TERMS AND CONDITIONS OF BUSINESS OF
HYPHEN - A TRADING BRAND OF COSINE UK LIMITED
(herein referred to as “Hyphen”)
Registered in England No: 1811431. Registered office is at:
Bankside 3, 90-100 Southwark Street, London SE1 0SW
As sellers and/or suppliers of services (the or these “Conditions”)
1. Formation of Contract
1.1 A binding contract between Hyphen and the client (“Client”) shall be created only when Hyphen has received a signed costing and purchase order number back from the Client.
1.2 These Conditions shall apply to the contract between Hyphen and the Client for the supply of the services (“Services”) as documented in the costing.
2. Prices
2.1 All Fees to be charged in connection with the provision of the Services to client are expressed in UK pounds unless specifically stated otherwise.
2.2 The price charged by Hyphen is the fee (“Fees”) set out in the costing which shall be payable by the Client within 30 days of presentation of the invoice by Hyphen.
2.3 Hyphen is entitled to charge for and be paid: 2.3.1 all delivery and insurance costs incurred and not specifically included in the price set out in the costing;
2.3.2 any increased cost incurred for expedited delivery or as a result of any matter requested by the Client and not provided for in the costing or arising from defective data supplied by the Client; and
2.3.3 if work is suspended at the request or through any default of the Client for a period of 30 days, payment for all work already carried out (Clauses 2.3.1 to 2.3.3 together known as “Additional Costs”).
2.4 Prices quoted to Client in the costing shall be capable of increase without notice in the event of an increase in the cost of the goods or services supplied to Hyphen and which in turn relate to the price quoted.
3 Invoicing terms and conditions 3.1 All Prices are expressed in UK pounds unless otherwise stated and Value Added Tax (or any similar tax in force from time to time) shall be added to the Prices charged by Hyphen where appropriate.
3.2 Unless agreed otherwise prior to the commencement of the Services, Hyphen will submit one invoice to the Client before the start of the activity upon receipt of a PON from client.
3.3 Invoices are to be paid within 30 days of receipt of the invoice by direct credit (details of which are set out in the invoice. Failure of the Client to pay Hyphen any sums due will result in interest charges being applied on a daily basis at the annual rate of 3% above the Nat West base lending rate in force from time to time, calculated on a daily basis from the date on which payment was due until the date of payment. This shall be without prejudice to Hyphen’s other legal rights in respect of such breach.
3.4 Hyphen reserves the right, in the event that either (i) credit insurers decline coverage, or refuse or withdraw coverage on the Client or (ii) the Client’s credit rating (through Euler Hermes UK or other source) adversely changes, to adjust the requirements as to the terms of payment under this Agreement (including the right to require payment in advance) for Hyphen’s fee and third party costs.
3.5 Value Added Tax (or any similar tax in force from time to time) shall be added to the prices charged by Hyphen where appropriate.
3.6 If the Client is overdue with any payment hereunder, then without prejudice to Hyphen’s other rights or remedies, Hyphen shall have the right to suspend performance of the Services on seven (7) days’ written notice until Hyphen has received payment of the overdue amount together with any accrued interest and any reasonable legal fees incurred in connection with collecting such overdue amounts.
3.7 If any payment of the Fees, expenses or third party costs is subject to tax (whether by way of direct assessment or withholding at its source), Hyphen shall be entitled to receive from the Client such amounts as shall ensure that the net receipt to Hyphen of the expenses and third party costs after tax in respect of the payment is the same as it would have been, were the payment not subject to such tax.
3.8 Each party shall pay all monies which are payable by it to the other without any right of set off, abatement or withholding in respect of monies which are due to it or alleged to be due to it from the other party.
4 Non-Performance and Cancellation 4.1 In the event of any delay in performance of the Services resulting from a failure or delay on the part of the Client in complying with its obligations under this Agreement, the Client shall still be liable to pay the total charge.
4.2 If the Client cancels the Services for any reason whatsoever, by giving Hyphen less than six (6) weeks prior written notice the Client shall be liable to pay the total charge.
5 Execution 5.1 Hyphen will undertake the Services on the dates confirmed by the Client.
5.2 Hyphen will use all reasonable endeavours to ensure that the delivery of the Services is performed on time. However if Hyphen is prevented from providing all or part of the activity due to a Force Majeure Event, then Hyphen will have no liability to the Client and Hyphen shall be entitled to cancel the Agreement or extend the time for its execution (to be mutually agreed).
