Terms and Conditions
OUR FRAMEWORK AGREEMENT
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This Framework Consultancy Services Agreement (the “Agreement”) is entered into by and between [CUSTOMER NAME], a [ENTITY TYPE] incorporated under the laws of [JURISDICTION], company number [NUMBER], registered office address: [ADDRESS] (the “Customer”) and The Outcome Gap Ltd, a private limited company incorporated under the laws of England and Wales, company number: 14849521, registered office address: 86-90 Paul Street, London, England, United Kingdom, EC2A 4NE (“The Outcome Gap”) (Customer and The Outcome Gap each a “Party” and collectively the “Parties”).
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The Agreement is effective as of the date on which this Agreement is fully executed (the “Effective Date”), and sets forth the terms and conditions under which The Outcome Gap may provide services to the Customer, pursuant to one or more statements of work executed by the Parties that reference and incorporate this Agreement (each an “SoW”).
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DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, the following words and expressions have the following meanings, unless the context otherwise requires:
“Affiliate(s)”
means any entity which directly or indirectly controls, is controlled by, or is under common control of the subject entity. “Control” for the purposes of this definition, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity;
“Applicable Law”
means any: (i) statute, statutory instrument, bye-law, order, directive, treaty, decree or law (including any common law, judgment, demand, order or decision of any court, regulator or tribunal); (ii) legally binding rule, policy, guidance or recommendation issued by any governmental, statutory or regulatory body; and/or (iii) legally binding industry code of conduct or guideline, which relates to this Agreement and/or the Services;
“Authorised Expenses”
means any reasonable pass-through and out-of-pocket expenses incurred by The Outcome Gap (at cost and without mark-up) in connection with the Services, as detailed in the applicable SoW;
“The Outcome Gap Background Materials”
means (i) all Intellectual Property Rights that are: (A) owned, created or developed by or licensed to The Outcome Gap prior to the earlier of the Effective Date; or (B) owned, created or developed by or licensed to The Outcome Gap during the Term of, but outside the scope of, this Agreement and any SoW; (ii) any Intellectual Property Rights created or developed by The Outcome Gap, regardless of where and when created and located and whether within or outside the scope of this Agreement and any SoW, provided that such Intellectual Property Rights are reusable and, if considered in isolation, are not specifically identifiable as the Customer’s; and (iii) with regards to (i) and (ii) above, any improvements, modifications and alterations from The Outcome Gap;
“Business Day”
means a day that is not a Saturday, Sunday or public or bank holiday in England, United Kingdom;
“Confidential Information”
means any information (whether written, oral, in electronic form or in other media) regarding the business of a Party, including without limitation, technical, marketing, sales, financial, employee, planning, Intellectual Property Rights, Know-How, trade secrets, processes or any initiatives, and/or any other confidential or proprietary information, and information that the Recipient knew or should have known, under the circumstances, was considered confidential or proprietary by the Discloser, and that is disclosed under or in connection with this Agreement by a Party (the “Discloser”) to the other Party (the “Recipient”) before or after the date of signature of the Agreement. Unless otherwise expressly stated in the Agreement, the existence and the terms and conditions of this Agreement and any SoW will be considered each Party’s Confidential Information;
“Customer Background Materials”
means all Intellectual Property Rights that are owned by or licensed to the Customer prior to the earlier of: (i) the Effective Date of this Agreement; (ii) the commencement of the Services; or (iii) developed by the Customer during the Term of, but outside the scope of, this Agreement and any SoW;
“Customer Data”
means any data, information and materials, whether related to the Customer or a third-party and whether owned by the Customer or a third party, provided by the Customer or any third-party to The Outcome Gap, to be used in the performance of the Services;
“Data Processing Agreement”
means, if applicable, the data processing agreement entered into between the Parties under this Agreement and any applicable SoW for the protection of any Personal Data. For the avoidance of doubt, the Data Processing Agreement and its annexes shall be deemed part of, and incorporated into, this Agreement by reference;
“Data Protection Legislation”
means all privacy laws applicable to any Personal Data processed under or in connection with this Agreement, including, without limitation, the General Data Protection Regulation 2016/679 ("GDPR"), the Privacy and Electronic Communications Directive 2002/58/EC and all national implementing law, regulations and secondary legislation implementing or supplementing the foregoing, all as amended, re-enacted and/or replaced and in force from time to time including any similar, analogous or successor legislation reflecting the provisions of the GDPR and the UK Data Protection Act 2018. Data privacy terms including without limitation, "Personal Data” shall have the meaning ascribed to it under applicable Data Protection Legislation;
“Deliverables”
means any deliverables, outcomes, work product, materials, reports documentation, data or other tangible or intangible results that are created, developed, produced or delivered by The Outcome Gap during the provision of the Services under this Agreement and the applicable SoW for the Customer, as further detailed in the SoW;
“Fees”
