General
Terms & Conditions
Terms and conditions for the supply of services
1. Definitions and interpretation
- In these Conditions the following definitions apply:
Affiliate means any entity that directly or indirectly Controls, is Controlled by or is under common Control with, another entity;
Applicable Law means all applicable laws, legislation, statutory instruments, regulations and governmental guidance having binding force whether local or national or international in any relevant jurisdiction;
Bribery Laws means all Applicable Laws in connection with bribery or anti-corruption;
Business Day means a day other than a Saturday, Sunday, public holiday or UK bank holiday;
Conditions means the Supplier’s terms and conditions of supply set out in this document;
Confidential Information means any commercial, financial or technical information, information relating to the Services, plans, know-how or trade secrets which is obviously confidential in nature or has been identified as confidential, or which is developed by a party in performing its obligations under, or otherwise pursuant to the Contract;
Contract means the agreement between the Supplier and the Customer for the supply and purchase of Services incorporating these Conditions and including all their respective attachments and annexures;
Control means the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the management of the company and Controls, Controlled and under common Control shall be construed accordingly;
Customer means the named party in the Contract which has agreed to purchase the Services from the Supplier and whose details are set out in the Proposal;
Data Protection Laws means, as binding on either party or the Services:
(a) the GDPR;
(b) any laws which implement any such laws; and
(c) any laws that replace, extend, re-enact, consolidate or amend any of the foregoing;
Documentation means any descriptions, instructions, manuals, literature, technical details or other related materials supplied in connection with the Services;
Force Majeure means an event or sequence of events beyond a party’s reasonable control (after exercise of reasonable care to put in place robust back-up and disaster recovery arrangements) preventing or delaying it from performing its obligations under the Contract, including but not limited to an act of God, fire, flood, lightning, earthquake or other natural disaster, war, riot or civil unrest, interruption, acts of terror, sabotage or failure of supplies of power, fuel, water, transport, equipment or telecommunications service, or material required for performance of the Contract, strike, lockout or boycott or other industrial action including those involving the Supplier’s or its suppliers’ workforce, but excluding the Customer’s inability to pay or circumstances resulting in the Customer’s inability to pay;
GDPR means the EU General Data Protection Regulation 2016/679 and/or the UK GDPR;
Intellectual Property Rights means copyright, patents, know-how, trade secrets, trademarks, trade names, design rights, rights in get-up, rights in goodwill, rights in software, rights in Confidential Information, rights to invention, rights to sue for passing off, domain names and all other intellectual property rights and similar rights and, in each case:
(a) whether registered or not;
(b) including any applications to protect or register such rights;
(c) including all renewals and extensions of such rights or applications;
(d) whether vested, contingent or future;
(e) to which the relevant party is or may be entitled, and
(f) in whichever part of the world existing;
IPR Claim has the meaning given in clause 11.1;
Modern Slavery Policy means the Supplier’s anti-slavery and human trafficking policy in force and notified to the Customer from time to time;
Proposal means the proposal for the Services from the Supplier;
Personal Data shall have the meaning given to it in applicable Data Protection Laws from time to time;
Price has the meaning set out in clause 3.1;
Protected Data means Personal Data received from or on behalf of the Customer in connection with the performance of the Supplier’s obligations under the Contract.
Services means the Services set out in the Proposal and to be performed by the Supplier for the Customer in accordance with the Contract;
Supplier means any Affiliate(s) of the Clevry Group
Supplier Personnel means all employees, officers, staff, other workers, agents and consultants of the Supplier, its Affiliates and any of their sub-contractors who are engaged in the performance of the Services from time to time; and
Contract term Unless otherwise stated in the Contract, the term is 12 months, with an automatic renewals for subsequent terms;
- In these Conditions, unless the context requires otherwise:
- a reference to the Contract includes these Conditions, and their respective schedules, appendices and annexes (if any);
- any clause, schedule or other headings in these Conditions is included for convenience only and shall have no effect on the interpretation of the Conditions;
- a reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns;
- a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;
- a reference to a ‘company’ includes any company, corporation or other body corporate, wherever and however incorporated or established;
- words in the singular include the plural and vice versa;
- any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
- a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form;
- without prejudice to the provisions of clause 13, a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time except to the extent that any such amendment, extension or re-enactment would increase or alter the liability of a party under the Contract;
- without prejudice to the provisions of clause 13, a reference to legislation includes all subordinate legislation made from time to time under that legislation;
2. Application of these conditions
- These Conditions apply to and form part of the Contract between the Supplier and the Customer. They supersede any previously issued terms and conditions of purchase or supply.
