Problems Solved Terms and Conditions

PROBLEMS SOLVED LIMITED – STANDARD TERMS AND CONDITIONS

1 WHO WE ARE

1.1 These are the terms and conditions (Terms) of Problems Solved Limited, a company incorporated in England and Wales with company number 11843727 whose registered address is at 16 Albion Road, Chalfont St Giles, Buckinghamshire HP8 4EW (Problems Solved).

2 DEFINITIONS AND INTERPRETATIONS 

In these Terms, the following definitions and rules of interpretation apply.

2.1 Definitions:

Applicable Law means all applicable laws, statutes, regulations and codes from time to time in force.

Business Day means a day other than a Saturday, Sunday or public holiday in England.

Charges means the charges payable for the Services, as set out in an Order and/or an Order Confirmation.

Confidential Information means: 

(a) all information relating to the business, assets, affairs, pricing, customers, clients, suppliers, or plans, intentions, marketing strategies and campaigns or market opportunities of the Disclosing Party;

(b) all technical or commercial know-how, specifications, inventions, operations, processes, product information, initiatives, drawings and designs, trade secrets, software (including source code), information relating to research and/or development work, proposals for services or products and engineering designs and/or development of the Disclosing Party; 

(c) any other information of a confidential or proprietary nature not generally known to the public, whether of a technical, business, or other type, that is disclosed by the Disclosing Party arising out of or in connection with the Contract and which could reasonably have been understood by the Recipient to be proprietary or confidential to the Disclosing Party (including information marked as “Confidential” by the Disclosing Party).

Contract means the binding contract between Problems Solved and the Customer for the supply of Services, consisting of these Terms and the Order and Order Confirmation.

Control means that an entity possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of another person, whether through the ownership of voting shares, by contract or otherwise.

Customer means the person, firm, or other legal entity that purchases Services from Problems Solved.

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 the Customer to Problems Solved in connection with the Services.

Deliverables means any deliverables to be developed specifically for the Customer and supplied by Problems Solved to the Customer as part of the Services, as set out in an Order and/or the related Order Confirmation. 

Data Protection Legislation means all applicable data protection and privacy legislation in force from time to time in the UK including (i) the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) (UK GDPR); (ii) the Data Protection Act 2018 (and regulations made thereunder); (iii) the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended; and (iv) all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data.

Disclosing Party means the party disclosing Confidential Information.

Due Date means either:

(a) the due date for payment specified in the Order Confirmation; or 

(b) if no due date is specified in the Order Confirmation, 14 days from the date on which each invoice issued by Problems Solved is received by the Customer.

Early Termination Charge means the early termination charge applicable if the Customer elects to terminate early for convenience a contract for provision of proprietary software services.

Exit Plan means a bespoke plan regarding exit arrangements where Problems Solved is providing proprietary software to the Customer.

Force Majeure Event means any circumstance beyond the reasonable control of either party including, without limitation, Act of God, war, insurrection, riot, civil commotion, acts of terrorism, Government regulations, embargoes, explosions, strikes, labour disputes, illness, flood, fire, tempest, pandemic, epidemic.  Circumstances beyond the control of the parties including power surges, failure or shortage of power supplies, pest damage, pandemics such as Covid 19, accidental damage, toll fraud, other telecommunications operators, highway authority, technological attack (including, but not limited to denial-of-service attacks, attacks involving Malicious Code and computer hacking).

Intellectual Property Rights means patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks 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. 

Location means any premises specified in an Order at which the Services are to be provided.

Malicious Code means viruses, logic bombs, worms, trojan horses or other types of destructive, disruptive or nuisance programs.

Order means the Customer’s order for provision of specified Services by Problems Solved, which may be set out in a purchase order, an email or any other written form.

Order Confirmation means the written document issued by Problems Solved to the Customer in response to an Order, confirming the Services to be provided by Problems Solved,  the Charges and any other relevant information.

Personnel: means the officers, employees, representatives, agents, subcontractors or consultants engaged by a Party. 

Problems Solved Materials means any equipment, materials or property of Problems Solved, including Software Materials, tools, methodologies or other materials, which are used by Problems Solved or its Personnel in the provision of the Services.

