Refractiv terms and conditions of business
Terms and Conditions
1. In these conditions the following expressions shall have the meanings below:
“REFRACTIV” – means Refractiv Limited (Company number 08260773) whose registered office is Round Foundry Media centre, Foundry Street, Leeds LS11 5QP and its assigns;
“Customer” – means the person, firm or Company identified as such in the relevant Contract with REFRACTIV;
“Work” – means the goods, products and services provided by REFRACTIV to the Customer pursuant to the Contract which are defined within the Proposal and may be further defined by a specification or requirements document;
“Contract” – means the contract made pursuant to these conditions between REFRACTIV and the Customer for the provision of Work, consisting of these conditions and any mutually agreed terms set out or referred to in the Order;
“Order” – means the Customer’s order or acceptance in respect of the proposed Work (subject to these conditions);
“Intellectual Property Rights” – means all copyright and other intellectual property rights, howsoever arising and in whatever media, whether or not registered, including (without limitation) patents, trademarks, service marks, trade names, registered design and any applications for the protection or registration of these rights and all renewals and extensions thereof throughout the world;
“Refractiv Software” – means the software owned by REFRACTIV pre-existing on the date of the Contract upon which the software to be developed (where applicable) in accordance with the Contract shall be based;
“Proposal” – means the sales proposal or quotation provided by REFRACTIV in response to the Customer’s requirements.
“Third-party Applications” – means software not owned by REFRACTIV which is resold, provided or licenced to the Customer e.g. G Suite.
2. The headings in these conditions are for convenience only and will not affect their interpretation.
3. Unless a different form of contract is mutually agreed and accepted between the parties in writing, all Work will be carried out by REFRACTIV in accordance with the Contract. These terms and conditions, and the agreed terms set out or referred to in the Order, will be the only terms and conditions applicable to such Work. No amendment or addition to the Contract by the Customer will be deemed accepted by REFRACTIV unless expressly accepted in writing by REFRACTIV as being incorporated in the Contract. The placing of an Order or the acceptance of Work by the Customer will indicate acceptance of these conditions by the Customer. A Contract is made when REFRACTIV notifies acceptance of an Order to the relevant Customer or REFRACTIV commences Work on the basis of the Order, whichever is earlier. Orders may be in writing (including e-mail) or by telephone call. Should REFRACTIV choose to accept an Order but vary the terms, then the varied terms will be notified to the Customer by REFRACTIV before Work begins. In such circumstances a Contract will be made when Work begins pursuant to the varied terms or the Customer accepts the varied terms whichever is earlier.
3.1 Special terms apply to the use of Third-Party Applications by the Customer – such terms may include a separate licence or agreement which must be accepted by the Customer before use. If as part of the Contract, the Customer subscribes to the G Suite service resold by REFRACTIV and provided by Google, the terms in Schedule A below shall apply.
4. Once made, a Contract cannot be cancelled except by mutual agreement, and then only on terms which fully indemnify REFRACTIV in respect of all losses arising out of the cancellation (including without limitation loss of profit).
5. REFRACTIV retains the Intellectual Property Rights to all Refractiv Software. Where required REFRACTIV will, subject to suitable commercial terms which may be part of the Proposal, grant a licence to use elements of the Refractiv Software for the internal business purposes of the Customer. Such a grant shall not include the right to resell or otherwise commercially exploit the Refractiv Software.
6. Where a bespoke software module is developed for the Customer and is deployed in conjunction with the Refractiv Software, Refractiv will on request grant the Customer appropriate non-exclusive rights to the software for internal business use.
