Terms and conditions for the supply of goods and services

These Terms and Conditions govern the Agreement between ENERGY SYSTEMS CATAPULT LIMITED, incorporated and registered in England and Wales with company number 08705784 whose registered office is at Cannon House, 7th Floor, The Priory Queensway, Birmingham, B4 6BS (the ‘Catapult’) and YOU (the person, firm company or other organisation to whom this Purchase Order is addressed), and no other terms and conditions, whether introduced prior to or subsequent to the Purchase Order for which these Terms and Conditions apply, shall have any relevance unless they are expressly agreed in writing by an authorised representative of the Catapult (in which case such other terms and conditions shall prevail).

The supply of Goods or Services in response to the Purchase Order shall imply that You have accepted these Terms and Conditions.

1. DEFINITIONS

1.1. In this Agreement the following expressions shall, unless the context otherwise requires, have the following meanings:

1.1.1. Agreement: means these Terms and Conditions for the Supply of Goods and Services, the Purchase Order and all other documents and information contained or referred to in the Purchase Order about the Goods or Services;

1.1.2. Background IP: means any Intellectual Property Rights which a Party makes available for the performance of this Agreement, other than Foreground IP;

1.1.3. Business Day: means any day which is not a Saturday, a Sunday or a bank or public holiday in England;

1.1.4. the Catapult Equipment: means any equipment (including computing, telephone and other office equipment and facilities) provided by the Catapult to You for the supply of the Goods or Services;

1.1.5. Commencement Date: means the date stated in the Purchase Order;

1.1.6. Terms and Conditions: means these Terms and Conditions for the supply of Goods or Services, which form part of the Agreement;

1.1.7. Confidential Information: means any information relating to the Goods or Services, a Party’s affairs and finances, trade secrets, technical and commercial data and know-how, any information which a Party or Personnel is told is confidential, information treated as confidential by a Party and any information which has been given to a Party in confidence by customers, suppliers or other third parties;

1.1.8. Data Protection Legislation: means the General Data Protection Regulation 2016/679 of the European Parliament as transposed into United Kingdom national law and as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019, together with the Data Protection Act 2018, the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019 and other data protection or privacy legislation in force from time to time in the United Kingdom or, and to the extent applicable, the data protection or privacy laws of any other country and the terms ‘Controller’, ‘Processor’, ‘Data Subject’, ‘Personal Data’ and ‘Process/Processing’ shall have the same meaning as described in the Data Protection Legislation;

1.1.9. Deliverables: means any product of the Goods or Services;

1.1.10. Expiry Date: means the date set out in the Purchase Order;

1.1.11. Fees: means the fees payable by the Catapult to You as set out in the Purchase Order;

1.1.12. Force Majeure: means any event outside the reasonable control of either Party affecting its ability to perform any of its obligations (other than payment) under this Agreement including act of God, pandemic, epidemic, fire, flood, lightning, compliance with any law or governmental order, rule, regulation or direction, war, revolution, act of terrorism, riot or civil commotion, strikes, locks outs and industrial action, failure of supplies of power, fuel, transport, equipment, raw materials or other goods or Goods or Services or the requisitioning or other act or order by any Government department, local authority or other constituted body;

1.1.13. Foreground IP: means any Intellectual Property Rights which are created during the supply of the Goods or Services;

1.1.14. Goods or Services means: (i) any goods or services supplied by You as detailed in the Purchase Order or attached to or expressly referred to in the Purchase Order and set out separately, such as in a specification or scope of works document agreed by the Parties; and (ii) anything created or produced as a result of the Goods or Services, including – but not limited to – the Deliverables and Results;

1.1.15. Intellectual Property Rights: means any patents, rights to inventions, copyright and related rights, trade marks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in designs, rights in computer software, database rights, rights in Confidential Information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world;

1.1.16. Invention: means any invention, idea, discovery, development, improvement or innovation made by You, Your Personnel or sub-contractors in connection with the supply of Goods or Services, whether or not patentable or capable of registration, and whether or not recorded in any medium;

