General Terms and Conditions



1        Definitions and Rules of Interpretation

1.1  In this Agreement the following expressions have the following meanings unless the context otherwise prescribes:

  • Agreement means these General Terms in conjunction with any Work Order, Licence Agreement and additional or subsequent BlueSheep Services agreements to which they are included and incorporated (as applicable);
  • Agreement Date means the date of the Agreement as specified in the Work Order of that Agreement;
  • Background IP means, in respect of any party, any Intellectual Property Rights owned or created by or licensed to that party independently of this Agreement (whether prior to the date of this Agreement or otherwise) and used in the performance of a party’s obligations under this Agreement;
  • Business Day means a day (other than a Saturday or Sunday or public holiday in England) when banks in London are open for business;
  • Charge/Charges and Payments means the charges, costs and fees payable by you to us under the Agreement in accordance with the relevant Work Order;
  • Confidential Information means all information of a confidential nature concerning the trade secrets or business dealings, methods of business, clients, members, market information, transactions, plans or affairs of a party and any information (whether encrypted, in copy form or in any media) which by its nature the recipient ought to reasonably conclude is confidential information of the other party, but no information that is: (a) in the public domain (other than by breach of this Agreement); (b) stock in trade or readily ascertainable by persons in the trade; or (c) received lawfully by the recipient from a third party on a non-confidential basis shall be deemed information of a confidential nature/confidential information of the other party;
  • Document means any document in writing, design, drawing, diagram, sketch, plan, specification, picture or other image whether in paper form or on disk, device, record or other form or media embodying information;
  • Force Majeure means any force majeure event (including without limitation fire, flood, accident, storm, utility failure, transport failure, riot, civil commotion, war or strike) being an event beyond a party’s reasonable control in relation to this Agreement and as described in more detail in clause 11;
  • Foreground IP means any Intellectual Property Rights (excluding Background IP) arising or obtained or developed in the course of the performance of a party’s obligations under and in connection with this Agreement;
  • General Terms means these general terms and conditions of business;
  • Intellectual Property Rights (IPR) means all patents, rights to inventions, utility models, copyright and related rights, trade-marks, service marks, trade, rights in business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, rights in designs, rights in computer software (including any source code or object code), data, database right, topography rights, moral rights, rights in Confidential Information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;
  • Licence Agreement means a licence agreement (whether for a fixed term or perpetual) entered into between you and us;
  • Personal Data/Sensitive Personal Data shall have the same meanings as set out in the Data Protection Act 1998 or any successor legislation;
  • Project Manager means a senior representative or manager appointed by a party to this Agreement (as notified in Writing to the other party from time to time), to coordinate the provision of the Services, pre-empt disputes and ensure effective cooperation between the parties;
  • Quarter/Quarterly means each quarter year beginning at the Agreement Date (or such other quarterly dates as are agreed by the parties in Writing);

Services means the services detailed in any Work Order, Licence Agreement or subsequent agreements to which these General Terms are included and incorporated;

  • Software means the computer software product(s) as set out in any Work Order or Licence Agreement;
  • Term means the period of the Agreement as stated in any Work Order;
  • Total Contract Sum means the total contract sum detailed in the Work Order;
  • VAT value added tax chargeable under English law for the time being and any similar, additional tax;
  • Work Order means the order form as set out at the front of any Licence Agreement or subsequent agreements to which these terms are included and incorporated; and
  • Writing includes hand-writing, letter, telex, cable, facsimile transmission, e-mail and comparable means of text based and written communication.

1.2  Any schedules and annexes shall form part of this Agreement and shall have effect as if set out in the main body of this Agreement. Any reference to this Agreement includes the background and schedules.

1.3  Any reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.4  Where the words “include(s)”, “including” or “in particular” are used in this Agreement, they are deemed to have the words “without limitation” following them. Where the context permits, the words other/otherwise are illustrative and do not limit the sense of the words preceding them.

1.5  In the event of any conflict of provisions in this Agreement the order of precedence shall be:

Work Order; then

Licence Agreement; then

Agreement for BlueSheep Services; then

General Terms; then

any attachments.

2        Agreement Commencement

The parties agree to comply with the terms and conditions of the Agreement. The Agreement is made between BlueSheep Limited (“we/us/our“) and the customer (“you/your“) and shall commence on the Agreement Date and shall remain in force until the end of the Term, subject to earlier termination in accordance with its terms and conditions.

3        Consents, permissions and approvals

3.1  By entering into the Agreement each party represents and warrants that they are not and will not be in breach of any express or implied obligation to any third party binding on it.

3.2  Each party that has rights under the Agreement is acting on its own behalf and not for the benefit of another person.

3.3  You shall provide all reasonable information, data, cooperation and assistance to us as we may reasonably request in the performance of our obligations under this Agreement.

3.4  The parties to the Agreement shall obtain, and at all times maintain, all necessary licences and consents and comply with all relevant legislation and regulations in relation to the performance of their obligations under the Agreement, including but not limited to the Health and Safety at Work Act, Equality Act 2010, the Asylum and Immigration Act 1996 and the Employment Rights Act 1996.

