GAPGNX LIMITED

Terms of Business

THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 14 (LIMITATION OF LIABILITY).

1. INTERPRETATION

The following definitions and rules of interpretation apply in these Terms of Business.

1.1 Definitions:

“Applicable Laws” means all applicable laws, statutes, regulations from time to time in force.
“Business Day” means a day other than a Saturday, Sunday bank or public holiday in England, when banks in London are open for business.
“Business Hours” means the period from 9.00 am to 5.00 pm on any Business Day.
“Charges” means the charges payable by the Customer for the supply of the Services in accordance with clause 12 (such charges to be notified to the Customer by GAP GNX in the Proposal or otherwise in writing from time to time) (including, where applicable, all charges for any additional services undertaken by GAP GNX in accordance with clause 3.1 and any support and maintenance fees payable pursuant to clause 8.2).
“Commencement Date” means has the meaning given to it in clause 2.2.
“Contract” means the contract between the Customer and GAP GNX for the supply of the Services in accordance with the Proposal and these Terms of Business.
“Control” means has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
“Customer IPRs” means has the meaning given to it in clause 11.1.
“Customer Materials” means all documents, information, items and materials in any form, whether owned by the Customer or a third party, which are provided by or on behalf of the Customer to GAP GNX in connection with the Services, including any Website Materials supplied by the Customer (as defined in clause 8.1(c)), any computer data, Intellectual Property Rights, social media platform login details, artwork, logos and branding.
“Data Protection Legislation” means the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications) and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.
“Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
“Order” means the Customer’s verbal or written order for Services.
“Proposal” means the document issued by GAP GNX to the Customer in respect of the Services, incorporating the Specification.
“Services” means the services to be supplied by GAP GNX to the Customer as set out in the Proposal (as may be amended from time to time) together with any additional services which may be provided by GAP GNX from time to time pursuant to clause 3.1 that GAP GNX agrees to perform from time to time (as further described in writing by GAP GNX).
“Specification” means the description or specification of the Services as set out in the Proposal (or otherwise in writing by GAP GNX).
“GAPGNX” means GAP GNX Limited (CRN: 12013134) whose registered office is at The Glades, Festival Way, Festival Park, Stoke on Trent, ST1 5SQ
“GAP GNX IPRs” means all Intellectual Property Rights subsisting in the Works other than any Customer Materials incorporated in them.
“Terms of Business” means these terms and conditions set out in clause 1 (Interpretation) to clause 17 (General) (inclusive).

“UK Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
“VAT” means value added tax chargeable in the UK.
“Website” means the website at the URL specified in the Proposal or otherwise specified by GAP GNX in writing.
“Works” means all materials developed by GAP GNX or its agents, subcontractors and personnel as part of or in relation to the Services in any form including all Intellectual Property Rights incorporated therein (but excluding any GAP GNX IPRs).

1.2 Interpretation:

The words controller, processor, data subject, personal data, personal data breach, processing and appropriate technical measures shall have the meanings ascribed to each of the them in the Data Protection Legislation.

A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision includes any subordinate legislation made from time to time under that statute or statutory provision.
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. (d) A reference to writing or written includes email but not fax.

(e) The terms of the Proposal and these Terms of Business apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

1.3 Order of precedence. If there is any conflict or ambiguity between the terms of the Contract, the following order of priority shall apply.

2. BASIS OF CONTRACT

2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with the Contract.

2.2 The Order shall only be deemed to be accepted when GAP GNX issues a Proposal (or such other written acceptance of the Order) or, if earlier, the date upon which GAP GNX commences any part of the Services, at which point and on which date the Contract shall come into existence (Commencement Date).

2.3 Any samples, drawings, descriptive matter or advertising issued by GAP GNX, and any descriptions or illustrations contained in GAP GNX’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.

2.4 The Proposal and these Terms of Business apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.

2.5 Any quotation given by GAP GNX shall not constitute an offer, and is only valid for a period of 30 days from it’s date of issue.

3. CHANGES TO THE SERVICES

3.1 During the term of the Contract, the Customer may from time to time request (in writing) an amendment to the scope or nature of (all or part of) the Services (including, but not limited to, any revisions, alterations or amendments to the Works).

3.2 Where GAP GNX agrees (in its sole discretion) to the amendment to the scope or nature of the Services, GAP GNX will:

confirm in writing the new scope of the Services subject to the Customer’s request; and
notify the Customer in writing of the relevant Charges payable for the provision of such Services.

