of confidentiality towards its other customers, on reasonable advance written notice, allow the Customer, any auditors of, or other advisers to, the Customer, and any regulators of the Customer, to access any of Virtuoso’s premises, personnel, relevant records and systems used by Virtuoso in the provision of the Services (including Virtuoso’s System) to the extent reasonably required to verify the accuracy of any Charges, costs and expenses associated with and invoiced by Virtuoso in respect of the Services and/or Virtuoso’s compliance with clause 9.4 (data processing obligations).

10.2 The Customer shall use its reasonable endeavours to ensure that the conduct of each audit does not unreasonably disrupt Virtuoso or delay the provision of any of the Services by Virtuoso.
10.3 Subject to the Customer’s (and its auditors’ and/or advisers’) obligations of confidentiality, Virtuoso shall provide the Customer (and its auditors and other advisers) with all reasonable co-operation, access and assistance in relation to each audit.

10.4 The parties shall bear their own costs and expenses incurred in respect of compliance with their obligations under this clause 10.

10.5 In relation to any sub-contractors that are engaged pursuant to clause 9.5, the Customer acknowledges and agrees that it is sufficient, for the purposes of satisfying the requirements of clause 9.5 (appointment of sub-contractors), that Virtuoso has a right to audit those sub-contractors on behalf of the Customer, subject to reasonable restrictions.

11. Confidentiality

11.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 11.2.

11.2 Each party may disclose the other party’s confidential information:

11.2.1 to its employees, officers, representatives, sub-contractors, consultants or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this Agreement. Each party shall ensure that its employees, officers, representatives, sub-contractors, consultants or advisers to whom it discloses the other party’s confidential information comply with this clause 11; and

11.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

11.3 No party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement.

11.4 Neither party may refer to the other party or this Agreement in any publicity or advertising material without prior written consent from the other party.

12. Anti-bribery

12.1 Each party warrants and undertakes that in connection with the matters contemplated by this Agreement:

12.2 it has not committed and that it will not commit any offence under the Bribery Act 2010;

12.3 it has not made and will not make or promise to make any payment or transfer anything of value, directly or indirectly to: any officer, director, employee or representative of the other party; or to any other person or entity if such payment or transfer would violate the laws of the country in which it is made, the Bribery Act 2010 or any other laws of the United Kingdom; and

12.4 that no payments or transfers of value shall be made, offered or received which have the purpose or effect of bribery, acceptance of or acquiescence in extortion, kickbacks or other unlawful or improper means of obtaining or retaining business.

12.5 Breach of this clause 12 shall be deemed a material breach, which is irremediable, under clause 15.1.1.

13. Limitation of liability

13.1 Nothing in this Agreement shall limit or exclude either party’s liability for: (i) death or personal injury caused by its negligence; (ii) fraud or fraudulent misrepresentation; or (iii) any other liability which cannot be limited or excluded by Applicable Laws.

13.2 Subject to clause 13.1, Virtuoso shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement for: (i) loss of profits; (ii) loss of sales or business; (iii) loss of agreements or contracts; (iv) loss of anticipated savings; (v) loss of or damage to goodwill; (vi) loss of use or corruption of software, data or information; or (vii) any indirect or consequential loss.

13.3 Subject to clause 13.1, Virtuoso’s total liability to the Customer for all claims, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement shall be limited to the lesser of £250,000 and the Charges paid and/or payable by the Customer under this Agreement.

13.4 Subject to clause 13.1:

13.4.1 the Customer assumes sole responsibility for results obtained from the use of the Services, and for conclusions drawn from such use. Virtuoso shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Virtuoso by the Customer in connection with the Services, or any actions taken by Virtuoso at the Customer’s direction; and

13.4.2 all warranties, conditions and other terms implied by statute, common law or otherwise are, to the fullest extent permitted by law, excluded from this Agreement.
13.5 Unless the loss or damage results from gross negligence or wilful misconduct on Virtuoso’s part, the Customer shall defend, indemnify and hold harmless Virtuoso against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s and/or Customer’s client’s use of the Services.

13.6 The terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this Agreement.

14. Insurance

Virtuoso shall, for the term of this Agreement, maintain an insurance policy sufficient to provide cover as required by law or in respect of any foreseeable liability which may arise in connection with this Agreement.