- No terms or conditions endorsed on, delivered with, or contained in the Customer’s purchase conditions, proposal, confirmation/acceptance of proposal or other document shall form part of the Contract except to the extent that the Supplier otherwise agrees in writing.
- No variation of these Conditions or to the Contract shall be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of each of the Supplier and the Customer respectively.
- Each Proposal accepted by the Customer shall be an offer to purchase Services subject to the Contract including these Conditions.
- If the Supplier is unable to perform any work set out in the Contract, it shall notify the Customer in writing as soon as reasonably practicable.
- The offer constituted by a Proposal shall remain in effect and be capable of being accepted by the Supplier as defined in the Proposal, after which time it shall automatically lapse and be withdrawn.
- In the event any modification or variation is sought by the Customer, the Supplier may, at its discretion, accept or reject any Proposal modified/varied by the Customer. A modified Proposal shall not be accepted, and no binding obligation to supply any Services shall arise, until the earlier of:
- the Supplier’s written acceptance of the same modified/varied Proposal; or
- the Supplier performing the Services or notifying the Customer that they are ready to be performed (as the case may be).
- Rejection by the Supplier of a modified/varied Proposal, including any communication that may accompany such rejection, shall not constitute a counter-offer capable of acceptance by the Customer.
- The Supplier may issue quotations to the Customer from time to time. Quotations are invitations to treat only. They are not an offer to supply Services and are incapable of being accepted by the Customer.
- Marketing and other promotional material relating to the Services are illustrative only and do not form part of the Contract.
3. Price and payment
- The price for the Services shall be as set out in the Contract.
- The Prices are exclusive of:
- VAT (or equivalent sales tax); and
- insurance, and all other related charges or taxes.
- The Customer shall pay any applicable VAT to the Supplier on receipt of a valid VAT invoice.
- The invoicing party can be any of the Supplier’s Affiliates.
- If government measures, taxes or other payments increase the costs of providing the service, the Supplier reserves the right to immediately revise the contract prices with corresponding increases.
- When renewing the Contract, the price for the following term will be determined according to the price list valid at the renewal date.
4. . Performance
- The Services shall be available to the Customer on the date(s) specified in the Contract, or otherwise agreed in writing.
- The Supplier shall use its reasonable endeavours to meet estimated dates for performance, but any such dates are indicative only.
- The Supplier shall not be liable for:
- any delay caused by the Customer; or
- Force Majeure.
5. Warranty
- The Supplier warrants that, the Services shall:
- conform in all respects to their description;
- be free from material defects;
- be supplied with reasonable care and skill;
- The Customer warrants that it has provided the Supplier with all relevant, full and accurate information as to the Customer’s business and needs.
- As the Customer’s sole and exclusive remedy, the Supplier shall, at its option, remedy, re-perform or refund the Services that do not comply with clause 5.1, provided that:
- the Customer serves a written notice on the Supplier not later than five Business Days from performance in the case of defects discoverable by an inspection; and
- such notice specifies that some or all of the Services do not comply with clause 5.1 and identifies in sufficient detail the nature and extent of the defects; and
- the Customer gives the Supplier a reasonable opportunity to examine the claim of the defective Services.
- The provisions of these Conditions shall apply to any Services that are remedied or re-performed with effect from performance of the remedied or re-performed Services.
6. . Anti-bribery
- Each party shall comply with applicable Bribery laws and Supplier’s Code of Conduct.
- Any breach of this clause 6 by the Customer shall be deemed a material breach of the Contract that is not remediable and shall entitle the Supplier to immediately terminate the Contract by notice under clause 15.1.1.
7. .Anti-slavery
- Each party shall comply with applicable anti-slavery laws and Supplier’s Code of Conduct.
