REDBRICK’S TERMS AND CONDITIONS
FOR THE LICENCE OF SOFTWARE
1.1 The definitions and rules of interpretation in this clause apply in these Conditions.
Acceptance Date: the date on which the Customer is deemed to have accepted the Software under clause 2.4.
Additional Services: as defined in clause 7.
Additional Services Fee: the fee for Additional Services payable by the Customer to Redbrick under clause 8.
agreement: the contract between Redbrick and the Customer created by the Customer’s acceptance of these Conditions.
Conditions: the terms and conditions set out in this document.
Customer: the person or firm who licences the Software from Redbrick.
Data Controller or Controller: has the meaning given in the Data Protection Legislation.
Data Protection Legislation: the DPA, GDPR and all applicable laws and regulations relating to the processing of the personal data and privacy at the relevant time including, if applicable, legally binding guidance and codes of practice issued by the Information Commissioner’s Office.
DPA: the Data Protection Act 2018 together with any subordinate legislation or associated regulations as amended, re-enacted or extended at the relevant time.
Customer Personal Data: means “personal data”, including “special categories” of personal data, as defined by the Data Protection Legislation; in each case as provided to Redbrick by the Customer.
GDPR: the General Data Protection Regulation (Regulation (EU) 2016/679 of the European Parliament and the Council of 27 April 2016) and all applicable laws and regulations amending, replacing or superseding the same.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (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.
Liability Amount: the amount described as such and set out in [Schedule 1][the Proposal Document.]
Licence Fee: the licence fee payable by the Customer to Redbrick under clause 8.
Maintenance Release: release of the Software that corrects faults, adds functionality or otherwise amends or upgrades the Software, but which does not constitute a New Version.
New Version: any new version of the Software which from time to time is offered by Redbrick to the Customer for use in the course of its normal business, being a version which contains such significant differences from the previous versions as to be regarded by Redbrick as constituting a new product.
Process / Processing: processing of Customer Personal Data.
Proposal Document: the proposal document issued by Redbrick to the Customer [and annexed to, or provided to the Customer with, these Conditions for the purposes of identification].
Redbrick: Redbrick Solutions (UK) Limited, incorporated and registered in England and Wales with company number 04323794 whose registered office is at 33 – 35 Pilling Road, Oakham, Rutland LE15 6QF.
Redbrick Software: That part of the Software identified as “Redbrick Software”.
Schedule: a schedule attached to these Conditions.
Site: the premises identified in the [Proposal Document][Schedule 1] or as otherwise agreed by Redbrick in writing from time to time.
Software: the computer programs listed in the [Schedule 1][Proposal Document] and any Maintenance Release which is acquired by the Customer during the subsistence of the agreement.
Standard Support Service: Redbrick’s standard software support services in accordance with Redbrick’s support services policy in effect at the time that the support services are provided – the current version of which is set out in Schedule 2.
Specification: as appropriate: (a) the document detailing the specification of the Redbrick Software which is issued by Redbrick from time to time; or (b) the document detailing the specification of the Third-Party Software which is issued by the relevant owner of the Third-Party Software from time to time.
Third-Party Software: that part of the Software identified as “Third-Party Software”.
1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of these Conditions.
1.3 Unless the context otherwise requires:
(a) words in the singular shall include the plural and in the plural shall include the singular;
(b) A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time;
(c) a reference to one gender shall include a reference to the other genders; and
(d) 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.
1.4 In the case of conflict or ambiguity between any provision contained in the body of these Conditions and any provision contained in the schedules, appendices or Proposal Document, the provision in the body of these Conditions shall take precedence.
1.5 A “person” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns.
1.6 References to clauses and schedules are to the clauses and schedules of these Conditions and references to paragraphs are to paragraphs of the relevant schedule.
1.7 The schedules and annexes form part of these Conditions and shall have effect as if set out in full in the body of these Conditions. Any reference to these Conditions includes the schedules and annexes.
2. Delivery, acceptance and installation
2.1 Redbrick shall deliver and install on the Customer’s equipment such copies of the Software (as set out in [Schedule 1][the Proposal Document]) at the Site as soon as reasonably possible after the Customer’s acceptance of these Conditions.
