- Application of Conditions
1.1 The Supplier, The National Public Claims Register (Herein after referred to as TNPCR) shall supply and the Customer who shall purchase the Goods and/or Services in accordance with the quotation/specification or schedule which are subject to these Conditions.
1.2 The Contract shall be to the exclusion of any other terms and Conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Customer.
1.3 Where the context so admits or requires words denoting the singular include the plural and vice versa and words denoting any gender include all genders.
2. Definitions and Interpretation
2.1 In these Conditions:- “Business Day” means any day other than a Saturday, Sunday or bank holiday; “the Customer” means the person or representative of an organisation who accepts a Proposal or offer of TNPCR for the sale of Goods and/or supply of Services, or whose order for the Goods and/or Services is accepted by TNPCR ; “Commencement Date” means the commencement date for this agreement as set out in the quotation/specification/schedule; “the Contract” means the Contract for the purchase and sale of the Goods and/or supply of the Services under these terms and conditions; “these Conditions” means the standard terms and Conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and Conditions agreed in writing between the Customer and TNPCR Limited; “the Delivery Date” means the date on which the Goods and/or Services are to be delivered as stated in Proposal or stipulated in the Customer’s order and accepted by TNPCR; “the Goods” means the Goods which TNPCR or its authorised contractor is to supply in accordance with these Conditions whether those Goods be physical materials as per printed matter or electronic non tangible Goods such as software, web based applications or other none physical deliverables; “month” means a calendar month; “the Services” means the Services to be provided to the Customer by TNPCR or its authorised contractor as set out in the Proposal and covers the delivery of all consultancy, design, and programming services; “TNPCR” means the Supplier, a company registered in England Registration No.4435288, With its registered office at Martyn House, Bridge Street, Stourbridge, West Midlands, DY8 5YX; “writing” includes any communications effected by facsimile transmission, electronic mail or any comparable means; “Proposal” Includes any/all sales literature, price lists and other documents including, but not limited to tenders, proposals, quotation, specifications or schedules that display costs for the supply of Goods and/or services; “Application” Means any software or Internet based solution including server based intranets, standalone distributable programs, websites and any other software based solutions; “SLA” SLA (or Service Level Agreement) means an official commitment that exists between TNPCR and the customer.
2.2 Any reference in these Conditions to a statute or a provision of a statute shall be construed as a reference to that statute or provision as amended, reenacted or extended at the relevant time.
2.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
3. Basis of Sale and Service
3.1 The employees or agents of TNPCR are not authorised to make any representations concerning the Goods and/or Services unless confirmed by TNPCR in writing. In entering into the Contract the Customer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
3.2 No variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the Customer and TNPCR.
3.3 Sales literature, price lists and other documents including, but not limited to tenders, proposals, quotations, specifications or schedules issued by TNPCR in relation to the Goods and/or Services are subject to alteration without notice and do not constitute offers to sell the Goods which are capable of acceptance. An order placed by the Customer may not be withdrawn cancelled or altered prior to acceptance by TNPCR and no Contract for the sale of the Goods and/or Services shall be binding on TNPCR unless TNPCR has issued a quotation which is expressed to be an offer to sell the Goods and/or Services or has accepted an order placed by the Customer by whichever is the earlier of:-
3.3.1 TNPCR’s written acceptance;
3.3.2 delivery of the Goods; or
3.3.3 TNPCR’s invoice.
3.4 Any typographical, clerical or other accidental errors or omissions in any sales literature, quotation, price list, acceptance of offer, proposal, invoice or other document or information issued by TNPCR shall be subject to correction without any liability on the part of TNPCR.
4. The Goods
4.1 No order submitted by the Customer shall be deemed to be accepted by TNPCR unless and until confirmed in writing by TNPCR’s authorised representative.
4.2 The specification for the Goods shall be those set out in TNPCR’s Sales literature, price lists and other documents including, but not limited to tenders, proposals, quotation, specifications or schedules, unless varied expressly in the Customer’s order (if accepted by TNPCR). The Goods will only be supplied in the quantities stated in TNPCR’s Proposal. Orders received for quantities other than these will be adjusted accordingly, illustrations, photographs or descriptions whether in catalogues, brochures, price lists, Proposal or other documents issued by TNPCR are intended as a guide only and shall not be binding on TNPCR .
