Terms and Conditions
Lockdown Cyber Security Limited Terms and Conditions
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 In these terms and conditions (these "T&Cs"):
1.1.1 "Additional Services" means any services which LCS provides in addition to the Services in accordance with Clause 4, as further detailed in the Quote or as set out in a Request;
1.1.2 "Agreement" means the contract between LCS and the Client for the supply of the Services comprising the Quote and these T&Cs;
1.1.3 "Applicable Law" means all applicable laws, statutes, regulations and codes from time to time in force;
1.1.4 "Automatic Renewal Term" has the meaning given to it in 9.2;
1.1.5 "Charges" shall have the meaning given to it at Clause 6.1;
1.1.6 "Client" means the party who signs the Quote to receive the Services;
1.1.7 "Confidential Information" means any information, however conveyed or presented, that relates to the business, affairs, operations, customers, processes, budgets, pricing policies, product information, strategies, developments, trade secrets, know-how, personnel or suppliers of the Disclosing Party including without limitation, any information gained in connection with this Agreement, together with all information derived by the Receiving Party from any such information and any other information clearly designated by the Disclosing Party as being confidential to it (whether or not it is marked "confidential"), or which ought reasonably be considered to be confidential;
1.1.8 "Commencement Date" means the commencement date set out in Quote;
1.1.9 "Completion Date" means the date falling twelve (12) months from the Commencement Date as set out in Quote or as otherwise agreed:
(a) in the Quote; and/or
(b) by any extension period(s) or Automatic Renewal Term unless this Agreement is terminated in accordance with Clause 9;
1.1.10 Controller, processor and personal data have the meanings as defined in the Data Protection Legislation;
1.1.11 "Data Protection Legislation" means the Data Protection Act 2018 or any successor legislation, and (for so long as and to the extent that the law of the European Union has legal effect in the UK) the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation relating to privacy;
1.1.12 "Disclosing Party" has the meaning given to it in Clause 12.1;
1.1.13 "Force Majeure Event" shall have the meaning given to it in Clause 15;
1.1.14 "Initial Term" means the duration of the Agreement from the Commencement Date up to and including the Completion Date plus any agreed extension period(s) unless this Agreement is terminated in accordance with Clause 9;
1.1.15 "Insolvency Event" occurs when:
(a) a Party becomes unable to pay its debts as they fall due or the value of its assets is less than the amount of its Liabilities taking into account its contingent and prospective Liabilities;
(b) in relation to a Party a statutory demand is served, a receiver is appointed or any insolvency procedure under the Insolvency Act 1986 is instituted or occurs or notice of intention to institute such a procedure is given;
(c) any order is made for, or there occur, proceedings constituting main proceedings in any member state of the European Union; or
(d) any analogous demand, appointment or procedure is instituted or occurs in relation to a Party elsewhere than in England and Wales,
1.1.16 "Liabilities" means each and every action, cost, claim, liability, expense or demand whatsoever and howsoever arising, incurred or suffered by the relevant party including without limitation all legal expenses and other professional fees (together with any VAT thereon);
1.1.17 "LCS" means Lockdown Cyber Security Limited (Company No: 12455375) whose registered address is at E-Innovation Centre, University Of Wolverhampton Telford Innovation Campus, Priorslee, Telford, Shropshire, England, TF2 9FT;
1.1.18 "LCS Personnel" means those staff, employees or personnel employed in any capacity by LCS (or any sub-contractor) who are wholly or mainly assigned to the provision of the Services (or any part of them) from time to time;
1.1.19 "Materials" means any documents, materials, data or information in any form (including without limitation computer programs, data, reports, specifications and drafts) provided by LCS in connection with the Agreement;
1.1.20 "Quote" means a quote executed by both Parties pursuant to this Agreement that sets forth the Charges, the Commencement Date, the Completion Date (if applicable), the Services, the Term, and other terms and conditions applicable to the provision of the Services;
1.1.21 "Parties" means LCS and the Client and Party shall be construed accordingly;
1.1.22 "Receiving Party" has the meaning given to it in Clause 12.1;
1.1.23 "Referral Fee" means the liquidated damages payable by the Client to LCS, calculated by reference to the sum equal to 40% of the relevant fees payable by the Client to LCS as part of the relevant Service;
1.1.24 "Request" means a request from the Client to LCS for the supply of Services and/or Additional Services in accordance with Clause 4;
1.1.25 "Services" means the services to be delivered by or on behalf of LCS under this Agreement more particularly set out in the Quote (or a Request, if agreed pursuant to Clause 4);
1.1.26 "Site" means any location where LCS or LCS Personnel are to provide the Services; and
1.1.27 "Term" means the Initial Term as set out in the Quote plus any Automatic Renewal Term unless this Agreement is terminated in accordance with Clause 9.