Recipient means the party receiving Confidential Information.

Relief Event has the meaning set out in clause 15.1.

Sales Tax means any sales, purchase or turnover tax as may be applicable in any relevant jurisdiction, including value added tax chargeable under or pursuant to the Value Added Tax Act 1994 or Council Directive 2006/112/ EC.

Services means the consultancy and any other professional services and any information technology solutions to be provided by Problems Solved, as described in an Order and/or an Order Confirmation.

Service Specific Terms means the terms and conditions for a particular Service, as set out in the relevant Order and/or Order Confirmation, together with any supporting documents specifying Services provided by Problems Solved with a term period.

Software Materials means computer programs (in either or both executable code and source code, as appropriate), together with any technical information and documentation necessary for the use of those programs and including all updates, new releases and modifications of those computer programs, supplied to the Customer as part of the Services.

2.2 Clause headings are used for reference only and shall not affect the interpretation of these Terms.

2.3 Any reference in these Terms to: 

2.3.1 a clause is a reference to a clause of these Terms;

2.3.2 a company shall include any company, corporation or other body corporate, wherever and however incorporated or established;

2.3.3 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);

2.3.4 any document is a reference to that document as varied, novated or replaced from time to time;

2.3.5 legislation or a legislative provision is a reference to it as amended or re-enacted and includes all subordinate legislation made under that legislation or legislative provision;

2.3.6 assets includes present and future properties, revenues and rights of every description; and

2.3.7 writing or written includes email.

2.4 Throughout these Terms, the singular shall include the plural and vice versa and either gender shall include the other, except where the context plainly requires otherwise.

2.5 Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.

2.6 Any obligation on a party not to do something includes an obligation not to allow that thing to be done. 

3 THE CONTRACT

3.1 Each Order constitutes an offer by the Customer to purchase Services from Problems Solved in accordance with these Terms.

3.2 The Order shall only be deemed to be accepted when Problems Solved issues an Order Confirmation to the Customer, at which point and on which date the Contract shall come into existence.

3.3 Any samples, drawings, descriptive matter or advertising issued by Problems Solved and any illustrations or descriptions of the Services contained in Problems Solved's marketing materials are provided for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract nor have any contractual force.

3.4 These Terms 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. 

3.5 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any document of Problems Solved that is inconsistent with these Terms.

4 PROVISION OF SERVICES 

4.1 Problems Solved shall 

4.1.1 perform the Services and provide any Deliverables: 

4.1.1.1 in accordance with these Terms, any applicable Service Specific Terms and any additional terms contained in the Order or the Order Confirmation; 

4.1.1.2 using reasonable skill, care and due diligence;

4.1.1.3 using suitably qualified and experienced Personnel and in sufficient number to ensure that Problems Solved fulfils its obligations under the Contract; and

4.1.1.4 in compliance with Applicable Law;

4.1.2 use reasonable endeavours to meet any performance dates for the Services specified in the Order or the Order Confirmation, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services; 

4.1.3 obtain and maintain all consents, regulatory licences and permissions it may require which are necessary to enable it to comply with its obligations under the Contract; and

4.1.4 where specified in an Order or the related Order Confirmation, provide such Problems Solved Materials as are necessary for the provision of the Services (if any such items are stored at a Location, the Customer shall be liable for their safety and storage). 

4.2 All decisions in connection with the implementation of any advice or recommendations made by Problems Solved in providing the Services shall be the responsibility of, and made only by, the Customer. 

4.3 Problems Solved shall act in accordance with all reasonable instructions given to it by the Customer, provided such instructions are compatible with the specification of the Services to be provided under the Contract.

4.4 Problems Solved may, in relation to certain specified matters related to the Services, act on the Customer’s behalf.  Such matters shall not be set out in these Terms but shall be agreed between the parties as they arise from time to time.

