These Terms (as defined below) apply to all services provided by Rubik Technologies Limited (company number 13525347) of 124 City Road, London, United Kingdom, EC1V 2NX (“Rubik”).
By signing the Contract Details, the Customer agrees that the following terms apply to and govern the delivery of the Services. In the event of any conflict or inconsistency between these Terms and the terms included in the Contract Details, the Contract Details shall prevail to the extent of the inconsistency, unless the parties expressly agree otherwise in writing (which may be reflected in the Special Conditions Section of the Contract Details).
1. Definitions
1.1 Affiliate means in relation to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with that party from time to time.
1.2 Agreement means the Contract Details, any Schedules or Appendices to the Contract Details, and these Terms.
1.3 Applicable Data Protection Law means all Applicable Laws relating to the protection of personal data and the privacy of individuals, including the UK GDPR, the Data Protection Act 2018 and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426).
1.4 Applicable Laws means all applicable laws, statutes and regulations from time to time in force.
1.5 Assumptions and Dependencies means any reasonable assumption or dependency on which Rubik relies for the provision of the Services.
1.6 Change means an amendment to the scope, nature, volume or execution of the products or Services under this Agreement, or an amendment to any other term of Schedule of this Agreement.
1.7 Change Control Note means the written record of any Change agreed or to be agreed by the Parties pursuant to the procedure set out in clause 2.
1.8 Commissioner, controller, data subject, personal data, personal data breach, processor and processing all have the meaning given to them in Applicable Data Protection Law.
1.9 Confidential Information means all information which may reasonably be regarded as confidential and which relates to the business affairs, products, services, marketing strategy, developments, trade secrets, know-how, personnel, customers and suppliers, data (including personal data) or materials, unpatented designs, drawings, software specifications, processes, testing procedures, security systems, text, diagrams, images or sounds of the same, in whatever form and however embodied or carried including in any electronic tangible or intangible medium which are supplied or in respect of which access is granted by the disclosing Party to the receiving Party pursuant to this Agreement, or which was disclosed by the Disclosing Party to the Receiving Party either directly or indirectly.
1.10 Contract Details means the document / form detailing the products or services to be provided and any special terms, which once signed, is read in conjunction with these Terms and forms part of the Agreement.
1.11 Contract Period has the meaning given to it by clause 10.1.
1.12 Contract Year means each 12-month period starting on the Effective Date or an anniversary of it.
1.13 Customer means an individual or an organisation that purchases goods or services from Rubik.
1.14 Customer Personal Data means any personal data which Rubik processes in connection with this agreement on behalf of the Customer.
1.15 Customer Representative means the individual appointed in accordance with clause 3.3.6 and named in the Contract Details, or any replacement thereto.
1.16 Data Load(s) means a series of steps and events at established points within the project methodology; each data load may require multiple attempts based on data quality and successful loading.
1.17 Effective Date means the effective date set out in the Contract Details.
1.18 Expenses means travel, subsistence and other out-of-pocket expenses incurred by Rubik in respect of the provision of the Services. Rubik reserve the right to charge the Customer for exceptional expenses incurred, provided that Rubik obtain the prior written consent of the Customer before incurring any such expenses. Expenses will typically relate to instances where Rubik staff are required to travel outside their normal office base to provide the Services. Expenses incurred shall be invoiced at cost.
1.19 Intellectual Property Rights or IPR means all patents, copyright (including without limitation rights in any Source Code and Object Code), design rights, domain names, registered designs, trade and service marks (registered and unregistered), know-how, rights in relation to databases, trade secrets, rights in confidential information and all other intellectual property rights throughout the world for the full term of the rights concerned, including without limitation any licences or permissions in connection with the above from time to time belonging to the party, including: (a) all registrations and pending registrations relating to any such rights and the benefit of any pending applications for any such registrations; and (b) all reversions, extensions and renewals of any such rights.
1.20 Key Personnel means such Rubik employees involved in the provision of the Services from time to time, or as may be named in the Contract Details.
1.21 Location means the premises at which the Services will be performed, as specified in the Contract Details.
1.22 Man Day means 8.0 hours per day (pro-rata), Monday-Friday during the Service Hours, excluding Public Holidays in England and Wales.