1.2 The headings in these T&Cs are inserted for convenience only and shall not affect the interpretation or construction of this Agreement.
1.3 Words imparting the singular shall include the plural and vice versa. Words imparting a gender include every gender and references to persons include an individual, company, corporation, firm or partnership.
1.4 The words and phrases "other", "including" and "in particular" shall not limit the generality of any preceding words or be construed as being limited to the same class as any preceding words where a wider construction is possible.
1.5 All references in these T&Cs to Clauses are to the clauses to these T&Cs unless otherwise stated.
2.1 These T&Cs shall apply to the Agreement, the Services and any Additional Services to the exclusion of all other terms and conditions which the Client purports to apply under any Quote, purchase order, document or which are implied by trade, custom, practice or course of dealing. No terms and conditions endorsed on, delivered with or contained in a Request, specification or other document shall apply to the Agreement simply as a result of such document being referred to.
2.2 In the event of and only to the extent of any conflict or ambiguity between the Quote and the T&Cs, the conflict shall be resolved in accordance with the following order of precedence:
2.2.1 the Quote; and
2.2.2 the T&Cs.
2.3 Variations to the Agreement shall only be effective if agreed in writing by Karen Morrall or William Taffe and the Client.
3.1 Subject to Clause 3.2, LCS agrees to use commercially reasonable endeavours to:
3.1.1 provide the Services:
(a) in accordance with the Agreement;
(b) in accordance with Applicable Law; and
(c) using all reasonable care, skill and diligence to be expected of an appropriately qualified and competent supplier experienced in carrying out equivalent services or services of a similar size, scope, complexity and value;
3.1.2 co-operate with the Client in all matters relating to the Services;
3.1.3 observe all health, safety and security requirements that apply to any Site (if any) and that have been communicated to LCS; and
3.1.4 ensure that LCS Personnel are suitably qualified, adequately trained and capable of providing the applicable Services in respect of which it is engaged;
3.2 LCS agrees to provide the Services provided that the Client:
3.2.1 ensures that all information which it provides to LCS, relevant to the Services or otherwise, is kept up-to-date, complete, accurate and adequate;
3.2.2 co-operates with LCS in all matters relating to the Services;
3.2.3 provides access, for LCS, its agents, sub-contractors, consultants and employees, to any Site (if any), in a timely (including but not limited to, all security codes and passes for any Site);
3.2.4 does not do or omit to do anything which may cause LCS to lose any licence, authority, consent or permission on which LCS relies for the purposes of conducting its business; and
3.2.5 complies with all Applicable Laws and regulation with respect to its activities under this Agreement.
3.3 Notwithstanding any other term of this Agreement, LCS shall not be treated as being in breach of this Agreement and shall not have any liability to the Client under this Agreement to the extent its performance of its obligations is prevented or delayed as a result of the Client’s failure to comply with its obligations and/or any other act or omission of the Client or its officers and employees.
3.4 Where LCS is not providing Services or has otherwise provided details of a service provider who is then engaged directly by the Client to provide any services, the suitability of such other service provider is a matter solely for the Client. LCS makes no representation or warranty about the suitability or capability of the service provider, and LCS shall not be liable for the work, advice or consultancy services provided by such service provider.
4 ADDITIONAL SERVICES
4.1 In the event that Additional Services are required, whether as a result of a Request from the Client or as agreed between the Parties, LCS shall provide the Additional Services subject to the parties entering into written confirmation of those services (including any changes to the Charges) and the further provisions of this Clause 4. Any references to Services in the Agreement shall be deemed to also apply to any Additional Services as the context so requires.
4.2 Any Quote for Additional Services issued by LCS is valid for a period of fourteen (14) days only from its date (or such longer period as it may state), although LCS may withdraw a quote at any time before it is accepted.
5.1 During the Term of the Agreement and for a period of twelve (12) months after it ends the Client shall not directly or indirectly solicit, contract with, receive any Services from, offer to employ or remunerate any LCS Personnel provided or introduced by LCS in connection the provision of the Services.
5.2 In the event that the Client does contract with, receive any Services from, employ or remunerate any LCS Personnel in contravention of Clause 5.1, the Client agrees to pay LCS the Referral Fee.