5 CUSTOMER OBLIGATIONS 

5.1 The Customer shall: 

5.1.1 co-operate with Problems Solved in all matters relating to the Services;

5.1.2 allow Problems Solved access to the Locations required and make available to Problems Solved any facilities, information and services (including workspace, telecommunication facilities, and utilities at the Locations) which are reasonably required by Problems Solved to enable it to provide the Services; 

5.1.3 ensure that Problems Solved and its Personnel can, whilst at the Location, comply, at the Customer’s sole expense, with the Customer’s reasonable security, access and health and safety procedures applicable to the Location and that provisions and prior preparation are carried out, with requirements being notified to Problems Solved in writing at least one Business Day prior to the commencement of the Services; 

5.1.4 provide Problems Solved in a timely manner with all documents, information, items and materials in any form (whether owned by the Customer or a third party) as may reasonably be requested by Problems Solved in connection with the Services and ensure that they are accurate and complete in all material respects; 

5.1.5 obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable Problems Solved to provide the Services, including the use of all Customer Materials, in all cases before the date on which the Services are due to start;

5.1.6 perform any tasks and obligations assigned to the Customer in the Order or Order Confirmation; 

5.1.7 comply with all Applicable Laws applicable to it when using the Services; and

5.1.8 comply with any Service Specific Terms relating to the use of the Services.

6 CHARGES AND PAYMENT 

6.1 In consideration of the provision of the Services and any Deliverables by Problems Solved, the Customer shall pay the Charges in accordance with the Order and/or the Order Confirmation. In the event of any conflict or inconsistency between the Order and the Order Confirmation, the Order Confirmation shall prevail.

6.2 Charges detailed in the Order and/or the Order Confirmation may be varied by the mutual agreement of the parties.

6.3 Problems Solved shall invoice the Customer for the Charges at the intervals specified in the Order Confirmation. If no intervals are specified, Problems Solved shall invoice the Customer at the end of each month for the Services performed during that month.

6.4 Subject to clause 6.5, the Customer shall pay the Charges together with any applicable Sales Tax by the Due Date.

6.5 If any part of the Charges is subject to a good faith dispute between the Customer and Problems Solved, the following provisions shall apply: 

6.5.1 the Customer shall pay to Problems Solved, by the Due Date, all amounts not disputed in good faith by the Customer together with all Sales Tax due on any undisputed amounts; 

6.5.2 the Customer shall notify Problems Solved within 7 Business Days after the date of its receipt of the relevant invoice of any disputed items and describe in reasonable detail the Customer’s reasons for disputing each item; and

6.5.3 the parties shall seek to reach settlement on the items that are the subject of the dispute in accordance with clause 25.12.   

6.6 Without prejudice to any other right or remedy it may have, if the Customer fails to pay any undisputed sum which is due to Problems Solved under the Contract by the Due Date then:

6.6.1 the Customer shall pay 3% of the value of any undisputed element of the invoice per month until payment of the overdue sum, whether before or after judgment; and

6.6.2 Problems Solved may suspend provision of all or part of the Services until payment has been made in full.

6.7 All sums payable by the Customer to Problems Solved under an Order shall be paid in full, free of all deductions and withholdings of any kind, except where any deduction or withholding is required by Applicable Law. If any payment by the Customer is subject to a withholding or deduction required by Applicable Law, Problems Solved shall be entitled to receive from the Customer such additional amount as ensures that the net sum received by Problems Solved is the same as it would have received if that payment had not been subject to that withholding or deduction. 

7 RECORDS 

7.1 Each party shall keep, or procure that there are kept, such records and books of account as are necessary to enable the amount of any sums payable under the Contract to be accurately calculated.

8 SALES TAX 

8.1 If any Sales Tax is properly chargeable in respect of any supply made by Problems Solved under the Contract and Problems Solved is required to account for the Sales Tax, the amount payable for that supply shall be increased by the amount of Sales Tax for which Problems Solved is required to account, subject to Problems Solved having delivered to the Customer a proper Sales Tax invoice in respect of that Sales Tax. 

8.2 Without limiting clause 8.1, each amount stated as payable by Customer under the Contract is exclusive of Sales Tax (if any) and is to be construed as a reference to that amount plus any Sales Tax in respect of it. 