1.1.17. Liability Cap Amount: means £1,000,000 unless stated otherwise in the Purchase Order;

1.1.18. Minimum Insurance: means Your minimum levels of insurance cover, as set out in Condition 14, unless superseded by minimum levels set out in the Purchase Order;

1.1.19. Parties: means the Catapult and You;

1.1.20. Party: means You or the Catapult;

1.1.21. Personnel: means all Your employees, suppliers, contractors, sub-contractors, officers and agents, including students on work experience and volunteers, who from time to time are employed or engaged in connection with the supply of Goods or Services on Your behalf;

1.1.22. Purchase Order: means an official order placed by the Catapult with You for the supply of Goods or Services;

1.1.23. Results: means all results which arise from or relate to the Goods or Services including the Deliverables and any Invention or Works;

1.1.24. Term: means the period of time from the Commencement Date and expiring on the Expiry Date unless otherwise terminated in accordance with this Agreement;

1.1.25. Termination Date: means the date of the termination of this Agreement howsoever occasioned;

1.1.26. Transfer Regulation: means the Transfer of Undertakings (Protection of Employment) Regulation 2006 as amended, re-enacted or consolidated from time to time;

1.1.27. Works: means all records, reports, documents, papers, drawings, designs, transparencies, photos, graphics, logos, typographical arrangements, software programmes, Inventions, ideas, discoveries, developments, improvements or innovations and all materials embodying them in whatever form, including – but not limited to – hard copy and electronic form, prepared by You or the Personnel in connection with the provision of the Goods or Services;

1.2. References to ‘conditions’, ‘terms’ or ‘terms and conditions’ are, unless otherwise stated, to these Terms and Conditions.

1.3. References to statutory provisions shall be construed as references to those provisions as amended or re-enacted or modified by other provisions, from time to time, (whether before or after the date of this Agreement) and shall include references to any provisions of which they are re-enactments (whether with or without modification).

1.4. Words expressed in the singular shall, where the context so requires or permits, include the plural and vice versa.

1.5. Where any Party is more than one person:

1.5.1. that Party’s obligations in this Agreement shall take effect as joint and several obligations;

1.5.2. anything in this Agreement that applies to that Party, shall apply to all of those persons collectively and each of them separately; and

1.5.3. the benefits contained in this Agreement, in favour of that Party, shall take effect as conferred in favour of all of those persons collectively and each of them separately.

1.6. Reference to a ‘person’ includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.7. References to anything which any Party is required to do or not to do shall include their acts, defaults and omissions, whether:

1.7.1. directly or indirectly;

1.7.2. on their own account; or

1.7.3. for or through any other person; and

1.7.4. those which they permit or suffer to be done or not done by any other person.

1.8. References to the ‘approval’ or ‘consent of the Parties’ means a prior approval or consent which is in writing and which has been signed by the Parties and ‘approved’ shall mean that written approval has been given by or on behalf of the Parties.

2. TERM

This Agreement shall commence on the Commencement Date and shall (subject to the provisions for earlier termination set out in this Agreement) continue for the Term.

3. FEES AND EXPENSES

3.1. The Fees set out or referred to in the Purchase Order shall apply (without variation) for both the Term and/or for the stated quantity of the Goods or Services, unless otherwise agreed in writing by the Parties.

3.2. Subject to the terms of this Agreement, the Catapult shall pay the Fees to You for the provision of Goods or Services.

3.3. Unless otherwise specified in the Purchase Order, You shall submit monthly invoices in arrears to the Catapult in respect of the Fees and where registered for VAT, You shall show any VAT separately on such invoices.

3.4. Unless otherwise set out in the Purchase Order, Fees are exclusive of VAT and all expenses.

3.5. Provided the Goods or Services have been properly supplied in accordance with this Agreement and that invoices have been submitted in the required format with all required supporting documentation, the Catapult shall pay the Fees by direct bank transfer to Your nominated bank account within 30 days of the first Business Day following the Catapult’s receipt of a correctly submitted invoice.