3.3 The Customer shall notify to GAP GNX its acceptance or rejection (as the case may be) of the revised scope submitted by GAP GNX. In the event that the Customer accepts the revised scope, the provision of the Services that has been amended shall continue to be governed by these Terms of Business. If the Customer does not reply in 3 days to reject the revised scope then the Customer will be deemed to have accepted the Charges.

4. GAP GNX OBLIGATIONS

4.1 GAP GNX shall:

supply the Services to the Customer in accordance with the Specification in all material respects;
perform the Services with reasonable care and skill;
use reasonable endeavours to perform the Services in accordance with the terms of the Contract; and
comply with all applicable laws, statutes and regulations from time to time in force provided that GAP GNX shall not be liable under the Contract if, as a result of such compliance, it is in breach of any of its obligations under the Contract.
GAP GNX may from time to time provide an estimated time for completion of the Services and shall use reasonable endeavours to meet any performance dates specified by GAP GNX in writing but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
GAP GNX reserves the right to amend the Specification if necessary to comply with any Applicable Laws or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and GAP GNX shall notify the Customer in any such event.

5. CUSTOMER’S OBLIGATIONS

5.1 The Customer shall:

ensure that the terms of the Order and any information it provides in the Specification are complete and accurate;
co-operate with GAP GNX in all matters relating to the Services;
provide, for GAP GNX, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Customer’s premises, office accommodation, data and other facilities as required by GAP GNX (including any relevant third party software, servers, websites and codebases);
if Services are to be performed on-site, prepare the Customer’s premises for the supply of the Services;
obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
comply with any additional obligations as set out in the Proposal, Specification, or otherwise notified to the Customer in writing by GAP GNX from time to time;
provide, in a timely manner, such information as GAP GNX may require, and ensure that it is accurate and complete in all material respects;
comply with the licence terms governing the use of any third party software or websites which are relevant to the provision of the Services; and

5.2 If GAP GNX’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, GAP GNX shall:

not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay;
be entitled to payment of the Charges despite any such prevention or delay; and
be entitled to recover any additional costs, charges or losses GAP GNX sustains or incurs that arise directly or indirectly from such prevention or delay.

5.3 The Customer acknowledges that GAP GNX’s ability to provide the Services is dependent upon the full and timely co-operation of the Customer (which the Customer agrees to provide), as well as the accuracy and completeness of any Customer Materials, information and data the Customer provides to GAP GNX. Accordingly, the Customer shall provide GAP GNX with access to, and use of, all information, data and documentation reasonably required by GAP GNX for the performance by GAP GNX of its obligations under the Contract.

6. CUSTOMER MATERIALS

6.1 The Customer shall be responsible for the accuracy and completeness of all Customer Materials and for ensuring such Customer Materials do not infringe any applicable laws, regulations or third party rights (including any third party’s Intellectual Property Rights).

6.2 The Customer shall ensure that the Customer Materials are not obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous (Inappropriate Content).

6.3 GAP GNX shall be entitled, at its own discretion, to reject any Customer Materials that it reasonably considers do not comply with the provisions of clauses 6.1 and/or 6.2.

7. WEBSITE DESIGN AND DEVELOPMENT

The following terms apply where Website design and development services are provided as part of the Services.