2.2 Installation shall be either by attendance on Site or by remote access to the Customer’s IT systems.
2.3 Where the Software is a New Version of an earlier version of the Software currently used by the Customer, before installing the Software, the Supplier shall carry out reasonable tests to ensure that such Software is in operable condition. To assist the Supplier with these tests, the Customer shall deliver to the Supplier such test data (which may include Customer Personal Data) requested by the Supplier. Alternatively, the Customer may request Redbrick obtains such test data itself by accessing the Customer’s systems.
2.4 The Customer shall be deemed to have accepted the Software if:
(a) Redbrick has certified successful installation of the Software; or
(b) the Customer commences operational use of the Software.
3.1 In consideration of the Licence Fee paid, or to be paid, by the Customer to Redbrick, Redbrick grants to the Customer a non-exclusive licence for the term set out in [Schedule 1][Proposal Document] commencing on and including [the Acceptance Date] to use the Software [at the Site only].
3.2 In relation to scope of use:
(a) for the purposes of clause 3.1, use of the Software shall be restricted to use of the Software in object code form for the purpose of processing the Customer’s data for the normal business purposes of the Customer (which shall not include allowing the use of the Software by, or for the benefit of, any person other than an employee of the Customer).
(b) the Customer may not use the Software other than as specified in clause 3.1 and clause 3.2(a) without the prior written consent of Redbrick, and the Customer acknowledges that additional fees may be payable on any change of use approved by Redbrick.
(c) the Customer may make backup copies of the Software as may be necessary for its lawful use. The Customer shall record the number and location of all copies of the Software and take steps to prevent unauthorised copying.
(d) except as expressly stated in this clause 3, the Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part except to the extent that any reduction of the Software to human readable form (whether by reverse engineering, decompilation or disassembly) is necessary for the purposes of integrating the operation of the Software with the operation of other software or systems used by the Customer, unless Redbrick is prepared to carry out such action at a reasonable commercial fee or has provided the information necessary to achieve such integration within a reasonable period, and the Customer shall request Redbrick to carry out such action or to provide such information (and shall meet Redbrick’s reasonable costs in providing that information) before undertaking any such reduction.
(e) the Third-Party Software shall be deemed to be part of the Software for the purposes of this licence.
3.3 The Customer may not use any such information provided by Redbrick or obtained by the Customer during any such reduction permitted under clause 3.2(d) to create any software whose expression is substantially similar to that of the Software nor use such information in any manner which would be restricted by any copyright subsisting in it.
3.4 The Customer shall not:
(a) sub-license, assign or novate the benefit or burden of these Conditions in whole or in part;
(b) allow the Software to become the subject of any charge, lien or encumbrance; and
(c) deal in any other manner with any or all of its rights and obligations under these Conditions,
without the prior written consent of Redbrick, such consent not to be unreasonably withheld or delayed.
3.5 Redbrick may at any time sub-license, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under these Conditions, provided it gives written notice to the Customer.
3.6 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
3.7 Notwithstanding clause 9, a party assigning any or all of its rights under these Conditions may disclose to a proposed assignee any information in its possession that relates to these Conditions 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 3.7 shall be made until notice of the identity of the proposed assignee has been given to the other party.
3.8 The Customer shall:
(a) keep a complete and accurate record of the Customer’s copying and disclosure of the Software and its users, and produce such record to Redbrick on request from time to time; and
(b) notify Redbrick as soon as it becomes aware of any unauthorised use of the Software by any person.
3.9 The Customer shall permit Redbrick to inspect and have access to any premises (and to the computer equipment located there) at or on which the Software is being kept or used, and have access to any records kept in connection with this these Conditions, for the purposes of ensuring that the Customer is complying with the terms of these Conditions, provided that Redbrick provides reasonable advance notice to the Customer of such inspections, which shall take place at reasonable times.
4.1 Redbrick will provide the Customer with all Maintenance Releases generally made available to its customers. The price for Maintenance Releases is included in the Licence Fee. Redbrick warrants that it will not knowingly install a Maintenance Release that will adversely affect the then existing facilities or functions of the Software. Redbrick shall install all Maintenance Releases with such assistance from the Customer as reasonably requested by Redbrick. For the avoidance of doubt, the Customer is required to permit Redbrick to install all Maintenance Releases within a reasonable time frame stipulated by Redbrick.