means the fees payable by the Customer to The Outcome Gap for the provision of the Services, as set out in the SoW;
“Force Majeure Event”
means any event or occurrence outside of a Party’s reasonable control, including, without limitation, acts of God, flood, drought, earthquake or other natural disaster, epidemic or pandemic, terrorist attack, civil war, civil commotion or riots, war, threat or preparation for war, armed conflict, imposition of sanctions, embargo or breaking off of diplomatic relations, nuclear, chemical or biological contamination or sonic boom, any law or action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, collapse of buildings, fire, explosion or accident, loss of electrical power, loss of telephone, internet or wide area network, as well as other similar infrastructure and/or material shortages;
“Good Industry Practice”
means, in respect of The Outcome Gap, the exercise of that degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced person engaged in a similar type of undertaking as The Outcome Gap under the same or similar circumstances;
“Intellectual Property Rights”
means: (i) patents, registered trademarks, registered designs, applications and rights to apply for any of those rights; (ii) unregistered trademarks, copyright, topography rights, database rights, moral rights, Know-How, rights in designs and inventions, discovery or process, and applications for and rights to apply for any of the foregoing; (iii) trade, business and company names, domain names and e-mail addresses; (iv) rights to prevent passing off or unfair competition and copyright (whether in drawings, plans, specifications, designs and computer software or otherwise); (v) the goodwill attaching to any of the aforementioned rights; and (vi) any forms of protection of a similar nature and having equivalent or similar effect to any of them; in all the above cases, throughout the world, including countries which currently exist or are recognised in the future;
“Know-How”
means formulae, methods, plans, inventions, discoveries, improvements, processes, performance methodologies, techniques, specifications, technical information, tests, results, reports, component lists, manuals and instructions;
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“Representatives”
means in respect of a Party, that Party’s officers, employees, directors, agents, consultants, professional advisers, seconded staff, collaborators and/or sub-contractors;
“Services”
means the consultancy services provided by The Outcome Gap to the Customer under this Agreement and the applicable SoW, as set out in the SoW;
“Subcontractor(s)”
means any third-party to which The Outcome Gap has delegated any function(s) constituting a part of its Services;
“Term”
means the duration of this Agreement; and
“Termination Date”
means the date on which this Agreement expires or terminates for whatever reason.
1.2 References to clauses and schedules are to the clauses of and schedules to this Agreement.
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1.3 The schedules to this Agreement form part of this Agreement and will have the same force and effect as if set out in the main part of this Agreement and any reference to this Agreement will include the schedules.
1.4 A reference to “in writing” or “written” includes email.
1.5 Unless expressly provided otherwise in this Agreement, a reference to any statute or statutory provision will include any subordinate legislation made under it and will be construed as a reference to such statute, statutory provision and/or subordinate legislation as modified, amended, extended, consolidated, re-enacted and/or replaced and in force from time to time.
1.6 Any words following the words “include”, “includes”, “including”, “in particular” or any similar words or expressions will be construed without limitation and accordingly will not limit the meaning of the words preceding them.
2. PROVISION OF THE SERVICES
2.1 The purpose of this Agreement is to define the terms and conditions under which The Outcome Gap provides the Customer with the Services during the Term, in consideration of full payment of the relevant Fees.
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2.2 The Services will be provided to the Customer on a non-exclusive basis. Accordingly, the Customer will be entitled to obtain services in the nature of the Services from persons other than The Outcome Gap, and The Outcome Gap will be entitled to provide similar or the same services on behalf of and/or to other customers.
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3. STATEMENTS OF WORK
3.1 The Services to be provided by The Outcome Gap, including their nature and scope, are set forth in the applicable SoW, a template of which is attached at Schedule 1. The SoW details the associated Fees for the Services, any anticipated timelines for the performance of the Services and any Deliverables resulting from the Services, along with any other necessary information. For the avoidance of doubt, the SoW will only become valid and effective upon signatures by the Parties (or their authorised representatives). Each SoW signed by the Parties shall constitute a separate agreement incorporating the terms and conditions of this Agreement.
3.2 In the event of any inconsistency or conflict between the provisions of this Agreement, the applicable SoW, and the Data Protection Agreement (where applicable), the following order of priority shall apply:
3.2.1 the Data Protection Agreement (if applicable);
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3.2.2 the applicable SoW (to the extent such wording in the applicable SoW applies to that SoW only); and
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3.2.3 this Agreement.
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3.3 The Customer and any of its Affiliates may procure Services from The Outcome Gap by completing and signing a SoW. Where the Customer’s Affiliate executes a SoW, references to the Customer in this Agreement and/or such SoW shall be construed as meaning that Affiliate as the context requires.