3.6. If the Catapult considers that the Fees claimed by You in any invoice have not been calculated correctly or the invoice contains any other error or inadequacy, the Catapult shall notify You and the Parties shall work together to resolve the error or inadequacy.  Upon resolution, You shall submit a revised invoice to the Catapult if required.

3.7. You acknowledge that:

3.7.1. if You supply Goods or Services that have not been agreed with the Catapult, you do so at your own risk;

3.7.2. where the Goods or Services have not been properly supplied You shall promptly perfect the Goods or Services and any Results arising; and

3.7.3. the Catapult is not obliged to pay for any Goods or Services provided outside those set out or referred to in the Purchase Order or time spent perfecting the Goods or Services.

3.8.  You shall comply with all relevant laws and requirements relating to income tax, VAT, National Insurance and any other taxes and charges that apply to the Goods or Services.

3.9. You shall account for any taxes or charges due in respect of the Fees which You earn for supply of the Goods or Services and You shall indemnify the Catapult in full if it has to pay any taxes or charges in relation to the Goods or Services or any other aspect of this Agreement.

3.10. As regards expenses such as travelling, accommodation, subsistence or any other expense:

3.10.1. These are expressly excluded unless agreed in the Purchase Order;

3.10.2. Where the Parties have agreed that such expenses will be paid, then upon receipt of an appropriate invoice rendered by You to the Catapult together with evidence of such expenses being incurred, the Catapult shall repay to You all reasonable expenses.

3.11. You shall quote the Purchase Order number on all invoices.  Any invoices received by the Catapult without a relevant purchase order number being quoted will be rejected and returned to You and, in such event, the Catapult will not be liable to You for late payment or any consequence arising as a result of late payment of the Fees.

3.12. If the Catapult fails to pay You any sum due under this Agreement on the due date, the Catapult shall pay interest on the overdue amount at the rate of 3% per annum above Barclays Bank’s base rate from time to time, to accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment.

4. PERFORMANCE OF GOODS OR SERVICES

4.1. the Catapult shall engage You to supply the Goods or Services and to do so You shall provide the Personnel.

4.2. You undertake to the Catapult to procure the performance of and observance by the Personnel of all obligations under this Agreement and You acknowledge that any breach by the Personnel or any sub-contractor of any such obligations shall constitute a breach by You for which You shall be liable.

4.3. Subject to You being able to satisfy the Catapult in relation to security and associated concerns (including conforming with any of the Catapult’s IT policies as notified to You from time to time), You shall be required to provide any office equipment (including computing, telephone and other office equipment and facilities) required for the supply of the Goods or Services.

4.4. Where the Catapult provides You with any Catapult Equipment required for the supply of the Goods or Services, You shall hold such Catapult Equipment in safe custody at your own risk, maintain it in good condition until returned to the Catapult and not dispose of or use it other than in accordance with the Catapult’s written instructions or authorisation.

4.5. You shall supply and shall procure that the Personnel supply the Goods or Services in a timely, efficient and proper manner using the highest degree of skill and care and in accordance with good industry practice, with any Results being of satisfactory quality.

4.6. Whilst Your method of work is your own, You shall procure that the Personnel shall comply with the Catapult’s reasonable requests.

4.7. You shall comply with any performance dates specified in the Purchase Order and if stated in the Purchase Order, time for performance shall be of the essence.

4.8. You warrant that neither You nor the Personnel have:

4.8.1. been convicted of any criminal offence (other than an offence under any road traffic legislation in the United Kingdom or elsewhere for which a fine or non-custodial penalty is imposed; or, those “spent” pursuant to the Rehabilitation of Offenders Act 1974);

4.8.2. the Personnel have the right to work within the United Kingdom;

and You shall provide promptly, on demand, such evidence as the Catapult may reasonably request in this regard.