Data Processing and Privacy
(i) only process personal data in relation to which the Customer is the data controller in accordance with written instructions from or on behalf of that Customer, unless EU or EU Member State law to which REFRACTIV is subject requires other processing of that personal data, in which case REFRACTIV will inform the Customer (unless that law prohibits REFRACTIV from doing so on important grounds of public interest);
(ii) not process that personal data for any purpose other than for the performance of REFRACTIV’s obligations under this Contract;
(iii) ensure that appropriate technical and organisational measures are taken to avoid unauthorised or unlawful processing of that data and against loss or destruction of, or damage to, that personal data;
(iv) ensure all of REFRACTIV’s employees, agents and contractors who will have access to that personal data have committed themselves to confidentiality or are otherwise under an appropriate obligation of confidentiality;
(v) not, by any act or omission, place the Customer in breach of the European Data Protection Legislation;
(vi) inform the Customer promptly and without undue delay of any data protection breaches or unauthorised or unlawful processing, loss, or destruction of, or damage to, that personal data;
(vii) obtain prior consent to engage any third party subcontractor to process that personal data on behalf of the Customer, and ensure such third party subcontractor only uses and accesses that data in accordance with the terms of the Contract;
(viii) taking into account the nature of the processing, assist the Customer by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Customer’s obligations under the European Data Protection Legislation to respond to requests for exercising the data subject’s rights;
(ix) assist the Customer in ensuring compliance with any applicable obligations under the European Data Protection Legislation related to security; breach notification; data protection impact assessments and prior consultation with the supervisory authorities, taking into account the nature of processing and the information available to REFRACTIV;
(x) at the choice of the Customer, delete or return all the personal data to Customer after the end of the provision of the Services, and delete existing copies unless prohibited from doing so by applicable EU or EU member state law;
(xi) as from 25 May 2018, make available to the Customer all information necessary to demonstrate REFRACTIV’s compliance with the obligations imposed by the Contract in respect of the personal data and allow for and contribute to audits, including inspections, conducted by Customer or another auditor mandated by Customer; and
(xii) not process, or cause to be processed, that personal data outside the European Economic Area unless REFRACTIV adopts a compliance solution that achieves compliance with the terms of Article 25 of the Directive or Article 44 of the GDPR (as applicable).
The terms “processing”, “personal data”, “processor” and “controller” have the meanings given in the European Data Protection Legislation.
Prices, variations and estimates
8. The price for all Work will be calculated in accordance with the rates set out in the Contract, or, if none are set out in the Contract the price expressed in the Proposal made by REFRACTIV for the purpose of securing the relevant Work.
9. Estimates may vary if there are significant changes to the requirements.
10. A firm quotation will only be given on receipt of a Customer’s detailed brief and will not be valid unless given in writing (including e-mail) and identified as a firm quotation.
11. If the Customer requests REFRACTIV not to complete Work, or the Customer is otherwise in breach of its obligations under the Contract, REFRACTIV may charge for all Work carried out pursuant to the Contract whether or not such Work is completed. This is without prejudice to any other right REFRACTIV may have in respect of breach of the Contract by the customer.
Costs & Expenses
12. The Customer will reimburse REFRACTIV for all costs and expenses incurred, whether on its own account or on behalf of the Customer, in connection with the services it performs for the Customer in relation to all Work undertaken, regardless of whether the Work is completed.
13. Unless otherwise stated on the estimate quotation or invoice, prices are exclusive of VAT, which will be charged in addition at the appropriate rate.
14. If, by agreement, any Work is carried out in addition to the Work agreed pursuant to the contract, a charge may be made to cover any such additional work.
15. REFRACTIV may provide the Customer with designs, mockups or other proofs of Work for approval. Where the Customer has indicated his approval REFRACTIV will have no liability for errors not corrected by the Customer.
Delivery and Payment
16. Work will be carried out as soon as practicable. Insofar as Work consists of the supply of goods, such goods will be delivered as soon as they are ready, at the delivery address given in the Contract.
17. If no method or price for delivery is agreed in the Contract, REFRACTIV will be entitled to use such reasonable method of delivery as it sees fit and to charge the Customer all costs (together with VAT if chargeable) of delivery by such means.
18. All times, dates or periods given for completion or delivery of Work are estimates only and shall not be of the essence of the Contract. REFRACTIV will use reasonable endeavours to meet any such date but such date will not be binding on REFRACTIV and REFRACTIV will not incur any liability for any loss or damage resulting from any delay howsoever caused.
19. Delivery of Work will be accepted by the Customer when tendered by REFRACTIV. In the case of goods this will be at the Customer’s premises agreed in the Contract and when delivery is tendered risk of damage to or loss of the goods will pass to the Customer.
20. Payment terms will be stipulated in the Proposal and on each invoice. Invoices may be issued from time to time on an interim basis for Work carried out to the date of invoice.
21. Should Work be suspended at the request of, or delayed through any default of the Customer for a period of over 30 days REFRACTIV will then be entitled to payment for Work already carried out.
22. REFRACTIV will at its discretion be entitled to charge interest at up to 2% per annum above HSBC PLC base rate from time to time on any account which remains unpaid after the due date and such interest will accrue and be chargeable from the date of invoice or the date the relevant Work was completed and ready for collection, whichever is earlier.
23. Without prejudice to any other rights REFRACTIV may have in respect of the breach, REFRACTIV will be entitled to recover from the Customer all costs and disbursements incurred by it employing a solicitor, debt collector or other third party to enforce or collect payment. Until payment in full has been received in respect of all outstanding invoices, REFRACTIV may withhold or suspend performance of any outstanding contractual obligation pursuant to the Contract or any other contract between REFRACTIV and the Customer.