3.4 Notwithstanding clause 3.3, only the Customer entity that has duly executed this Agreement (the “Executing Customer”) shall have the right to enforce the terms and conditions of this Agreement or any applicable SoW, whether or not such SoW has been executed by the Executing Customer or a Customer Affiliate. For the avoidance of doubt, Affiliates of the Executing Customer, notwithstanding their eligibility to receive Services under clause 3.3, shall not possess independent rights to enforce this Agreement or any SoWs.
3.5 The execution of SoWs by Affiliates of the Executing Customer under clause 3.3 shall not give rise to any increase or multiplication of any liability limitation in this Agreement or any applicable SoWs. The limitations of liability set out in this Agreement applies independently to each SoW executed by the Executing Customer or its Affiliates, provided that when a SoW is only executed by an Affiliate, the limitations set out in clause 3.4 above apply.
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3.6 Each SoW executed by an Affiliate of the Executing Customer shall be subject to and incorporate the terms and conditions of this Agreement.
4. REPRESENTATIONS AND WARRANTIES
4.1 Each Party represents and warrants to the other that:
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4.1.1 it has the requisite right, power and authority, and has taken or will take all action necessary to execute, deliver and exercise its rights, and perform its obligations, under this Agreement; and
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4.1.2 the performance of its obligations under the Agreement constitute binding obligations on it in accordance with its terms and will not result in:
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4.1.2.1. a breach of, or default under, any agreement or instrument to which it is a party or any commitment by which it is bound; or
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4.1.2.2. a breach of any Applicable Law, order, judgement or decree of, or undertaking given to, any court or government;
4.1.3 it acknowledges and accepts that The Outcome Gap’s personnel and any Subcontractor:
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4.1.3.1. are not the employees of the Customer;
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4.1.3.2. shall not represent themselves to any third party as being an employee of the Customer;
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4.1.3.3. shall not be entitled to receive wages or benefits whatsoever from the Customer or participate in any plans, arrangements or distributions by the Customer pertaining to any bonus, stock option, profit sharing, insurance or similar benefits for the Customer or its employees;
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4.1.3.4. shall not be required to make payments, contributions or remittances for national insurance contributions, income tax or other similar levies in respect of the Fees paid from the Customer to The Outcome Gap; and
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4.1.3.5. The Outcome Gap further agrees that it shall be exclusively responsible for preparing and filing all returns and reports relating to The Outcome Gap’s personnel and any Subcontractors, and to withhold and/or pay any applicable employment related payments, contributions or remittances required by the Applicable Law, including, without limitation, those employment related taxes described in clause 4.1.3.
4.2 The Outcome Gap makes no warranty, express or implied, as to the results to be attained by the Customer from the use of the Deliverables and/or as to their merchantability or fitness for a particular purpose or use. The Outcome Gap will not liable for any outcomes, decisions, outputs or results that the Customer derives from the Services or the Deliverables. Except as otherwise stated in this Agreement, the Deliverables are provided “as is” and cannot in any circumstances be relied upon by the Customer and its Affiliates.
4.3 All warranties, conditions and other terms implied by law (whether by statute, common law or otherwise) are expressly excluded from this Agreement.
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4.4 The Customer acknowledges that the Deliverables are dependent on Customer Data, including but not limited to the quality, completeness, and accuracy of Customer Data, and that, without limiting the generality of any other clause, The Outcome Gap will not be liable for any incompleteness of, or any inaccuracies, errors and faults in the Deliverables or Services caused or contributed to by the Customer Data.
5. THE OUTCOME GAP OBLIGATIONS
5.1 The Outcome Gap shall take reasonable efforts to:
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5.1.1 provide the Services in accordance with, and ensure that the Deliverables will conform in all respect with, the applicable SoW;
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5.1.2 perform the Services in accordance with Good Industry Practice; and
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5.1.3 co-operate reasonably with the Customer in all matters relating to the Services, and comply with the Customer’s reasonable instructions.
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5.2 The Outcome Gap may engage Subcontractors to assist with the performance of its Services without the prior written consent of the Customer. The Outcome Gap shall be solely liable for all acts and omissions of all Subcontractors engaged by The Outcome Gap and authorised to perform the Services hereunder.
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5.3 Where The Outcome Gap’s performance of its obligations is prevented or delayed by any act or omission of the Customer, or failure by the Customer to perform any relevant obligation or commitment, or otherwise to comply with The Outcome Gap’s instructions (a “Customer Default”):
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5.3.1 without limiting or affecting any other right or remedy available to The Outcome Gap, The Outcome Gap shall have the right to suspend the performance of its Services until the Customer has remedied such Customer Default (if such Customer Default, in The Outcome Gap’s sole discretion, is determined as being remediable); and
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5.3.2 The Outcome Gap shall not be liable for any costs, expenses or losses sustained or incurred by the Customer, whether arising directly or indirectly from The Outcome Gap’s failure or delay to perform any of its obligations under this Agreement.