- Any breach of clause 7 by the Customer shall be deemed a material breach of the Contract and shall entitle the Supplier to terminate the Contract with immediate effect.
8. . Indemnity and insurance
- The Customer shall indemnify, and keep indemnified, the Supplier from and against any losses, damages, liability, costs (including legal fees) and expenses incurred by the Supplier as a result of or in connection with the Customer’s breach of any of the Customer’s obligations under the Contract.
- The Customer shall have in place contracts of insurance with reputable insurers by agreement in writing with the Supplier to cover its obligations under these Conditions. On request, the Customer shall supply, so far as is reasonable, evidence of the maintenance of the insurance and all of its terms from time to time applicable. The Customer shall on request assign to the Supplier the benefit of such insurance.
9. . Limitation of liability
- The extent of the parties’ liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 9.
- Subject to clauses 9.5 and 9.6, the Supplier’s maxim liability (howsoever arising, including negligence) for each claim or series of connected claim arising under or in connection with the Contract shall not exceed the aggregate sums received by the Supplier from the Customer in respect of the Price in the last 12 months of the Contract prior to the cause of action giving rise to the damages. In all circumstance such liability shall not exceed the sum of € / $ / £ 25,000 (EUR for EU and EEA customer, USD for North American customers, GBP for UK and international customers).
- Subject to clauses 9.5 and 9.6, the Supplier shall not be liable for consequential, indirect or special losses.
- Subject to clauses 9.5 and 9.6, the Supplier shall not be liable for any of the following (whether direct or indirect):
- loss of profit;
- loss or corruption of data;
- loss of use;
- loss of production;
- loss of contract;
- loss of opportunity;
- loss of savings, discount or rebate (whether actual or anticipated);
- harm to reputation or loss of goodwill.
- The limitations of liability set out in clauses 9.2 to 9.4 shall not apply in respect of any indemnities given by the Customer under the Contract.
- Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of the following:
- death or personal injury caused by negligence;
- fraud or fraudulent misrepresentation;
- any other losses which cannot be excluded or limited by Applicable Law;
- any losses caused by wilful misconduct.
10. Intellectual property
- The Supplier shall indemnify the Customer from and against any losses, damages, liability, costs and expenses (including reasonable professional fees) incurred by it as a result of any action, demand or claim that performance of benefit of the Services infringes the Intellectual Property Rights of any third party (IPR Claim), provided that the Supplier shall have no such liability if the Customer:
- does not notify the Supplier in writing setting out full details of any IPR Claim of which it has notice as soon as is reasonably possible;
- makes any admission of liability or agrees any settlement or compromise of the relevant IPR Claim without the prior written consent of the Supplier;
- does not let the Supplier at its request and own expense have the conduct of or settle all negotiations and litigation arising from the IPR Claim at its sole discretion;
- does not take all reasonable steps to minimise the losses that may be incurred by it or by any third party as a result of the IPR Claim;
- does not, at the Supplier’s request, provide the Supplier with all reasonable assistance in relation to the IPR Claim (at the Customer’s expense) including the provision of prompt access to any relevant premises, officers, employees, contractors or agents of the Customer;
- uses the Services in combination with any other goods or services, which without such combination, no IPR Claim could or would have been made.
- If any IPR Claim is made or is reasonably likely to be made, the Supplier may at its option, modify or replace the infringing part of the Services so as to avoid the infringement or alleged infringement.
- The Supplier’s obligations under clause 10.1 shall not apply to Services modified or used by the Customer other than in accordance with the Contract or the Supplier’s instructions. The Customer shall indemnify the Supplier against all losses, damages, liability, costs and expenses (including reasonable legal fees) incurred by the Supplier in connection with any claim arising from such modification or use.
11. Confidentiality and announcements
- The Customer shall keep confidential all Confidential Information of the Supplier and of its Affiliates and shall only use the same as required to perform the Contract. The provisions of this clause shall not apply to:
- any information which was in the public domain at the date of the Contract;
- any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract or any related agreement;
- any information which is independently developed by the Customer without using information supplied by the Supplier or by any Affiliate of the Supplier; or
any disclosure required by law or a regulatory authority or otherwise by the provisions of the Contract except that the provisions of clauses 11.1.1 to 11.1.3 shall not apply to information to which clause 11.4 relates.