9 REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS 

9.1 Problems Solved warrants to the Customer that: 

9.1.1 the Deliverables will comply in all material respects with any specifications for those Deliverables set out in the Order and/or the Order Confirmation; and

9.1.2 the Customer’s use of the Services or the Deliverables (other than any Customer Materials embedded or incorporated into the Deliverables) will not infringe any Intellectual Property Rights of any third party. 

9.2 If Problems Solved receives written notice from the Customer of any breach by Problems Solved of the warranties contained in clause 9.1, the Customer’s sole remedy shall be to require Problems Solved to, and Problems Solved shall, at its cost and expense, use its reasonable endeavours to remedy that breach as soon as is reasonably practicable after receiving that notice, failing which the Customer shall be entitled to pursue any rights or remedies which are available to it. 

9.3 Except as expressly and specifically provided in the Contract all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by Applicable Law, excluded from the Contract. 

10 NON-SOLICITATION OF EMPLOYEES 

10.1 For the term of each Order and for the period of 12 months after the termination or expiry of such Order, the Customer shall not, without the prior written consent of Problems Solved, directly induce or attempt to induce from the employment of Problems Solved, any person employed in the provision or administration of the Services by Problems Solved.

10.2 Clause 10.1 will not apply to restrict the Customer from employing (or offering to employ) any employee of Problems Solved, who has responded to general recruitment advertising. 

11 CONFIDENTIALITY AND ANNOUNCEMENTS 

11.1 The Recipient undertakes that it shall at all times:

11.1.1 keep the Confidential Information secret and confidential;

11.1.2 not use or exploit any Confidential Information for its own benefit or in any way other than the proper performance of its duties under the Contract, unless it has obtained prior written consent from the Disclosing Party to do so;

11.1.3 not directly or indirectly disclose or make available any Confidential Information in whole or in part to any third party, except as expressly permitted by, and in accordance with, the Contract or with the prior written consent of the Disclosing Party; and

11.1.4 apply at least the same security measures and degree of care to the Confidential Information as the Recipient applies to its own confidential information, which the Recipient warrants as providing adequate protection from unauthorised disclosure, copying or use. In the event the Recipient becomes aware of, or suspects, any loss or unauthorised disclosure or use of the Confidential Information, it shall promptly notify the Disclosing Party.

11.2 The Recipient may disclose Confidential Information to: 

11.2.1 its Personnel or advisers who need to know such information for the purposes of exercising the Recipient's rights or carrying out its obligations under or in connection with the Contract, on the basis that it:

11.2.1.1 informs such Personnel or advisers of the confidential nature of the Confidential Information;

11.2.1.2 ensures that such Personnel or advisers comply with this clause 11; and

11.2.1.3 ensures that such Personnel or advisers are subject to obligations of confidentiality at least as extensive and binding upon them as the terms of the Contract are upon the Recipient; and

11.2.2 to the minimum extent required by Applicable Laws, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the Disclosing Party as much notice of the disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 11.2.2, it takes into account the reasonable requests of the Disclosing Party in relation to the content of the disclosure.

11.3 The Recipient shall be liable for the actions or omissions of its Personnel and advisers in relation to the Confidential Information as if they were the actions or omissions of the Recipient.

11.4 Notwithstanding the foregoing, the restrictions of this clause 11 shall not apply to information that:

11.4.1 is or becomes publicly known other than through any act or omission of the Recipient;

11.4.2 was in the Recipient's lawful possession before the disclosure under the Contract;

11.4.3 is lawfully disclosed to the Recipient by a third party and is not subject to any obligation of confidentiality restricting disclosure by the third party; or

11.4.4 is developed by the Recipient independently of and without reference to Confidential Information, which independent development can be shown by written evidence.

11.5 The Recipient shall take all reasonable steps to ensure that the Confidential Information to which it has access is not disclosed or distributed by its Personnel or advisers in violation of the terms of the Contract.

11.6 Notwithstanding anything else in these Terms, the Customer acknowledges and agrees that Problems Solved may:

11.6.1.1 make announcements or issue communications concerning its relationship with the Customer (including the entering into of the Contract);

11.6.1.2 include the Customer on any customer list published by Problems Solved from time to time; and

11.6.1.3 include the Customer’s name as a reference customer in any requests for proposals or requests for information to which Problems Solved responds.