24. Insofar as Work consists of the supply of goods; advice of, and any claim in respect of loss or damage to any such goods in transit, or of non-delivery, must be given in writing to REFRACTIV and the carrier within three clear days of delivery in the case of damage (or in the case of non-delivery within 7 days of notification to the Customer of despatch).
25. All other claims must be made in writing to REFRACTIV within 7 days of delivery and reasonable evidence supplied.
26. REFRACTIV will not be liable in respect of any claim unless the above-mentioned requirements have been complied with except in any particular case where the Customer proves that it was not reasonably practicable to comply with those requirements and advice was given and the claim made as soon as possible.
27. Both during this agreement and after its termination, the parties will treat as confidential and will not (other than in the proper provision of the services required to fulfil the Contract) use or disclose to any person, firm or company, any confidential information belonging to the other party nor permit its use or disclosure.
28. The provisions of this clause will survive the termination of this agreement but the restrictions contained in clause 26 will cease to apply to any information which may come into the public domain otherwise than through unauthorised disclosure.
Issues and disputes
29. The Customer will promptly notify REFRACTIV of any issues or quality concerns regarding the Work and where requested, provide a written description of the issue. REFRACTIV will either rectify the notified matter or provide a suitable explanation or response. Where it is not possible to resolve a notified issue or quality concern, the matter will be referred to the managing directors of the Customer and REFRACTIV who will seek in good faith to find an amicable resolution.
30. If the managing directors of the Customer and REFRACTIV fail to settle any dispute within a reasonable time, they will seek to agree a process for achieving a resolution suitable for the circumstances. Nothing in this clause 28 will prevent either party from bringing legal action: 1. to the extent reasonably necessary to preserve or protect its interests during the period in which the parties seek to resolve their dispute; or 2. if it has reasonably concluded that negotiations or other process are unlikely to provide a resolution within a reasonable timescale.
31. The Customer irrevocably and unconditionally agrees to indemnify and hold harmless REFRACTIV and (in accordance with the Contracts (Rights of Third Parties) Act 1999) each REFRACTIV person from and against all or any losses, claims, damages, charges, expenses or liabilities (or other actions in respect thereof) related to or arising directly or indirectly out of REFRACTIV’s provision of services hereunder or any other related transaction in connection with which REFRACTIV may provide services to the Customer or one of the Customer’s associates and the Customer will promptly upon demand by REFRACTIV reimburse REFRACTIV and all other REFRACTIV persons for all losses, charges, taxes, costs and expenses (including legal and other professional fees and expenses) which are incurred by REFRACTIV or any such REFRACTIV person in connection with investigating, preparing or defending any such action or claim, whether or not in connection with pending or threatened or actual litigation or arbitration, or in establishing its right to be indemnified pursuant to this paragraph and/or in seeking advice as to any claim, action, liability, demand or proceedings in which REFRACTIV or any such REFRACTIV person is a party, and whether or not resulting in liability on the part of REFRACTIV or such other REFRACTIV person (as the case may be).
32. The Customer will not however, be responsible for any claims, liabilities, losses, damages or expenses to the extent that they are found in a final judgement by a court of competent jurisdiction to have resulted from actions taken or omitted to be taken by REFRACTIV or such other REFRACTIV person (as the case may be) in bad faith or arising from the negligence of REFRACTIV or such other REFRACTIV person (as the case may be).
33. No claims will be made against REFRACTIV or any other REFRACTIV person in respect of any loss or damage that the Customer or, (if relevant) any of the Customers parent, subsidiary and associated companies from time to time and each of the Customer’s and their directors, officers, employees and agents may suffer or incur by reason of or arising out of any advice or service provided by REFRACTIV or any REFRACTIV person to such persons in relation to or in connection with any Work or matter connected to this Work and which does not arise from the bad faith or negligence of REFRACTIV or such other REFRACTIV person. In the event that REFRACTIV is liable to pay damages for any losses, such damages will be limited to that proportion of the Customer’s actual loss which was directly caused by REFRACTIV and in any event REFRACTIV’s liability will in no circumstances exceed the aggregate amount of twice the fee paid to REFRACTIV as specified in these terms and conditions.
34. Each sum payable by REFRACTIV under these terms and conditions will be paid free and clear of all deductions or withholdings whatsoever save only as may be required by law. If any such deduction or withholding is required or if Her Majesty’s Customs and Revenue or any other taxing authority in any jurisdiction brings any such sum (other than a sum paid or payable in respect of any fee or commissions) into any charge to taxation (or into any computation of income, profits or gains for the purpose of any charge to taxation), such sum will be grossed up by such amount as will ensure that after such deduction or withholding or charge the remainder of the gross sum paid or payable will equal the sum which would otherwise be payable under these terms and conditions (additional payments being made by the Customer as may be necessary from time to time).