5.3 In the event that the Client has cause for complaint about the activity execution, the Client must advise of the nature of the complaint within 7 working days of the activity.
6 Indemnity and Insurance 6.1 Both parties accept liability without limit to the non-breaching party for (i) death or personal injury caused by its negligence or the negligence of its employees acting in the course of their employment, (ii) fraud or fraudulent misrepresentation or (iii) any other liability to the extent the same may not be excluded or limited as a matter of law.
6.2 Hyphen shall indemnify the Client against losses sustained as a result of any breach by Hyphen of its obligations under the Agreement or any negligent act error or omission of Hyphen its employees or agents to a maximum of the total fee due to Hyphen for the Services provided that Hyphen shall not be liable for: 6.2.1 any fines and penalties or any punitive or exemplary damages, any loss of actual or anticipated income or profits, loss of turnover or revenue, loss of goodwill or reputation, loss of anticipated savings, loss of data or for any special, indirect, economic, or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise, whether or not such loss or damage is foreseeable, foreseen or known; or
6.2.2 any loss resulting from circumstances outside the control of Hyphen its employees or agents.
6.3 The Client shall indemnify Hyphen against any liability, costs or expenses incurred as a result of the provision by Hyphen of the Services unless they arise as a result of Hyphen’s negligence.
6.4 The Client shall indemnify Hyphen against liability, costs or expenses arising from any claim made by a third party in relation to any services, product or equipment supplied to Hyphen by the Client for the purposes of the performance of the Services by Hyphen under the Agreement being defective at the time it was so supplied to Hyphen except insofar as such claim arises by reason of the failure of Hyphen to store or handle such products or use such equipment in accordance with the Client’s instructions.
6.5 Hyphen shall arrange and maintain in force at its own expense: 6.5.1 employers liability insurance with a limit of indemnity for any one occurrence, for UK domiciled employees of £10,000,000. An indemnity to principals clause is included;
6.5.2 public liability insurance with a limit of indemnity for any one occurrence and in the annual aggregate of $5,000.000. An indemnity to principals clause is included;
6.5.3 professional Indemnity insurance (including network security, privacy and technology products and services) with a limit of indemnity of $10,000,000 any one claim and $10,000,000 in the aggregate, any one period of insurance; and
6.5.4 Products liability with a limit of indemnity of $5,000,000 in the aggregate. An indemnity to principals clause is included.
6.6 Upon the Client’s reasonable request, Hyphen shall provide the Client with a broker supplied confirmation of insurance letter to evidence Hyphen’s continuing compliance with its obligations to insure under Clause 6.5.
6.7 The Client acknowledges that Hyphen’s fees/charges as set out in the booking form are based upon the assumption that Hyphen’s liability is limited as provided in these Conditions.
6.8 In circumstances where either party is seeking to rely on an indemnity set out in this Clause 6, the indemnified party shall comply with all reasonable instructions of the indemnifying party or its insurers in respect of the conduct of the claim and in particular shall not settle or compromise such issue without the consent of the indemnifying party.
7 Storage of Client Property 7.1 Hyphen has the facility to store a minimum quantity of client property in relation to the provision of the Services only.
7.2 If forwarding instructions are not received within 14 days of Hyphen providing the Client with written notice that any property of the Client is no longer required in connection with the Services then the Client shall pay a reasonable additional cost for storage and insurance (without any liability on the part of Hyphen to provide or for failure to provide such storage or insurance or for the manner in which the same are provided).
7.3 Hyphen shall be entitled to destroy stored items of property belonging to the Client if (i) the Client fails to pay the storage and insurance charges within 30 days of a request for payment or (ii) Hyphen gives written notice to the Client that it no longer wishes to store the property and the Client does not respond within 30 days of the date of the notice.
8 Termination 8.1 If either party commits a breach of its obligations under this Agreement and does not remedy such breach (or where such breach is not capable of remedy does not take all reasonable steps to prevent its recurrence) within 10 days of written notice given to it by the other party specifying such breach and requiring its remedy then the company may terminate this Agreement by giving 10 days’ notice in writing to that party. For the purposes of this Agreement a breach shall be deemed to be capable of remedy if it can be remedied in all respects other than time of performance.