4.9. You shall, if so reasonably required, supply the Goods or Services, or some of them, jointly with one or more other persons, as the Catapult from time to time directs.

4.10. You shall immediately communicate the Results to the Catapult.

4.11. The Results and all rights in them shall be and remain the property of the Catapult.

4.12. You shall execute all documents and do all acts and things agreed which the Catapult, at any time during or after the termination of this Agreement requires in order to vest the Results in the Catapult or as the Catapult directs, provided that where such acts are required as a result of third party requirements imposed on the Catapult, then the Catapult shall pay Your reasonable any costs and expenses of doing so.

4.13. You shall comply and shall ensure that all Personnel comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010, and shall comply with the Catapult’s policies and procedures as from time to time in force.  Breach of this condition shall be deemed a material breach of this Agreement.

4.14. Risk and title in Goods shall pass to the Catapult upon its acceptance, when delivered to the place and address specified in the Purchase Order (or otherwise agreed between the Parties) and the Catapult reserves the right to take possession of all Goods to which it has title.

4.15. You shall be deemed not to have supplied Goods or Services unless an authorised officer of the Catapult has issued a receipt confirming the delivery and/or performance.

5. INDEPENDENT STATUS

5.1. You are an independent contractor and confirm that the Personnel will also be independent contractors were they to supply the Goods or Services directly to the Catapult and as such the Parties agree that You and/or the Personnel are not and shall not be deemed to be an employee, worker, director, agent or partner of the Catapult, and nor shall they hold themselves out as such, for any purpose whatsoever. The termination of this Agreement shall not, in any circumstances, constitute or be deemed to constitute a dismissal for any purposes.

5.2. You shall be fully responsible for and shall indemnify the Catapult for and in respect of the following:

5.2.1. any income tax, National Insurance and social security contributions and any other liability, deduction, contribution, assessment or claim arising from or made in connection with either the supply of the Goods or Services or any payment or benefit received by any Personnel in respect of the Goods or Services, where such recovery is not prohibited by law;

5.2.2. any liability arising from any employment-related claim or any claim based on worker status brought by any Personnel against the Catapult arising out of or in connection with the supply of Goods or Services, except where such claim is as a result of any act or omission of the Catapult;

5.2.3. all liabilities, costs, expenses, damages and losses suffered or incurred by the Catapult arising from the transfer of employment of any Personnel to the Catapult or to any successor supplier pursuant to the Transfer Regulation.

5.2.4. The indemnity in sub-condition 5.2.1 above does not apply to any income tax or National Insurance contributions deducted by the Catapult if the parties agree that the Catapult shall make the deduction of such amounts from the Fees due prior to payment to You.

5.3. You warrant that you are not and nor will you, prior to the cessation of this Agreement, become a managed service company.

6. AUTHORITY

6.1. Neither Party nor any Personnel shall have power and nor shall they purport to have the power to bind the other in any way whatsoever without the other Party’s prior written instruction.

6.2. Unless otherwise agreed in writing between You and the Catapult, during the provision of the Goods or Services, in all dealings and transactions with any and all third parties, nothing shall render either Party the partner or agent of the other.

7. DATA PROTECTION

7.1. The Parties shall at all times comply with their obligations under the Data Protection Legislation.

7.2. The Parties agree that at the commencement of the Agreement there is no intention of sharing or processing Personal Data.  However, if this becomes necessary, the Parties shall enter into a standalone data processing agreement.

7.3. You shall indemnify the Catapult against all and any loss arising whatsoever from Your breach of the Data Protection Legislation requirements.

8. INTELLECTUAL PROPERTY

8.1. Subject to this condition, all Background IP is and shall remain the exclusive property of the Party owning it or, where applicable, the third party from which its right to use the Background IP has derived.

8.2.Each Party grants to the other a royalty free, non-exclusive, non-transferrable, sub-contractable, world-wide licence to use its Background IP for the purposes of this Agreement and shall each, where reasonably practicable, acknowledge the other Party’s Background IP.