- This clause shall remain in force in perpetuity.
- The Customer shall not disclose any information regarding the Contract, except to the extent required by law or regulatory authority.
12. Processing of personal data
The parties agree upon the details of data privacy and personal data processing in a separate Data Processing Agreement (DPA) which will be considered an essential part of the Contract.
13. Force majeure
Neither party shall have any liability under or be deemed to be in breach of the Contract for any delays or failures in performance of the Contract which result from Force Majeure. The party subject to the Force Majeure event shall promptly notify the other party in writing when such the event causes a delay or failure in performance and when it ceases to do so. If the Force Majeure event continues for a continuous period of more than 12 weeks, the Supplier may terminate the Contract by written notice to the other party.
14. Term and Termination
- The Supplier may terminate the Contract at any time by giving notice in writing to the Customer if:
- the Customer commits a material breach of Contract and such breach is not remediable;
- the Customer has failed to pay any amount due under the Contract on the due date and such amount remains unpaid within 30 calendar days after the Supplier has given notification that the payment is overdue; or
- becomes or if it is realistically anticipated that the Customer becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors which is not dismissed within 30 days of the filing thereof
- the Customer stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;
- suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
- is subject to any events or circumstances analogous to those in clause 14.1 in any jurisdiction;
- The Supplier may terminate the Contract any time by giving not less than one (1) months’ notice in writing to the Customer if the Customer undergoes a change of Control or if it is realistically anticipated that it shall undergo a change of Control within two months.
- If the Customer becomes aware that any event has occurred, or circumstances exist, which may entitle the Supplier to terminate the Contract under this clause 14, it shall immediately notify the Supplier in writing.
- In the event that the Customer merges with another company / companies, or if the headcount in any other way significantly changes, the contract will not be terminated, but will entitle the Supplier to start negotiations of a new pricing model of the Contract.
- Termination or expiry of the Contract shall not affect any accrued rights and liabilities of the Supplier at any time up to the date of termination.
- Unless either party gives a written notice of contract termination to the other at least one month prior to the expiration of the Contract term, the Contract will automatically renew for a subsequent term.
15. Notices
- Any notice or other communication given by a party under these Conditions shall:
- be in writing and in English, Finnish or Swedish, depending on the language of the Contract;
- be signed by, or on behalf of, the party giving it; and
- be sent to the relevant party at the email address set out in the Contract.
- Notices may be given, and are deemed received on receipt of a delivery email from the correct address.
- Any change to the contact details of a party as set out in the Contract shall be notified to the other party in accordance with clause 15.1 and shall be effective:
- on the date specified in the notice as being the date of such change; or
- if no date is so specified, 10 Business Days after the notice is deemed to be received.
- This clause does not apply to notices given in legal proceedings or arbitration.
- All references to time are to the local time at the place of deemed receipt.
16. Cumulative remedies
The rights and remedies provided in the Contract for the Supplier only are cumulative and not exclusive of any rights and remedies provided by law.
17. Time
Unless stated otherwise, time is of the essence of any date or period specified in the Contract in relation to the Customer’s obligations only.
18. Further assurance
The Customer shall at the request of the Supplier, and at the Customer’s own cost, do all acts and execute all measures which are necessary to give full effect to the Contract.
19. Entire agreement
- The parties agree that the Contract and any documents entered into pursuant to it constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.
- Each party acknowledges that it has not entered into the Contract or any documents entered into pursuant to it in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Contract or any documents entered into pursuant to it. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Contract.
- Nothing in these Conditions purports to limit or exclude any liability for fraud.
20. Variation
No variation of the Contract shall be valid or effective unless it is in writing, refers to the Contract and these Conditions and is duly signed or executed by, or on behalf of, each party.
21. Assignment
The Customer may not assign, subcontract or encumber any right or obligation under the Contract, in whole or in part, without the Supplier’s prior written consent.
22. Set off
The Customer shall pay all amounts due to the Supplier in full without any set-off, counterclaim, deduction or withholding except as required by law. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
23. No partnership or agency
The parties are independent persons and are not partners, principal and agent or employer and employee and the Contract does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. None of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party’s behalf.