8.2 In addition, either party shall be entitled to terminate this Agreement forthwith by notice in writing to the other if the other becomes the subject of a voluntary arrangement under section 1 Insolvency Act 1986; or is unable to pay its debts within the meaning of section 123 Insolvency Act 1986; or has a receiver, manager, administrator or administrative receiver appointed over all or any parts of its undertaking, assets or income; or has passed a resolution for its winding up; or has a petition presented to any court for its winding-up or for an administration order; or if any distraint, execution or other process is levied or enforced on any property of the other and is not paid out, withdrawn or discharged within 7 days.
8.3 On termination of the Agreement the Client shall forthwith pay all sums due to Hyphen.
9 Intellectual Property Rights 9.1 The Client agrees that any original ideas, concepts, strategies, processes or techniques presented or made available to it by Hyphen (“the Ideas”) are not to be used by the Client in any way or communicated to any third party without Hyphen’s express prior written consent.
9.2 This Clause 9 shall apply both before and after the termination of the Agreement and shall apply to all Ideas whether or not they are actually used by Hyphen in the performance of the Services for the Client.
9.3 The Client shall indemnify Hyphen against all costs, expenses, losses or damages incurred by it as a result of any claim or proceedings for or on account of infringement of letters, patent, trademark or trade names or registered design or any other protected right in relation to goods supplied to Hyphen by the Client or on its behalf and which are used or to be used by Hyphen in the course of supplying the Services.
9.4 When amplifying campaigns using social or digital platforms whilst Hyphen cannot have any control over broadcasts by the public Hyphen will make every effort to ensure positive messages and use our own bespoke platform to create ‘safe’ environments for consumers/clients/audience to view and interact with shared content.
10. Confidentiality
10.1 The parties to this Agreement undertake that they shall at all times keep confidential and not divulge to any third party or use for any purpose other than for the performance of the Services any and all information and data which shall as a result of this Agreement come into their respective possession and which relates in any way to the affairs, business and or finances of the other party. This Clause shall not apply to (i) information which was in the public domain at the time of disclosure (ii) information and data which, though originally confidential, subsequently falls into the public domain through no fault of either party receiving the confidential information or data (iii) information lawfully in the possession of either party at the time of disclosure or which is subsequently lawfully received from a third party (iv) information disclosed pursuant to a duty imposed by law or the requirements of a regulatory authority but only to the extent so required (v) information disclosed with the other party’s prior written approval (vi) generic sales marketing intelligence, know how and/or experience gained by Hyphen in the course of its work for its clients generally, including the Client.
10.2 Recommendations and reports made by Hyphen to the Client are made on the basis that they will be treated as confidential by both parties.
10.3 The Client agrees that with its consent, Hyphen may use its name in recruitment and publicity material for the duration of this Agreement.
11 Data Protection
For the purposes of this Clause 11 the following definitions shall have the following meaning:
“Affiliate” shall mean all companies directly or indirectly controlling, controlled by or under common control with such party;
“Client Personal Data” shall mean Personal Data:
(i) supplied to Hyphen by or on behalf of Client; and/or
(ii) obtained by, or created by, Hyphen on behalf of Client in the course of delivery of Services ,
and which in each case is Processed by Hyphen in the performance of the Services;
“Data Controller” shall have the same meaning as defined in the UK GDPR;
“Data Privacy Laws” shall mean the following as amended, extended or re-enacted or replaced from time to time:
(i) UK Data Protection Act 2018 and the UK GDPR;
(ii) the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426);
(iii) EC Regulation 2016/679 (the “GDPR”) on the protection of natural persons with regard to the Processing of Personal Data and on the free movement of such data (when in force);
(iv) UK GDPR has the same meaning given to it in section 3(10) (as supplemented by section 205(4) of the Data Protection Act2018).
(v) all local laws or regulations implementing or supplementing the EU legislation mentioned in (ii)-(iii) above;
(vi) all codes of practice and guidance issued by national supervisory authorities, regulators or EU or UK institutions relating to the laws, regulations and EU legislation mentioned in (i)–(v) above.