35. This paragraph is in addition to any rights, which REFRACTIV or any other REFRACTIV person may have at common law or otherwise including but not limited to any right of contribution.
36. The Customer agrees that it will not, without REFRACTIV’s prior written consent, settle or compromise or consent to the entry of any judgement with respect to any pending or threatened claim in respect of which indemnification may be sought under this paragraph (whether or not REFRACTIV is an actual or potential party to such claim) unless such settlement, compromise or consent includes an unconditional release of REFRACTIV from all liabilities arising out of such claim.
Limitation of Liability
37. REFRACTIV’s liability for personal injury or death in either case caused by REFRACTIV’s negligence will not be limited.
38. Subject to clause 28 the entire liability of REFRACTIV to the Customer under or in connection with the Contract will not exceed a sum equal to twice REFRACTIV’s charges under the Contract for the Work, which is the subject of the Customer’s claim.
39. Without prejudice to clauses 28, 30-35 and 36, REFRACTIV will have no liability to the Customer under or in connection with the Contract for any indirect, special or consequential loss, damage, costs, expenses or other claims (including without limitation loss of profit) whether caused by the negligence of REFRACTIV its employees, agents or otherwise.
Materials supplied by customers and third parties
40. Where materials are supplied or specified by the Customer REFRACTIV will take reasonable care to secure the best results, but responsibility will not be accepted for imperfect work caused by defects in or unsuitability of materials so supplied or specified.
41. Where materials are supplied or specified by third parties, REFRACTIV does not give any warranty or guarantee as to their quality, fitness or otherwise but will, where possible, assign to the Customer the benefit of any warranty, guarantee or indemnity given by the supplier.
42. Neither the Customer nor REFRACTIV will during the term of this agreement and for six months after termination without the other’s prior written agreement directly or indirectly solicit the employment or engagement of any of the employees of the other party.
43. For the avoidance of doubt, there is no restriction on either party employing any person who is employed or acting for the other party where such person responds to a bona fide public advertisement for employees.
44. If the Customer makes a voluntary arrangement with his creditors or becomes subject to an administration order or (being a company) goes into liquidation or an encumbrancer takes possession or a receiver is appointed of any of the assets or property of the Customer or the Customer ceases or threatens to cease to carry on business or will be unable to pay its debts as they fall due, REFRACTIV without prejudice to other remedies will:-
44.1 have the right not to proceed further with the Contract or any other Work for the Customer and be entitled to charge the Customer for any Work already carried out (whether or not completed) and materials purchased for the Customer, such charge to be an immediate debt due to REFRACTIV; and
44.2 in respect of all unpaid debts due from the Customer have a general lien on all goods and property of the Customer in its possession (whether completed or not) and will be entitled on the expiration of 14 days notice to dispose of such goods or property in such manner and at such price as it thinks fit and to apply the proceeds towards such debts in such manner as it thinks fit.
45. The Customer indemnifies REFRACTIV and agrees to keep REFRACTIV fully and effectively indemnified in respect of all costs, claims, damages, expenses, liabilities and obligations arising out of any defamatory matter or any infringement of copyright, patent, design or any other proprietary or personal rights contained in any material printed or copied for the Customer. The indemnity will extend to any amounts paid in respect of legal fees on a full indemnity basis.
46. REFRACTIV will be under no liability if it is unable to carry out any obligation under the Contract for any reason beyond its control (including without limitation) act of God, legislation, war, fire, flood, drought, failure of power supply, inability to procure materials required for the performance of the Contract, lock-out, strike or other action taken by employees in contemplation or furtherance of a dispute. During the continuance of any such contingency the Customer may, by written notice to REFRACTIV, elect to terminate the Contract and pay for the Work done and materials used, but subject thereto will otherwise accept delivery or other performance of Work when practicable.
47. Each Contract is severable and distinct from the others. If a provision of this agreement is held to be void or otherwise unenforceable, it will not affect the validity or enforceability of any other provision.
48. The Contract, including without limitation these conditions, will be governed by and construed in accordance with the laws of England & Wales.
49. Each party hereby undertakes that, at the date of entering into force of the Contract, itself, its directors, officers or employees have not offered, promised, given, authorised, solicited or accepted any undue pecuniary or other advantage of any kind (or implied that they will or might do any such thing as at any time in the future) in any way connected with the Contract and that it has taken reasonable measures to prevent subcontractors, agents or any other third parties, its control or determining influence, from doing so.