4.3 TNPCR reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory or regulatory requirements or, where the Goods are to be supplied to TNPCR’s specification, which do not materially affect their quality or performance. In respect of software based solutions TNPCR reserves the right to change agreed system specification if the alterations are beneficial to the functionality and stability of the final system. TNPCR will outline in writing and seek agreement from the Customer prior to any enhancement/ development work.
4.4 No order which has been accepted by TNPCR may be cancelled by the Customer except with the agreement in writing of TNPCR on the terms that the Customer shall indemnify TNPCR in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by TNPCR as a result of cancellation.
5. The Services
5.1 With effect from the Commencement Date TNPCR shall, in consideration of the Fees being paid in accordance with the Terms of Payment will provide the services expressly identified in the Proposal or otherwise agreed under this agreement.
5.2 TNPCR will use reasonable care and skill to perform the services identified in the Proposal or otherwise agreed under this agreement.
5.3 TNPCR shall use all reasonable endeavours to complete its obligations under the Schedule, but time will not be of the essence in the performance of these obligations.
6. Price
6.1 The price of the Goods and/or Services shall be the price stated in the Proposal current at the date of acceptance of the Customer’s order or such other price as may be agreed in writing by TNPCR and the Customer.
6.2 Where TNPCR has quoted a price for Goods and/or Services the price quoted shall be valid for 30 days only or such lesser time as TNPCR may specify.
6.3 TNPCR reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of the Goods and/or Services to reflect any increase in the cost to TNPCR which is due to any factor beyond the control of TNPCR (such as, without limitation, any foreign exchange fluctuation currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture or supply), any change in delivery dates, quantities or specifications for the Goods and/or Services which are requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give TNPCR adequate information or instructions.
6.4 Except as otherwise stated under the terms of any Proposal or in any price list of TNPCR, and unless otherwise agreed in writing between the Customer and TNPCR, all prices are inclusive of TNPCR’s charges for packaging and transport for any supplied Goods as specified in the Proposal.
6.5 The price is exclusive of any applicable value added tax excise, sales or taxes or levies of a similar nature which are imposed or charged by any competent fiscal authority in respect of the Goods and/or Services, which the Customer shall be additionally liable to pay to TNPCR.
7. Payment
7.1 All payments required to be made pursuant to this Agreement by either party shall be made within 30 (Thirty) days of the date of the relevant invoice, without any set-off, withholding or deduction except such amount (if any) of tax as that party is required to deduct or withhold by law.
7.2 The time of payment shall be of the essence of these terms and conditions. If the Customer fails to make any payment on the due date in respect of the price or any other sum due under these terms and Conditions then TNPCR shall, without prejudice to any right which TNPCR may have pursuant to any statutory provision in force from time to time, have the right to charge the Customer interest on a daily basis at an annual rate equal to the aggregate of 6 (Six) per cent over the base rate of The Bank of England from time to time on any sum due and not paid on the due date. Such interest shall be calculated cumulatively on a daily basis and shall run from day to day and accrue after as well as before any judgement.
7.3 All payments shall be made to TNPCR as indicated on the form of acceptance or invoice issued by TNPCR.
7.4 Where a Customer is required to pay a deposit prior to the commencement of the Contract the deposit will be calculated to reflect an amount sufficient to cover the actual losses incurred by TNPCR that directly result in the cancellation of the Contract and as such all deposits are classed as non-refundable.
8. Delivery and Performance
8.1 Delivery of the Goods shall be made by TNPCR delivering the Goods to the place in the United Kingdom specified in the Proposal.
8.2 The Delivery Date is approximate only and time for delivery shall not be of the essence unless previously agreed by TNPCR in writing. The Goods may be delivered by TNPCR in advance of the Delivery Date upon giving reasonable notice to the Customer.