11.7 This clause 11 shall survive termination of the Contract for any reason.

12 DATA PROTECTION 

12.1 For the purposes of this clause 12, the terms controller, data subject, personal data, personal data breach, processor and processing, shall have the meaning given to them in the Data Protection Legislation.

12.2 The parties acknowledge and agree that, for the purposes of the Data Protection Legislation, in so far as the processing of personal data is concerned, the Customer is the controller and Problems Solved is the processor. 

12.3 Each party shall, at all times, comply with its respective obligations under all applicable Data Protection Legislation in relation to all personal data that is processed by it in the course of performing its obligations under the Contract, including (if relevant) by maintaining a valid and up to date notification under the General Data Protection Legislation (GDPR for UK and Europe) and relevant jurisdictional legislation for the region Problems Solved is working in. In particular any data provided for test purposes will be assumed to be anonymised. Any access to live personal data will be provided in compliance with the Customer’s privacy policy. 

13 INTELLECTUAL PROPERTY RIGHTS 

13.1 Subject to any Service Specific Terms to the contrary, as between the parties all rights, title and interests, including all Intellectual Property Rights, in and to the Services, any Problems Solved Materials or Deliverables or other materials created in the course of providing the Services (other than any Customer Materials incorporated into Deliverables) and any enhancements or modifications to those materials are vested in, or shall unconditionally and immediately on their creation vest in, and shall remain vested in Problems Solved or (as relevant) its subcontractors. 

13.2 Subject to any licence provisions to the contrary in the Order Confirmation, Problems Solved grants the Customer, at no extra charge, the non-exclusive right to use Problems Solved Materials (other than the Software Materials which shall be licensed in accordance with clause 13.3) solely to enable the Customer to use the Services or Deliverables for the Customer’s own internal business purposes.

13.3 Any Software Materials provided to the Customer as part of the Services shall be governed by the terms of any licence set out in the Order Confirmation. 

13.4 The Customer shall not remove, obscure, or deface any proprietary legend relating to Problems Solved’s or its subcontractors ownership of Intellectual Property Rights, on or from any tangible embodiment of any Problems Solved Materials provided to the Customer in accordance with the Contract, without Problems Solved’s prior written consent. 

13.5 Problems Solved acknowledges that all Intellectual Property Rights and any other proprietary rights in the Customer Materials are vested, and shall remain vested, in the Customer. 

13.6 The Customer grants to Problems Solved a royalty-free, non-exclusive licence (including a right to sub-licence) to use, reproduce, modify, adapt and develop Intellectual Property Rights in any Customer Materials supplied for the purpose of performing its obligations under the Contract.

13.7 Problems Solved shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of any claim that the Services or the Deliverables infringe the Intellectual Property Rights of any third party, provided that

13.7.1 Problems Solved is given prompt notice of any such claim;

13.7.2 the Customer provides reasonable co-operation to Problems Solved in the defence and settlement of such claim, at the expense of Problems Solved; and

13.7.3 Problems Solved is given sole authority to defend or settle the claim.

13.8 In the defence or settlement of any claim relating to the Services, Problems Solved may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Contract on 2 Business Days' notice to the Customer without any additional liability or obligation to pay damages or other additional costs to the Customer.

13.9 In no event shall Problems Solved be in breach of the warranty at clause 9.1 or liable to the Customer under the indemnity at clause 13.7 to the extent that the alleged breach or infringement is based on or arises from:

13.9.1 any changes to the Services or Deliverables made by the Customer or any third party without the prior written consent of Problems Solved; or

13.9.2 Problems Solved developing the Deliverables in accordance with the specifications or requirements provided by the Customer;

13.9.3 the incorporation of any Customer Materials into the Deliverables;

13.9.4 the Customer's use of the Services or Deliverables in a manner contrary to the Service Specific Terms or any instructions given to the Customer by Problems Solved; or

13.9.5 the Customer's continued use of the Services or Deliverables after becoming aware of the breach or infringement; or

13.9.6 use of any Deliverable in combination with any other software, equipment or third party deliverables which have not been supplied or approved by Problems Solved in writing for use with that Deliverable.