“Data Processor” shall have the same meaning as defined in the UK GDPR;
“Data Subject” shall have the same meaning as defined in the UK GDPR;
“EU/UK Law” means any law in force in the European Union or any law in force in a member state of the European Union and/or UK including the Data Privacy Laws;
“International Transfer Requirements” means the requirements of Chapter V of the GDPR (Transfers of personal data to third countries or international organizations);
“Hyphen Personal Data” shall mean Personal Data of Hyphen employees supplied to Client by, or on behalf of Hyphen in the course of delivery of Services;
“Losses” means losses, damages, liabilities, claims, demands, actions, penalties, fines, awards, costs and expenses (including reasonable legal and other professional expenses);
“Process, Processing and Processed” shall have the same meaning as defined in the UK GDPR;
“Personal Data” shall have the same meaning as defined in the UK GDPR;
“Personal Data Breach” shall have the same meaning as defined in the UK GDPR;
“Processing Records” shall have the meaning set out in Clause 11.4(j);
“Restricted Country” means a country, territory or jurisdiction which
is not considered by the EU Commission (or in respect of personal data transfers caught by the requirements of UK and/or Swiss Data Privacy Laws, the relevant UK and/or Swiss governmental or regulatory body as applicable) to offer an adequate level of protection in respect of the processing of personal data pursuant to Article 45(1) of the GDPR;
“Restricted Transfer” means a transfer of personal data from an entity whose processing of personal data under the Agreement is caught by the requirements of the GDPR and/or UK and/or Swiss Data Protection Laws (as applicable), to an entity that processes the relevant Personal Data in a Restricted Country;
“Shared Personal Data” shall mean Agency Personal Data and/or Client Personal Data (as applicable);
“Supervisory Authority” shall have the same meaning as defined in the UK GDPR; and
“UK” means United Kingdom.
11.1 Control of conflicts
(a) In the event that a provision of this Clause 11 conflicts with any other provision of this Agreement, the provision in this Clause shall prevail to the extent of such conflict.
11.2 Appointment of Hyphen as Client’s Data Processor
(a) The parties acknowledge and agree that to the extent:
(i) each party separately determines the purpose and manner of the processing of Shared Personal Data, each party shall be considered an independent Controller or Controller in common of the relevant Shared Personal Data;
(ii) the parties jointly determine the purpose and manner of the processing of the Shared Personal Data, each party shall be considered a joint controller of the relevant Shared Personal Data; and
(iii) Hyphen processes Client Personal Data on behalf of the Client, Client shall be considered a controller and Hyphen shall be considered a processor.
(b) If a party considers that the relationship between them no longer corresponds to the intention of the parties stated in Clause 11.2 (a) above then it shall promptly notify the other party and the parties shall discuss and agree in good faith such steps that may be required to confirm the parties’ intentions.
11.3 General obligations of the parties
(a) Each party shall comply with the obligations imposed on it by applicable Data Privacy Laws with regard to Shared Personal Data processed by it in connection with Services. Client acknowledges and agrees that Hyphen’s compliance with applicable Data Privacy Laws may be dependent on Client’s compliance with applicable Data Privacy Laws and accordingly Hyphen will not be liable under this Amendment for failure to comply with applicable Data Privacy Laws where such failure results from a failure of Client to comply with applicable Data Privacy Laws.
(b) Each party shall ensure that where Services require the Processing of Client Personal Data, the description of Services includes the following information:
(i) The subject matter and duration of the Processing;
(ii) The nature and purpose of the Processing;
(iii) A description of the type(s) of Client Personal Data Processed; and
(iv) A description of the categories of the data subjects comprised within the Client Personal Data referred to in this Clause.
11.4 Obligations of Hyphen
(a) Hyphen shall only Process Client Personal Data in accordance with the documented instructions of Client, including transfers of Client Personal Data to a restricted country, unless required to do so by EU/UK Law to which Hyphen is subject, in which event Hyphen shall inform Client of such legal requirement unless prohibited from doing so by EU Law on important grounds of public interest.
(b) Hyphen shall inform Client if, in Hyphen’s opinion, an instruction given by Client to Hyphen under Clause 11.4(a) infringes the Data Privacy Laws.
(c) Hyphen shall ensure that any persons authorised by it to Process Client Personal Data are subject to an obligation of confidentiality.
(d) Hyphen shall implement appropriate technical and organisational measures to ensure that Client Personal Data is subject to a level of security appropriate to the risks arising from its Processing by Hyphen or its sub-processors, taking into account the factors and measures stated in Article 32 of the UK GDPR.