24. Equitable relief
The Customer recognises that any breach or threatened breach of the Contract may cause the Supplier irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to the Supplier, the Customer acknowledges and agrees that the Supplier is entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.
25. Severance
- If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Contract shall not be affected.
- If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with the minimum such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.
26. Waiver
- No failure, delay or omission by the Supplier in exercising any right, power or remedy provided by law or under the Contract shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
- No single or partial exercise of any right, power or remedy provided by law or under the Contract by the Supplier shall prevent any future exercise of it or the exercise of any other right, power or remedy by the Supplier.
- A waiver of any term, provision, condition or breach of the Contract by the Supplier shall only be effective if given in writing and signed by the Supplier, and then only in the instance and for the purpose for which it is given.
27. Compliance with law
The Customer shall comply with Applicable Law and shall maintain such licences, authorisations and all other approvals, permits and authorities as are required from time to time to perform its obligations under or in connection with the Contract.
28. Costs and expenses
The Customer shall pay its own costs and expenses incurred in connection with the negotiation, preparation, signature and performance of the Contract (and any documents referred to in it).
29. Third party rights
- Except as expressly provided for in clause 29.2, a person who is not a party to the Contract shall not have any rights to enforce any of the provisions of the Contract.
- Any Affiliate of the Supplier shall be entitled to enforce any of the provisions of the Contract. The consent of any such Affiliate is not required in order to rescind or vary the Contract or any provision of it.
30. Dispute resolution
- Any dispute arising between the parties out of or in connection with the Contract shall be dealt with in accordance with the provisions of this clause 30.
- The dispute resolution process may be initiated at any time by either party serving a notice in writing on the other party that a dispute has arisen. The notice shall include reasonable information as to the nature of the dispute.
- The parties shall use all reasonable endeavours to reach a negotiated resolution. Within 10 Business Days of service of the notice, the parties shall meet to discuss the dispute and attempt to resolve it.
31. Governing law
The governing law is determined in the Contract.
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See below to review our terms and conditions and the Clevry privacy policy.
1. General
2. Consultancy and online assessment services
(a) Clevry shall provide its consultancy services and its online services (each referred to as Services) in accordance with any Proposal and these terms and conditions in all material respects. Clevry warrants to you that the Services will be provided using reasonable care and skill.
(b) Clevry shall use all reasonable endeavours to provide the Services and deliver outcomes in accordance with a timetable agreed with Clients prior to commencement of a project, or as amended by mutual consent in writing during a project. Timely delivery is subject to the Client making people, information and resources available as agreed and Clevry shall not be liable for any delay in delivery of the Services that is caused by a Force Majeure Event.
3. Charges and payment
(a) All amounts payable by the Client under Contracts are exclusive of amounts in respect of value added tax chargeable from time to time.
(b) In respect of Contracts under which the charges are to be calculated in accordance with Clevry’s agreed daily fee rates, those agreed daily fee rates for each individual person are calculated on the basis of an eight-hour day worked on normal business days.
(c) Clevry shall be entitled to charge the Client for expenses incurred by consultants for reasonable accommodation and subsistence and travel (rail and plane: at cost; bicycle 50p per mile; car: 59.25p per mile).
(d) The Client shall pay all invoices by BACS, cheque or credit card within 15 days from the date of invoice. Interest at the rate of 4% above the base rate of Barclays Bank plc from time to time shall be payable on all overdue sums from the date of invoice until the date of actual payment. In respect of Services supplied over a period of time, Clevry reserves the right to submit interim invoices on a monthly basis. Time for payment shall be of the essence of the contract. Clevry shall be entitled to suspend the supply of the Services whilst any sums are overdue from the Client.
(e) The Client shall pay all amounts due to Clevry in full without any set-off, counterclaim, deduction or withholding except as required by law. Clevry may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by Clevry to the Client.
(f) In subscriptions with an annual value of less than £3,000, there is a support fee to the Client of £100 / hour for basic customer support. Reporting issues and problems with the system is always free of charge.
4. Intellectual property rights
(a) All Intellectual Property Rights in and legal ownership of Clevry’s own proprietary materials, documents and other property used by it in providing the Services shall be owned by Clevry, to include amongst other matters all applications, assessment tools, tests and survey designs, algorithms and meta-data.