6. CUSTOMER OBLIGATIONS
6.1 The Customer shall:
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6.1.1 ensure that the terms contained in the SoW are up to date, complete and accurate;
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6.1.2 where applicable, provide The Outcome Gap and its personnel (including any Subcontractors) with access to the Customer’s premises and other facilities, as reasonably requested by The Outcome Gap;
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6.1.3 obtain and maintain all necessary licences, permissions, regulatory approvals and consents, which may be required for the Customer’s receipt of the Services and/or Deliverables before or on the date on which the Services are to commence;
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6.1.4 comply with all Applicable Laws;
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6.1.5 comply with any additional obligations, requirements and/or instructions issued by The Outcome Gap to the Customer in a SoW;
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6.1.6 pay any undisputed Fees in consideration of the Services under the terms and conditions of the Agreement without any deduction or set-off;
6.1.7 cooperate with The Outcome Gap and promptly provide The Outcome Gap with all documents, information, assistance, materials and resources that The Outcome Gap may require from time to time in connection with the supply of the Services and the performance of The Outcome Gap’s obligations under this Agreement; and
6.1.8 ensure that all Customer Data is correct, accurate, complete and error-free, and that the Customer has the right to provide, and is not restricted from providing, the Customer Data under this Agreement.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 Unless otherwise stated in this Agreement, The Outcome Gap retains all right, title and interest in and to The Outcome Gap Background Materials and the Services, including the rights to any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the Services. The Customer retains all right, title and interest in the Customer Background Materials, and nothing in this Agreement shall transfer ownership of The Outcome Gap Background Materials to the Customer or Customer Background Materials to The Outcome Gap.
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7.2 Where the Customer provides The Outcome Gap with any Customer Background Materials or Customer Data under this Agreement for the provision of the Services and/or the performance of The Outcome Gap’s obligations under this Agreement, the Customer warrants and represents that it has the necessary rights, consents and/or licences necessary to share the Customer Data with The Outcome Gap and grants to The Outcome Gap a personal, non-exclusive, royalty-free, revocable, non-sublicensable and non-transferable licence to use such Customer Background Materials and/or Customer Data for such purposes.
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7.3 Subject to clauses Error! Reference source not found., upon the payment of all Fees by the Customer to The Outcome Gap, The Outcome Gap shall assign (including by way of present assignment of future rights) the ownership in all Deliverables (including the Intellectual Property Rights in and to the Deliverables) to the Customer absolutely.
8. FEES AND EXPENSES
8.1 The Fees, along with the process of invoicing the same, are indicated in the applicable SoW. Any sum payable under this Agreement is exclusive of value added tax (“VAT”) and any other similar or equivalent taxes, duties, fees and levies imposed from time to time by any government or other authority, which will be payable by the Customer in addition to the Fees in the manner and at the rate prescribed by law from time to time, subject to receipt by the Customer of a valid VAT invoice.
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8.2 Each invoice that is not subject to a bona fide dispute will be payable by the Customer within thirty (30) days of the date of invoice. For the avoidance of doubt, time shall be of the essence for the payment of any Fees by the Customer to The Outcome Gap. All payments will be made in GBP (£) in cleared funds by wire transfer to the bank account stated in the applicable SoW, or such other bank account as The Outcome Gap may nominate from time to time.
8.3 Save as otherwise expressly provided in this Agreement or required by law, all undisputed payments to be made by the Customer to The Outcome Gap under this Agreement will be made in full and without any set-off, deduction or withholding, including, without limitation, on account of any counterclaim.
8.4 In the event of a disagreement or dispute concerning the amount of a payment due under an invoice, the Parties agree to use good faith efforts to find an amicable solution. Any adjustment mutually and expressly agreed by the Parties shall be duly reflected by The Outcome Gap in a new invoice, to enable the Customer to fulfil its commitments. Any invoice which is not disputed by the Customer in writing along with substantiating documentation within ten (10) calendar days following its receipt by the Customer shall be considered to be accepted without reservation.
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8.5 Without prejudice to any other right or remedy that The Outcome Gap may have, if the Customer fails to make any payment of Fees on the due date:
8.5.1 The Outcome Gap reserves the right to, on or after ten (10) calendar days after sending a written notice reminding the Customer of its payment obligation (and provided that Customer makes no payment or a partial payment within five (5) calendar days after receipt of such reminder), without breaching this Agreement, fully or partially suspend the supply of the Services, and/or the performance of any of its obligations under this Agreement, until payment of all overdue amounts is received in full; and/or
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8.5.2 charge interest on any overdue amounts under this Agreement after their due date, whether before or after judgment, calculated on the basis of eight percent (8%) per year above the base rate of the Bank of England or such other maximum amount permitted by law from time to time, if lower, from the due date of payment and until payment is made in full.