8.3. In the event that Your Background IP will be incorporated into the Results but you do not intend to let the Catapult have any proprietary interest in it, You shall let the Catapult have prior written notice, to include reasons why.

8.4. You hereby assign to the Catapult all Foreground IP in the Results, Goods or Services and all materials embodying such rights to the fullest extent permitted by law; and insofar as they do not so vest automatically by operation of law or under this Agreement, You hold legal title in such rights on trust for the Catapult.

8.5. You undertake to execute all documents, make all applications, give all assistance and do all acts and things (at the Catapult’s reasonable expense) at any time either during or after the Agreement, as may, in the Catapult’s opinion, be necessary or desirable to vest the Foreground IP in the Catapult’s name, including, but limited to, registering or obtaining trademarks, patents, registered designs, or asserting copyright and otherwise protecting and maintaining the Foreground IP in the Results.

8.6. You warrant to the Catapult that You have obtained from the Personnel (and shall let the Catapult have a certified copy on or before the date of this Agreement):

8.6.1. a written and valid assignment of all Foreground IP in the Results, the Goods or Services and of all materials embodying such rights;

8.6.2. a written irrevocable waiver of the Personnel’s statutory moral rights in the Results to which the Personnel are now or may at any future time be entitled, to the fullest extent permissible by law;

8.6.3. the Personnel’s written agreement to hold on trust for You any such rights in which the legal title has not passed (or will not pass) to You.

8.7. You undertake to the Catapult to:

8.7.1. let it have written details of all Results promptly on their creation;

8.7.2. keep confidential the details of all Results;

8.7.3. promptly deliver to the Catapult upon its request (and in any event on termination of the Agreement) all correspondence, documents, papers and records on all media (and all copies or abstracts of them), recording or relating to any part of the Results and the process of their creation which are in Your possession, custody or power;

8.7.4. not register nor attempt to register any of the Foreground IP in the Results, unless requested to do so by the Catapult;

8.7.5. not give permission to any third party to use any of the Results, nor any of the Foreground IP;

8.7.6. do all acts necessary to confirm that absolute title in all Foreground IP in the Results has passed, or will pass, to the Catapult; and

8.7.7. obtain written undertakings in the same terms as this condition for all and any Personnel.

8.8. You warrant that:

8.8.1. You are unaware of any use by any third party of any of the Results or Foreground IP in the Results;

8.8.2. the use of the Results by the Catapult will not infringe the rights of any third party; and

8.8.3. You will obtain written undertakings in the same terms as this condition for all and any Personnel.

8.9. You acknowledge that no further remuneration or compensation other than that provided for in this Agreement is or may become due to You in respect of the performance of Your obligations under this Agreement’s intellectual property provisions.

8.10. You agree to indemnify the Catapult and keep it indemnified at all times against any losses, damages, claims, costs or expenses (including reasonable legal expenses) incurred by it, or for which the Catapult may become liable, with respect to any intellectual property infringement claim relating to the Results and in the course of supplying the Goods or Services.  Your liability under this condition is not limited by the liability condition below.

9. CONFIDENTIAL INFORMATION

9.1. Each Party:

9.1.1. shall keep and procure to be kept secret and confidential all Confidential Information belonging to the other Party disclosed or obtained as a result of the relationship of the Parties pursuant to this Agreement;

9.1.2. shall not use nor disclose it with the prior written consent of the other Party;

9.1.3. may disclose Confidential Information to an employee, consultant, sub-contractor or agent to the extent necessary for the performance of this Agreement provided such disclosure is subject to obligations equivalent to those set out in this Agreement; and

9.1.4. shall use its best endeavours to procure that any such employee, consultant, sub-contractor or agent (including, in Your case, the Personnel) complies with such obligations;

9.1.5. shall be responsible to the other Party in respect of any disclosure or use of such Confidential Information by a person to whom disclosure is made.