1.23 Man Day Rate(s) means the resource specific, pro-rata, time and materials charging rate, which, where applicable will be set out in the Contract Details, chargeable per Man Day exclusive of VAT (which, where applicable, shall be invoiced in addition at the then prevailing rate) and exclusive of Expenses (which, where applicable, shall be invoiced in addition at cost).
1.24 Services means the Rubik services to deliver the services as set out in the Contract Details.
1.25 Service Hours means the hours worked by Rubik in the provision of the Services. Unless set out in the Contract Details, Rubik’s service hours are 08:30 - 12:30 and 13:30 - 17:30 GMT.
1.26 Party means each of Rubik and the Customer specified in the Contract Details.
1.27 Terms means these general terms of business.
1.28 UK GDPR has the meaning given in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
2. Services & Change Requests
2.1 In consideration of payment by the Customer of the costs set out in the Contract Details, Rubik undertakes to provide the Services detailed in the signed Contract Details, under and in accordance with these Terms (subject to any variations listed as Special Conditions in the Contract Details).
2.2 No obligations arise under these Terms regarding the provision of Services, unless and until a Contract Details document is signed by both Parties.
2.3 The Customer may submit a written request for a Change to Rubik in accordance with this clause 2, but no Change will come into effect until a Change Control Note has been signed by the authorised representative of Rubik.
2.4 If the Customer requests a Change, the Customer will submit a written request to Rubik containing as much information as is necessary to enable Rubik to prepare a Change Control Note, and within 10 working days of receipt of a request, unless otherwise agreed in writing by the Parties, Rubik will send to the Customer a Change Control Note.
2.5 If, following the Customer’s receipt of a Change Control Note pursuant to clause 2.4, the Parties agree the terms of the relevant Change Control Note, they will sign it and that Change Control Note will amend this Agreement. If either Party does not agree to any term of the Change Control Note, then the other Party may refer the disagreement to be dealt with in accordance with clause 14.
3. Obligations of the Parties
3.1 Rubik undertakes to:
3.1.1 perform the Services in a timely and professional manner and in accordance with good industry practice;
3.1.2 assign competent and suitably qualified staff to perform the Services;
3.1.3 procure that all personnel comply with relevant safety, security and notified on-site regulations in respect of Customer premises.
3.2 Save as expressly set out in these Terms, all conditions, warranties, terms, undertakings and representations of any kind whatsoever, express or implied, whether by statute, common law or otherwise in respect of the Services and any resulting deliverables are hereby excluded by the Parties to the fullest extent permitted by law including (without limitation) warranties as to the condition, quality, performance, merchantability or fitness for purpose of the Services or any part of them.
3.3 The Customer shall:
3.3.1 co-operate with Rubik in all matters relating to the Services and ensure that its other suppliers co-operate with Rubik where reasonably necessary;
3.3.2 provide Rubik, in a timely manner and at no charge, with access to the Customer's premises and other facilities as required by Rubik for the performance of the Services;
3.3.3 provide Rubik, in a timely manner, with all documents, data, information and materials reasonably required by Rubik to provide the Services, including any items specified in the Contract Details, and ensure that they are accurate and complete;
3.3.4 inform Rubik of all health and safety and security requirements that apply at any of the Customer's premises which Rubik’s personnel access;
3.3.5 obtain and maintain all licences, consents and permissions that are necessary to enable Rubik to provide the Services;
3.3.6 at all times comply with any Assumptions or Dependencies identified in the Contract Details;
3.3.7 appoint a Customer Representative to oversee the receipt of the Services on a day-to-day basis and to be the principle point of contact for Rubik in connection with managing the relationship between the Parties, and shall designate its Customer Representative to Rubik in writing on or before the Effective Date. The Customer shall not replace its Customer Representative without first notifying Rubik of, and receiving Rubik’s consent to, the replacement; and
3.3.8 respond promptly to any reasonable requests from Rubik for instructions or approvals required to provide the Services.