13.10 The foregoing states the Customer's sole and exclusive rights and remedies, and Problems Solved's (including its Personnel’s) entire obligations and liability, for infringement of any third party’s Intellectual Property Rights.

13.11 The Customer shall be under a duty to mitigate the Indemnified Losses which it suffers or incurs. 

13.12 This clause 13 shall remain in full force and effect notwithstanding expiry or termination of the Contract.

14 FORCE MAJEURE 

14.1 Neither party shall be liable to the other under the Contract for any loss or damage which may be suffered by the other party due to such party’s failure, hindrance or delay in performing any of its obligations hereunder caused by a Force Majeure Event.

14.2 If a Force Majeure Event continues for more than 20 Business Days from the date of its commencement, Problems Solved shall be entitled (but not obliged) to terminate the Contract forthwith without any penalty by giving written notice to the Customer.

15 RELIEF EVENTS 

15.1 Problems Solved shall not be in breach of the Contract or otherwise liable to the extent Problems Solved’s failure to perform, or its delay in performing, an obligation under the Contract is: 

15.1.1 as a result of the Customer’s failure to perform, or delay in performing, its obligations under the Contract; 

15.1.2 as a result of a breach of any of dependencies set out in the Order and/or the Confirmation Order; 

15.1.3 as a result of the suspension of the provision of the Services to the Customer in accordance with the Contract;

15.1.4 caused by any interfaces between the Customer and  Problems Solved’s systems; or 

15.1.5 any other events specified as Relief Events in the Order or a Confirmation Order, 

individually and together each of which are a “Relief Event”.

15.2 Problems Solved shall be entitled to the relief set out at clause 15.1 on condition that it: 

15.2.1 provides the Customer with reasonable notice of each Relief Event following becoming aware of such Relief Event; and

15.2.2 uses its reasonable endeavours to perform or procure the performance of the Services notwithstanding the Relief Event. 

15.3 To the extent that Problems Solved incurs additional costs in performing the Services as a result of any Relief Event (including any internal costs), Problems Solved may invoice the Customer for those costs on a time and materials basis, provided that invoice is accompanied by reasonable evidence of the costs incurred and the Customer shall settle those costs promptly without protest or delay. 

16 LIABILITY 

16.1 Neither party excludes or limits its liability under the Contract:

16.1.1 for death or personal injury caused by its negligence or the negligence of its Personnel; 

16.1.2 for fraud or fraudulent misrepresentation; 

16.1.3 in respect of any indemnity given to the other party pursuant to these Terms; or

16.1.4 any other liability which cannot be limited or excluded under Applicable Law. 

16.2 Nothing in this clause 16 shall operate to exclude or limit either party’s obligations to make payments in accordance with the terms of a Statement of Work, including the Customer’s obligation to pay the Charges or any costs arising as a result of a Relief Event.

16.3 Subject to clauses 16.1, 16.2 and 16.4: 

16.3.1 neither party shall be liable, whether in tort (including without limitation for breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for any loss of profits, loss of business opportunity, loss of revenue or contracts, loss of anticipated savings, wasted expenditure, depletion of goodwill, loss of use, fines, penalties or any liability for non-compliance with any applicable regulatory requirements loss and/or corruption of data or information or any special, indirect or consequential loss, cost, damage, charges or expenses; and

16.3.2 the aggregate liability of each party under the Contract, whether in contract, tort (including without limitation negligence or breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the total value of the Charges paid and payable to Problems Solved in the 12 month period preceding the date on which the claim arose.

16.4 The Customer shall have no claim against Problems Solved in respect of any defective Service provided by Problems Solved hereunder provided that Problems Solved shall rectify such Service within a reasonable time of being given written notice to do so, regardless of whether such liability arises from a breach of the Contract, in tort or otherwise.

16.5 The Customer acknowledges and agrees that the Charges reflect the level of liability undertaken by Problems Solved and that the exclusions and limitations contained in this clause 16 are reasonable given the Charges that are payable.

16.6 Each party shall take all reasonable steps to mitigate its losses sustained as a result of the other party’s breach of the Contract.