50. The Parties agree that, at all times in connection with and throughout the course of the Contract and thereafter, they will comply with and that they will take reasonable measures to ensure that their subcontractors, agents or other third parties, subject to their control or determining influence, will comply with Part 1 of the ICC Rules on Combating Corruption 2011, which is hereby incorporated by reference into the Contract, as if written out in the Contract in full.
51. If a Party, as a result of the exercise of a contractually-provided audit right, if any, of the other Party’s accounting books and financial records, or otherwise, brings evidence that the latter Party has been engaging in material or several repeated breaches of the provisions of Part 1 of the ICC Rules on Combating Corruption 2011, it will notify the latter Party accordingly and require such Party to take the necessary remedial action in a reasonable time and to inform it about such action. If the latter Party fails to take the necessary remedial action, or if such remedial action is not possible, it may invoke a defence by providing that by the time the evidence of breach(es) had arisen, it had put into place adequate anti-corruption preventative measures, as described in Article 10 of the ICC Rules on Combating Corruption 2011, adapted to its particular circumstances and capable of detecting corruption and of promoting a culture of integrity in its organisation. If no remedial action is taken or, as the case may be, the defence is not effectively invoked, the first Party may, at its discretion, either suspend the Contract or terminate it, it being understood that all amounts contractually due at the time of suspension or termination of the COntract will remain payable, as far as permitted by applicable law.
52. Any entity, whether an arbitral tribunal or other dispute resolution body, rendering a decision in accordance with the dispute resolution provisions of the Contract, shall have the authority to determine the contractual consequences of any alleged non-compliance with this ICC Anti-corruption Clause.
Schedule A – G Suite
“Customer Information” means: (a) any data received by Partner from, or maintained by Partner on behalf of, a Customer, its Affiliates and/or its End Users in connection with the resale of the Product and/or supply of Provisioning Services, including any Personally Identifiable Information and End User passwords; and (b) any Product administrative accounts accessed by Partner in connection with the resale of the Product and/or supply of Provisioning Services, and any passwords for such accounts.
“Google TOS” means those terms of service that govern use of the Product and must be agreed directly by a Customer with Google, either (i) via acceptance by the Customer when presented by Google online, or (ii) via written agreement between the Customer and Google offline.
“Personally Identifiable Information” includes, without limitation, names, contact information (including, without limitation, e-mail addresses, postal addresses and telephone numbers), government identification numbers, financial account numbers, payment card information, transaction information, credit report information, biometric information, IP addresses, network and hardware identifiers, protected health information, geolocation information, and any other information about individual persons or their use of the Product.
“Product” means only those Services that Google makes available to Partner for resale and/or for Provisioning Services under the Program.
“Provisioning Services” means the following services relating to the Product: Customer account activation services, including administrative account setup and placing initial orders for End Users; managing additional Customer orders; suspending either a domain owned by a Customer (as such domain is specified during the signup process for use of the Product) or individual End User accounts; technical support services; and such other services required to administer a Customer’s account as Google may require.
“Services” means all G Suite services described at https://gsuite.google.com/terms/user_features.html (as may be updated by Google from time to time).
“SLA” means the SLA or Service Level Agreement as defined in the Google TOS.
- REFRACTIV, Google and the Customer are independent contractors with respect to the resale of the Product;
- Unless Google expressly agrees otherwise in writing, the Customer will accept the Google TOS, with no alteration or amendment, prior to the Customer’s first log in to the Product (or REFRACTIV must otherwise receive express authorisation from the Customer to accept on the Customer’s behalf);
- The Customer will permit REFRACTIV to disclose Customer Information to Google for use by Google in accordance with the Google TOS including applicable confidentiality, data processing and security terms, for the following purposes:
- As required to execute any non-standard Customer orders.
- In relation to the provisioning of the Product to Customers’ accounts, including in relation to any Product updates or security incidents.
- As required to ensure Customers are notified of available options to maintain continuity in Product provisioning.
- To conduct customer service and satisfaction surveys.
- The Customer is responsible for providing the necessary notices, and obtaining and maintaining any consents, required from End Users to allow REFRACTIV and Google to perform their respective contractual obligations in respect of the Customer;
- The SLA sets out the Customer’s sole and exclusive remedy for any failure by Google to meet the SLA, and the Customer must request any such remedies directly from REFRACTIV; and
- Google will only provide technical support directly to the Customer as set out in the Google TOS.
- Non-payment. The Customer agrees that failure to pay any amounts due to REFRACTIV by the invoice due date may, after reasonable warning and a minimum of 7 days notice, result in a partial, temporary or permanent suspension of service.