4. Intellectual Property Rights (IPR)
4.1 The IPR (if any) in any third party or Rubik proprietary or commercial software remains vested in Rubik and/or any relevant third party software vendors; the IPR in pre-existing Rubik components, tools and implementation techniques vest in and will remain vested in Rubik; the IPR in Customer data and Customer developments vests in the Customer (provided that customisations made to any third party software and/or Rubik proprietary or commercial software will be made subject to the associated end user licence agreement which shall take precedence); strictly subject to the foregoing carve out, (and unless provided in any written statement to the contrary) the IPR in the Services and the results of the Services performed by Rubik (“Services IPR”) shall vest in Rubik upon creation.
4.2 Subject to clause 4.1 and to Rubik receiving payment of all charges attributable to any deliverables, Rubik grants to the Customer a non-exclusive, royalty-free, non-transferable licence to use, copy and modify any deliverables (excluding the Customer’s materials) strictly for the purpose of receiving and using the Services and any deliverables in its business.
4.3 The Customer warrants that instructions given by it to Rubik or its employees will not infringe any Intellectual Property or other rights of any third party and the Customer will indemnify Rubik in respect of any related claims.
4.4 Nothing in these Terms or any executed Contract Details shall operate to prevent Rubik from using for any purpose which it deems fit any know how or experience, including programming tools, skills and techniques, gained or arising from the performance of the Services, subject always to complying with the obligations in clause 6 of this Agreement, in respect of the Confidential Information of the Customer.
5. Licences
5.1 The Customer will be responsible for and will ensure that all relevant licences:
5.1.1 are obtained and fully paid for the periods of development and use;
5.1.2 are suitable for the provision of the Services and that licence terms are adhered to.
5.2 The Customer will indemnify Rubik against any breach of this clause 5, save where such breach occurs as a result of Rubik not acting in accordance with Customer’s instructions.
5.3 The Customer’s use of any third party licences will be governed by the terms of the agreement between the Customer and the third party vendor. Rubik accepts no liability for delay or damage caused by third party vendors or any defect in their systems, whether latent or manifest and no warranty is conferred by Rubik in respect of the third party tools.
5.4 The Customer will be responsible for obtaining, at its cost, such import/export licences and other consents in relation to the Services and any deliverables, as are from time to time required (if any).
6. Confidentiality and Data Protection
6.1 Each Party undertakes that it shall not at any time, without the prior written consent of the other, disclose or pass on (except to its employees, officers, representatives, contractors, sub-contractors or advisers (“Representatives”) and/or the Representatives of its subsidiaries and/or associated companies on a need-to-know basis for the purpose of exercising its rights or carrying out its obligations under or in connection with this Agreement) any information concerning the business, assets, affairs, customers, clients or suppliers of the other Party. Both Parties shall use all reasonable endeavours to procure that their respective Representatives and the Representatives of their subsidiaries and/or associated companies shall observe these conditions.
6.2 Clause 6.1 will not apply to:
6.2.1 any information in the public domain, other than as a result of a breach of this Agreement;
6.2.2 information already in the lawful possession of the receiving Party before its receipt from the disclosing party;
6.2.3 information obtained from a third party who is free to and legally entitled to divulge the same;
6.2.4 disclosure of information which is required by law or by any regulation or rule of any stock exchange or any governmental authority or any supervisory or regulatory body to whose rules the receiving Party is subject;
6.2.5 information developed or created by one Party independently of the other.
6.3 No Party shall use the other Party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement.
6.4 Each Party shall comply with all Applicable Data Protection Laws in its processing of personal data under or in connection with this Agreement. This clause is in addition to, and does not relieve, remove or replace, a party's obligations or rights under Applicable Data Protection Laws.
6.5 The Parties have determined that for the purposes of Applicable Data Protection Laws, Rubik shall process the personal data set out in the Contract Details as processor on behalf of the Customer.
6.6 Without prejudice to clause 6.4, the Customer shall ensure that it has all necessary consents and notices in place to enable the Customer Personal Data to be lawfully transferred to or collected by Rubik, and further processed by Rubik, in connection with the performance of this Agreement.
6.7 In relation to the Customer Personal Data, the Contract Details sets out the scope, nature and purpose of processing by Rubik, the duration of the processing and the types of personal data and categories of data subject.