8.3 If the Customer fails to take delivery of the Goods or any part of them on the Delivery Date and/or fails to provide any instructions, documents, licences, consents or authorisations required to enable the Goods to be delivered on that date, TNPCR shall be entitled upon given written notice to the Customer to store or arrange for the storage of the Goods and then notwithstanding the provision of Condition 10.1 of these Conditions risk in the Goods shall pass to the Customer, delivery shall be deemed to have taken place and the Customer shall pay to TNPCR all costs and expenses including storage and insurance charges arising from such failure. 8.4 With effect from the Commencement Date TNPCR shall, in consideration of the amount(s) being paid in accordance with the Proposal will provide the services expressly identified in the Proposal (schedule) or otherwise agreed under this agreement. 9. Non-Delivery of Goods and/or Services 9.1 If TNPCR fails to deliver the Goods and/or Services and any of them on the Delivery Date other than for reasons outside TNPCR’s reasonable control or the Customer’s or its carrier’s fault:- 9.1.1 if TNPCR delivers the Goods and/or Services at any time thereafter TNPCR shall have no liability in respect of such late delivery; 9.1.2 if the Customer gives written notice to TNPCR within 30 (Thirty) business days after the Delivery Date and TNPCR fails to deliver the Goods and/ or Services within 30 (Thirty) Business Days after receiving such notice the Customer may cancel the order and TNPCR’s liability shall be limited to the excess (if any) of the cost of the Customer (in the cheapest available market) of similar Goods to those not delivered over the price of the Goods not delivered. 10. Risk and Retention of Title 10.1 Risk of damage to or loss of the Goods shall pass to the Customer at: 10.1.1 in the case of Goods to be delivered at TNPCR’s premises, the time when TNPCR notifies the Customer that the Goods are available for collection; 10.1.2 in the case of Goods to be delivered otherwise than at TNPCR’s premises, the time of delivery or, if the Customer wrongfully fails to take delivery of the Goods, the time when TNPCR has tendered delivery of the Goods; or 10.1.3 in the case of Goods being installed by TNPCR, the time that TNPCR notifies the Customer that the installation is complete. 10.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, legal and beneficial title of the Goods shall not pass to the Customer until TNPCR has received in cash or cleared funds payment in full of the price of the Goods. 10.3 [Sub-clause 10.2 notwithstanding, legal and beneficial title of the Goods shall not pass to the Customer until TNPCR has received in cash or cleared funds payment in full of the price of the Goods and any other Goods and/or Service supplied by TNPCR and the Customer has repaid all moneys owed to TNPCR, regardless of how such indebtedness arose.] 10.4 Until payment has been made to TNPCR in accordance with these Conditions and title in the Goods or any Services already supplied has passed to the Customer, the Customer shall be in possession of the Goods as bailee for TNPCR and the Customer shall store the Goods separately and in an appropriate environment, shall ensure that they are identifiable as being supplied by TNPCR and shall insure the Goods against all reasonable risks. 10.5 The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of TNPCR, but if the Customer does so all money owing by the Customer to TNPCR shall (without prejudice to any other right or remedy of TNPCR) forthwith become due and payable. 10.6 TNPCR reserves the right to repossess any Goods in which TNPCR retains title without notice. The Customer irrevocably authorises TNPCR to enter the Customer’s premises during normal business hours for the purpose of repossessing the Goods in which TNPCR retains title and inspecting the Goods to ensure compliance with the storage and identification requirements of sub-clause 10.4. 10.7 The Customer’s right to possession of the Goods in which TNPCR maintains legal and beneficial title shall terminate if; 10.7.1 The Customer commits or permits any material breach of his obligations under these Conditions; 10.7.2 The Customer enters into a voluntary arrangement under Part 1 of the Insolvency Act 1986, or any other scheme or arrangement is made with his creditors; 10.7.3 The Customer is or becomes the subject of a bankruptcy order or takes advantage of any other statutory provision for the relief of insolvent debtors; 10.7.4 The Customer convenes any meeting of its creditors, enters into voluntary or compulsory liquidation, has a receiver, manager, administrator or administrative receiver appointed in respect of its assets or undertaking or any part thereof, any documents are filed with the court for the appointment of an administrator in respect of the Customer, notice of intention to appoint an administrator is given by the Customer or any of its directors or by a qualifying floating charge-holder (as defined in paragraph 14 of Schedule B1 of the Insolvency Act 1986), a resolution is passed or petition presented to any court for the winding up of the Customer or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer. 10.8 The customers entitlement to the Goods refers to the final output as proposed by TNPCR. All materials created as a necessity to facilitate the final output remain the property of TNPCR (eg. Raw materials such as, but limited to; stock imagery, video files, audio files, working files, composition files, project notes etc.) and do not form any part of the final output and are therefore not part of the deliverable Goods unless otherwise agreed in writing prior to the commencement of the contract. 