8.6 Except as expressly provided in this Agreement, no refunds shall be made, including on termination of the Agreement, unless terminated for The Outcome Gap’s material breach. If terminated for The Outcome Gap’s material breach, all Fees payable up to the point of termination shall become immediately payable, and any Fees paid in advance for Services not yet provided at the date of termination shall be refunded.
8.7 In addition to the Fees, the Customer shall reimburse The Outcome Gap for Authorised Expenses. The Outcome Gap shall keep complete and accurate records and documentation (such as receipts and vendor invoices) supporting such Authorised Expenses.
9. CONFIDENTIALITY
9.1 The Recipient will at all times:
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9.1.1 keep the Confidential Information secret and will only disclose it in the manner and to the extent expressly permitted by this clause 9;
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9.1.2 use the Confidential Information solely for the purpose of performing its obligations and exercising its rights under this Agreement;
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9.1.3 only make such copies, summaries, extracts, transcripts, notes, reports, analyses and recordings (in any form of media) that use, contain or are based on (or derived from) Confidential Information as are strictly necessary to perform its obligations and exercise its rights under this Agreement; and
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9.1.4 keep the Confidential Information safe and secure and apply to it documentary and electronic security measures that match or exceed those the Recipient operates in relation to its own confidential information and will never exercise less than reasonable care.
9.2 The Recipient may disclose Confidential Information:
9.2.1 to those of the Recipient’s Representatives who need access to that Confidential Information in order for the Recipient’s obligations under this Agreement to be performed and the Recipient’s rights under this Agreement to be exercised. Prior to any such disclosure the Recipient shall make such Representatives aware of the fact that the Confidential Information is confidential and the obligations of confidentiality contained in this clause 9. The Recipient will procure that such Representatives enter an agreement protecting the Confidential Information on terms substantially equivalent to those contained in this clause 9. The Recipient will procure that each of the Recipient’s Representatives will not do or omit to do anything which if done or omitted to be done by the Recipient would constitute a breach of this clause 9. The Recipient will be liable for the acts and omissions of its Representatives in respect of the Discloser’s Confidential Information as if they were acts or omissions of the Recipient; and
9.2.2. to the extent required by Applicable Law or by any governmental or regulatory authority, where reasonably practicable and lawful, the Recipient shall:
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9.2.2.1. notify the Discloser in writing in advance of such disclosure;
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9.2.2.2. consult with the Discloser as to the content, purpose and means of disclosure; and
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9.2.2.3. seek to make such disclosure subject to obligations of confidence consistent, so far as reasonably possible, with the terms of this Agreement.
9.3 The Recipient’s obligations under this clause 9 will not extend to Confidential Information which:
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9.3.1 the Discloser agrees in writing is not Confidential Information;
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9.3.2 at the time of disclosure was in the public domain or subsequently enters into the public domain other than as the direct or indirect result of a breach of this clause 9 by the Recipient or any of the Recipient’s Representatives;
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9.3.3. the Recipient can prove to the reasonable satisfaction of the Discloser from written records or other substantive evidence, the Confidential Information:
9.3.3.1. has been received by the Recipient (or one of the Recipient’s Representatives) at any time from a third party in good faith, and who did not acquire it in confidence and who is free to make it available to the Recipient (or the relevant Representative);
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9.3.3.2. was independently developed by the Recipient (or one of the Recipient’s Representatives) as a result of internal developments undertaken in good faith by staff members who did not have access to the Confidential Information previously disclosed without any breach of this Agreement; or
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9.3.3.3. was already lawfully in the possession of the Recipient prior to its disclosure by the Discloser.
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9.4 The obligations of confidentiality and non-disclosure of Confidential Information stated in this clause 9 shall remain in effect for a period of three (3) years following the termination of this Agreement, for any reason whatsoever.
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10. DATA PROTECTION
The Parties shall comply with all applicable Data Protection Legislation as regards the processing of any Personal Data in connection with this Agreement and, where applicable, any Data Processing Agreement entered into between the Parties.
11. LIABILITY
11.1 Nothing in this Agreement limits or excludes the liability of either Party or its Affiliates, employees, principals or corporate officers for death or personal injury resulting from negligence, or for its fraud, fraudulent misrepresentation, or wilful misconduct, or any other form of liability that may not be limited by law. Nothing in this Agreement limits or excludes the Customer’s liability arising under clause 11.5.
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11.2 In no event shall any Party be liable for any indirect, consequential or special loss, or any loss of profit, loss of business or contracts, lost production or operation time, loss of or corruption to data, loss of goodwill or anticipated savings, however arising (whether from breach of contract, tort (including negligence), breach of statutory duty or otherwise), whether or not such loss was foreseeable or if the Party which would otherwise be liable for such loss was advised of its possibility.