(e) Hyphen shall notify Client without undue delay after becoming aware of a Personal Data Breach.
(f) Taking into account the nature of the Processing, Hyphen shall assist Client by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of Client’s obligation to respond to requests for exercising a Data Subject's rights under the UK GDPR.
(g) Taking into account the nature of the Processing and the information available to Hyphen, Hyphen shall assist Client with regard to Client’s compliance with its obligations under the following Articles of the UK GDPR:
(i) Article 32 (Security of Processing);
(ii) Articles 33 and 34 (Notification and communication of a Personal Data breach);
(iii) Article 35 (Data protection impact assessment); and
(iv) Article 36 (Prior consultation by Client with the Supervisory Authority)
(h) Upon termination of Services that required the Processing of Client Personal Data (in whole or in part) Hyphen shall, at the election of Client, deliver up or destroy such Client Personal Data which is in the possession of, or under the control of, Hyphen unless EU/UK Law requires Hyphen to store such Client Personal Data.
(i) Hyphen shall, at the request of Client, provide Client with all information necessary to demonstrate a party’s compliance with its obligations under this Clause 11.4 and if and to the extent that such provision of information does not demonstrate Hyphen’s compliance with its obligations under this Clause 11.4, Hyphen shall allow for and contribute to audits and inspections conducted by or on behalf of Client subject to the provisions of Clause 12 - Audit.
(j) Where required to do so by the UK GDPR, Hyphen and, where applicable, Hyphen’s representative shall maintain written records of its Processing of Client Personal Data (the “Processing Records”) as follows:
(i) the name and contact details of:
(1) Hyphen and its sub-processors;
(2) Client;
(3) where applicable, the representatives of Client, Hyphen and its sub-processors, and Hyphen’s data protection officer;
(ii) the categories of Processing carried out on behalf of Client;
(iii) transfers of Client Personal Data to a third country or an international organisation, including the identification of that third country or international organisation and, where applicable, details of the suitable safeguards in place; and
(iv) where possible, a general description of the technical and organisational security measures taken by Hyphen, its sub-processors and Client.
(k) Hyphen and its sub-processors and, where applicable, their representatives, shall make the Processing Records available to a Supervisory Authority on request.
11.5 Obligations of Client
(a) Client shall ensure that:
(i) the supply to Hyphen of Client Personal Data by or on behalf of the Client for the purposes of Processing undertaken by the Hyphen and its permitted sub-processors where such Processing is authorised by Client shall comply with the Data Privacy Laws; and
(ii) the instructions given by Client to Hyphen by operation of Clause 11.4(a) shall comply with the Data Privacy Laws.
11.6 Controller to Controller Sharing
(a) Where Hyphen supplies Hyphen Personal Data to Client in performance of the Services, each party shall be considered Controllers in respect of the processing of such Hyphen Personal Data under this Amendment the following provisions shall apply.
(b) Client shall:
(i) only process any Hyphen Personal Data received under the Agreement in connection with the Services and/or the Agreement (unless otherwise agreed by the parties in writing);
(ii) promptly notify Hyphen of any Data Subject request, Personal Data Breach or and/or Data Subject compliant in respect of Hyphen
Personal Data and provide such detail as may be reasonably required by Hyphen;
(iii) provide such necessary and reasonable assistance and co-operation to Hyphen and to any supervisory authority, in connection with:
(1) any investigations, audits or enquiries made by a Supervisory Authority in relation to the processing of the Hyphen Personal Data pursuant to the Agreement;
(2) complying with and responding to a request, query or complaint from a Data Subject in relation to their Personal Data comprised in the Hyphen Personal Data;
(3) complying with any other obligation as imposed on it by the Data Privacy Laws with regard to the Processing of the Hyphen Personal Data in connection with the Agreement; or
(4) making appropriate notifications to Data Subjects and/or Supervisory Authorities in the event of a Personal Data breach.
(5) carrying out any data protection impact assessment, in relation to the processing of the Hyphen Personal Data in connection with the Agreement
(c) Notwithstanding Clause 11.6(b) above, the parties agree that where the parties are considered joint controllers in respect of the processing of Hyphen Personal Data under the Agreement:
(i) each party may only process such Shared Personal Data for the jointly agreed purpose;
(ii) each party shall be responsible to providing to a notice to relevant Data Subjects satisfying the requirements of Article 13 and Article 14 of the UK GDPR; and
(iii) each party shall be the designated point of contact for any Data Subjects who wish to exercise the data subject rights set out in Chapter 3 of the UK GDPR.