11. Assignment 11.1 TNPCR may assign the Contract or any part of it to any person, firm or company. 11.2 The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of TNPCR. 12. Defective Goods 12.1 If on delivery any of the Goods are defective in any material respect and either the Customer lawfully refuses delivery of the defective Goods or, if they are signed for on delivery “condition and contents unknown” the Customer gives written notice of such defect to TNPCR within 3 (three) business days of such delivery, TNPCR shall at its option:- 12.1.1 replace the defective Goods within 30 (Thirty) days of receiving the Customer’s notice; or 12.1.2 refund to the Customer the price for the Goods which are defective; but TNPCR shall have no further liability to the Customer in respect thereof and the Customer may not reject the Goods if delivery is not refused or notice give by the Customer as aforesaid. 12.2 No Goods may be returned to TNPCR without the prior agreement in writing of TNPCR. Subject thereto any Goods returned which TNPCR is satisfied were supplied subject to defects of quality or condition which would not be apparent on inspection shall either be replaced free of charge or, at TNPCR’s sole discretion TNPCR shall refund or credit to the Customer the price of such defective Goods but TNPCR shall have no further liability to the Customer. 12.3 TNPCR shall be under no liability in respect of any defect arising from fair wear and tear, or any wilful damage, negligence, subjection to normal conditions, failure to follow TNPCR’s instructions (whether oral or in writing), misuse or alteration of the Goods without TNPCR ‘s approval, or any other act or omission on the part of the Customer, its employees or agents or any third party. 12.4 Goods, other than defective Goods returned under Conditions 12.1 or 12.2, returned by the Customer and accepted by TNPCR may be credited to the Customer at TNPCR ‘s sole discretion and without any obligation on the part of TNPCR . 12.5 Subject as expressly provided in these Conditions, and except where the Goods are sold under a consumer sale, all warranties, Conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law. 12.6 The Customer shall be responsible to ensure that, except to the extent that instructions as to the use or sale of the Goods are contained in the labelling of, or instruction provided in the use of said Goods, any use or sale of the Goods by the Customer is in compliance with all applicable statutory handling and sale of the Goods by the Customer is carried out in accordance with directions given by TNPCR or any competent governmental or regulatory authority and the Customer will indemnify TNPCR against any liability loss or damage which TNPCR might suffer as a result of the Customer’s failure to comply with this condition. 13. Customer’s Default 13.1 If the Customer fails to make any payment on the due date then, without prejudice to any other right or remedy available to TNPCR, TNPCR shall be entitled to:- 13.1.1 cancel the order or suspend any further deliveries of Goods and/or Services to the Customer; 13.1.2 appropriate any payment made by the Customer to such of the Goods and/or Services (or the Goods supplied under any other Contract between the Customer and TNPCR) as TNPCR may think fit (notwithstanding any purported appropriation by the Customer); and 13.2 This condition applies if:- 13.2.1 the Customer fails to perform or observe any of its obligations hereunder or is otherwise in breach of the Contract; or 13.2.2 the Customer becomes subject to an administration order or makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation; or 13.2.3 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Customer; or 13.2.4 the Customer ceases, or threatens to cease, to carry on business; or 13.2.5 TNPCR reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly. Terms & Conditions for the Supply of Goods and/or Services | Rev 2.0b Sept 2024 13.3 If Condition 13.2 applies then, without prejudice to any other right or remedy available to TNPCR, TNPCR shall be entitled to cancel the Contract or suspend any further deliveries of Goods and/or Services under the Contract without any liability to the Customer, and if the Goods and/or Services have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary. 13.4 Customer’s Review and Feedback Obligations 13.4.1 The Customer shall review and provide feedback on all work delivered by TNPCR within a maximum of 20 Business Days from the date of delivery. If the Customer fails to provide such feedback within this period, TNPCR reserves the right to consider the work accepted by the Customer. 13.4.2 In the event that the Customer does not respond within the 20 Business Day period, TNPCR shall raise an invoice for the work completed, which will be due and payable in accordance with the agreed payment terms. 13.4.3 Any further revisions or changes requested by the Customer after the 20 Business Day period shall be subject to additional charges as agreed between TNPCR and the Customer. 