Framework Services Agreement

1.1 The definitions and rules of interpretation that apply in this agreement and any Call-off Contract and Service Order are set out in the Definitions and Interpretation document made available by the Supplier (the Definitions), which forms part of this agreement.

1.2 In addition: Brands has the meaning given in clause 2; FSA and this agreement mean this Framework Services Agreement; a Client Party means the Client and/or any Client Affiliate; and a reference to a clause is to a clause of this agreement.

2.1 The Services are provided under one or more of the Supplier’s trading names and brands (each a Brand), being at the date of this agreement Tlam, Rendr and Mushroombiz®, together with any Brand added, renamed, replaced or withdrawn under this clause. The applicable Brand for a Service is identified in the relevant Call-off Contract and Service Order.

2.2 A reference to a Brand is a reference to a trading name of the Supplier only. No Brand is a separate legal entity or contracting party. SH Professional Services Ltd is the sole contracting party for this agreement and every Call-off Contract and Service Order.

2.3 All Brands, and the trade marks, logos, names and goodwill associated with them (including the registered mark Mushroombiz®), are owned by or licensed to the Supplier. Nothing in this agreement grants the Client any right to use any Brand except as strictly necessary to receive the Services.

2.4 The Supplier may add, withdraw, rebrand, rename or replace any Brand from time to time. No such change affects the continuity or validity of this agreement, any Call-off Contract or Service Order, or the provision of the Services, which continue under the replacement or renamed Brand.

3.1 This agreement governs the overall relationship of the parties in relation to the Services provided by the Supplier to the Client and Client Affiliates. Further Service-specific terms are set out in the relevant Call-off Contract and Service Order.

3.2 A Client Party may order a Service either: (a) by a signed Service Order; or (b) where no Service Order is signed, by requesting and/or accepting the Service, in which case the Supplier may issue an invoice for it. Where a Service is ordered under (b), the invoice incorporates by reference, and the Service is provided subject to, the relevant Call-off Contract and this agreement.

3.3 This agreement and the relevant Call-off Contract take effect and become binding on the Client Party on the earliest of: (a) the Client Party onboarding online and accepting these terms; (b) the Client Party signing a Call-off Contract or Service Order; (c) the Client Party paying an invoice for the Service; or (d) the Client Party continuing to receive the Service. The Client shall procure the compliance of any Client Affiliate with the terms of this agreement.

3.4 Each Call-off Contract is entered into by the Client Party and the Supplier and forms a separate contract between them. The Supplier shall provide the Service from the date the Call-off Contract comes into force.

3.5 The Client Party shall:

• (a) co-operate with the Supplier in all matters relating to the Services and appoint a Client Party Manager with authority to bind the Client Party on matters relating to the Services;
• (b) provide such access to the Client Party’s premises, data, office accommodation and other facilities as may reasonably be requested by the Supplier and agreed in writing in advance, for the purposes of the Services;
• (c) provide such information as the Supplier may reasonably request and the Client Party considers reasonably necessary, in order to carry out the Services in a timely manner; and
• (d) inform the Supplier of all health and safety and security requirements that apply at the Client Party’s premises.

3.6 If the Supplier’s performance of its obligations under a Call-off Contract is prevented or delayed by any act or omission of the Client Party, its agents, subcontractors, consultants or employees, the Supplier shall not be liable for any costs, charges or losses sustained or incurred by the Client Party that arise directly or indirectly from such prevention or delay.

3.7 The Supplier shall supply the Services in accordance with the relevant Call-off Contract and Service Order, and shall use all reasonable endeavours to meet any performance dates specified; where none is specified, the Supplier shall perform the Services within a reasonable time.

3.8 The Supplier shall appoint a Supplier Manager with authority to bind the Supplier on matters relating to the Services, and shall use reasonable endeavours to ensure continuity of that person.

3.9 In supplying the Services, the Supplier shall:

• (a) perform the Services with the level of care, skill and diligence in accordance with good practice in the Supplier’s industry, profession or trade;
• (b) co-operate with the Client Party and comply with its reasonable instructions;
• (c) use personnel who are suitably skilled and experienced, and in sufficient number, to fulfil its obligations under the Call-off Contract;
• (d) obtain and maintain all consents, licences and permissions (statutory, regulatory, contractual or otherwise) necessary to enable it to comply with its obligations;
• (e) ensure that the Services and Deliverables conform with the descriptions and specifications set out in the relevant Call-off Contract and Service Order and are fit for any purpose expressly made known to the Supplier;
• (f) comply with all applicable laws, statutes and regulations and the Mandatory Policies; and
• (g) notify the Client Party in writing on the occurrence of a change of control of the Supplier.

4.1 On any conflict or inconsistency, the order of precedence (highest first) is: (a) the Service Order (if any); (b) the Call-off Contract; (c) this agreement; and (d) the invoice. The invoice governs only the particulars of the Charges and, except for incorporating the relevant Call-off Contract and this agreement where no Service Order is signed (clause 3.2(b)), does not vary any term of (a) to (c).