7.1 In this clause 7, the following definitions shall apply:

“Acceptance” means the acceptance or deemed acceptance of the Website by the Customer pursuant to this clause 7.
“Acceptance Tests” means the tests to be carried out on the Website as set out in this clause 7 and as further described in the Proposal (or otherwise in writing by GAP GNX from time to time).
“Heightened Cybersecurity Requirements” means any laws, regulations, codes, guidance from regulatory and advisory bodies (whether mandatory or not), international and national standards, industry schemes and sanctions, which are applicable to the Customer relating to security of network and information systems and security breach and incident reporting requirements, which may include the Cybersecurity Directive ((EU) 2016/1148), Commission Implementing Regulation ((EU) 2018/151), the Network and Information systems Regulations 2018 (SI 506/2018), all as amended or updated from time to time.
“Non-Supplier Defects” means those defects described in clause 7.5.
“Website Specification” means the specification for the Website set out in the Proposal or otherwise agreed in writing by the parties.
“Third Party Products” means any third-party software products relevant to the Website and/or provision of the Services.
“Vulnerability” means a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.
- Once GAP GNX has completed the design and development of the Website, GAP GNX shall run the Acceptance Tests.
- The Acceptance Tests shall test compliance of the Website with the Website Specification. The form and detail of such tests is set out in the Proposal (or will otherwise be set out in writing by GAP GNX).
- Acceptance of the Website shall occur when the Website has passed the Acceptance Tests. GAP GNX shall notify the Customer when the tests have been passed and provide the results of the Acceptance Tests to the Customer in writing upon request.
- If any failure to pass the Acceptance Tests results from a defect which is caused by an act or omission of the Customer, or by one of the Customer’s sub-contractors or agents for whom GAP GNX has no responsibility (Non-Supplier Defect), the Website shall be deemed to have passed the Acceptance Tests not withstanding such Non-Supplier Defect. GAP GNX shall provide assistance as reasonably requested by the Customer in remedying any Non-Supplier Defect by supplying additional services or products. The Customer shall pay GAP GNX in full for all such additional services and products at GAP GNX’s then current fees and prices.
- Acceptance of the Website shall be deemed to have taken place upon the occurrence of any of the following events:
the Customer uses any part of the Website for any revenue-earning purposes or to provide any services to third parties other than for test purposes; or
the Customer unreasonably delays the start of the relevant Acceptance Tests or any retests for a period of seven working days from the date on which GAP GNX is ready to commence running such Acceptance Tests or retests.
- The Third Party Products shall be supplied in accordance with the relevant licensor’s standard terms. The one-off licence fee for such Third Party Products is not included in the Charges.
- GAP GNX does not warrant that:
the Customer’s use of the Third Party Products, the Services or the Website will be uninterrupted or error-free;
the Services or the Website will be free from Vulnerabilities; or
the Services or the Website will comply with any Heightened Cybersecurity Requirements.
- For the avoidance of doubt, all Intellectual Property Rights in the Website shall vest in the Customer in accordance with clause 11.
- GAP GNX may include the statement “Designed by GAP GNX Limited” on the home page of the Website in a form to be agreed by the Customer, acting reasonably.

8. HOSTING

The following terms apply where hosting services are provided as part of the Services.

8.1 In this clause 8, the following definitions shall apply:

“Server” means a computer server administered by Springtide.
“Visitor” means a visitor to the Website.
“Website Materials” means the content provided to GAP GNX by the Customer from time to time for incorporation in the Website.
- The Customer shall be responsible for the accuracy and completeness of the Website

Materials.

GAP GNX shall include only the Website Materials on the Website. The Customer acknowledges that GAP GNX has no control over any content placed on the Website by Visitors and does not purport to monitor the content of the Website. GAP GNX reserves the right to remove content from the Website where it reasonably suspects such content is Inappropriate Content (as defined in clause 6.2). GAP GNX shall notify the Customer promptly if it becomes aware of any allegation that any content on the Website may be Inappropriate Content.
The Customer shall indemnify GAP GNX against all damages, losses and expenses arising as a result of any action or claim that the Website Materials constitute Inappropriate Content.
GAP GNX may include the statement “Powered by GAP GNX” on the home page of the Website in a form to be agreed by the Customer, acting reasonably.

9. SUPPORT AND MAINTENANCE

The following terms apply where Website support and maintenance services are provided as part of the Services.

9.1 In this clause 9, the phrase “Support and Maintenance Specification” shall mean the support and maintenance packages to be provided by GAP GNX to the Customer services, as further described in the Proposal (or otherwise in writing from time to time by GAP GNX).

9.2 GAP GNX shall supply the support and maintenance services to the Customer in accordance with the Support and Maintenance Specification in all material respects.

9.3 GAP GNX’s fees for providing the support and maintenance services are not included in the Charges and are as set out in the Proposal (or otherwise in writing by GAP GNX). Such fees shall be payable by the Customer in accordance with clause 12 of the Terms of Business in consideration for GAP GNX providing the support and maintenance services.

9.4 If additional on-site support is required as part of the Services, it may be provided by GAP GNX at its option. The associated Charges for such support shall be notified to the Customer in writing by GAP GNX.

9.5 GAP GNX shall have no obligation to provide the support and maintenance services where faults arise from:

misuse, incorrect use of or damage to the Website from whatever cause (other than any act or omission by GAP GNX), including failure or fluctuation of electrical power;
failure to maintain the necessary environmental conditions for use of the Website;
use of the Website in combination with any equipment or software not provided by GAP GNX or any fault in any such equipment or software; (d) any modification not authorised by GAP GNX; or (e) operator error.