14. Liability 14.1 Except in respect of death or personal injury caused by TNPCR’s negligence, TNPCR will not by reason of any representation, implied warranty, condition or other term, or any duty at common law or under express terms of this contract, be liable for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by TNPCR’s servants or agents/ third-party suppliers or otherwise) which arise out of or in connection with the supply of the Goods and/or Services. 14.2 The Customer shall indemnify TNPCR against all damages, costs, claims and expenses suffered arising from loss of business or damage to goodwill or credibility caused by the Customer, or its agents or employees, or any third-party suppliers directly or indirectly employed by either the Customer or TNPCR unless otherwise stated in writing through a Service Level Agreement or otherwise. 14.3 Where the Customer consists of two or more persons such expression throughout shall mean and include such two or more persons and each or any of them. All obligations on the part of such a Customer shall be joint and several obligations of such persons. 14.4 TNPCR shall not be liable to the Customer or be deemed to be in breach of these terms and Conditions by reason (Contract) of any delay in performing, or any failure to perform, any of TNPCR’s obligations if the delay or failure was due to any cause beyond TNPCR’s reasonable control. 15. Communications 15.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by fax or sent by electronic mail: 15.1.1 (in the case of communications to TNPCR) to its registered office or such changed address as shall be notified to the Customer by TNPCR; or 15.1.2 (in the case of the communications to the Customer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Customer set out in any document which forms part of the Contract or such other address as shall be notified to TNPCR by the Customer. 15.2 Communications shall be deemed to have been received: 15.2.1 if sent by pre-paid first class post, two Business Days after posting (exclusive of the day of posting); or 15.2.2 if delivered by hand, on the day of delivery; or 15.2.3 if sent by fax or electronic mail on a Business Day prior to 4.00 pm, at the time of transmission and otherwise on the next Business Day. 15.3 Communications addressed to TNPCR shall be marked for the attention of the Managing Director. 16. Force Majeure 16.1 In the event that either party is prevented from fulfilling its obligations under this Agreement by reason of any supervening event beyond its control including but not limited to war, national emergency, flood, earthquake, strike or lockout (subject to Sub-clause 16.2) the party shall not be deemed to be in breach of its obligations under this Agreement. The party shall immediately give notice of this to the other party and must take all reasonable steps to resume performance of its obligations. 16.2 Sub-clause 16.1 shall not apply with respect to strikes and lockouts where such action has been induced by the party so incapacitated. 16.3 Each party shall be liable to pay to the other damages for any breach of this Agreement and all expenses and costs incurred by that party in enforcing its rights under this Agreement. 16.4 If and when the period of such incapacity exceeds 6 (Six) months then this Agreement shall automatically terminate unless the parties first agree otherwise in writing. 17. Maintenance of The Application 17.1. In return for payment of the Standard Annual Maintenance Fee TNPCR agrees that it shall carry out the Standard Maintenance which term shall consist of the following: 17.1.1. TNPCR carrying out minor amendments and enhancements to the Application from time to time as are deemed necessary or desirable by TNPCR and as are agreed with the Customer, the Customer acknowledging that the extent of such amendments and enhancements shall vary depending on the maintenance fees payable by the Customer. 17.1.2. TNPCR remedying defects or malfunctions of the Application which the Customer has demonstrated to the reasonable satisfaction of TNPCR are not attributable to the Customer’s misuse of the Application; and 17.1.3. TNPCR correcting actual problems which have occurred during the Customer’s normal use of the Application which are not due to the default of the Customer. TNPCR will absorb all costs of time directly associated with these services in connection with the required works to rectify any mechanical issues associated to the Application. 17.2. TNPCR agrees that it shall use its reasonable endeavours to respond to any request received by the Customer for the Maintenance within certain designated timescales, TNPCR and the Customer agreeing on the level of urgency of each request made to TNPCR by the Customer under this Agreement. The timescales shall be as follows: 17.2.1. for non-urgent requests within 15 Working Days; 17.2.2. for normal requests within 10 Working Days; 17.2.3. for urgent requests within 5 Working Days; and 17.2.4. for critical requests within 2 Working Days. 17.3. Under the circumstances listed below, TNPCR reserves the right to refuse the provision of the Maintenance. However if TNPCR in its absolute discretion chooses to provide the Maintenance then TNPCR will be entitled to charge for this provision at the Additional Maintenance Fees plus its out of pocket expenses. This discretionary maintenance shall apply where a fault results from: 17.3.1. the improper use, operation or neglect of the Application (save where this is caused by the direct negligence or default of TNPCR or its employees); 17.3.2. any failure by the Customer to implement recommendations or solutions in respect of faults previously advised by TNPCR; 17.3.3. the use of the Application by the Customer for a purpose for which it was not designed or intended; 17.3.4. the Customer’s failure, inability or refusal to afford TNPCR’s personnel reasonable access to the Application; 17.3.5. any accident or disaster affecting the Application (save where this is caused directly by the negligence of TNPCR or its employees); 17.3.6. any interference, accidental or deliberate by unauthorised personnel whether employees of the Customer or not. 17.4 Unless expressly stated in writing no Service Level Agreement will exist between TNPCR and the Customer. 