Terms and Conditions for Supply of Services to ODI
1. General Information
- The Open Data Institute (“the ODI” or the “Client”) is a not for profit corporation limited by guarantee. The ODI is located at: 5th Floor, Kings Place, 90 York Way, N1 9AG.
- The following are the Terms and Conditions of the ODI for the provision to it of professional services as provided by any entity or person (“the Supplier”).
2. Services, Fees and Payment
- The ODI requires services to be provided by the Supplier:
- The details of the services to be provided (“the Services”), the fees payable for the Services (“the Fee”) and the payment terms for the Fee will be agreed in advance with the Supplier and set out in the schedule (“the Schedule”) to the attached covering letter signed by both parties.
- These Terms and Conditions for Professional Services (“Terms & Conditions”) and the attached covering letter with Schedule from ODI when signed by the Supplier shall constitute the agreement for the provision of the Services by the Supplier to ODI (“Agreement”). In the event of a conflict between these Terms & Conditions and the Schedule the Schedule shall prevail.
3. Performance of Services
- The ODI shall engage the Supplier and the Supplier shall provide the Services to the ODI in accordance with the terms of this Agreement.
- The Supplier shall carry out the Services from such location and shall undertake such travel in the UK and abroad as is reasonably necessary for the proper performance of the Services.
- Subject to the Supplier being able to satisfy the ODI in relation to security and associated concerns, the Supplier shall be required to provide any office equipment (including computing, telephone and other office equipment and facilities) and any other equipment required for the provision of the Services.
- The Supplier shall supply the Services in a good, efficient and proper manner using all reasonable skill and care with the results of the Services being fit for purpose and satisfactory quality. While the Supplier’s method of work is its own, the Supplier shall comply with the reasonable requests of the ODI, and with the ODI’s policies and procedures, as from time-to-time in force and shall use its reasonable endeavours to promote the interests of the ODI.
- The Supplier shall maintain adequate and suitable insurance cover (to the reasonable satisfaction of the ODI) and, in any event, to a minimum of £500,000, in respect of the Services to be provided, pursuant to this Agreement, and shall provide, promptly upon request, such evidence as the ODI may reasonably request in this regard.
- The Supplier shall, if so reasonably required, perform the Services, or some of them, jointly with one or more other persons, as the ODI from time to time directs.
- The results of the Services and all rights in them shall be and remain the property of the ODI.
- The Supplier shall, without further remuneration, but at the ODI’s expense, execute all documents and do all acts and things which the ODI, at any time during or after the termination of this Agreement requires in order to vest the results of the Services in the ODI or as the ODI directs.
- The Supplier shall 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 ODI’s policies and procedures as from time to time in force. Breach of this clause III.9 shall be deemed a material breach of this Agreement.
4. Intellectual Property
- The Intellectual Property Rights generated as part of and/ or in association with the provision of the Services, whether as preparatory to or in execution of the Services or both, shall, as between the ODI and the Supplier, belong to the ODI. For the avoidance of doubt this shall include, without limitation, ownership by the ODI of copyright in all reports, materials and other documents produced in whole or in part in connection with this Agreement.
- In these Terms & Conditions the expression Intellectual Property Rights means patents, trademarks, service marks, processes, rights and/or proprietary rights related to designs, copyrights, database rights, design rights, confidential information, applications for any of the above, and any similar right recognised from time to time in any jurisdiction, together with all rights of action in relation to the infringement of any of the above.
- Any materials or information produced by the Supplier for the ODI in the provision of the Services will be made available by the ODI for use by others, including the Supplier, in accordance with an appropriate open licence. The appropriate open licence shall be a simple set of terms and conditions under which information providers in the public sector can license the use and re-use of their information. Provided that third parties comply with its terms, they will have permission to use this information anywhere in the world. The appropriate open licence shall be non- exclusive and shall enable third parties, including the Supplier, to use information for both commercial and non-commercial purposes.
- The parties to this Agreement shall keep in strict confidence all information that falls within the types of information which have been designated as confidential by any other party thereto or that ought to be considered by the receiving party as confidential (however it is conveyed or on whatever media it is stored) including information which relates to the Agreement, the Services or the business, affairs, properties, assets, trading practices, goods, services, developments, trade secrets, Intellectual Property Rights, know-how, personnel, customers and suppliers of any party, all personal data and sensitive personal data within the meaning of the Data Protection Act 1998 and other commercially sensitive information (“Confidential Information”). The parties shall restrict disclosure of Confidential Information to such of their respective employees as need to know the same for the purpose of discharging that party’s obligations under this Agreement and shall ensure that such employees are subject to obligations of confidentiality corresponding to those which bind the party in question itself.