(d) In the event of a Personal Data Breach affecting the Shared Personal Data:
(i) neither party shall make any public announcements relating to the Personal Data Breach that ay adversely affect the other party; and
(ii) the parties shall work together to try and mitigate the effects of such Personal Data Breach
11.7 International Transfers
The parties acknowledge and agree that to the extent that the transfer of:
(i) Hyphen Personal Data from Hyphen (and/or relevant Hyphen Affiliate) to Client (and/or relevant Client Affiliate); and/or
(ii) Client Personal Data from Client and/or relevant Client Affiliate) to Hyphen (and/or relevant Hyphen Affiliate);
is considered a Restricted Transfer to a Restricted Country, the parties will ensure that suitable safeguards are adopted. In the absence of an adequacy decision being adopted by the UK and/or European Commission for the third country in question, both parties shall negotiate in good faith, such additional agreements, terms and conditions as may be required by such laws to effectuate such transfers.
11.8 Costs of assistance
Where, by operation of Clause 11.4, Hyphen is obliged to provide assistance to Client, or to third parties at the request of Client (including submission to an audit or inspection and/or the provision of information), such assistance shall be provided at the sole cost and expense of Client, save where such assistance directly arises from Hyphen’s breach of its obligations under this Clause 11, in which event the costs of such assistance shall be borne by Hyphen.
11.9 Hyphen’s appointment of sub-processors
(a) Notwithstanding any other provision of this Agreement, Hyphen shall be entitled to sub-contract any part of the Services requiring the Processing of Client Personal Data, subject to the following conditions in cases where the sub-contractor is not an affiliate of Hyphen:
(i) Hyphen shall notify Client in writing of its intention to engage such sub-contractor. Such notice shall give details of the identity of such sub-contractor and the services to be supplied by it; and
(ii) Client shall be deemed to have approved the engagement of the sub-contractor if it has not served a notice in writing on Hyphen objecting (acting reasonably) to such appointment within (seven) 7 days of the date that the notice is deemed to be received by Client in accordance with Clause 14.
11.10 Losses
(a) Where, in accordance with the provisions Article 82 of the UK GDPR, both parties are responsible for the act, or omission to act, resulting in the payment of Losses by a party, or both parties, then each party shall only be liable for that part of such Losses which is in proportion to its respective responsibility.
(b) Subject to Clauses 6.1 and 6.2, each parties’ aggregate liability under or in connection with this Clause 11, whether in contract, tort (including negligence) or otherwise, shall be limited to the fee paid to Hyphen for the Services as set out in the relevant Budget.
12 Audit
12.1 Hyphen shall allow, during normal working hours (i.e. 9am to 5pm UK time), on not less than six (6) weeks’ notice, the Client and any independent auditors of the Client, previously approved by Hyphen (in each case who have, prior to access being given, signed binding confidentiality agreements with Hyphen on terms approved by Hyphen) to access any of Hyphen's premises, personnel and relevant records (“Records”) as may be reasonably required in order to:
12.1.1 undertake verifications of the accuracy of the charges or identify suspected fraud;
12.1.2 undertake verification that the Services are being provided in accordance with this agreement, provided that the Records shall not include:
(i) confidential financial, payroll or personnel files or other confidential records of Hyphen that do not relate directly to this Agreement;
(ii) the audit of Records is solely to undertake verification and not for the purpose of fee negotiations or the collation by any means of planning information and provided that access shall not be given more than once in any twelve (12) month period except in the event of suspected fraud; or
12.1.3 undertake verification that Hyphen is compliant with it's Data Protection obligations under Clause 11.4.
12.2 The Client may perform such audits no more than once per year or more frequently only if required by law. For the purpose of clarification, this Clause 12.2 makes provision for the client to undertake an audit against each of Clauses 12.1.1, 12.1.2 and 12.1.3 no more than once per year. Each audit area as identified in Clauses 12.1.1, 12.1.2 and 12.1.3 may be audited independently or combined but no more frequently than once per year.