9.2. The obligations of confidentiality in this condition do not extend to any Confidential Information that either Party wishes to disclose or can show:

9.2.1. is or becomes generally available to the public other than as a result of a breach of the obligations of confidentiality of this Agreement; or

9.2.2. was in its written records prior to the Commencement Date and is not subject to any confidentiality obligations; or

9.2.3. was or is disclosed to it by a third party entitled to do so; or

9.2.4. the Parties agree in writing is not Confidential Information or may be disclosed; or

9.2.5. is required to be disclosed under any applicable law, or by order of a court or governmental body or authority of competent jurisdiction.

10. TRANSFER REGULATION

10.1. It is Your responsibility to consider whether the Transfer Regulation applies to the supply of Goods or Services pursuant to this Agreement and to ensure that You comply with any Transfer Regulation obligations that apply to You.

10.2. You shall indemnify the Catapult in full (for its benefit and that of any successor) against all costs, expenses, damages and losses (whether direct or indirect) including any interest, penalties, and legal and other professional fees and expenses awarded against or incurred by the Catapult or a successor arising out of any relevant transfer under the Transfer Regulation.

11. FORCE MAJEURE

11.1. A Party will not be in breach of this Agreement nor liable for any failure or delay in performance of any obligations (except for those in relation to payment) under this Agreement (and the date for performance of the obligations affected will be extended accordingly) as a result of Force Majeure, provided that such Party complies with the obligations set out in this condition.

11.2. The Party affected by Force Majeure shall immediately notify the other in writing of the matters constituting the Force Majeure and shall keep that Party fully informed of their continuance and of any relevant change of circumstances whilst such Force Majeure continues.

11.3. The Party affected by Force Majeure shall take all reasonable steps available to it to minimise its effects on the performance of its obligations under this Agreement.

11.4. If Force Majeure continues for longer than one calendar month either Party may, whilst the Force Majeure continues, immediately terminate this Agreement by notice in writing to the other.

12. TERMINATION

12.1. the Catapult may, at any time and without prejudice to any rights or claims it may have against You, immediately terminate this Agreement on written notice to You and without any liability to pay any remuneration, compensation or damages if:

12.1.1. You commit a material breach of the obligations under this Agreement which is incapable of remedy;

12.1.2. You commit a material or persistent breach of the obligations under this Agreement which is capable of remedy and fails to remedy it or persists in such breach after 30 days of having been required in writing to remedy or desist;

12.1.3. You:

12.1.3.1. suspend, or threaten to suspend, payment of Your debts (whether principal or interest) or are deemed to be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986;

12.1.3.2. call a meeting, give a notice, pass a resolution or file a petition, or an order is made, in connection with Your winding up (save for the sole purpose of a solvent voluntary reconstruction or amalgamation);

12.1.3.3. apply to appoint an administrator or give notice of intention to appoint an administrator or appoint an administrator;

12.1.3.4. appoint a receiver or administrative over all or any part of Your assets, or a person becomes entitled to appoint a receiver or administrative receiver over all or any part of Your assets;

12.1.3.5. take any step in connection with proposing a company voluntary arrangement or pass a company voluntary arrangement, or commence negotiations with all or any of Your creditors with a view to rescheduling any of Your debts; or

12.1.3.6. have any steps taken by a secured lender against You; or

12.1.3.7. have any distress, execution or sequestration or other such process levied or enforced on any of Your assets; or

12.1.3.8. have any proceedings taken against You in any jurisdiction, or any event happens in any jurisdiction that has an effect equivalent or similar to any of the events in this condition;

12.1.4. You cease, or appear in the reasonable opinion of the Catapult likely to cease, to carry on all or a substantial part of Your business;

12.1.5. You undergo a change in legal status or actual or effective ownership or control of Your business;

12.1.6. You or any Personnel have been guilty of conduct which in the opinion of the Catapult brings You or the Catapult into disrepute;

12.1.7. You or any Personnel are convicted of any criminal offence (other than an offence under any road traffic legislation in the United Kingdom or elsewhere for which a fine or non-custodial penalty is imposed);

12.1.8. Any Personnel lose the right to work in the United Kingdom;

12.1.9. You or any Personnel have been guilty of any serious negligence which has or is likely to have an adverse effect on the Catapult; or

12.1.10. You or any Personnel breach this Agreement’s provisions about anti-bribery and Corruption.

12.2. Any delay by the Catapult in exercising such rights of termination in this condition shall not constitute a waiver of such rights.