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11.3 Subject to clauses 11.1, 11.2 and 11.5, to the extent permitted by Applicable Law, each Party’s maximum aggregate liability arising out of or relating to this Agreement (whether based in contract, tort (including negligence) or any other legal or equitable theory), will be limited to the Fees paid by Customer to The Outcome Gap under the relevant SoW for the Services giving rise to the claim during the twelve (12) month period preceding the first event giving rise to such liability. For the avoidance of doubt.
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11.4 The Parties expressly agree that: (i) any claims against The Outcome Gap arising in connection with the Agreement will be time-barred to twelve (12) months after the event giving rise to the claim; and (ii) unless the Customer notifies The Outcome Gap in writing that it intends to make a claim under this Agreement within the twelve (12) months after the event giving rise to the claim, The Outcome Gap shall have no liability with respect to such claim(s). Such notice shall identify, in detail, the event and grounds giving rise to the claim(s).
11.5 The Customer shall indemnify The Outcome Gap and its Affiliates, and each of its Representatives, from and against all liabilities, costs, expenses, damages and losses (including all reasonable professional costs, expenses, legal fees and attorney’s fees) arising in connection with the Customer Data or Customer Background Materials, or any claim that the Customer Data or Customer Background Materials infringe a third party’s rights, provided in any such case that The Outcome Gap: (i) promptly gives notice of the claim to the Customer; (ii) gives the Customer sole control of the defence and settlement of the claim (provided that the Customer may not settle any such claim unless such settlement unconditionally releases The Outcome Gap of all liability and does not adversely affect The Outcome Gap’s reputation, goodwill, business or the Services); (iii) provides to the Customer (at the Customer’s expense) all available information and reasonable assistance; and (iv) has not compromised or settled such claim.
12. TERM AND TERMINATION
12.1 This Agreement is effective from and including the Effective Date and shall continue unless terminated in accordance with this clause 12.
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12.2 Either Party may terminate this Agreement or the applicable SoW immediately (or subject to such period of notice as the terminating Party may elect) by written notice to the other Party, if the other Party:
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12.2.1 is in material or persistent breach of any of its obligations under this Agreement or the applicable SoW and, where remediable, has failed to remedy that breach within thirty (30) days (or such longer period as the Parties may agree in writing) of being notified of the same in writing by the terminating Party;
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12.2.2 is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
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12.2.3 becomes insolvent or an order is made or a resolution passed for the administration, winding-up or dissolution of the other Party (otherwise than for the purposes of a solvent amalgamation or reconstruction); or
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12.3.4 has an administrative or other receiver, manager, liquidator, administrator, trustee or other similar officer appointed over all or any substantial part of its assets or enters into or proposes any composition or arrangement with its creditors generally.
12.3 Either Party may terminate this Agreement upon the completion of all Services as outlined in all SoWs executed under this Agreement. For the avoidance of doubt, “completion of all Services” means the fulfilment of all obligations, Deliverables and duties as specified in the SoWs, unless waived by the other Party. The Party wishing to terminate the Agreement under this clause 12.3 shall provide at least sixty (60) days’ written notice to the other Party, with such notice specifying the effective date of such termination.
12.4 Each Party may terminate a SoW pursuant to the terms set out in the SoW.
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13. CONSEQUENCES OF TERMINATION
13.1 Termination of an individual SoW in accordance with the terms of this Agreement by either Party will not serve to terminate this Agreement as a whole or any other SoW which may exist at that time between the Parties under this Agreement, which will continue in full force and effect unless and until otherwise terminated.
13.2 Upon the Termination Date of this Agreement:
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13.2.1 all Services shall terminate;
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13.2.2 no further SoWs may be entered into between the Parties;
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13.2.3 The Outcome Gap will be entitled to invoice all Fees which have been incurred but which have not yet been invoiced in relation to the Services, including those Services which will not be performed by The Outcome Gap because of termination but which The Outcome Gap had already put resource in place to perform. Such Fees shall be paid by the Customer in accordance with the payment terms defined in clause 8;
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13.2.4 all undisputed Fees incurred prior to the Termination Date shall be paid by the Customer in accordance with the payment terms defined in clause 8, or a refund shall be made in accordance with clause 8.6;
13.2.5 any provision which expressly or impliedly continues to have effect after expiry or termination of this Agreement will continue in force and effect; and
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13.2.6 all other rights and obligations will immediately cease without prejudice to any rights, obligations, claims (including claims for damages for breach) and liabilities which have accrued prior to the Termination Date.