6 CHARGES AND PAYMENT
6.1 In consideration of the provision of the Services, LCS shall charge for the Services (the Charges) by reference to the Quote. Unless otherwise stated all Charges quoted by LCS are exclusive of VAT (or equivalent sales tax), which will be additionally payable by the Client upon receipt of a valid VAT invoice.
6.2 LCS will invoice the Client at any time during a particular month for any Additional Services provided or to be provided (where payment is required in advance) and for the Services to be provided during the following month(s).
6.3 The Client shall pay LCS’s invoices within seven (7) days of the date of the invoice, unless otherwise stated in the Quote.
6.4 LCS may increase its Charges during the Term:
6.4.1 if at any time its costs of supplying the Services increase as a consequence of:
(a) any change in Applicable Law provided always that no such increase shall take effect unless LCS has provided at least one month’s written notice of the proposed increase and the change in law that necessitates the increase; and/or
(b) a service provider, contractor, sub-contractor, consultant and/or agent involved in the provision of Services increases its costs of supplying the Services;
6.4.2 on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Consumer Prices Index from the Commencement Date or last anniversary (as the case may be), and the first such increase shall take effect on the first anniversary of the Commencement Date and shall be based on the latest available figure for the percentage increase in the Consumer Prices Index; and/or
6.4.3 at its sole discretion on three (3) months written notice to the Client.
6.5 No payment shall be deemed to have been received until LCS has received in full cleared funds. The Client shall make all payments due to LCS without any deduction, by way of set-off, counterclaim, discount, abatement or otherwise.
6.6 On termination or expiry of this Agreement for whatever reason, the Client shall pay to LCS all sums payable to LCS and, in respect of Services supplied for which no invoice has been submitted, LCS may submit an invoice, which shall be payable in accordance with this Clause 6.
6.7 Without prejudice to any other rights or remedy that it may have, if the Client fails to pay LCS in accordance with Clause 6.3, LCS may:
6.7.1 charge daily interest to the Client on any overdue amounts (whether formally demanded or not) at the rate of one and a half percent (1.5%) per month above the base lending rate of Barclays Bank plc for the time being in force, from the date when such amounts were due until the date of payment (before as well as after any judgment);
6.7.2 charge an administration fee and associated charges in respect of any enforcement should the debt be passed to a collection agency.
6.8 If the Client acting in good faith disputes part of an invoice only it shall nonetheless pay the undisputed part.
7 SUSPENSION OF SERVICES
7.1 LCS reserves the right (acting reasonably and in good faith) to suspend all or any of the Services without prejudice to LCS's or the Client's rights pursuant to Clause 9 and provided always that, save as expressly set out below or prescribed elsewhere in the Agreement, LCS gives the Client as much prior written notice of such suspension as is reasonably possible to give in the relevant circumstances, if:
7.1.1 the Client is in material breach of its obligation to pay undisputed Charges by giving the Client fourteen (14) days' written notice specifying the breach and requiring the remedy;
7.1.2 the Client is in material breach of Clauses 3.2.4, 3.2.5, 5, 11, 12 and 15;
7.1.3 LCS (or its sub-contractor(s)) is obliged to comply with an order, instruction or request of Government, Court, law enforcement agency or other competent administrative or regulatory authority; or
7.1.4 this Agreement has expired and/or terminated in accordance with Clause 9 (due to the Client's insolvency).
7.2 Subject to Clause 7.3, LCS will end any such suspension as soon as possible after the event or circumstance requiring the suspension has ceased.
7.3 In the event that LCS suspends any Services as a result of the Client's non-payment pursuant to Clause 7.1.1 above, LCS will reinstate the Services upon the Client having paid all undisputed overdue sums (plus any applicable interest and reasonable re- instatement costs incurred by LCS) to LCS where such breach relates to the Client's failure to pay or late payment of Charges.
7.4 Any suspension of the Services pursuant to this Clause 7 shall not constitute a waiver of any of LCS's rights of termination.
7.5 Without prejudice or limitation to any of the Client's rights at law, suspension shall not affect the Client's liability to pay any Charges and other amounts due to LCS under the Agreement.