5.1 Redbrick may make available New Versions for use by the Customer from time to time.
5.2 New Versions shall be installed by Redbrick only. Before installing the New Version, the Supplier shall carry out reasonable tests to ensure that such New Version is in operable condition. To assist the Supplier with these tests, the Customer shall deliver to the Supplier such test data (which may include Customer Personal Data) requested by the Supplier.
6.1 Redbrick shall provide its Standard Support Service in respect of the Software and New Versions installed by Redbrick for so long as the Customer actively uses the Software and New Versions installed by Redbrick as part of its normal day-to-day business activities and pays all Licence Fees due.
6.2 The Customer shall allow Redbrick to install a Maintenance Release a soon as practicable (and in any case within one month) of Redbrick notifying the Customer that such Maintenance Release is available for installation.
6.3 In relation to New Versions, if Redbrick releases a New Version and the Customer decides not to acquire such New Version, that decision shall not give rise to any right to terminate the agreement, nor shall it result in any adverse effect on the Standard Support Services or the performance of Redbrick’s obligations under these Conditions. However, if Redbrick requires the installation of such New Version to remedy ongoing Software performance or support issues then the Customer shall be required to acquire such New Version and allow its installation by Redbrick. In such instance if the Customer has not (within 3 months of Redbrick having notified the Customer that such New Version is required to be acquired and installed) acquired and arranged installation of that New Version, Redbrick may terminate the Standard Support Service in respect of the Software by giving one month’s written notice to the Customer.
6.4 For the avoidance of doubt, the cost of New Versions and the Standard Support Service is included in the Licence Fees.
7.1 The Customer may from time to time request Redbrick to supply additional services of the type set out in [Schedule 1][the Proposal Document] (including software development and customisation work) (“Additional Services”) at the rates set out in [Schedule 1][the Proposal Document]. Redbrick shall use its reasonable endeavours to comply with the Customer’s request, but the Customer acknowledges that Redbrick’s ability to supply the Additional Services shall depend on the availability of appropriate resources at the time in question.
7.2 Where Redbrick agrees to provide Additional Services, such agreement shall be embodied in an order for Additional Services. Each order for Additional Services shall be made under, and shall incorporate, the terms of these Conditions.
8.1 Subject to clause 8.4, the Customer shall pay to Redbrick licence fees as calculated in accordance with [Schedule 1][Proposal Document] and the fees for any Additional Services also calculated in accordance with [Schedule 1][Proposal Document] or as otherwise agreed in writing by the parties. If the licence fees are fixed for any period, that period is set out in [Schedule 1][the Proposal Document]. All sums payable under the agreement are exclusive of VAT or any relevant local sales taxes, for which the Customer shall be responsible.
8.2 Redbrick will invoice the Customer at the end of each calendar month for the Licence Fee and Additional Services Fee. The Customer shall pay such invoice in full and cleared funds by direct debit within 14-days of the date of submission of the invoice or within such other period set out in [Schedule 1][the Proposal Document].
8.3 Without prejudice to any other rights and remedies Redbrick may have, if the Customer fails to make any payment due to Redbrick under the agreement by the due date for payment, then:
(a) Redbrick may charge the Customer interest on the overdue amount at the rate of 4% per annum above [FULL NAME OF BANK]’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/or
(b) Redbrick may suspend the Customer’s use of the Software or the provision of the Standard Support Services and Additional Services.
8.4 Subject to as otherwise provided in [Schedule 1][the Proposal Document], Redbrick shall have the right to adjust the Licence Fees by giving the Customer not less than 90-days notice of the proposed changes (Licence Fee Adjustment Notice). Upon expiry of such notice, the fees shall be adjusted in accordance with the Licence Fee Adjustment Notice. If the Customer objects to a proposed adjustment, it may terminate the agreement on 90-days written notice to Redbrick. Such notice to be served within 30-days of receipt of the Licence Fee Adjustment Notice.