17.5. FTP/File Access Terms 17.5.1. The Customer acknowledges that by obtaining access to the source code (“files”) of the Application, they effectively invalidate the support/maintenance guarantee provided as part of the Standard Hosting Contract. 17.5.2. While TNPCR will continue to maintain the Application, along with associated plugins, and monitor security issues in accordance with the Standard Hosting Contract, the Customer agrees that any technical issues requiring TNPCR’s assistance shall be subject to a minimum of one hours charge plus VAT, in addition to an hourly rate plus VAT to cover all time expended (Standard hourly rate available on demand). 17.5.3. TNPCR shall not be held responsible for any plugins or code alterations affected by the Customer. While TNPCR will ensure such plugins are updated as part of routine maintenance, any compatibility issues, plugin license procurement, or related support shall be chargeable to the Customer at the rates specified in clause 17.5.2. Plugin costs will additionally incur a 20% handling fee. 17.5.4. The Customer acknowledges that any modifications to the Application configuration, such as changes to the page builder or other core components from the original build delivered by TNPCR, shall render any resulting compatibility issues, plugin license management, or support requirements chargeable under the terms set out in clause 17.5.2. 18. Maintenance Delivery 18.1. Unless otherwise agreed, any dates specified by TNPCR for maintenance of the Application are intended to be an estimate and time for completion shall not be made of the essence by notice. 18.2. The Customer acknowledges that TNPCR shall not be responsible for any delay in maintaining the Application if that delay is due, wholly or partly, to an act or omission of the Customer which shall include the quality of the information provided to TNPCR by the Customer. Wherever it appears to TNPCR that such delay is likely it shall use its reasonable endeavours to notify the Customer in advance. 18.3. Subject to the other provisions of this Agreement TNPCR will not be liable for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by any delay in maintaining the Application (even if caused by TNPCR’s negligence), nor will any delay entitle the Customer to terminate or rescind this Agreement unless such delay exceeds 180 days in any instance. 19. Maintenance Warranties 19.1. TNPCR warrants that it will perform the Maintenance with reasonable skill and care so that, where amendments and/or enhancements are made to the Application under Clause 17.1.1 the Application remains at the level of functionality set out in the Proposal and where the Application is maintained under Clauses 17.1.2 and/or Clause 17.1.3 is restored to the level of functionality set out in the Proposal. 20. The Customer’s Obligations The Customer shall: 20.1. Use all reasonable endeavours to ensure that the Application is used in accordance with any training/documentation and/or specifications as are provided from time to time by TNPCR; 20.2. Not allow any party other than TNPCR to repair or maintain the Application without prior permission from TNPCR; and 20.3. Notify TNPCR as soon as reasonably practicable if the Application requires support or is not operating correctly. 20.4. Unless expressly stated in the Proposal the Customer is responsible for the supply of textual and graphical content to ensure the application is fit for purpose. 20.5. Unless expressly stated in the Proposal the Customer is responsible for all data entry including uploading any graphical content/images and/or downloadable materials (PDF documents etc) to ensure the application is fit for purpose and: 20.5.1 ensure all supplied textual and graphical materials are fully compliant with all copyright laws in place at the time of submission and; 20.5.2 indemnify TNPCR against any legal action arising from the use of copyrighted textual and graphical materials that have been supplied to TNPCR, or included (uploaded, inserted, broadcast) at a later date into the application or final product. 20.5.3 Except all responsibility for its actions (or the actions of its employees, or third parties) that have been granted access to enable textual and graphical materials to be included (uploaded, inserted, broadcast) at a later date into the application or final product. 20.5.4 Ensure all textual and graphical materials to be included (uploaded, inserted, broadcast) at a later date into the application or final product are of a nondefamatory and decent nature. 20.6. The Customer will not withhold payment for the application based on lack of content so long as TNPCR has fulfilled its obligations under the terms of the proposal. Nor will the Customer withhold any payments due (stage payments or otherwise) if the application is deemed incomplete due to lack of content. 