16.7 This clause 16 shall remain in full force and effect notwithstanding any expiry or termination of the Contract.  

17 TERMINATION 

17.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if the other party:

17.1.1 commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days after being notified in writing by  the other party to do so. If such breach is not capable of remedy, the Contract may be terminated with immediate effect by written notice; or

17.1.2 becomes insolvent, enters administration, becomes subject of a winding up order, is appointed a receiver or manager by competent jurisdiction or creditor, becomes bankrupt, ceases trading or is subject to a change of Control.

17.2 Without affecting any other right or remedy available to it, Problems Solved may terminate the Contract with immediate effect by giving written notice to the Customer:

17.2.1 if instructed to do so by a court of law, regulator or other appropriate authority;

17.2.2 if the Customer fails to pay any amount due under the Contract on the Due Date and remains in default not less than 30 days after being notified in writing to make such payment;

17.2.3 if Problems Solved is unable to install or continue to provide the Services; or

17.2.4 as a result of a Force Majeure Event in accordance with clause 14.2.

17.3 With respect solely to the proprietary software of Problems Solved, the relevant Order Confirmation will specify any Early Termination Charges due from the Customer if the Customer terminates for convenience any Services before the expiry of the initial term.

18 EFFECT OF TERMINATION OR EXPIRY OF THE CONTRACT

18.1 Upon termination or expiry of the Contract and subject to the provisions of any applicable Exit Plan:

18.1.1 the Customer shall immediately pay to Problems Solved all of Problems Solved's outstanding unpaid invoices and interest and, in respect of any Services supplied but for which no invoice has been submitted, Problems Solved may submit an invoice, which shall be payable immediately on receipt;

18.1.2 the Customer shall, within 15 Business Days return to Problems Solved at the Customer’s expense any Problems Solved Materials or pay Problems Solved for the Problems Solved Materials at its then-current purchase price if not so returned; 

18.1.3 if a subscription service is duly terminated, is not renewed, or if an agreement with Problems Solved expires at a certain date, the Customer’s right to use the Services will terminate as well. All saved data will continue to be available for chargeable download or backup for another 30 days after this date; and

18.1.4 each party shall immediately cease to use, either directly or indirectly, any Confidential Information, and shall immediately return to the other party any documents in its possession or control which contain or record any Confidential Information.

18.2 Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.

18.3 Any provisions forming part of these Terms which are agreed by the parties to survive termination or which by their nature are clearly intended by the parties to survive termination, shall survive and continue in full force and effect.

19 EXIT PLAN

19.1 The Customer accepts that an Exit Plan may not necessarily be viable depending on the circumstances surrounding termination of the Services.  The relevant Order Confirmation will confirm whether an Exit Plan is applicable and the circumstances in which the parties shall comply with their respective obligations under any applicable Exit Plan.

19.2 Nothing in any applicable Exit Plan shall require Problems Solved to continue to provide the Services to the Customer following termination of the Contract by Problems Solved.

20 MODIFICATION

20.1 Problems Solved may vary these Terms at any time by providing 30 Business Days’ notice to the Customer. If any variation is likely to cause material detriment to the Customer and/or the Services provided, Problems Solved will endeavour to provide commercially acceptable alternative working solutions to replace any Services that may be discontinued by an underlying supplier. Problems Solved will generally only do this for good reason, for example, to reflect changing legal regulatory. 

21 NOTICES 

21.1 Any notice required to be given to a party under these Terms may be provided to the other party in the following ways and such document shall be deemed to have been duly served as follows:

21.1.1 if it is sent by post (to the latest address notified by a party to the other party in writing), on the fifth Business Day following posting; or

21.1.2 if sent by electronic means, such as electronic mail, immediately following a confirmatory receipt of transmission; or 

21.1.3 if it is delivered by hand at the registered address of the other party or at such other address as is notified by the other party in writing, service shall be deemed immediate. 