6.8 Without prejudice to clause 6.4, Rubik shall, in relation to Customer Personal Data:
6.8.1 process the Customer Personal Data only on the documented written instructions of the Customer unless Rubik is required by Applicable Laws to otherwise process that Customer Personal Data. Where Rubik is relying on Applicable Laws as the basis for processing Customer Personal Data, Rubik shall notify the Customer of this before performing the processing unless prohibited from doing so by those Applicable Laws. Rubik shall inform the Customer if, in the opinion of Rubik, the instructions of the Customer infringe Applicable Data Protection Laws;
6.8.2 ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Customer Personal Data and against accidental loss or destruction of, or damage to, Customer Personal Data;
6.8.3. ensure that any of Rubik’s personnel authorised by Rubik to process Customer Personal Data are obliged to keep that personal data confidential;
6.8.4. assist the Customer insofar as this is possible (taking into account the nature of the processing and the information available to Rubik), and at the Customer's cost and written request, in responding to any request from a data subject and in ensuring the Customer's compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with the Commissioner or other regulators;
6.8.5 notify the Customer without undue delay on becoming aware of a personal data breach;
6.8.6 at the written direction of the Customer, delete or return to the Customer all Customer Personal Data on termination or expiry of this agreement unless Rubik is required by Applicable Law to continue to process that Customer Personal Data. For the purposes of this clause 6.8.6, Customer Personal Data shall be considered deleted where it is put beyond further use by Rubik; and
6.8.7 make available information to the Customer to demonstrate its compliance with these clauses 6.4 to 6.9 (inclusive), and allow for audits by the Customer (or its designated professional auditors) for this purpose on not less than 28 days' notice, provided that Rubik is not obliged to allow more than one audit in any Contract Year or make available any information that concerns any other customer of Rubik (or any of its Affiliates) or could compromise the security of Rubik’s systems or cause it to breach any legal obligation. Rubik is not obliged to grant access to any third party auditor until that auditor signs a confidentiality agreement with Rubik on terms reasonably satisfactory to Rubik.
6.9 The Customer provides its prior, general authorisation for Rubik to:
6.9.1 appoint processors to process the Customer Personal Data, provided that Rubik (i) ensures that the terms on which it appoints any processor comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on Rubik in these clauses 6.4 to 6.9 (inclusive); (ii) remains responsible for the acts and omissions of any processor as if they were the acts and omissions of Rubik; and (iii) informs the Customer of any intended changes concerning the addition or replacement of processors during the term of this Agreement, giving the Customer the opportunity to object to changes provided that if the Customer objects to a change and cannot demonstrate, to Rubik’s reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, the Customer shall indemnify Rubik for any liabilities, costs, demands, damages, losses, fines, awards, claims and/or expenses incurred by Rubik in accommodating the objection; and
6.9.2 transfer Customer Personal Data outside of the UK and/or the EEA as required for the purposes of providing the Services under the Contract Details, provided that Rubik shall ensure that all transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Customer shall promptly comply with any reasonable request of Rubik, including any request to enter into standard data protection clauses adopted by the Commissioner (where the UK GDPR applies to the transfer) or any other applicable data protection regulator.
7. Relationship between the Parties
7.1 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the Parties, constitute any Party the agent of the other Party, nor authorise any Party to make or enter into any commitments for or on behalf of the other Party. The Parties acknowledge and agree that the relationship between the Customer and Rubik shall be one of principal and independent contractor.
7.2 Each Party confirms it is acting on its own behalf and not for the benefit of any other person.
8. Limitation of Liability
8.2 The following definitions apply in this clause 8:
8.1.1 default: any act or omission resulting in one Party incurring liability to the other; and
8.1.2 liability: every kind of liability arising under or in connection with this Agreement including liability in contract, tort (including negligence), or otherwise.
8.2 Nothing in this Agreement limits or excludes:
8.2.1 liability for death or personal injury caused by negligence to the extent preserved by section 2(1) of the Unfair Contract Terms Act 1977;
8.2.2 liability for fraud or fraudulent misrepresentation;
8.2.3 liability for breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982;
8.2.4 any liability that cannot be legally limited; or
8.2.5 the Customer’s liability for its payment obligations under this Agreement.