9.6 Where support and maintenance are offered but the Customer fails to pay that specific bill and the website fails, GAP GNX cannot be held responsible – hosting and maintenance are separate entities and are not the same thing. If a hosting bill has been paid by the Customer but the maintenance bill has not been paid by the Customer, support and maintenance are not covered.

10. ACCEPTANCE AND DEFECTIVE WORKS

10.1 The Customer may reject any Works that do not materially conform with the Specification, are not of satisfactory quality (within the meaning of the Sales of Goods and Services Act 1982, as amended) and, are not fit for any purpose held out by GAP GNX in writing, provided that:

written notice of the rejection is given to GAP GNX within 5 days of the relevant Works being delivered to the Customer; and
GAP GNX is given a reasonable opportunity to investigate the allegation made by the

Customer as to the Works’ failure to comply with clause 10.1.

If the Customer fails to give notice of rejection in accordance with clause 10.1, the Customer shall be deemed to have accepted the Works. The Customer shall not be entitled to reject the Works if the failure to comply with clause 10.1 arises as a result of GAP GNX following any drawing, design or Specification supplied by the Customer.
If the Customer rejects Works under clause 10.1 then, provided that GAP GNX agrees that the Works do not comply with clause 10.1, the Customer shall be entitled to:
first, require GAP GNX to revise or replace the rejected Works; and
only after GAP GNX has been given a reasonable opportunity to rectify the Works under Error! Reference source not found.Error! Reference source not found., require GAP GNX to repay the Charges associated with the rejected Works.
- Once GAP GNX has complied with the Customer’s request, it shall have no further liability to the Customer for the rejected Works’ failure to comply with clause 10.1.
- The terms of the Contract shall apply to any replacement or revised Works supplied by GAP GNX.

11. INTELLECTUAL PROPERTY

11.1 Subject to the remaining provisions of this clause 11, and subject to GAP GNX receiving payment of all Charges, unless GAP GNX states otherwise in writing, on completion of the Services, all Intellectual Property Rights in the Works, shall vest in the Customer (to the extent legally permissible and subject to any third party rights existing in such Works). The Client hereby grants to GAP GNX a fully paid-up, irrevocable, worldwide, non-exclusive, royalty-free, perpetual licence to copy, use and modify the Works in Springtide’s business (including for marketing and promotional purposes).

11.2 The Customer and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials. The Customer hereby grants GAP GNX (and its relevant subcontractors) a fully paid-up, worldwide, non-exclusive, royalty-free licence to copy, use and modify the Customer Materials and all other Intellectual Property Rights owned by the Customer (or its licensors) (Customer IPRs) for the term of the Contract for the purpose of providing the Services in accordance with the Contract.

11.3 Notwithstanding clause 11.1, GAP GNX and its licensors shall retain ownership of the GAP GNX IPRs and the Client shall not acquire rights in the GAP GNX IPRs whatsoever. If the Client acquires, by operation of law, title to any such GAP GNX IPRs it shall assign them to GAP GNX on request, whenever that request is made.

11.4 The Customer shall indemnify GAP GNX in full for all loss, damage, costs, expense, losses and liabilities incurred or suffered by GAP GNX arising of or in connection with any claim brought against GAP GNX for infringement of a third party’s rights (including any Intellectual Property Rights) arising out of, or in connection with, the receipt or use of the Customer Materials and/or Customer IPRs by GAP GNX.

12. CHARGES AND PAYMENT

12.1 In consideration for the provision of the Services the Customer shall pay to GAP GNX the Charges in accordance with this clause 12.

12.2 Where the Charges are calculated on a time and software licence basis:

the Charges shall be calculated in accordance with GAP GNX’s daily fee rates as set out in the Proposal (or otherwise notified to the Customer in writing by GAP GNX or, in the absence of which, as set out in GAP GNX’s current price list as at the date of the Contract);
GAP GNX’s daily fee rates are calculated on the basis of an eight-hour day, worked during Business Hours;
GAP GNX shall be entitled to charge an overtime rate of 50% of the daily fee rate on a pro rata basis for any time worked by individuals whom it engages on the Services outside Business Hours.
- Unless otherwise agreed to in writing by GAP GNX, the Customer shall pay 50% of the Charges in advance of the Services being performed. All other Charges payable by the Customer shall be payable within 5 working days of the date of each invoice submitted by GAP GNX from time to time, to a bank account nominated in writing by GAP GNX. Time for payment is of the essence.
- The Charges shall exclude the following which shall be payable by the Customer monthly in advance following submission of an invoice by GAP GNX:
expenses reasonably incurred by the individuals whom GAP GNX engages in connection with the Services (including travelling expenses, hotel costs, subsistence and any ancillary expenses);
the cost to GAP GNX of any materials and/or services and/or software provided by third parties and required by GAP GNX for the performance of the Services;
the costs of, or associated with, any advertising carried out by GAP GNX on the Customer’s behalf, including on any social media platform; and