20.7. The Customer will not withhold payments due (stage payments or otherwise) for any design work or artwork production, printed or otherwise if the design is deemed incomplete or incorrect due to lack of content, supply of incorrect content by the Customer or any third party (including TNPCR), or the customers lack of ability to correctly proof read the content prior to production or distribution. 20.8. The Customer shall ensure that all content, including textual and graphical materials, supplied for any purpose—whether for website population, print, social media, or any other media application—has received all necessary approvals from relevant stakeholders prior to submission. The Customer acknowledges that any subsequent amendments or corrections to the supplied content (hereinafter referred to as “Author Corrections”) will incur additional fees for the work required to implement such changes. 21. Termination 21.1 Either party shall be entitled to terminate the Contract at any time by giving not less than 30 days written notice. 21.2 TNPCR may terminate the Contract by immediate notice if the Client is more than 30 days overdue with any payment. 21.3 Where TNPCR is entitled to terminate the Contract under clause 21.1 or clause 21.2, without prejudice to any other remedy, TNPCR may elect to suspend the Services to the Customer for such period of not more than 12 weeks and TNPCR may terminate this Contract under clause 21.1 or 21.2 at any time during or at the end of such suspension if the breach by the Customer. 21.4 On termination of the Contract the obligations of TNPCR to provide the Services shall cease without prejudice to any accrued rights or liabilities of either party. 21.5 On termination of the Contract all monies payable by the Customer shall be immediately due and payable. 21.6 Where the Contract is terminated or suspended, no refund of any of the Charges paid in advance by the Customer shall be payable to the Customer except where the Contract is terminated due to TNPCR’s default. 21.7 TNPCR accepts no liability for delays and interruption in the provision of the Services and may terminate or suspend immediately the Services for any period without liability for any resulting loss if provision of the Services is in any way adversely affected by any act or default on the part of the Customer, or any Act of God, war, civil commotion, strike, industrial action, fire or flood, or any other cause which TNPCR could not have been reasonably expected to prevent or which is beyond its control. 22. Confidentiality 22.1 The Customer shall not disclose to any person (except for the purposes of effecting insurance) any information relating to the Services and shall keep TNPCR indemnified against all losses and expenses incurred by TNPCR as a result of any disclosure or information in contravention of this clause. 22.2 TNPCR will not disclose any details of the Customer obtained during any tendering process or performance of the Contract to any third party unless written permission has been obtained from the Customer save where disclosure is required for the performance of the Services or by law. 23. Data Protection 23.1 “Applicable Data Protection Legislation” refers to the UK Data Protection Act 2018 and the General Data Protection Regulation (GDPR) as amended, extended, or re-enacted from time to time, including any subordinate provisions; the terms “Personal Data,” “Data Controller,” “Data Processor,” “Process,” and “Processing” shall have the meanings given to them under the GDPR. 23.2 To the extent TNPCR Processes any Personal or Commercial Data provided by the Customer or obtained from third-party suppliers on behalf of the Customer in connection with the Contract: 23.2.1 The Customer acknowledges that it is the Data Controller of the Data, and TNPCR is acting on the Customer’s behalf as a Data Processor of the Data. 23.2.2 TNPCR shall: i. implement appropriate technical and organisational measures to protect the Data against unauthorised or unlawful Processing, accidental loss, destruction, or damage; ii. process Data only in accordance with the Customer’s documented instructions, and only for the purposes specified in the Contract; iii. promptly inform the Customer if it believes an instruction infringes the GDPR or other applicable data protection laws. 23.2.3 The Customer shall: i. obtain and maintain all necessary consents and notifications under the Applicable Data Protection Legislation to allow TNPCR to Process the Data as required under the Contract; ii. remain responsible for responding to Data Subject rights requests and may request reasonable assistance from TNPCR as necessary to comply with such requests; iii. ensure that any sub-processors engaged by TNPCR are approved in writing, and TNPCR shall be liable for their compliance with these data protection obligations. 24. Waiver No waiver by TNPCR of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision. 25. Severance If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby. 26. Third Party Rights A person who is not a party to the Contract shall have no rights under the Contract pursuant to the Contracts (Rights of Third Parties) Act 1999. 27. Governing Law and Jurisdiction These terms and Conditions shall be governed by the laws of England and Wales and the parties agree to submit to the exclusive jurisdiction of the English and Welsh courts.