4.2 A conflict does not arise merely because a lower-ranking document addresses a matter on which a higher-ranking document is silent; in that case the lower-ranking document applies to the extent of that additional detail.

This agreement commences on the day all parties have agreed and accepted these terms (the Commencement Date) and continues unless terminated earlier in accordance with clause 9 (Termination).

6.1 We always seek to be fair and open as regards the fees we charge.

6.2 We will adopt our then prevailing hourly and/or day rates where a Client Party either exceeds its pre-agreed allocated usage of our Services and/or requests a Service that varies from the service specification agreed with the Client Party on commencement.

6.3 We shall match any increase in the prevailing rate of inflation and apply it to all of our fees at such time.

6.4 Where a Client Party insists that we dedicate a more senior staff member than the pre-agreed assigned staff member, we will apply (for the remainder of the Service and retrospectively) the prevailing hourly and/or day rate of the senior staff member.

6.5 Where a Client Party’s business materially changes, leading to materially greater complexity (for example, and without limitation, a material increase in transaction volumes, an increase in the Client Party’s staff, or increased regulation of the Client Party), we will adjust our fees to our prevailing hourly and/or day rates to account for such additional complexity.

6.6 Except for an adjustment to reflect inflation under clause 6.3, the Supplier shall give the Client Party not less than 10 Business Days’ written notice before any change to the Charges takes effect.

7.1 The restrictions on liability in this clause apply to every liability arising under or in connection with this agreement, including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

7.2 Nothing in this agreement limits or excludes either party’s liability for:

• (a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
• (b) fraud or fraudulent misrepresentation; or
• (c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.

7.3 Subject to clause 7.2: (a) neither party is liable to the other for any indirect or consequential loss arising under or in connection with this agreement; and (b) each party’s total aggregate liability arising under or in connection with this agreement (excluding any liability arising under a Call-off Contract or Service Order) shall not exceed £1,000.

7.4 The cap in clause 7.3(b) applies only to liability arising under this agreement. It does not limit, reduce or cap any liability arising under a Call-off Contract or Service Order. The limitation of liability for each Service is set out in the relevant Call-off Contract and Service Order and applies to that Service in place of the cap in clause 7.3(b).

7.5 The Client shall be jointly and severally liable for the performance of any Client Affiliate under any Call-off Contract or Service Order entered into by that Client Affiliate.

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

8.2 Unless otherwise stated in a Call-off Contract or Service Order, or as the relevant Service requires, the parties acknowledge that for the purposes of the Data Protection Legislation the Client Party is the controller and the Supplier is the processor. Where the relevant Call-off Contract or the prevailing law requires it, the Supplier shall be the controller or a joint controller with the Client Party. The Supplier’s privacy policies are made available by the Supplier.

8.3 Each party will ensure that it has all necessary appropriate consents and notices in place to enable the lawful transfer of personal data for the duration and purposes of this agreement.

8.4 In relation to any personal data processed in connection with the performance by the Supplier of its obligations, the processing party shall:

• (a) process that personal data only on the documented written instructions of the other party unless required by applicable law to do otherwise;
• (b) ensure appropriate technical and organisational measures to protect against unauthorised or unlawful processing and accidental loss, destruction or damage;
• (c) ensure that personnel processing the data are bound by confidentiality;
• (d) not transfer personal data outside the UK without appropriate safeguards and the other party’s prior written consent;
• (e) assist the other party with data subject requests, security, breach notifications, impact assessments and consultations with regulators;
• (f) notify the other party without undue delay on becoming aware of a personal data breach; and
• (g) at the other party’s written direction, delete or return personal data on termination or expiry unless required by law to store it.

8.5 The other party consents to the appointment of third-party processors, provided the appointing party remains fully liable for the acts and omissions of any such processor and imposes terms reflecting the requirements of the Data Protection Legislation.

8.6 Either party may, on not less than 30 days’ notice, revise this clause by replacing it with applicable controller-to-processor standard clauses or similar terms forming part of an applicable certification scheme.

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

• (a) the other party commits a material breach of any term of this agreement and (if such breach is remediable) fails to remedy that breach within 30 days after being notified in writing to do so;
• (b) the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
• (c) the other party suspends, or threatens to suspend, payment of its debts, is unable to pay its debts as they fall due, admits inability to pay its debts, or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
• (d) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a solvent amalgamation or reconstruction;
• (e) the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
• (f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party, other than for the sole purpose of a solvent amalgamation or reconstruction;
• (g) an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given, or an administrator is appointed, over the other party;
• (h) the holder of a qualifying floating charge over the assets of the other party has become entitled to appoint or has appointed an administrative receiver;
• (i) a person becomes entitled to appoint a receiver over the assets of the other party, or a receiver is appointed over the assets of the other party;
• (j) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets, and such attachment or process is not discharged within 14 days;
• (k) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in (c) to (j) (inclusive);
• (l) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
• (m) the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy; or
• (n) there is a change of control of the other party.

9.2 For the purposes of this clause, a material breach means a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which the terminating party would otherwise derive from a substantial portion of this agreement over its term. In deciding whether any breach is material, no regard shall be had to whether it occurs by some accident, mishap, mistake or misunderstanding.