the costs associated with any rectification works performed by GAP GNX on or in connection with any Customer Materials that are not suitable for use in connection with the Services;
the costs arising from, or associated with, the Customer’s delay in providing any information requested by GAP GNX or otherwise complying with its obligations under the Contract.

12.5 All sums payable under the Contract by the Customer to GAP GNX:

are exclusive of any VAT or any other sales tax or duties, which, where applicable, shall be payable by the Customer to GAP GNX in addition;
shall be paid in full and in cleared funds to the bank account nominated in writing by GAP GNX; and
shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

12.6 If the Customer fails to make any payment due to GAP GNX under the Contract by the due date for payment, then, without limiting GAP GNX’s remedies under clause 15:

the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 5% a year above the Bank of England’s base rate from time to time, but at 5% a year for any period when that base rate is below 0%; and
GAP GNX may suspend all (or any part of) the Services until payment has been made in full.

12.7 GAP GNX reserves the right to increase the Charges on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index in the preceding 12-month period 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 Retail Prices Index.

13. DATA PROTECTION

13.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 13.1 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.

13.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller and GAP GNX is the processor.

13.3 Without prejudice to the generality of clause 13.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to GAP GNX for the duration and purposes of the Contract.

13.4 Without prejudice to the generality of clause 13.1, GAP GNX shall, in relation to any personal data processed in connection with the performance by GAP GNX of its obligations under the Contract:

process that personal data only on the documented written instructions of the Customer unless GAP GNX is required by Applicable Law to otherwise process that personal data. Where GAP GNX is relying on the laws of a member of the European Union or European Union law as the basis for processing personal data, GAP GNX shall promptly notify the Customer of this before performing the processing required by the Applicable Law unless the Applicable Law prohibits GAP GNX from so notifying the Customer;

ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
not transfer any personal data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
- the Customer or GAP GNX has provided appropriate safeguards in relation to the transfer;
- the data subject has enforceable rights and effective legal remedies;
- GAP GNX complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
- GAP GNX complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;
assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
notify the Customer without undue delay on becoming aware of a personal data breach;
at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the personal data; and
maintain complete and accurate records and information to demonstrate its compliance with this clause 13 and immediately inform the Customer if, in the opinion of GAP GNX, an instruction infringes the Data Protection Legislation. 13.5 The Customer consents to GAP GNX appointing third party processors (details of which are available on request) of Personal Data under this Contract. GAP GNX confirms that if specifically requested by the Customer it will enter with each third party processor a written agreement which GAP GNX confirms will reflect the requirements of the Data Protection Legislation. As between the Customer and GAP GNX, GAP GNX shall remain fully liable for all acts or omissions of any third party processor appointed by it pursuant to this clause 13.
- GAP GNX may, at any time on not less than 30 days’ notice, revise this clause 13 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme.
- The Customer shall indemnify GAP GNX in respect of all loss, and damage, cost, expense (including legal fees), administrative sanction, fine, penalty, action or other liability that GAP GNX incurs as a result of the Customer’s breach of this clause 13 and/or Data Protection Legislation and in particular, without limiting the foregoing, the Customer shall indemnify GAP GNX in respect of all loss and, damage, cost, expense (including legal fees), administrative sanction, fine, penalty, action or other liability incurred as a result of any: (a) enquiry or complaint by a data subject;

enquiry or investigation by the Information Commissioner’s Office or such other organisation carrying out the same or similar functions as in place at the relevant time; or
claim or action brought by any third party against GAP GNX, in respect of processing under the Contract.