8.3 Subject to clause 8.2, Rubik’s total liability to the Customer for all loss or damage arising from defaults occurring in any Contract Year shall not exceed the lesser of four (4) times the amount paid by the Customer in respect of the Order under which the Default arises (exclusive of VAT and expenses) or £500,000.
8.4 Subject to clause 8.2, neither Party shall be liable to the other loss of profits (including loss of anticipated savings); loss of sales or business; loss of agreements or contracts; loss of use or corruption of software, data or information; loss of or damage to goodwill; or indirect or consequential loss.
8.5 Rubik shall not be liable to the Customer for any loss arising out of a failure by the Customer to keep full and up to date security copies of its systems, the results of the Services and its data, in accordance with industry best practice.
8.6 Rubik shall not be responsible or liable in any way for defects in any third party software, whether latent or manifest.
9. Payment
9.1 In consideration of the provision of the Services by Rubik, the Customer shall pay to Rubik, in accordance with this clause 9, the costs specified in the relevant Contract Details, plus VAT (at the then prevailing rate) and expenses (where applicable).
9.2 Unless otherwise specified in the Contract Details, Rubik shall invoice Customer on a monthly basis, in arrears, on the last working day of each month. Each invoice shall relate to the Services provided by Rubik in the preceding month and any expenses and /or disbursements incurred and Customer shall pay each such invoice within fourteen (14) calendar days of its issue (or within such other period as may be agreed by the Parties and set out in the Contract Details.
9.3 Where the payment basis in the Contract Details is 'time and materials' the additional provisions in this clause 9.3 will apply:
9.3.1 the Customer shall pay the costs to Rubik for actual resource utilisation which shall be calculated by reference to the time spent by Rubik in the performance of the Services at the Man Day Rate(s) set out in the Contract Details;
9.3.2 Rubik will maintain accurate electronic records of the time spent by the in the performance of the Services and will provide copies of such records to the Customer upon request;
9.3.3 where travel from Rubik’s normal place of business is required for the provision of the Services, the Customer will reimburse Rubik for all reasonable travel expenses and subsistence allowances, which will be invoiced to Customer monthly in arrears;
9.3.4 the Customer will notify Rubik in writing within five (5) calendar days of receipt of an invoice if they consider such invoice incorrect or invalid for any reason; and
9.3.5 the Man Day Rate(s) quoted will be charged in a minimum of half hour increments, and do not include VAT or any similar sales tax, import or customs duties and like imposts and surcharges, which (where applicable) will be paid additionally by the Customer at the then prevailing rate. Rubik will provide VAT receipts on request.
9.4 If any sum payable to Rubik under the Agreement is in arrears for more than fourteen (14) days after the due date, Rubik reserves the right, without prejudice to any other right or remedy, to:
9.4.1 charge interest on such overdue sum, on a daily basis, from the original due date until paid in full at a rate of 4% above the Bank of England’s base lending rate in force from time to time; and/or
9.4.2 suspend the provision of products and/or Services on five (5) days’ prior written notice.
9.5 The right to levy interest and/or suspend services under clause 9.4 shall not apply to overdue sums the payment of which are in dispute PROVIDED THAT where the dispute is resolved under clause 16 or otherwise in Rubik's favour Rubik may retrospectively apply interest and/or suspend Services until payment is received in full.
9.6 The currency for payment of sums due under an Agreement shall be set out in the Contract Details.
9.7 If Customer disputes an invoice it shall do so within five (5) calendar days of receipt of the invoice. Any disputed invoices shall be resolved in accordance with clause 14.
9.8 In circumstances where Rubik invoices the Customer monthly in advance for products or services provided on a month-to-month basis only, Rubik may adjust the prices of those products or services on not less than one month’s written notice to the Customer. If the Customer does not wish to proceed on the basis of the new price, the Customer may, without affecting any other right or remedy available to it, terminate this Agreement with effect from the end of the last month during which the then-current prices continue to apply.
10. Term and Termination
10.1 This Agreement shall commence on the Effective Date and shall, subject to the provisions on earlier termination contained within clauses 10.2 - 10.3 (inclusive), continue for the period set out in the Contract Details (“Contract Period”), at the end of which it shall terminate automatically without notice, unless, no later than three months before the end of the Contract Period, the Parties agree in writing that the Contract Period be extended for such further period as they may agree (an “Extended Contract Period”). Unless it is further extended under this clause or terminated earlier in accordance with its terms, the Agreement terminates automatically without notice at the end of the Extended Contract Period.