9. Confidentiality and publicity
9.1 Each party shall, during the term of the agreement and thereafter, keep confidential all, and shall not use for its own purposes (other than implementation of the agreement) nor without the prior written consent of the other disclose to any third party (except its professional advisors or as may be required by any law or any legal or regulatory authority) any, information of a confidential nature (including trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party, unless that information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of these Conditions, or subsequently comes lawfully into the possession of such party from a third party. Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information.
9.2 No party shall make, or permit any person to make, any public announcement concerning the agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
10.1 Redbrick warrants that the then current version of the Software made available by Redbrick will conform in all material respects to the Specification throughout the duration of the agreement (“Warranty Period”). Any material non-compliance of the Software with the Specification shall be dealt with solely and exclusively by the provision of Standard Support Services provided such non-compliance not result from the Customer, or anyone acting with the authority of the Customer, having amended the Software or used it outside the terms of these Conditions for a purpose or in a context other than the purpose or context for which it was designed or in combination with any other software not provided or authorised by Redbrick, or it has not been loaded onto Redbrick-specified or suitably configured equipment. If Redbrick is not able to resolve the material non-compliance by suppling the Standard Support Service, then Redbrick may (at its option):
(a) replace the Software; or
(b) terminate the agreement immediately by notice in writing to the Customer and refund any of the Licence Fee paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer’s use of the Software to the date of termination) on (as requested by Redbrick):
(i) return of the Software and all copies thereof; or
(ii) the permanent removal of the Software from the Customer’s systems.
10.2 The Customer shall provide all the information that may be necessary to assist Redbrick in resolving the defect or fault, including a documented example of any defect or fault, or sufficient information to enable Redbrick to re-create the defect or fault.
10.3 Redbrick does not warrant that the use of the Software will be uninterrupted or error-free or that all faults can be corrected.
10.4 The Customer accepts responsibility for the selection of the Software to achieve its intended results and acknowledges that the Software has not been developed to meet the individual requirements of the Customer.
10.5 Redbrick further warrants that the Standard Support Services and Additional Services shall be provided with reasonable skill and care.
10.6 All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into these Conditions or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
11.1 Except as expressly stated in clause 11.2:
(a) Redbrick shall not in any circumstances have any liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
(i) special damage even if Redbrick was aware of the circumstances in which such special damage could arise;
(ii) loss of profits;
(iii) loss of anticipated savings;
(iv) loss of business opportunity;
(v) loss of goodwill;
(vi) loss or corruption of data,
provided that this clause 11.1(a) shall not prevent claims for loss of or damage to the Customer’s tangible property that fall within the terms of clause 11.1(b) or any other claims for direct financial loss that are not excluded by any of categories (i) to (vi) inclusive of this clause 11.1(a);
(b) the total liability of Redbrick, whether in contract, tort (including negligence) or otherwise and whether in connection with the agreement or any collateral contract, shall in no circumstances exceed a sum equal to:
(i) in respect of liability arising under clause 12, the amount of £1,000,000 per claim or series of connected claims;
(ii) in respect of any breach by Redbrick of clause 13 which results in a claim for compensation by any person being made against the Customer under Article 82 of the GDPR (or its equivalent under the DPA), the aggregate amount of any compensation paid or awarded to such person for damage suffered as a result of Redbrick’s breach;
(iii) in respect of any breach by Redbrick of clause 13 which results in the imposition on the Customer of an administrative fine by the Information Commissioner’s Office, the amount of such fine to the extent that it relates to and has been imposed by reason of Redbrick’s breach; and
(iv) in respect of liability which is not capped under clauses 11.1(b)(i) to 11.1(b)(iii) (inclusive), the higher of:
(A) the Liability Amount; or
(B) the Licence Fees paid by the Customer to Redbrick in the 12-months immediately preceding the event giving rise to the liability in question; or
(C) the limit of cover applicable to Redbrick’s insurance for the liability in question; and
(c) the Customer agrees that, in entering into the agreement, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in these Conditions or (if it did rely on any representations, whether written or oral, not expressly set out in these Conditions) that it shall have no remedy in respect of such representations and (in either case) Redbrick shall have no liability in any circumstances otherwise than in accordance with the express terms of these Conditions.