8 LIMITATION OF LIABILITY
8.1 Subject to Clause 8.1.2:
8.1.1 LCS's total liability to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this Agreement shall be limited to the lower of: one million pounds (£1,000,000); or the total amount of Charges paid by the Client under this Agreement at the date that the liability arose and the Client acknowledges that without this limitation LCS's fees would have been higher; and
8.1.2 neither Party to the Agreement will be liable to the other Party, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any special, indirect or consequential losses including but not limited to:
(a) loss of bargain;
(b) loss of profit or loss of anticipated savings;
(c) loss of production;
(d) loss of business or loss of business opportunity;
(e) loss of revenue;
(f) loss of use;
(g) loss of goodwill;
(h) loss of anticipated saving; and/or
(i) loss or corruption of data or information,
or for any indirect or consequential loss or damage whatsoever or however cause or arising, and the Parties intend that each type of loss under this Clause 8.1.2 shall be severable in accordance with Clause 16.6.
8.2 Nothing in this Agreement shall:
8.2.1 exclude or limit the liability of either Party for death or personal injury resulting from its negligence;
8.2.2 shall limit or exclude the Client's liability under the Agreement; or
8.2.3 limit the Client's liability to pay the Charges.
8.3 In the event that any property of the Client, whether at the Site or otherwise, is damaged by LCS or its service providers, contractors, subcontractors, consultants and/or agents in the course of providing the Services, the Client shall indemnify LCS in full against all liabilities, costs, expenses, damages and losses including any professional costs and expenses) suffered or incurred by LCS arising out of or in connection with any such damage to the Client's property.
8.4 Except as set out in these T&Cs, all warranties, clauses and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement.
9 TERM AND TERMINATION
9.1 This Agreement shall be deemed to have commenced on the Commencement Date set out in the Quote and shall continue for the duration of the Initial Term unless and until terminated earlier in accordance with the terms of this Agreement.
9.2 After the Initial Term, this Agreement shall be deemed renewed automatically each year for an additional one (1) year period or such other period as set out in the Quote (an Automatic Renewal Term) unless this Agreement is terminated earlier in accordance with the terms of this Agreement.
9.3 Either Party may terminate the Agreement with immediate effect by notice if:
9.3.1 the other Party: is in material breach of the Agreement (and if such breach is remediable) fails to remedy such breach within 30 days of written notice requiring the specified breach to be remedied; or
9.3.2 the other Party becomes subject to an Insolvency Event.
9.4 The Customer may terminate the Agreement on the Completion Date or at the end of any subsequent Renewal Term by giving LCS at least three (3) months' written notice prior to the expiry of the Initial or Renewal Term (as applicable).
9.5 LCS may terminate this Agreement at any time on three months’ written notice.
10 EFFECT OF TERMINATION
10.1 On the termination or expiry of this Agreement:
10.1.1 the Client will promptly return to LCS any property, or Materials provided by LCS. If the Client fails to do so, then LCS may enter the Client's premises and take possession of them. Until they have been delivered or returned, the Client shall be solely responsible for the safe keeping of the property and/or Materials in its possession and will not use them for any purpose not connected with this Agreement;
10.1.2 LCS will promptly return to the Client any property or materials provided by the Client; and
10.1.3 the Receiving Party under Clause 12 shall return or destroy (at the Disclosing Party's request) any Confidential Information and shall certify to the Receiving Party upon request that it has not retained any copies of the Receiving Party’s Confidential Information.
10.2 If LCS provides any Services after the termination of the Agreement, then the Client shall be liable to pay for them in accordance with Clause 6 save for the Charges shall be calculate on a time and material basis at LCS's standard rates.
10.3 The Parties shall have no further obligations or rights under this Agreement after it has expired or been terminated, without prejudice to any obligations or rights which have accrued to either Party at the time of termination save that Clauses 1 (Definitions and Interpretation), 2 (Quote), 5 (Non-Solicitation), 8 (Limitation of Liability), 10 (Effect of Termination), 11 (Data Protection), 12.1 (Confidentiality), 14 (Insurance) and 16 (General) (together with those other Clauses, the survival of which is necessary for the interpretation or enforcement of this Agreement) shall survive the termination for any reason or expiry of this Agreement.
11 DATA PROTECTION
11.2 The Client warrants that it has all necessary consents and authority to provide any personal data that it shares with LCS.
11.3 Either Party may, at any time on not less than 30 days' notice, revise this Clause 11 by replacing it with any applicable Controller to Processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Agreement).