(b) Unless Clevry agrees in writing to the contrary, all Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by Clevry, provided always that the Client shall, subject to its compliance with these terms, be granted a non-exclusive, perpetual licence to use those Intellectual Property Rights for the purposes envisaged by the Client and Clevry when the Contract was entered into.
5. Confidentiality
(a) The Client shall keep in strict confidence all of Clevry’s technical or commercial know-how, processes, solutions and techniques which are of a confidential nature and have been disclosed to the Client by Clevry, its employees, agents or subcontractors. The Client shall not use the same other than for the purposes envisaged by the Contract.
(b) Except with the prior written consent of Clevry, the Client shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of fulfilling the terms of the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The Client may also disclose such of Clevry’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 5 shall survive termination of the Contract.
(c) The Client shall ensure that materials provided by Clevry under the Contract are not scanned, photocopied or otherwise reproduced by any person without the prior written consent of Clevry.
6. Limitation of liability
The client’s attention is particularly drawn to this clause.
a) Nothing in these terms and conditions shall limit or exclude Clevry’s liability for:
1. Death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors
2. Fraud or fraudulent misrepresentation
3. Breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession)
4. Breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession)
(b) Subject to clause 6 (a):
1. Since Clevry has no practical alternative but to host its online Services on secure third party servers and provide access to some of its Services via the Internet, the Client accepts that the provision of the Services may be subject to outages of those servers or the Internet over which Clevry cannot be expected to have any control. Clevry is conscientious and uses reasonable care and skill in the selection of its third party suppliers and the security of its systems, but its procedures in this respect and its relevant policies of insurance must be recognised as being those that might be expected to be maintained by a small to medium sized enterprise
2. Clevry maintains strict and appropriate back-up procedures and these provide for the back-up on a regular basis of all project data to which Clevry has access via its systems. However, it is a condition of the contract that the Client shall itself back-up all data which it is possible for it to back-up (whether in electronic or hard-copy form or both) including amongst other matters Client respondent data, comprising respondent personal data, respondent scores and results, and respondent reports. In addition (but without limitation), the Client should maintain its own back-ups of user settings, specific user configurations, assessment designs and other elements of the Services that are particular to the Client and/or the Contract
3. Clevry shall under no circumstances whatever be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of data, loss of profit, or any indirect or consequential loss arising under or in connection with the Contract, including amongst other things from the Client’s failure to follow the back-up requirements in sub-clause 6(b)2 above, loss of files, databases, client data, respondent data, templates or questionnaires, unauthorised access, delays to campaigns or projects caused by failure of servers or the Internet or difficulties with interfacing between the software programs of Clevry and third parties
4. Clevry’s Data Protection Policy is available upon request. In accordance with the provisions of that Policy, Clevry deletes Client data 12 months from the date of its collection (or 24 months for candidates marked as ‘hired’). Clevry restricts access to confidential Client data to persons within Clevry who have need to access that data for purposes related to the Contract
5. Clevry’s total liability to the Client in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the lower of (i) £25,000 and (ii) the aggregate amount of fees paid by the Client to Clevry in the 12 months prior to the date of the act or omission giving rise to the claim
(c) Clevry will provide the Services using reasonable care and skill. Any claims in relation to the Services must be notified to Clevry in writing not more than 6 months after conclusion of delivery of the Services. Except as provided in this clause 6, Clevry shall have no liability to the
Client in respect of any failure of the Services to comply with the warranty set out in this sub-clause (c).
(d) The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
(e) This clause 6 shall survive termination of the Contract.
(f) The Client shall indemnify Clevry against any liability that Clevry may incur as a result of any negligent or fraudulent act or omission on the part of the Client, its employees or agents in connection with the Services.
(g) All products are supplied as described on the Clevry website from time to time.
(h) Any dates quoted for delivery of products or services are approximate only, and the time of delivery is not of the essence. Clevry shall not be liable for any delay in delivery of any products or services that is caused by a Force Majeure Event or the Client’s failure to provide Clevry with adequate delivery instructions.