13.3 Within twenty (20) calendar days after the Termination Date and except as required by Applicable Law:
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13.3.1 the Recipient shall cease any use of the Discloser’s Confidential Information;
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13.3.2 all Confidential Information (including all copies and extracts), any other property (whether tangible or intangible), and any other information, documents, materials and/or tools transmitted by the Discloser in the Recipient’s possession or control, shall be either returned to the Discloser or upon Discloser’s written request, destroyed and/or rendered unreadable; and
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13.3.3 the Recipient shall destroy or permanently erase (if technically feasible without incurring excessive expense and without undue effort) all documents and all records (in any media) created by it or on its behalf that use, concern or are based on any Confidential Information of the Discloser.
13.4 Notwithstanding the above provision, the Discloser acknowledges and agrees that the Recipient may retain Discloser’s Confidential Information and/or records which it has to keep to comply with any Applicable Law, or to satisfy the requirements of any regulatory authority or body of competent jurisdiction or any internal procedure or which it is required to retain for insurance, accounting or taxation purposes, provided any Confidential Information and/or records which is kept after the Termination Date for any of the aforementioned reasons shall not be used in the ordinary course of business or any other commercial purposes, and must be stored in an encrypted, non-production environment and shall continue to be subject to the confidentiality requirements contained herein for as long as such information is retained by the Recipient. Clause 11 will continue to apply to all retained Confidential Information, which may only be used for the purposes set out in this clause.
13.5 The following clauses shall survive the Termination Date: clauses 1, 2, 3, 4, 7, 8, 9, 10, 11, 13, 16, 17, 19, 20, 21, 22, 23, 24, 25 and 26.
14. FORCE MAJEURE
14.1 If a Force Majeure Event occurs, the Party affected will:
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14.1.1 as soon as reasonably practicable after becoming aware of the Force Majeure Event give the other Party notice of the occurrence, anticipated term and impact of the Force Majeure Event;
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14.1.2 use commercially reasonable endeavours, without being required to incur additional expenditure, to mitigate the effects of the Force Majeure Event, and to ensure that the Force Majeure Event comes to an end; and
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14.1.3 continue to perform all of its obligations under this Agreement the performance of which are not affected by the Force Majeure Event.
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14.2 Subject to clause 14.3, neither Party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from a Force Majeure Event. In such circumstances the affected Party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues without interruption for thirty (30) calendar days, the Party not affected may terminate this Agreement by giving a fifteen (15) calendar days' written notice to the affected Party.
14.3 If The Outcome Gap is the Party affected by the Force Majeure Event, the Customer will continue to pay the Fees in respect of any Services which The Outcome Gap continues to supply notwithstanding the occurrence of the Force Majeure Event. If the Customer is the Party affected by the Force Majeure Event, the Customer will continue to pay The Outcome Gap’s invoices in accordance with the provisions of this Agreement.
15. COMMERCIAL REFERENCES AND COMMUNICATION
15.1 Notwithstanding clause 9, The Outcome Gap will be entitled to refer to the existence of this Agreement, when giving examples of projects which it has undertaken in bidding for contracts with other persons or prospective customers, and generally use the Customer’s name and logo for its internal and external communication, in particular as a commercial reference in The Outcome Gap and/or its Affiliates’ commercial and marketing documents, including its/their website(s), without obtaining the Customer’s prior written consent.
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15.2 Where so elected by The Outcome Gap, the Customer agrees to the issuance of a joint press release on a mutually agreed upon date. Each Party will have the right to approve the press release in writing in advance, but such approval will not be unreasonably withheld, conditioned or delayed.
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15.3 The Customer agrees to be the subject of a testimonial written by The Outcome Gap, which will discuss the Customer’s use of the Services. The Customer will be able to approve the testimonial material in advance, including the use of its logo therein, each such approval not to be unreasonably withheld, conditioned or delayed.
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16. NON-SOLICITATION
16.1 The Customer agrees that it will not, without the prior written consent of The Outcome Gap, during the Term and for a period of twelve (12) months following the Termination Date, solicit or entice, or endeavour to solicit or entice, away from The Outcome Gap any person employed by The Outcome Gap in the preceding twelve (12) months and whose role either wholly or partly relates to the supply of the Services and/or the performance of this Agreement.
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16.2 For the purposes of this clause 16, “solicit” or “entice” means the soliciting or enticing of such person with a view to engaging such person as an employee, director, sub-contractor, consultant or independent contractor or through a company owned by such person or their family.
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16.3 If the Customer does not comply with the above obligation, then the Customer shall pay – immediately upon written request from The Outcome Gap – a lump sum indemnity to The Outcome Gap, in the amount of six (6) times the monthly gross salary/fees paid to the concerned person before the effective date of termination of its contractual relationship with The Outcome Gap. The Parties agree that such payment is in compensation for time and effort expended by The Outcome Gap in recruiting and training such individuals and is a genuine pre-estimate of loss, not a penalty.