12.1 Each Party (the Receiving Party) shall keep confidential any Confidential Information of the other Party (the Disclosing Party) disclosed to it in connection with the Services, and shall only use such information as strictly necessary for the purposes of performing their obligations and exercising their rights under this Agreement provided that this obligation shall not apply to Confidential Information which:
12.1.1 the Receiving Party can prove was in its possession or in the public domain at the date it was received or obtained; or
12.1.2 the Receiving Party lawfully or properly obtains without obligation of confidentiality; or
12.1.3 comes into the public domain otherwise than through the default or negligence of the Receiving Party; or
12.1.4 was independently developed by the Receiving Party without reference to the Confidential Information of the Disclosing Party; or
12.1.5 with the prior consent of the Disclosing Party (such consent not to be unreasonably withheld or delayed) is disclosed to obtain or maintain any listing on any recognised stock exchange; or
12.1.6 is required to be disclosed to a court or a body having similar authority provided that the Disclosing Party is given prompt notice and, at the Disclosing Party’s request and expense, the Receiving Party uses reasonable endeavours to obtain a protective order and otherwise to protect the Confidential Information.
12.2 A Party shall be entitled to disclose Confidential Information to those of its officers, employees, service providers, agents, subcontractors and contractors who need to know the same for the purposes of the performing the Services and shall ensure that such parties are bound by an undertaking in substantially the same terms as this Clause 11.112.
13 INTELLECTUAL PROPERTY
All intellectual property rights in the Materials belong to LCS and the Client is only permitted to make use of the Materials in the receipt of the Services.
Without prejudice to its express obligations under this Agreement, LCS shall effect and maintain with a reputable insurance company appropriate insurance policies providing an adequate level of cover, at a minimum five hundred thousand pounds (£500,000) per event, in respect of all risks which may be incurred by LCS arising out of its performance of this Agreement, including death or personal injury, loss of or damage to property or any other loss. LCS shall on request produce evidence satisfactory to the Client that it is complying with its obligations under this Clause 14.
15 FORCE MAJEURE
15.1 If either Party is prevented or delayed in the performance of any of its obligations under the Agreement (other than an obligation to pay money) due to circumstances outside its reasonable control including, without limitation, COVID-19, acts of God, governmental actions, war or national emergency, riot, civil commotion, acts of terrorism, fire, explosion, flood, pandemic, epidemic or any disaster, lock-outs, strikes or other labour disputes failures in utility supply, supplier failures, systems interruption, power surges, network unavailability, equipment failures, virus attack and any comparable circumstances (Force Majeure Event), it shall have no liability in respect of the performance of such of its obligations as are prevented by such circumstances whilst they continue and for such time after they cease as is necessary for it, using all reasonable endeavours, to recommence its affected operations in order for it to perform its obligations.
15.2 If either Party is prevented from performing its obligations under this Agreement for a period of more than ninety (90) days the Party which is not first affected by the Force Majeure Event may, without prejudice to any other rights, give notice to the affected party to terminate this Agreement.
16.1 This Agreement is personal to the Client and the Client may not assign, transfer, sub- contract or dispose of all or any part of its rights or obligations under this Agreement without LCS's prior written consent. LCS may at any time assign, transfer, sub-contract or dispose of all or any part of its rights under this Agreement, provided that it gives prior written notice of such dealing to the Client.
16.2 The Agreement constitutes the entire agreement between the parties. Each Party acknowledges and agrees that in entering into the Agreement, it has not and does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made).
16.3 The failure or the delay by either Party in enforcing or partially enforcing any provision on the Agreement will not constitute a waiver of any of its rights under the Agreement.
16.4 Any notice under the Agreement shall be in writing and sent (i) by first class post to the correspondence address of the Party set out in the Quote or (ii) sent by email to the address set out in the Quote (as such addresses may change from time to time as notified by a party to the other Party).
16.5 Notices shall be deemed to have been received in the case of notice by hand, on delivery, by post, on the second day after the day of posting and in the case of notice by email, on receipt. Clause 16.4 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.
16.6 If any provision (or part of) of the Agreement is found to be wholly or partly unenforceable it shall to the extent of such unenforceability be deemed severable and the remaining provisions of the Agreement and the remainder of such provision (or part of) shall continue in full force and effect with the minimum modification necessary to make it enforceable.
16.7 Subject to Clause 16.1 neither Party intends any of the terms of the Agreement to be enforceable by any third party pursuant to The Contracts (Rights of Third Parties) Act 1999.
16.8 The Agreement and these T&Cs shall be governed by and construed in accordance with the laws of England, and the parties submit to the exclusive jurisdiction of the English courts.