14. LIMITATION OF LIABILITY

14.1 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:

death or personal injury caused by negligence;
fraud or fraudulent misrepresentation; and
breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
- Subject to clause 14.1, GAP GNX’s total liability to the Customer in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract occurring within any 12-month period commencing with the Commencement Date or any anniversary of it shall not exceed one hundred and twenty five per cent (125%) of the total sums paid and payable under the Contract in respect of the Services actually supplied by GAP GNX, whether or not invoiced to the Customer, in the contract year in which the breaches occurred.
- The restrictions on liability in this clause 14 apply to every liability arising under or in connection with the Contract including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
- Subject to clause 14.1, GAP GNX shall not be liable to the Customer for any of the following types of loss:
loss of profits (whether direct, indirect or consequential);
loss of sales or business (whether direct, indirect or consequential);
loss of agreements or contracts (whether direct, indirect or consequential);
loss of anticipated savings (whether direct, indirect or consequential);
loss of use or corruption of software, data or information (whether direct, indirect or consequential);
loss of or damage to goodwill (whether direct, indirect or consequential); and (g) indirect or consequential loss.
GAP GNX has given commitments as to compliance of the Services with relevant specifications in clause Error! Reference source not found., In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract
This clause 14 shall survive termination of the Contract.

15. TERM AND TERMINATION

15.1 The Contract shall commence on the Commencement Date and shall continue until terminated in accordance with clause 15.2 or clause 15.3.

15.2 Without affecting any other right or remedy available to it, either party may terminate the Contract (or any part of the Services):

if GAP GNX, without cause by giving to the Customer at least 30 days’ written notice;
if the Customer, without cause by giving to GAP GNX at least 30 days’ written notice; or
with immediate effect by giving written notice to the other party if:
- the other party commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
- the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
- the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
- the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

15.3 Without affecting any other right or remedy available to it, GAP GNX may terminate the Contract, or any part of the Services, with immediate effect by giving written notice to the Customer if:

the Customer fails to pay any amount due under the Contract on the due date for payment; or
there is a change of Control of the Customer.

15.4 In the event that the Services are terminated in part pursuant to clause 15.3, GAP GNX shall continue to provide the remaining Services in accordance with the terms of the Contract.

16. CONSEQUENCES OF TERMINATION

16.1 Unless terminated by GAP GNX in accordance with any of the provisions of clause 15.2(c), GAP GNX shall complete (insofar that it is able to during the notice period) all Services that are in progress as at the date of termination.

16.2 On termination or expiry of the Contract for whatever reason:

the Customer shall immediately pay to GAP GNX all of GAP GNXs outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, GAP GNX may submit an invoice, which shall be payable immediately on receipt;
GAP GNX will (at the Customer’s cost) use reasonable endeavours to procure the transfer of a domain name to the Customer (where applicable);
any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.

16.3 Termination or expiry of the Contract shall not affect any of the 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 Contract which existed at or before the date of termination or expiry.

17. GENERAL

17.1 Force Majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control (Force Majeure Event). The Customer’s inability to pay, or circumstances leading up to such inability to pay, does not constitute a Force Majeure Event.

17.2 Assignment and other dealings.

The Customer shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract without GAP GNX’s prior written consent.
GAP GNX may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under the Contract.

17.3 Confidentiality.

Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, Customers or suppliers of the other party or of any member of the group to which the other party belongs, except as permitted by clause 17.3. For the purposes of this clause 17.3, group means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.
Each party may disclose the other party’s confidential information:
- to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 17.3; and
- as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
Neither party shall use any other party’s confidential information for any purpose other than to perform its obligations under the Contract.

17.4 Entire agreement.

The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
Each party acknowledges that in entering into the Contract it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract.

Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
- If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or partprovision shall be deemed deleted. Any modification to or deletion of a provision or partprovision under this clause 17.7 shall not affect the validity and enforceability of the rest of the Contract.

Any notice given to a party under or in connection with the Contract 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); or
- sent by email to: (i) if to GAP GNX: peter@gapgnx.com; or (ii) if to the Customer: the email address specified in the Proposal or any other email address held on GAP GNX’s file from time to time.

Any notice shall be deemed to have been received:
- if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
- if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and
- if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
This clause 17.8 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.

17.9 Third party rights.

The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

17.10 Counterparts.

The Contract may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
Transmission of an executed signature page of a counterpart of the Contract by email (in PDF, JPEG or other agreed format) shall take effect as delivery of an executed counterpart of the Contract. If either method of delivery is adopted, without prejudice to the validity of the agreement thus made, each party shall provide the other with the original of such counterpart as soon as reasonably possible thereafter.
- Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with the law of England and Wales.
- Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.