11.2 The exclusions in clause 10.6 and clause 11.1 shall apply to the fullest extent permissible at law, but Redbrick does not exclude liability for:
(a) death or personal injury caused by the negligence of Redbrick, its officers, employees, contractors or agents;
(b) fraud or fraudulent misrepresentation;
(c) breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
(d) any other liability which may not be excluded by law.
11.3 All dates supplied by Redbrick for the delivery and installation of the Software or the provision of the Standard Support Services and Additional Services shall be treated as approximate only. Redbrick shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.
11.4 All references to “Redbrick” in this clause 11 shall, for the purposes of this clause and clause 20 only, be treated as including all employees, subcontractors and suppliers of Redbrick, all of whom shall have the benefit of the exclusions and limitations of liability set out in this clause, in accordance with clause 20.
12. Intellectual property rights
12.1 The Customer acknowledges that all Intellectual Property Rights in the Software and any Maintenance Releases belong and shall belong to Redbrick or its licensor, and the Customer shall have no rights in or to the Software other than the right to use it in accordance with the terms of these Conditions.
12.2 Redbrick undertakes at its own expense to defend the Customer or, at its option, settle any claim or action brought against the Customer alleging that the possession or use of the Redbrick Software (or any part thereof) in accordance with the terms of these Conditions infringes the UK Intellectual Property Rights of a third party (“Claim”) and shall be responsible for any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against the Customer as a result of or in connection with any such Claim. For the avoidance of doubt, clause 12.2 shall not apply where the Claim in question is attributable to possession or use of the Redbrick Software (or any part thereof) by the Customer other than in accordance with the terms of these Conditions, use of the Redbrick Software in combination with any hardware or software not supplied or specified by Redbrick if the infringement would have been avoided by the use of the Redbrick Software not so combined, or use of a non-current release of the Redbrick Software.
12.3 If any third party makes a Claim, or notifies an intention to make a Claim against the Customer, Redbrick’s obligations under clause 12.2 are conditional on the Customer:
(a) as soon as reasonably practicable, giving written notice of the Claim to Redbrick, specifying the nature of the Claim in reasonable detail;
(b) not making any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of Redbrick (such consent not to be unreasonably conditioned, withheld or delayed);
(c) giving Redbrick and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Customer, so as to enable Redbrick and its professional advisers to examine them and to take copies (at Redbrick’s expense) for the purpose of assessing the Claim; and
(d) subject to Redbrick providing security to the Customer to the Customer’s reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, taking such action as Redbrick may reasonably request to avoid, dispute, compromise or defend the Claim.
12.4 If any Claim is made, or in Redbrick’s reasonable opinion is likely to be made, against the Customer, Redbrick may at its sole option and expense:
(a) procure for the Customer the right to continue to use the Redbrick Software (or any part thereof) in accordance with the terms of these Conditions;
(b) modify the Redbrick Software so that it ceases to be infringing;
(c) replace the Redbrick Software with non-infringing software; or
(d) terminate the agreement immediately by notice in writing to the Customer and refund any of the Licence Fee paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer’s use of the Software to the date of termination) on return of the Software and all copies thereof,
provided that if Redbrick modifies or replaces the Redbrick Software, the modified or replacement Redbrick Software must comply with the warranties contained in clause 10.1 and the Customer shall have the same rights in respect thereof as it would have had under those clauses had the references to the date of these Conditions been references to the date on which such modification or replacement was made.
12.5 Notwithstanding any other provision in these Conditions, Clause 12.2 shall not apply to the extent that any claim or action referred to in that clause arises directly or indirectly through the possession or use of any Third-Party Software.
12.6 This clause 12 constitutes the Customer’s exclusive remedy and Redbrick’s only liability in respect of Claims and, for the avoidance of doubt, is subject to clause 11.1.
13.1 The Customer acknowledges that it is a Data Controller of all Customer Personal Data and Redbrick a Data Processor. Should the Customer and Redbrick be deemed to be joint Data Controllers, then as between themselves the Customer shall be deemed to be the Data Controller and Redbrick the Data Processor.
13.2 Each party shall Process Customer Personal Data only in compliance with the Data Protection Legislation. In particular, each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the Customer Personal Data or its accidental loss, destruction or damage.