15. Termination

15.1 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:

15.1.1 the other party commits a material breach of any term of this Agreement and such breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;

15.1.2 the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;

15.1.3 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;

15.1.4 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

15.1.5 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

15.1.6 an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;

15.1.7 the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;

15.1.8 a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;

15.1.9 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;

15.1.10 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 15.1.3 to clause 15.1.9 (inclusive); or

15.1.11 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

15.2 Without affecting any other right or remedy available to it, Virtuoso may terminate this Agreement with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment.

16. Consequences of termination

16.1 On termination or expiry of this Agreement:

16.1.1 the Customer shall immediately pay to Virtuoso all of Virtuoso’s outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, Virtuoso may submit an invoice, which shall be payable immediately on receipt;

16.1.2 Virtuoso shall immediately cease provision of the Services;

16.1.3 the Customer shall promptly return all of Virtuoso’s Equipment. If the Customer fails to do so, then Virtuoso may enter the Customer’s premises and take possession of Virtuoso’s Equipment. Until Virtuoso’s Equipment has been returned or repossessed, the Customer shall be solely responsible for its safe keeping;

16.1.4 (subject to clause 16.2) each party shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other party and provided in connection with this Agreement;

16.1.5 any licences granted pursuant to this Agreement shall immediately terminate, unless they are required for the provision of any transitional services under this Agreement, in which case such licences shall terminate upon completion of such transitional services; and

16.1.6 any provision of this Agreement which expressly or by implication is intended to come into force or continue in force after expiry or termination of this Agreement, including, but not limited to, the following clauses, shall remain in full force and effect: clause 18.7 (Interpretation), clause 5 (Non-solicitation), clause 7 (Charges and payment), clause 8 (Intellectual Property Rights), clause 9 (Data protection), clause 11 (Confidentiality), clause 13 (Limitation of liability), clause 16 (Consequences of termination), clause 17.4 (Waiver), clause 17.6 (Severance), clause 17.8 (Conflict), clause 18.4 (Multi-tiered dispute resolution procedure), clause 18.5 (Governing law) and clause 18.6 (Jurisdiction).

16.2 If a party is required by any law, regulation, or government or regulatory body (Regulatory Requirement) to retain any documents, materials or data which it would otherwise be obliged to return or destroy under this clause 16, it shall notify the other party in writing of such retention, giving details of the documents or materials that it must retain. The confidentiality obligations under clause 11 shall continue to apply to any such retained documents and materials for as long as any such requirement continues in force, subject to any disclosure mandated by any Regulatory Requirement.

16.3 Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination or expiry.

17. General

17.1 Force majeure. Neither party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control.

17.2 Assignment. This Agreement may not be assigned by either party without the prior written approval of the other. Notwithstanding clause 11, a party assigning any or all of its rights under this Agreement may disclose to a proposed assignee any information in its possession that relates to this Agreement or its subject matter, the negotiations relating to it and the other party which is reasonably necessary to disclose for the purposes of the proposed assignment, provided that no disclosure pursuant to this clause 17.2 shall be made until notice of the identity of the proposed assignee has been given to the other party.

17.3 Variation. Subject to clause 6 (Change Control), no variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

17.4 Waiver. A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.

17.5 Rights and remedies. The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

17.6 Severance. If any provision or part-provision of this Agreement 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 shall not affect the validity and enforceability of the rest of this Agreement.

17.7 Entire agreement

17.7.1 This Agreement 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.

17.7.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.

17.8 Conflict. If there is an inconsistency between any of the provisions of this Agreement and the provisions of the Quotation, the provisions of this Agreement shall prevail.

17.9 No partnership or agency. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.

17.10 Third party rights. No one other than a party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.

18. Notices

18.1 Any notice given to a party under or in connection with this Agreement of Work shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next Business Day delivery service at its principal place of business; or sent by email to the address of the relevant Project Manager of that party.

18.2 Any notice shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; if sent by pre-paid first-class post or other next Business Day delivery services, at 9.00 am on the second Business Day after posting; and if sent by email, at 9.00 am on the next Business Day after transmission.