(i) If Clevry fails to deliver the products, its liability shall be limited to the costs and expenses incurred by the Client in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the products.
(j) Delivery of the products shall be completed when Clevry places them in the hands of its delivery agents. Clevry is not responsible for delays or losses caused by its delivery agents.
(k) Clevry warrants that on delivery and for a period of 6 months from the date of delivery (warranty period), the physical products shall be free from material defects in design, material and workmanship.
(l) Clevry shall accept returns of unused physical products within 14 days of the order date, provided all products are received in original packaging and are undamaged. Clients are responsible for the costs of returning the products to Clevry.
(m) If the Client gives notice in writing during the warranty period within a reasonable time of discovery that some or all of the products do not comply with the warranty set out in sub-clause.
(n) and the Client (if asked to do so by Clevry) returns such products to Clevry’s place of business at the Client’s cost, Clevry shall, at its option, repair or replace the defective products, or refund the price of the defective products in full.
(o) Except as provided in this clause 6, Clevry shall have no liability to the Client in respect of any failure of the physical products to comply with the warranty set out in sub-clause (k).
(p) The risk in physical products shall pass to the Client on delivery. Title to those products shall not pass to the Client until Clevry receives payment in full (in cash or cleared funds) for the products and any other products or Services that Clevry has supplied to the Client, in which case title to the products shall pass at the time of payment of all such sums.
7. Termination & Suspention
(a) The contract term is 12 months for annual subscriptions. The contract can be terminated for convenience by either Party by giving a 90-day written notice before the end of the contract term. Otherwise, the contract shall renew for 12 months upon completion of the contract term.
(b) Without limiting its other rights or remedies, Clevry may terminate the Contract with immediate effect by giving written notice to the Client if the Client commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 21 days after receipt of notice in writing to do so.
(c) Without limiting its other rights or remedies, Clevry may terminate the Contract with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under the Contract on the due date for payment.
(d) Without limiting its other rights or remedies, Clevry may suspend the supply of the Services or all further deliveries of products under the Contract or any other contract between the Client and Clevry if the Client fails to pay any amount due under the Contract on the due date for payment.
(e) On termination of the Contract for any reason:
1. The Client shall immediately pay to Clevry all of Clevry’s outstanding unpaid invoices and interest and, in respect of products or Services supplied but for which no invoice has yet been submitted, Clevry shall submit an invoice, which shall be payable by the Client immediately on receipt
2. The Client shall return all of the Clevry proprietary materials which have not been fully paid for
3. The accrued rights and remedies of the parties as at termination shall not be affected; and
4. Clauses which expressly or by implication have effect after termination shall continue in
full force and effect.
8. Force majeure
(a) For the purposes of these terms and conditions, Force Majeure Event means an event beyond the reasonable control of Clevry including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of Clevry or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, technical failure of the Internet, third party servers and other technological elements beyond Clevry’s reasonable control, fire, flood, storm or default of suppliers or subcontractors.
(b) Clevry shall not be liable to the Client as a result of any delay or failure to perform its obligations under the Contract as a result of a Force Majeure Event.
(c) If the Force Majeure Event prevents Clevry from providing any of the Services and/or products for more than 12 weeks, Clevry shall, without limiting its other rights or remedies, have the right to terminate the Contract immediately by giving written notice to the Client.
9. Other
(a) Assignment and Sub-contracting. Clevry may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract.
(b) Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
(c) Waiver. A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
(d) We reserve the right to increase prices annually, according to the UK inflation rate.
(e) Nothing in the Contract is intended to, or shall be deemed to, establish any legal partnership or joint venture between Clevry and the Client, nor constitute either of them as the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
(f) A person who is not a party to the Contract shall not have any rights to enforce its terms. The Client are fully responsible for any claim made by any user, candidate, customer or third party to the Client.
(g) Notices. Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally or sent by prepaid first-class post or other next working day delivery service or by commercial courier (but not by e-mail). A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address described in the first sentence of this sub-clause 9(f); 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; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.
(h) Governing law. These terms and conditions and of the Contract and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non- contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
(i) Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have
non-exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these terms and conditions and of the Contract or their subject matter or formation (including non- contractual disputes or claims).