13.3 The Customer:
(a) shall ensure that the Customer is entitled to transfer necessary Customer Personal Data to Redbrick so that Redbrick may lawfully process the Customer Personal Data in accordance with the agreement on the Customer’s behalf; and
(b) shall in respect of Customer Personal Data: (a) obtain the appropriate valid consents from all data subjects to Processing by Redbrick (and provide copies of such consents to Redbrick); or (b) notify Redbrick of the alternative valid legal justification under Data Protection Legislation for Processing by Redbrick; for each type of Processing to be undertaken by Redbrick pursuant to the agreement prior to the Processing as necessary.
13.4 Redbrick shall:
(a) Process the Customer Personal Data only on documented instructions from the Customer, including with regard to transfers of Customer Personal Data to a third country or an international organisation, unless required to do so by law to which Redbrick is subject; in such a case, Redbrick shall inform the Customer of that legal requirement before Processing, unless that law prohibits such information on important grounds of public interest. For the purposes of this clause the Customer is deemed to have instructed Redbrick to Process the Customer Personal Data as reasonably necessary to: (a) allow the Customer to use the Software; (b) allow the Customer to fully benefit from the use of the Software; and (c) to allow Redbrick to fully perform its obligations under the agreement;
(b) ensure that persons authorised to process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
(c) take all measures required pursuant to Article 32 (security of processing) of the GDPR;
(d) respect the conditions referred to in Article 28(2) and 28(4) of the GDPR for engaging another processor;
(e) taking into account the nature of the processing, assist the Customer by appropriate technical and organisational measures, insofar as this is possible, to fulfil the Customer’s obligation to respond to requests for exercising the data subject’s rights laid down in Chapter III of the GDPR;
(f) assist the Customer in ensuring compliance with the obligations pursuant to Articles 32 to 36 of the GDPR taking into account the nature of the Processing and the information available to Redbrick;
(g) at the choice of the Customer, delete or return all the Customer Personal Data to the Customer after the end of the agreement, and delete existing copies unless Redbrick is under a legal requirement to store the Customer Personal Data; and
(h) make available to the Customer all information necessary to demonstrate compliance with the obligations laid down in Article 28 of the GDPR and allow for and assist with audits, including inspections, conducted by the Customer or another auditor mandated by the Customer. Redbrick shall immediately inform the Customer if, in its opinion, an instruction infringes the GDPR or other data protection provisions.
13.5 Each party shall:
(a) provide the other with any information the other requests to ensure the other is complying with its obligations under the Data Protection Legislation;
(b) promptly tell the other about any breach of its data protection obligations under the Data Protection Legislation; and
(c) not knowingly or negligently do or omit to do anything which places the other in breach of its obligations under the Data Protection Legislation.
13.6 Each party shall tell the other immediately it receives
(a) a request from a data subject to have access to Customer Personal Data about that person; or
(b) a complaint or request about the other’s obligations under the Data Protection Legislation.
13.7 The Customer acknowledges that Redbrick is reliant on the Customer for direction as to the extent to which Redbrick is entitled to use and process the Customer Personal Data. Consequently, Redbrick will not be liable for any claim brought by a data subject arising from any action or omission by Redbrick, to the extent that such action or omission resulted directly from the Customer’s instructions.
14.1 Unless terminated earlier in accordance with these Conditions, the agreement shall continue for the minimum term set out in [Schedule 1][the Proposal Document] (if any) (known as the “Initial Term”) and shall automatically extend for 12-months (known as the “Extended Term”) at the end of the Initial Term and at the end of each Extended Term. Either Redbrick or the Customer may give written notice to the other, not later than 3-months before the end of the Initial Term or the relevant Extended Term, to terminate the agreement at the end of the Initial Term or the relevant Extended Term, as the case may be. Where no minimum term is specified in [Schedule 1][the Proposal Document], then either party may terminate the agreement on [three] months’ notice to the other at any time.
14.2 Without prejudice to clause 14.1, the Supplier may terminate the agreement on three months’ notice to the Customer at any time.