10.1 On termination or expiry of this agreement, howsoever arising, each Call-off Contract and Service Order then in force shall continue in full force and effect for the remainder of its term, unless terminated earlier in accordance with its terms.

10.2 The termination of any Call-off Contract or Service Order shall not affect any other Call-off Contract or Service Order or this agreement.

10.3 On termination of this agreement, the following clauses shall continue in force: clause 1 (Interpretation), clause 7 (Limitation of Liability), clause 10 (Survival), clause 11 (Confidentiality), clause 12 (Intellectual Property), clause 13 (Non-solicitation), clause 25 (Governing Law and Jurisdiction), and any other clause which by its nature is intended to survive.

10.4 Termination of this agreement 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 agreement existing at or before the date of termination.

11.1 Each party undertakes that it shall not at any time, and for a period of five years after termination of this agreement, disclose to any person any confidential information concerning the business, affairs, clients or suppliers of the other party or any member of its group, except as permitted by this clause.

11.2 Each party may disclose the other party’s confidential information to its employees, officers, representatives, contractors, subcontractors or advisers who need to know it for the purposes of exercising the party’s rights or carrying out its obligations under this agreement, and as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

11.3 No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.

12.1 The Supplier and its licensors shall retain ownership of all Supplier Background IPRs. The Client Party and its licensors shall retain ownership of all Client Party Background IPRs. The Supplier shall own all Foreground IPRs and Deliverables.

12.2 Subject to specification in a Call-off Contract or Service Order, the Supplier may grant the Client Party, or procure the direct grant to the Client Party of, a licence to copy and modify the relevant Deliverable and/or Foreground IPR.

12.3 Where a Call-off Contract grants a licence of the Supplier’s software (including the Rendr application), the grant, scope, restrictions, term and associated terms of that software licence are set out in, and governed by, that Call-off Contract and its Service Order, which prevail over this clause 12 to the extent of any inconsistency.

12.4 The Client Party shall not sub-license, assign or otherwise transfer the rights granted above to other Client Affiliates or Clients without the prior written permission of the Supplier.

12.5 The Client Party grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Client Party Background IPRs for the term of the relevant Call-off Contract solely for the purpose of providing the Services.

12.6 The Supplier warrants that the receipt, use and onward supply of the Services and Deliverables by the Client Party will not infringe the Intellectual Property Rights of any third party, and shall indemnify the Client Party against liabilities arising from any such third-party infringement claim, subject to clauses 12.7 and 12.8.

12.7 The Client Party shall have no claim under clause 12.6 to the extent the infringement arises from: (a) modification of the Deliverables, Supplier Background IPRs, Foreground IPRs or Services other than by or on behalf of the Supplier; or (b) compliance with the Client Party’s specifications or instructions, where the infringement could not have been avoided while complying and provided the Supplier notifies the Client Party if it knows or suspects such compliance may infringe.

12.8 Liability under the indemnity in clause 12.6 is conditional on the Client Party promptly notifying the Supplier of any relevant claim, not admitting liability or settling without the Supplier’s prior written consent (not to be unreasonably withheld), giving the Supplier reasonable access and information, and, subject to the Supplier providing reasonable security for costs, taking such action as the Supplier reasonably requests to avoid, dispute, compromise or defend the claim.

13.1 A Client Party shall not, without the prior written consent of the Supplier, at any time from the date of the relevant Call-off Contract and until 12 months after completion of the Services or expiry of that Call-off Contract, solicit or entice away from the Supplier, or employ or attempt to employ, any person who is, or has been, engaged as an employee, consultant or subcontractor of the Supplier in the provision of the Services.

13.2 Any consent given by the Supplier under clause 13.1 shall be subject to the Client Party paying to the Supplier an appropriate agreed sum prior to such transfer of employment or engagement.

Neither party shall be in breach of this agreement or any Call-off Contract, nor liable for delay in performing or failure to perform any of its obligations, if such delay or failure results from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance was delayed or prevented.

No variation of this agreement 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 this agreement 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 this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor prevent or restrict its further exercise. No single or partial exercise of any right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. If any provision or part-provision is deemed deleted, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

This agreement 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 agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement, and shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.

Neither party shall assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).

Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute any party the agent of another, or authorise any party to make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.

Unless it expressly states otherwise, this agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement. The rights of the parties to rescind or vary this agreement are not subject to the consent of any person.

23.1 Any notice given to a party under or in connection with this agreement shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service to its registered office (if a company) or its principal place of business (in any other case), or sent by email to the Supplier at rco@tlam.co.uk.

23.2 Any notice shall be deemed received: if delivered by hand, at the time it 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 if sent by email, at the time of transmission, or, if outside business hours, when business hours resume. This clause does not apply to the service of proceedings or documents in legal action, arbitration or other dispute resolution.

This agreement may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts together shall constitute one agreement. Transmission of an executed counterpart by email (in PDF or other agreed format) shall take effect as delivery of an executed counterpart. No counterpart shall be effective until each party has provided to the other at least one executed counterpart.

This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it, its subject matter or its 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 such dispute or claim.