12.3 The Client shall use its reasonable endeavours to ensure that the conduct of each audit does not unreasonably disrupt Hyphen or delay the provision of the Services by Hyphen and that, where possible, individual audits are co-ordinated with each other to minimise any disruption.
12.4 The Client must provide Hyphen with any audit reports generated pursuant to any audit at no charge, unless prohibited by applicable law. The Client may use the audit reports only for the purposes of meeting its audit requirements and/or confirming compliance with the requirements of this Agreement. Each party shall keep the audit reports confidential.
12.5 Client shall, prior to the conduct of an audit, submit an audit plan to Hyphen at least six weeks (or such shorter period as required by law or by a regulatory body) in advance of the proposed commencement date of the audit, setting out the proposed scope, duration and start date of the audit. Hyphen will review the audit plan and will notify the Client within two weeks of receiving the audit plan if agrees with the plan or if it has any objections in respect of the same. Hyphen will work cooperatively with the Client to agree a final audit plan.
12.6 Subject to the Client's obligations of confidentiality, Hyphen shall provide the Client (and its auditors and other advisers) with all reasonable co-operation, access and assistance in relation to each audit.
12.7 If an audit identifies that:
12.7.1 Hyphen has failed to perform its obligations under this agreement, the provisions of Clause 12.7 shall apply, provided that, if the audit demonstrates that Hyphen is failing to comply with any of its obligations under this Agreement then, without prejudice to the other rights and remedies of the Client, Hyphen shall take the necessary steps to comply with its obligations at no additional cost to the Client;
12.7.2 the Client has overpaid any charges, Hyphen shall pay to the Client the amount overpaid within 30 days from the date of receipt of an invoice or notice to do so; and
12.7.3 the Client has underpaid any charges, the Client shall pay to Hyphen the amount of the under-payment within 30 days from the date of receipt of an invoice for such amount.
12.8 Nothing in this Clause shall require Hyphen to breach any duties of confidentiality owed to any of its clients, employees or other third-parties;
12.9 Notwithstanding anything else in this Agreement, all audits are at the Client's sole cost and expense..
12.10 On completion of an audit, the Client and its independent auditors must return or delete (at Hyphen’s option) all confidential information obtained or created during the audit.
13 Non-Standard Technology
The Client may from time-to-time request that Hyphen use and/or acquire rights or licenses to specific technology in connection with Hyphen’s relationship to the Client that are not a part of Hyphen’s approved standard technology stack (“Non-Standard Technology”). In such an event, the Client shall provide Hyphen with credentials under the Client’s license for Hyphen personnel to access and use Non-Standard Technology. Hyphen will adhere to all written requirements and guidelines provided by the Client in connection with such use. If the Client is unable to provide Hyphen with credentials under the Client’s license and Hyphen must itself acquire rights or licenses to Non-Standard Technology, notwithstanding anything in this Agreement to the contrary, the Client acknowledges and agrees (i) to reimburse Hyphen for any and all license, storage and other fees related to Non-Standard Technology; (ii) to release Hyphen from any and all data, data retention and information security obligations under this Agreement as it relates to Non-Standard Technology, including, without limitation, record retention requirements, vendor risk management screening, system monitoring, audit requirements and identity management; and (iii) that Hyphen shall not be responsible to the Client or any third party for any failure, data breach or loss, security incident or other harm caused by the Non-Standard Technology.
14 Marketing Results
Hyphen gives no warranty or representation and no condition is to be included or implied in the Agreement as to the result or consequence of any Services provided by Hyphen for the Client or on which Hyphen had made proposals or given advice and the Client accepts as responsibility to the exclusion of Hyphen for all such results or consequences.
15 Notices 15.1 Any notice to be given under this Agreement shall be in writing and shall be delivered or sent by pre-paid first class recorded delivery post to the party to be served at that party's registered office from time to time marked for the attention of the Company Secretary of that party.
15.2 Any such notice shall be deemed to have been served if delivered, at the time of delivery; or if posted at the expiration of 48 hours after the envelope containing the same shall have been put in the post.
16 Pandemic
In the event that the World Health Organisation or an equivalent organisation, declares an epidemic or pandemic as a result of which, national or local government or other civil authority introduces certain guidance and rules which mean Hyphen is no longer able to provide all or part of the Services for the Client, then the following terms shall apply.
A) The Client shall continue to meet its payment obligations under the Agreement, including payment of any agreed budget and payment plan.