14.3 Without affecting any other right or remedy available to it, either party may terminate the agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under the agreement on the due date for payment and remains in default not less than 7-days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of the agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
(c) 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 (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986); or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986; or (being a partnership) has any partner to whom any of the foregoing apply;
(d) 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 its creditors other than (being a company) 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;
(e) 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 (being a company, limited liability partnership or partnership) 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;
(f) 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 (being a company);
(g) the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(i) the other party (being an individual) is the subject of a bankruptcy petition, application or order;
(j) 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;
(k) 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 14.3(c) to clause 14.3(j) (inclusive); or
(l) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
(m) the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing their own affairs or becomes a patient under any mental health legislation.
14.4 Upon expiry or termination of the agreement for any reason, the Customer shall have the right to use the Software at the Site on a non-exclusive and “read only” basis provided:
(a) it notifies Redbrick in writing at least 14 days before the expiry or termination date that it wishes to use the Software on a “read only” basis; and
(b) it pays to Redbrick a fee of £25 plus VAT per calendar month (or part thereof) in which the Software is used on a “read only” basis. Such licence fee to be invoiced by Redbrick as soon as possible after the beginning of such calendar month and paid by the Customer in full and cleared funds within 7-days of the receipt of Redbrick’s invoice.
14.5 The provisions of these Conditions shall continue in full force whilst the Customer’s right to use the Software on a “read only” basis in clause 14.4 continues, except that the Customer’s licence in clause 3.1 shall cease to the extent it is not on a “read only” basis.
14.6 Subject to clause 14.7, the right to use the Software under clause 14.4 may be terminated by:
(a) Redbrick on 14-days written notice to the Customer; and
(b) by the Customer on notice to Redbrick.
14.7 Redbrick may without notice suspend or terminate the Customer’s right to use the Software on a “read only” basis if an invoice submitted by Redbrick under clause 14.4 is not paid by the due date for that invoice.
14.8 Any provision of these Conditions that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the agreement shall remain in full force and effect.
14.9 Termination or expiry of the 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 the agreement which existed at or before the date of termination or expiry.
14.10 On termination for any reason:
(a) all rights granted to the Customer under these Conditions shall cease;
(b) the Customer shall cease all activities authorised by these Conditions;
(c) the Customer shall immediately pay to Redbrick any sums due to Redbrick under the agreement; and
(d) the Customer shall immediately destroy or return to Redbrick (at Redbrick’s option) all copies of the Software then in its possession, custody or control and, in the case of destruction, certify to Redbrick that it has done so.
14.11 Any provision of these Conditions which expressly or by implication is intended to come into or continue in force on or after termination of these Conditions including clause 1, clause 9, clause 10 (except clause 10.1), clause 11, clause 14, and Schedules shall remain in full force and effect.
15.1 No failure or delay by a party to exercise any right or remedy provided under these Conditions or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
16.1 Except as expressly provided in these Conditions, the rights and remedies provided under these Conditions are in addition to, and not exclusive of, any rights or remedies provided by law.
17.1 The schedules, documents and papers: (a) annexed to these Conditions; (b) referred to in these Conditions; or (c) which otherwise indicate an acceptance of this Conditions by the Customer; contain the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.
17.2 Each party acknowledges that, in entering into the agreement and accepting these Conditions, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to these Conditions or not) (“Representation”) other than as expressly set out in these Conditions.
17.3 Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract.
17.4 Nothing in this clause shall limit or exclude any liability for fraud.
18.1 No variation of these Conditions shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
19.1 If any provision or part-provision of these Conditions 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 these Conditions.
19.2 If any provision or part-provision of these Conditions is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
20.1 A person who is not a party to the agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the agreement, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
21.1 Nothing in the 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.
21.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
22.1 Neither party shall be in breach of the agreement nor liable for delay in performing, or failure to perform, any of its obligations under these Conditions if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 30-days, the party not affected may terminate the agreement by giving 30-days written notice to the affected party.
23.1 Any notice given to a party under or in connection with these Conditions shall be in writing and shall be delivered by hand or by 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).
23.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; or
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.
23.3 This clause 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. For the purposes of this clause, “writing” shall not include e-mail.
24. Governing law and jurisdiction
24.1 The agreement 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.
24.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the agreement or its subject matter or formation (including non-contractual disputes or claims).