- No party shall be prevented from using any general knowledge, experience or skills which were in its possession prior to the commencement of this Agreement to which it is party.
- Clause 5.1 shall not apply to any Confidential Information received by a party:
- which is or becomes public knowledge (otherwise than by breach of this Clause 5);
- which was in the possession of a party, without restriction as to its disclosure, before receiving it from another party
- which is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
- is independently developed without access to the Confidential Information as evidenced by the asserting party’s written notes; or
- which must be disclosed pursuant to a statutory, legal or parliamentary obligation placed upon the party making the disclosure, including any requirements for disclosure under the Freedom of Information Act 2000, or the Environmental Information Regulations 2004.
- The Supplier shall not subcontract any of the Services to be provided under this Agreement to any third party without the prior written consent of the ODI, which consent may be refused by the ODI for any reason whatsoever in its sole discretion.
7. Suspension, Termination and Recovery of Fees
- The Supplier acknowledges that the ODI’s funding to enable it to pay the Fees is sourced, at least in part, from public funds, namely grant funding from Innovate UK. Under the terms of the grant funding agreement between Innovate UK and the ODI, Innovate UK is entitled to suspend, terminate or recover the grant from the ODI. In the event that any such suspension, termination or recovery is due in whole or in part to the actions or omissions of the Supplier then the ODI may suspend, terminate or recover Fees from the Supplier.
8. Termination of Arrangement
- Without prejudice to any other rights or remedies which the parties may have,
- the Supplier may terminate this Agreement if the ODI fails to pay any Fees within 30 days of the invoice payment date set out in the Schedule, and
- the ODI may terminate this Agreement if the Supplier commits any breach of its obligations under this Agreement and fails to remedy that breach within 28 days of receiving written notice from the ODI requiring its remedy
- Either party may terminate this Agreement with immediate effect if:
- the other party is involved in any regulatory actions, civil or criminal proceedings or any other acts or omissions as a consequence of which the relationship may, in the sole opinion of the terminating party, be prejudicial to that party or bring that party into disrepute;
- an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party; or
- an order is made for the appointment of an administrator to manage the affairs, business and property of the other party or, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
- a receiver is appointed of any of the other party’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets;
- 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 (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; or
- 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 the previous clause; or
- the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
9. Effects of termination
- On termination of this Agreement for any reason:
- the ODI shall immediately pay the Supplier any sums owing to it as at the date of termination
- the Supplier shall immediately cease promoting and advertising its relationship with ODI and distributing any materials referring to it; and
- the Supplier shall take all reasonable steps to ensure that third parties are not misled as to the current relationship with ODI by virtue of any materials that remain in the marketplace and public domain.
10. Limitation of liability
- This clause 10 sets out the entire financial liability of the parties (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the other in respect of:
- any breach of this Agreement; and
- any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
- All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded.
- Nothing in this Agreement limits or excludes the liability of ODI or the Supplier:
- for death or personal injury resulting from negligence; or
- for any damage or liability incurred by the Supplier or ODI (as applicable) as a result of fraud or fraudulent misrepresentation by the other.
- The parties shall not be liable for loss of profits; loss of business; depletion of goodwill and/or similar losses; loss of anticipated savings; loss of goods; loss of contract; loss of use; loss of corruption of data or information; or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
- Each party’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of this Agreement shall be limited to the sum of £500,000 in the aggregate.
- State Aid
- The parties acknowledge that the ODI is a ‘Research Organisation’ as defined under European Union legislation and has an obligation to ensure, and is subject to audits to demonstrate, that all activities it undertakes is compliant with State aid rules including its activities under this Agreement. The parties therefore agree that, notwithstanding any other provision of this Agreement:
- the ODI shall be able to cooperate with any investigation by any grant funder or the European Commission with respect to this Agreement to the extent reasonably necessary to satisfy such investigation and the Supplier shall provide all reasonable assistance to the ODI to satisfy such investigation.
- the ODI shall use all reasonable endeavours to protect the confidentiality of the Supplier’s Confidential Information under this clause and shall only disclose such Confidential Information as is strictly necessary for the purpose of the investigation and put in place obligations of confidentiality as restrictive as those within this Agreement insofar as it is able;
- the ODI shall keep the Supplier informed of any active and specific investigation into this Agreement and, where possible, liaise with the Supplier concerning any response to the investigating grant funder or the European Commission; and
- the parties shall comply with any ruling of the investigating grant funder or the European Commission.
- A waiver of any right existing pursuant to this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.
- Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
13. Third Party Rights
- This Agreement is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns, and is not intended to benefit, or be enforceable by, anyone else.
14. Governing Law and Jurisdiction
- This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of England.
- The parties irrevocably agree that the courts of England 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).