10.2 Without affecting any other right or remedy available to it, either Party may terminate this Agreement if the defaulting Party commits a material breach of this Agreement and fails to remedy it within thirty (30) calendar days of receipt of a written notice from the non-defaulting Party, specifying the breach and containing a warning of an intention to terminate if the breach is not remedied.
10.3 Without affecting any other right or remedy available to it, either Party may terminate this Agreement with immediate effect on written notice:
(a) if the other Party ceases or threatens to cease to carry on its business;
(b) the other Party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
(c) if a receiver; administrator or similar officer is appointed over all or any part of the assets or undertaking of the other Party;
(d) if the other Party makes any arrangement for the benefit of its creditors;
(e) if the other Party goes into liquidation (save for the purposes of a genuine amalgamation or reconstruction); or
(f) if the other Party (or any senior officer or employee of that Party) is convicted of an offence under The Bribery Act 2010.
10.4 Where Rubik exercises its right to terminate pursuant to clause 10.2, Rubik will continue to provide the Services to the Customer during the thirty (30) day notice period and the Customer shall, on the expiry of such notice, pay Rubik for the Services provided, up to and including the date of expiry of such notice.
10.5 Termination of this Agreement will not affect any rights of the Parties accrued to them up to the date of termination.
10.6 On termination or expiry of this Agreement:
10.6.1 the Customer shall immediately pay to Rubik all of Rubik’s unpaid invoices and interest and, where no invoice has been submitted for Services supplied, Rubik may submit an invoice, which shall be payable immediately on receipt;
10.6.2 each Party shall, within a reasonable time, return to the other Party all equipment, materials and other property belonging to and supplied by that Party in connection with this Agreement; and
10.6.3 any licences granted by Rubik pursuant to this Agreement (under clause 4 of these Terms or otherwise) shall terminate.
11. Non-Solicitation
11.1 Neither Party shall seek to solicit or otherwise entice into alternative employment or engagement the other's staff for the Contract Period of this Agreement and a period of six (6) months after its termination or expiry, except that this clause 11.1 shall not apply in respect of any recruitment resulting from staff responding to a Party’s public advertising or general recruitment campaigns. In the event that either Party breaches this clause, then such Party expressly agrees to pay the other as a referral fee a sum equal to six (6) months' gross starting salary offered by the new employer to the relevant member of staff, unless otherwise agreed in writing. The Party’s expressly agree that the referral fee represents a genuine pre-estimate of the loss suffered and does not constitute a penalty.
12. Sub-Contracting, Assignment and Other Dealings
12.1 Rubik shall be entitled to assign or subcontract any or all of its rights and obligations under this Agreement to a third party provided that Rubik shall notify the Customer in advance and takes full responsibility for any subcontractors engaged by it.
12.2 The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement.
13. Governing law and Jurisdiction
13.1 This agreement 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 interpreted in accordance with the laws of England and Wales.
13.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any disputes or claims arising out of or in connection with this agreement, its subject matter or its formation (including non-contractual disputes or claims).
14. Dispute Resolution
14.1 If a dispute arises out of or in connection with this agreement or its performance, validity or enforceability, then the dispute will in the first instance be referred to:
14.1.1 the Parties’ respective Project Managers who shall for discuss the dispute and attempt in good faith to resolve it within seven (7) working days of the dispute being referred (or such other date as is mutually agreed). If the dispute is for any reason not resolved by the Parties’ respective Project Managers within the agreed timeframe then the dispute will be referred to:
14.1.2 Head of Delivery level, who must meet within seven (7) working days of the escalation date (or such other date as is mutually agreed), to attempt in good faith to resolve the dispute. If the dispute is not resolved at Head of Delivery Level within the agreed timeframe then the dispute will be referred to:
14.1.3 Director Level who must meet within seven (7) working days of the escalation date (or such other date as is mutually agreed), to attempt in good faith to resolve the dispute.