B) In the event national or local government puts in place any compensatory scheme for employees, including furlough payments (‘Scheme’), Hyphen shall, if eligible, apply for such Scheme and the parties agree that any compensatory sums Hyphen receives under the Scheme in relation to its employees shall be credited to the Client’s budget account and form part of a quarterly reconciliation of the budget.
C) In the event the Client serves notice to terminate or purports to terminate this Agreement with immediate effect, the Client shall pay in full costs associated with closing operations put in place by Hyphen for providing Services to the Client, including but not limited to Hyphen employee redundancy costs and any lease termination costs.
The parties agree that an epidemic or pandemic and any consequential events thereof shall not be deemed a ‘force majeure’ event or an event that is beyond the reasonable control of the parties. In the event of any conflict between the terms of this Clause 15 and any other terms of the Agreement (including any schedules or appendices), the terms of this Clause 15 shall prevail.
17 Force Majeure
Hyphen shall not be liable for any failure to perform or delay in performing the Services in accordance with this Agreement to the extent that such failure or delay is caused by any event beyond its reasonable control including, without limitation, war, civil commotion or act of God, technical failure or adverse weather conditions (a “Force Majeure Event”), Hyphen shall, promptly upon becoming aware of the Force Majeure Event, provide a written notice to the Client, giving details of the Force Majeure Event, its likely duration and the manner and extent to which its obligations are likely to be prevented or delayed. Each party shall use its reasonable endeavours to minimise the effects of any Force Majeure Event. If any Force Majeure Event occurs, the date(s) for performance of the affected obligation(s) shall be postponed for so long as is made necessary by the Force Majeure Event.
18 Variations
No variation or amendment of this Agreement shall be effective unless it is in writing and signed by a duly authorised representative of each party.
19 Headings
The headings of the Clauses in this Agreement are for convenience only and shall not affect the construction of the terms thereof.
20 Assignment
The Client may not assign the benefit or burden of this Agreement without the prior written consent of Hyphen.
21 Waiver
No forbearance or delay by either party in enforcing its respective rights will prejudice or restrict the rights of that party and no waiver of any such right or any breach of any contractual terms will be deemed to be a waiver of any other right or of any later breach.
22 Cumulation of Remedies
Subject to the specific limitations set out in this Agreement no remedy conferred by any provision of this Agreement is intended to be exclusive of any other remedy except as expressly provided for in this Agreement and each and every remedy shall be cumulative and shall be in addition to any other remedy given under this Agreement or existing at law or in equity by statute or otherwise.
23 Partnership
Nothing in this Agreement shall be construed as constituting a partnership between the parties or as constituting either party as the agent of the other for any purpose whatsoever except as specified by the terms of this Agreement.
24 Counterparts
This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this Agreement, but all the counterparts shall together constitute the same Agreement.
25 Third Party Rights
The application of the provisions of the Contracts (Rights of Third Parties) Act 1999 shall be specifically excluded from this Agreement.
26 Entire Agreement
26.1 This Agreement contains all the terms agreed between the parties regarding its subject matter and supersedes any prior agreement, understanding or arrangement between the parties, whether oral or in writing. Each of the parties acknowledges and agrees that:
26.1.1 This Agreement governs the entire agreement between Hyphen and the Client to the exclusion of any other terms or conditions, including those terms and conditions forming part of the Client’s purchase orders, which are issued during the general course of the Client’s business.
26.1.2 This Agreement supersedes all previous terms and conditions and shall replace any terms and conditions previously notified to the Client and it supersedes any prior written or oral agreement between them and is not affected by any other promise, representation, warranty, usage, custom or course of dealing. The parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement.
26.1.3 in entering into this Agreement it has not relied on, and shall have no remedy in respect of, any statement, representation, warranty or understanding other than the statements, representations, warranties and understandings expressly set out in this Agreement; and
26.1.4 its only remedies in connection with any statements, representations, warranties and understandings expressly set out in this Agreement shall be for breach of contract as provided in this Agreement. Nothing in this Clause shall, however, operate to limit or exclude any liability for fraud.
27 Governing Law and Jurisdiction
This Agreement shall be governed and construed according to the laws of England and the parties submit to the exclusive jurisdiction of the Courts of England in connection with any dispute or proceedings arising out of this Agreement.