18.3 This clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

18.4 Multi-tiered dispute resolution procedure

18.4.1 If a dispute arises out of or in connection with this Agreement or the performance, validity or enforceability of it (Dispute) then the parties shall follow the procedure set out in this clause:

(a) either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, the relevant Project Manager of the Customer and the relevant Project Manager of Virtuoso shall attempt in good faith to resolve the Dispute;

(b) if the Project Managers are for any reason unable to resolve the Dispute within 30 days of service of the Dispute Notice, the Dispute shall be referred to the Virtuoso CEO (or equivalent) and the Customer CEO (or equivalent) who shall attempt in good faith to resolve it; and

(c) if the Dispute is not resolved under clause (b) within 30 days, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator shall be nominated by CEDR. To initiate the mediation, a party must serve notice in writing (ADR notice) to the other party to the Dispute, requesting a mediation. A copy of the ADR notice should be sent to CEDR. The mediation will start not later than 30 days after the date of the ADR notice.

18.4.2 The commencement of mediation shall not prevent the parties commencing or continuing court proceedings in relation to the Dispute under clause 18.6 which clause shall apply at all times.
18.5 Governing law. This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

18.6 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.

18.7 Interpretation

18.7.1 Clause, Appendix and paragraph headings shall not affect the interpretation of this Agreement.

18.7.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

18.7.3 The Appendices form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Appendices.

18.7.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

18.7.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

18.7.6 This Agreement shall be binding on, and enure to the benefit of, the parties to this Agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.

18.7.7 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

18.7.8 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.

18.7.9 A reference to writing or written includes email.

18.7.10 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.

18.7.11 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 those terms.

19 Billing Rates

19.1 The Standard Rate for work completed within the Business Day and the rates applicable for any agreed work conducted outside the Business Day are as follows:

Standard Rate applies during the Business Day;

• A minimum ¼ day will be charged at Standard Rate for remote consultancy or telephone based technical support;
• A minimum ½ day will be charged at Standard Rate for onsite consultancy or technical support within the M25;
• A minimum 1 day will be charged at Standard Rate for onsite consultancy or technical support outside the M25;

Rates for work outside the Business Day are charged according to the following:

• Monday to Saturday – 1.5 x Standard Rate
• Sundays and UK Bank Holidays – 2 x Standard Rate

Virtuoso reserve the right to charge travel time to the Company if the distance is >200 miles from London

20  Cancellation / Reschedule Charges for Project Services

20.1 Should scheduled work be cancelled or rescheduled by the Company after the booking has been confirmed (a “Lost Day”), the Company is liable to pay the following cancellation fees at the following percentages:

• Rescheduling or cancelling with greater than 5 Business Day’s of the scheduled start date – 0% of the Standard Day Rate
• Rescheduling or cancelling between 5 days and 48 hours of the scheduled start date – 25% of the Standard Day Rate
• Rescheduling or cancelling between 48 hours and 24 hours of the scheduled start date – 50% of the Standard Day Rate
• Less than 24 hours in advance of the scheduled start date – 100% of the Standard Day Rate

21  Project On Hold

21.1  Should a project covered by this Agreement be placed On Hold, irrespective of any billing schedule agreed between the Parties, Virtuoso shall be entitled to:

• Invoice 100% of any existing agreed expenses relating to the project that have been incurred;
• Invoice 100% of any software or hardware costs included in the Agreement;
• Invoice any remaining balance up to 75% of the project value for Fixed Price Project engagements;
• Invoice any remaining balance up to 100% of the Fixed Price project value if a project has been On Hold for 3 months (i.e. 6 calendar months of project inactivity).

If a project has been On Hold for 9 months (i.e. 12 calendar months after work was last completed), any remaining time will be forfeited and the project closed.

22 Unused Block time

22.1 Should Block Time covered by this agreement be unused after a period of 12 months of inactivity it will be forfeited and the agreement closed

Appendix 1 Defined terms

The following definitions and rules of interpretation apply in this Agreement:

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with another entity.

“Agreement” means the agreement between the Customer and Virtuoso for the supply of the Services on the terms set out on the Quotations and in these Terms of Business.

“Applicable Laws” means all applicable laws, statutes, regulation from time to time in force.

“Business Day” means 7.5 billable hours between Monday to Friday 09:00 – 17:30 BST (excluding UK Bank Holidays) or local time zone equivalent.

“Business Hours” means the period from 9.00 am to 5.30 pm on any Business Day.

“Change Order” has the meaning given in clause 6.1.