12.3. You may, at any time and without prejudice to any rights or claims you may have against the Catapult, by notice in writing, terminate this Agreement immediately and without any liability to pay any remuneration, compensation or damages if the Catapult fails to pay any undisputed invoice properly submitted by You within 30 days following the first Business Day after receipt by the Catapult and following notice from You to the Catapult of such failure to pay, payment is not transferred by the Catapult to You within 14 days of receipt of such notice.

13. EFFECTS AND CONSEQUENCES OF TERMINATION

13.1. The expiration or earlier termination of this Agreement shall not affect:

13.1.1. such of its provisions as are expressed to operate or have effect afterwards (including any licence granted); or

13.1.2. any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination or expiry.

13.2. In the event of termination due to Force Majeure, the Catapult shall be liable for the payment of the Fees properly due to You for Goods or Services and Deliverables completed in accordance with this Agreement up to the date of actual termination.

13.3. All records in any medium (whether written, computer readable or otherwise) including accounts, documents, emails, drawings and private notes about the Catapult and/or the Goods or Services and all copies and extracts of them made or acquired by You in the course of Your engagement and the Catapult’s Confidential Information shall be:

13.3.1. the property of the Catapult;

13.3.2. returned to the Catapult on demand at any time; and

13.3.3. returned to the Catapult without demand promptly following the termination of Your engagement, save that You may retain one copy for audit or compliance requirements.

14. INSURANCE

14.1. You shall maintain adequate and suitable insurance cover in respect of the Goods or Services to the reasonable satisfaction of the Catapult and unless stated otherwise in the Purchase Order, of no less than the following minimum insurance levels:

14.1.1. Professional Indemnity: Two million pounds (£2,000,000);

14.1.2. Employers Liability: Five million pounds (£5,000,000);

14.1.3. Public/Products Liability: Five million pounds (£5,000,000).

14.2. You shall provide, promptly upon the Catapult’s request, such evidence as the Catapult may reasonably request about your insurance cover.

15. LIABILITY

15.1. Nothing in this Agreement shall limit or exclude either Party’s liability for:

15.1.1. death or personal injury resulting from negligence, or the negligence of its employees, agents or subcontractors;

15.1.2. fraud or fraudulent misrepresentation; or

15.1.3. any liability which cannot legally be limited or excluded.

15.2. Save as set out in conditions 8.10 and 15.1, neither Party shall be liable to the other for any indirect, special or consequential loss, damage, profit, costs, expenses (including reasonable legal expenses) or claim (whether caused by the negligence of a Party, its employees or agents or otherwise) which arise out of or in connection with the provision of the Goods or Services or its use or implication.

15.3. Subject to condition ‎15.1 and ‎15.2, the Catapult limits its total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise in connection with this Agreement to payment of the properly due Fees.

15.4. Subject to conditions ‎15.1, and ‎15.2, Your liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise in connection with this Agreement other than those arising under its provisions about intellectual property and Confidential Information shall be limited to the Liability Cap Amount, or as set out in the Purchase Order.