21.2 This clause 21 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.

22 BRIBERY

22.1 The parties shall:

22.1.1 comply with all Applicable Laws relating to anti-bribery and anti-corruption including but not limited to the UK Bribery Act 2010; 

22.1.2 have and shall maintain in place throughout the term of the Contract its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the relevant requirements and will enforce them where appropriate; and 

22.1.3 promptly report to the other party any request or demand for any undue financial or other advantage of any kind received by the other party in connection with the performance of these Terms.

22.2 Breach of clause 22.1 shall be deemed a material breach of these Terms which is not capable of remedy.

22.3 Either party shall provide such supporting evidence of compliance as the other party may reasonably request.

22.4 Each party shall ensure that any person associated with that party (including any subcontractor) who is performing services in connection with the Contract does so only on the basis of a written contract which imposes on and secures from such person terms equivalent to those imposed on each party in this clause 22. Each party shall be responsible for the observance and performance by such persons of this clause 22 and shall be directly liable to the other party for any breach of by such person of any of this clause 22.

23 MODERN SLAVERY ACT

23.1 The parties shall:

23.1.1 comply with all Applicable Laws relating to anti-slavery and human trafficking, including but not limited to UK Modern Slavery Act 2015;

23.1.2 have and shall maintain in place throughout the term of these Terms its own procedures, including adequate procedures under the Modern Slavery Act 2015, to ensure compliance with the relevant requirements and will enforce them where appropriate; and 

23.1.3 promptly report to the other party any suspected or investigated contravention to anti-slavery and human trafficking under the Modern Slavery Act within the other party’s organisation.

24 ASSIGNMENT AND SUBCONTRACTING 

24.1 Subject to clause 24.2, neither party may assign, sub-license, transfer or otherwise dispose of any of its rights nor delegate or subcontract, transfer or otherwise dispose of any of its obligations under the Contract without the prior written consent of any other party, which shall not be unreasonably withheld or delayed.

24.2 Notwithstanding clause 24.1, nothing in the Contract shall prevent or restrict Problems Solved from assigning any of its rights or from delegating or subcontracting any of its obligations under the Contract to: 

24.2.1 any subcontractor that Problems Solved has engaged in relation to the provision of Services; 

24.2.2 any separate legal entity or subsidiary of Problems Solved that Problems Solved establishes from time to time as a result of a restructuring; or 

24.2.3 to any person acquiring the whole or any part of Problems Solved’s business or assets. 

25 GENERAL 

25.1 Costs. The parties will each be responsible for and bear their respective expenses and costs in relation to professional, internal, administrative or any other fees incurred at any time in connection with the Contract.

25.2 Variation. No oral side agreements have been made to these Terms. Subject to clause 20.1, any amendments, variations and/or supplements to the Contract will only be effective if it is made in writing and duly executed by the parties (or their authorised representatives).

25.3 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 based on any statement in the Contract.

25.4 Waiver. 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 delay or failure 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.

25.5 No Set-off: All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by Applicable Law).

25.6 Rights and Remedies: The rights and remedies provided under these Terms are in addition to, and not exclusive of, any rights or remedies provided by Applicable Law.

25.7 Communication. Each communication between the parties in relation to the Contract shall be (i) in English, and (ii) made in writing (email is accepted).

25.8 Severance. If any provision or part-provision of these Terms is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 25.8 shall not affect the validity and enforceability of the rest of the Contract.

25.9 Third Party Rights. Nothing in the Contract shall be deemed to confer any rights on anyone not a party to the Contract under the Contracts (Rights of Third parties) Act 1999. 

25.10 No Partnership. Nothing herein shall be construed to create a partnership, trust obligation, agency, liability or other general relationship between the parties extending beyond the limited scope of the Contract unless otherwise agreed by the parties.

25.11 Reliance. 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.

25.12 Resolution. Subject at all times to clause 26, if a dispute arises amongst the parties in connection with the interpretation, implementation or operation of the Contract or its subject matter or the validity of any document furnished by the parties under the Contract which cannot be resolved amicably by the parties, the parties and their legal representatives will promptly meet to consider whether there is possibly a resolution by mediation or conciliation.

26 GOVERNING LAW AND JURISDICTION 

26.1 The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and interpreted in accordance with English law.  

26.2 The parties irrevocably agree that the English courts shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).