14.2 If the Parties are unable to resolve the dispute at Director Level within 30 days of the dispute being referred thereto, the Parties agree to enter into mediation in good faith to settle the dispute and will do so in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties within 14 days of the obligation to mediate arising under this clause 14.2, the mediator shall be nominated by CEDR. To initiate the mediation, a party must serve notice in writing (ADR notice) to the other party to the Dispute, referring the dispute to mediation. A copy of the ADR notice should be sent to CEDR. Unless otherwise agreed between the parties, the mediation will start not less than 30 days after the date of the ADR notice.
14.3 Subject to clause 14.4, no party may commence any court proceedings in relation to the whole or part of the dispute until it has attempted to settle the dispute by mediation and either the mediation has terminated, or the other party has failed to participate in the mediation, provided that the right to issue proceedings is not prejudiced by a delay.
14.4 If for any reason the dispute is not resolved within 30 days of the start of the mediation, the Dispute shall be finally resolved by the courts of England and Wales in accordance with clause 13.
15. General
15.1 Neither Party shall be liable for any delay or failure in the performance of its obligations for so long as and to the extent that such failure or delay results from events, circumstances or causes beyond the reasonable control of such Party. If such events, causes or circumstances operate to prevent Rubik from supplying the Deliverables for more than four (4) weeks, either Party shall have the right, on seven (7) days’ notice to the other Party, to terminate the Agreement with immediate effect.
15.2 Headings have been included for convenience only and will not be used in construing any provision in this Agreement.
15.3 As used in this Agreement, the singular includes the plural and vice-versa.
15.4 This Agreement is not an exclusive arrangement and, subject to the obligations set out in it, nothing in this will operate to prevent either Party from engaging in other consultancy or related activities.
15.5 Any notice to be given under this Agreement by either Party shall be in writing and shall be deemed duly served if delivered personally to the Party’s registered office, or sent by prepaid registered post to the Party’s registered office, in either case with a copy by email to the Contact set out in the Contract Details.
15.6 This Agreement does not create any right enforceable by any person who is not a Party to it under the Contracts (Rights of Third Parties) Act 1999.
15.7 The Agreement may be executed in any number of counterparts each of which when executed by one or more of the Parties shall constitute an original but all of which shall constitute one and the same instrument.
15.8 The provisions of clauses 1, 4, 5, 6, 7, 8, 10, 11, 13, 14 and this clause 15 will survive termination or expiration of this Agreement.
15.9 Each Party warrants and represents to the other that on entering into this Agreement and on an ongoing basis for the duration of this Agreement (i) it (and its senior officers, employees and sub-contractors) will not engage in any activity, practice or conduct which would constitute an offence under the Bribery Act 2010 and (ii) it (and its senior officers, employees and sub-contractors) has not been investigated, prosecuted or convicted of any offence under the Bribery Act 2010, and (iii) has and shall maintain throughout the duration of this Agreement its own policies and procedures in relation to anti-bribery.
15.10 Each Party shall and shall procure that persons associated with it or other persons who are performing services in connection with this Agreement shall: (a) comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anticorruption, including but not limited to the Bribery Act 2010 of the UK, and (b) not engage in any activity, practice or conduct which would constitute an offence under the Bribery Act 2010 of the UK.
15.11 A delay or failure to exercise, or the single or partial exercise of, any right or remedy does not waive that or any other right or remedy, nor does it prevent or restrict the further exercise of that or any other right or remedy.
15.12 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement. If any provision or part-provision of this Agreement is deemed deleted under this clause 15.12, the Parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
15.13 With the exception of Changes, which may be contracted by email, under and in accordance with the procedure set out in clause 2 of these Terms, no amendment to or variation of this Agreement shall be effective unless it is in writing and signed by both Parties (or their authorised representatives).
15.14 Rubik reserves the right to reference the Customer as a customer of Rubik in publicity and marketing literature, the Customer has the right to object to the use of its name at any time, whether with regard to a specific use or at all, by advising the Rubik Contact in writing. Rubik will desist from any further use of the Customer’s name upon receipt of such a notification from the Customer.
15.5 Rubik shall secure and maintain in force with a reputable insurance company, professional indemnity insurance, product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with this Agreement and shall upon Customer’s request, produce an insurance verification certificate giving details of cover.