15.5.  This condition shall survive termination of the Agreement.

16. NOTICES

16.1. Any notices sent under this Agreement must be in writing.  Notice by email is deemed to be in writing.

16.2.  Notices may be served in the ways set out below and addressed to the Party’s authorised person for this Agreement, or at such other address as the relevant Party may give notice to the other Party for the purpose of service of notices under this Agreement and the following table sets out the respective deemed time and proof of service:

17. DISPUTE RESOLUTION PROCEDURE

17.1. If a dispute arises out of or in connection with this Agreement, or the performance, validity or enforceability of it, then:

17.1.1. either Party shall give to the other written notice of the dispute, setting out its nature and full particulars (the ‘Dispute Notice’) including all relevant supporting documents;

17.1.2. the Parties’ respective senior managers responsible for the Goods or Services shall attempt to resolve the dispute;

17.1.3. if the Parties’ senior managers are unable to resolve the dispute within 30 days of receipt of the Dispute Notice, the Parties agree to refer it to mediation or any other alternative dispute resolution procedure as determined by the Catapult before referring the dispute to the jurisdiction of the courts.

17.2. This condition shall be without prejudice to the Parties’ other rights and remedies.

18. ANTI-BRIBERY

18.1. You shall comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010. Breach of this condition shall be deemed a material breach of this Agreement that cannot be remedied and shall entitle the Catapult to terminate this Agreement with immediate effect.

19. GENERAL

19.1. Neither Party shall publish notice of Your appointment without the other Party’s prior consent, such consent not to be unreasonably withheld or delayed.

19.2. Neither Party nor anyone on its behalf shall use the other Party’s trademarks, logos or any other Intellectual Property Rights, or other branding or promotional material in any advertising, press releases, publicity matters or other promotional materials without the other Party’s prior written consent, such consent not to be unreasonably withheld.

19.3. This Agreement represents the entire agreement between the Parties in relation to the Goods or Services and supersedes any prior arrangement, understanding written or oral agreements between the Parties in relation to such subject matter.

19.4. The Parties acknowledge that this Agreement has not been entered into wholly or partly in reliance on, nor has either Party been given, any warranty, statement, promise or representation by the other or on its behalf other than as expressly set out in this Agreement.

19.5. The Catapult shall be entitled to set off against any sums due to You under this Agreement any sums payable by You to the Catapult in relation to the Agreement, or any other contract, or any other arrangement between the Parties.

19.6. Each Party agrees that the only rights and remedies available to it arising out of or in connection with any warranties, statements, promises or representations will be for breach of contract and irrevocably and unconditionally waives any right it may have to any claim, rights or remedies including any right to rescind this Agreement which it might otherwise have had in relation to them.

19.7. All warranties, conditions, terms and representations not set out in this Agreement whether implied by statute or otherwise are excluded to the extent permitted by law.

19.8. Nothing in this condition will exclude any liability in respect of misrepresentations made fraudulently.

19.9. You may not assign, transfer, sub-contract, or in any other way make over to any third party any of Your rights or obligations under this Agreement without the consent of the Catapult, not to be unreasonably withheld.

19.10. No variation or amendment of this Agreement, or oral promise or commitment related to it, shall be valid, unless in writing, refers specifically to this Agreement and is signed by or on behalf of both Parties.

19.11. This Agreement and the documents referred to in it are made for the benefit of the Parties and their permitted successors and assigns.  A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce, or enjoy the benefit of, any term of this Agreement.

19.12. If any provision or part-provision of this Agreement 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 and any modification to or deletion of a provision or part-provision shall not affect the validity and enforceability of the rest of this Agreement.

19.13. The rights and remedies of either Party in respect of this Agreement shall not be diminished, waived or extinguished by the granting of any indulgence, forbearance or extension of time granted by such Party to the other nor by any failure of, or delay by the said Party in ascertaining or exercising any such rights or remedies.  Any waiver of any breach of this Agreement shall be in writing. The waiver by either Party of any breach of this Agreement shall not prevent the subsequent enforcement of that provision and shall not be deemed to be a waiver of any subsequent breach of that or any other provision.

20. LAW AND JURISDICTION

20.1. This Agreement and any issues, disputes or claims arising out of or in connection with it or its subject matter or formation (whether contractual or non-contractual in nature such as claims in tort, from breach of statute or regulation or otherwise) shall be governed by and construed in accordance with the laws of England and Wales.

20.2. The Parties irrevocably agree that where any dispute cannot be resolved by other means, the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

April 2024