17. ASSIGNMENT
17.1 Each Party will only be entitled to assign or transfer this Agreement or its rights and obligations under this Agreement or deal in any other manner with any of its rights under this Agreement if it has obtained the prior written consent of the other Party to do so (such consent not to be unreasonably withheld, conditioned or delayed). Any attempted assignment or transfer in violation of the foregoing will be null and void.
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17.2 Notwithstanding anything herein to the contrary, The Outcome Gap may assign this Agreement to a related entity or any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganisation, or otherwise, subject to written notice given to the Customer, at which point, The Outcome Gap will be released from its obligations under the Agreement. Under no circumstances shall The Outcome Gap be held jointly and severally liable for the performance of the Agreement by the assignee or the Customer.
18. NOTICES
18.1 Any notice or other communication given under or in connection with this Agreement will be in writing, in the English language (or any other language expressly agreed between the Parties), marked for the attention of the specified representative of the Party to be given the notice and must be:
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18.1.1 sent to that Party’s address by pre-paid mail delivery service providing guaranteed next Business Day delivery and proof of delivery; or
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18.1.2 sent by email to that Party’s email address.
18.2 The address, email address and representative for each Party are set out below and may be changed by that Party giving at least thirty (30) calendar days’ notice in accordance with this clause 18.
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For The Outcome Gap:
Address:
[INSERT]
Email addresses:
[INSERT]
For the attention of:
[INSERT]
For Customer:
Address:
[INSERT]
Email address:
[INSERT]
For the attention of:
[INSERT]
18.3 Any notice given in accordance with clause 18.1 will be deemed to have been served:
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18.3.1 if given as set out in clause 18.1.1, at 9.00 am on the second Business Day after the date of posting; and
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18.3.2 if given as set out in clause 18.1.2, at the time of sending the email (except that if an automatic electronic notification is received by the sender within four (4) hours after sending the email informing the sender that the email has not been delivered to the recipient or that the recipient is out of the office, that email will be deemed not to have been served),
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provided that if a notice is served before 9.00am on a Business Day, it will be deemed to be served at 9.00am on that Business Day and if it is served on a day which is not a Business Day or after 5.00pm on a Business Day, it will be deemed to be served at 9.00am on the immediately following Business Day.
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18.4 For the purposes only of this clause 18, references to time of day are to the time of day at the address of the recipient Party as referred to in clause 18.2 and references to Business Days are to normal working days in the territory in which such address is situated.
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18.5 To prove service of a notice it will be sufficient to prove that the provisions of this clause 18 were complied with.
19. INDEPENDENT CONTRACTORS
Each Party agrees that it is an independent contractor. Nothing in this Agreement and no action taken by the Parties in connection with it will create a partnership or joint venture or relationship of employer and employee between the Parties or, save as expressly provided otherwise in this Agreement, give either Party authority to act as the agent of or in the name of or on behalf of the other Party or to bind the other Party or to hold itself out as being entitled to do so.
20. ENTIRE AGREEMENT
20.1 This Agreement constitutes the entire agreement between the Parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communications between the Parties, whether written or oral. In particular, it prevails over any general terms and conditions of purchase of the Customer.
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20.2 Each Party acknowledges that, in entering into this Agreement and the documents, it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each Party agrees that its only liability in respect of those representations and warranties that are set out in this Agreement or those documents (whether made innocently or negligently) shall be for breach of contract. Nothing in this clause 20 will be interpreted or construed as limiting or excluding the liability of any person for fraud or fraudulent misrepresentation.
21. VARIATION
No variation of this Agreement shall be valid until and unless in writing and signed by the Parties (or each of their authorised representatives).
22. NO WAIVER
22.1 A delay in exercising or failure to exercise a right or remedy under or in connection with this Agreement will not constitute a waiver of, or prevent or restrict future exercise of, that or any other right or remedy, nor will the single or partial exercise of a right or remedy prevent or restrict the further exercise of that or any other right or remedy.
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22.2 A waiver of any right, remedy, breach or default will only be valid if it is in writing and signed by the Party giving it and only in the circumstances and for the purpose for which it was given and will not constitute a waiver of any other right, remedy, breach or default.
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23. SEVERABILITY
If any provision of this Agreement is found by any court or body or authority of competent jurisdiction to be illegal, unlawful, void or unenforceable in whole or in part, the Parties agree that the invalid or unenforceable provisions shall be amended in a manner so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions will continue in full force and effect.
24. RIGHTS OF THIRD PARTIES
24.1 Except as expressly provided in this Agreement, 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 any term of this Agreement.
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24.2 The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this Agreement are not subject to the consent of any other person.
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25. GOVERNING LAW AND JURISDICTION
25.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be exclusively governed by, and construed in accordance with English law, without regard to conflicts of laws principles.
25.2 The Parties irrevocably consent and submit to the exclusive jurisdiction and venue of the courts of London, United Kingdom, in all disputes or claims arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
26. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
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