“Charges” means any sums payable for the Services as set out in the Quotation.

“Commencement Date” has the meaning as defined in clause 2.4.

“Consumer Prices Index” means the Consumer Prices Index as published by the Office for National Statistics from time to time, or failing such publication, such other index as the parties may agree most closely resembles such index.

“Customer” means the entity identified in the Quotation to which Virtuoso shall provide the Services in accordance with the Agreement.

“Customer Data” means any information (including personal data) that is provided by or on behalf of the Customer to Virtuoso as part of the Customer’s use and/or receipt of the Services, including any Personal Data and any information derived from such information.

“Customer Equipment” means any equipment, including hardware, systems, cabling and/or facilities, provided by the Customer, its agents, subcontractors or consultants which is used directly or indirectly in the supply of the Services.

“Customer Materials” means all documents, information, items and materials in any form, whether owned by the Customer or a third party, which are provided by the Customer to Virtuoso in connection with the Services, including any items provided pursuant to clause 4.1.5.

“Customer Software” means any software owned or licensed by the Customer relevant for the provision of the Services.

“Data Protection Legislation” means: (i) either the Data Protection Act 1998 or the General Data Protection Regulation (EU) 2016/679 adopted by the European Parliament on 14 April 2016, whichever is in force in the UK at the relevant time; and (ii) all other Applicable Laws and regulations relating to the processing of personal data and privacy, including statutory instruments, all as amended, extended, re-enacted, implemented or transposed in the United Kingdom from time to time.

“Deliverables” means any output of the Services to be provided by Virtuoso to the Customer as specified in the Quotation (if any) and any other documents, products, materials, techniques, ideas, concepts, know-how, algorithms, software, computer code, routines or sub-routines, specifications, plans, notes, drawings, designs, pictures, images, text, audiovisual works, inventions, data, information and other items, expressions, works of authorship or work product of any kind that are authored, produced, created, conceived, collected, developed, discovered or made by Virtuoso (or any of its sub-contractors) in connection with the Services or which relate in any manner to the Services or which result from any work performed by Virtuoso (or any of its sub-contractors) for the Customer (excluding Virtuoso’s Equipment, any third party software and any documents, products and materials proprietary to third parties).

“Fixed Price”  means a commercial model where payment does not depend on the amount of resources or time expended by Virtuoso. Should the project complete early and the deliverables met, no rebate or time owed is given to the Company. Alternatively, provided the scope of the project has not changed or been impacted by the Customer, Virtuoso will absorb overrun or efficiency. Such projects are usually paid in milestones, as per an agreed payment schedule.

“Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, 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.

“On Hold” means the status of a project which has not been active for three (3) calendar months or more at the decision of, or due to delays by the Company, whereby Virtuoso is not directly the cause for the project inactivity.

“Project Manager” means the individual appointed by Virtuoso pursuant to clause 3.3 or the individual appointed by the Customer pursuant to clause 4.1.2, and “Project Managers” shall be interpreted accordingly.

“Quotation” means the quotation prepared by Virtuoso in writing and provided to the Customer, setting out the details of the Customer, the specification of the Services to be provided by Virtuoso to the Customer, and certain other terms of the Agreement

“Rate Card” means Virtuoso’s standard charges from time to time.

“Services” means the Services set out in the Quotation.

“Standard Rate” means the standard Fee for Virtuoso to deliver the Services during the Business Day.

“Terms of Business” means these terms and conditions, including any appendices.

“Time and Materials” means payment depends on the actual amount of resources and time expended by Virtuoso, at an agreed Standard Rate and quantity. Unless otherwise agreed, the Company is invoiced monthly in arrears for work delivered during that calendar month. Should the estimated resources and effort duration initially ordered vary from the actual effort and resources expended, the Company agrees to generate a Purchase Order to cover the difference and be invoiced for the actual resources and effort expended by Virtuoso.

“VAT” means value added tax chargeable under the Value Added Tax Act 1994.

“Virtuoso’s Equipment” means any equipment, including hardware, tools, cabling or facilities, provided by Virtuoso to the Customer and/or used directly or indirectly in the supply of the Services, but excluding any such items which are the subject of a separate agreement between the parties under which title passes to the Customer.

“Virtuoso’s System” means the information and communications technology system to be used by Virtuoso (or any of its sub-contractors) in performing the Services.