3.5  Each party to the Agreement agrees to comply with the UK Bribery Act 2010.

4        IPR and Warranties

4.1  The express terms of the Agreement are in lieu of all warranties, conditions, terms, undertakings and obligations implied by statute common law custom trade usage course of dealing or otherwise, all of which are hereby excluded to the fullest extent permitted by law.

4.2  All Background IP (including the Software) is and shall remain the exclusive property of the party owning it (or where applicable, the third party from whom its rights have derived).

4.3  Unless otherwise agreed in Writing by the parties, all Foreground IP arising out of the performance of the Agreement shall vest in and be owned by BlueSheep (or its licensors, as applicable). With regard to Foreground IP, you hereby assign (or shall procure the assignment) to BlueSheep with full title guarantee any Foreground IP arising by virtue of your (or your employees, agents, representatives or subcontractors’) performance of this Agreement.

5        Charges and Payment

5.1  We shall submit invoices to you in respect of the Charges and Payments.

5.2  You shall make payment of each invoice by the due date stated on the invoice.

5.3  Any charges payable by you under this Agreement are exclusive of VAT.

5.4  Without prejudice to your other rights under this Agreement or otherwise, we reserve the right to suspend the delivery or performance of our obligations under this Agreement in the event of late payment or non-payment by you of invoiced Charges.

5.5  We may, without limiting any other rights or remedies we may have, set off any amounts owed to us, against any amounts payable by us under the Agreement.

5.6  In the event that a third party supplier increases its charges to us, or in the event that the cost of providing the Software or the Services increases for any reason outside of our control, we reserve the right to increase the Charges to reflect such additional costs by giving you seven (7) days’ written notice.

5.7  If any sum payable by you is not paid within seven (7) days after the due date then (without prejudice to our’ other rights and remedies) we reserve the right to charge interest on such sum on a day to day basis (as well after as before any judgment) from the due date to the date of actual payment (both dates inclusive) at the rate of five (5) per cent above the base rate of the Bank of England from time to time in force compounded Quarterly. Such interest shall be paid on demand by us.

6        Insurance

We shall maintain all necessary insurance to cover all liability arising from the performance of our obligations under this Agreement.

7        Term and Termination

7.1  Either party may terminate the Agreement immediately (without liability) on written notice to the relevant party to the Agreement if:

(a)  that party commits a material breach of any of the terms of the Agreement and (if such a breach is remediable) fails to remedy that breach within thirty (30) days of the party being notified in Writing of the breach; or

(b)  that party fails to pay any sums due under the terms of this Agreement and such sum remains unpaid for fourteen (14) days after written notice that such sum has not been paid (such notice to contain a warning of the party’s intention to terminate); or

(c)  that party repeatedly breaches any of the terms of the 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 the Agreement; or

(d)  that party suspends, or threatens to suspend, payment of its debts, is unable to pay its debts as they fall due, admits inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or

(e)  a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of the party; or

(f)   the party suspends or ceases, or threatens to suspend/cease, to carry on all or a substantial part of its business; or

(g)  there is a change of control of the party (within the meaning of section 1124 of the Corporation Tax Act 2010); or

(h)  any Force Majeure Event occurs which is continuing and gives rise to a right to terminate the Agreement; or

(i)   (where the other party is an individual), the individual presents his own bankruptcy petition, or has presented against him a bankruptcy petition or order, or takes any formal step to implement an individual voluntary arrangement (within the meaning of the Insolvency Act 1986, or any successor legislation).

8        Effects of Termination

8.1  On termination of the Agreement for any reason:

(a)  you shall pay any outstanding amounts then due to us;

(b)  each party shall immediately deliver to the other (as relevant) all Confidential Information of the other party, and all copies of information and data provided for the purposes of the Agreement, and shall certify on demand that it has not retained any copies of Confidential Information or other information, except for one (1) copy which a party may use for audit purposes only; and

(c)  the accrued rights and liabilities of the parties as at termination and any clauses expressly or impliedly intended to survive, shall continue in full force and effect.

9        Confidential Information

9.1  Each party undertakes that it shall not at any time disclose to any person any Confidential Information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by this Agreement.

9.2  Each party may disclose the other party’s Confidential Information:

(a)  to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party’s obligations under this Agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s Confidential Information comply with this clause 9; and

(b)  as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

9.3  Each party shall notify the other in Writing immediately if the party becomes aware of a breach of this clause 9.

9.4  No party shall use any other party’s Confidential Information for any purpose other than to perform its obligations under this Agreement.

9.5  The injured party shall be indemnified by the other party against any loss or damage which it may sustain or incur as a result of a breach of this clause 9.

10      Data Protection and use of Data

10.1   The parties to this Agreement agree to comply with their respective obligations under the Data Protection Act 1998 (“the Act”).

10.2   Where we receive or are given access to Personal Data (including Sensitive Personal Data) from you or your representatives or customers at your instruction, you shall be the data controller and we shall be a data processor. We undertake, to the extent that we receive/access such Personal Data:

(a)  to use Personal Data (as defined under the Act) supplied by you or on your behalf (“Data”) only in accordance with your specific instructions;

(b)  to ensure that only employees essential to meeting our obligations to you under this Agreement will have access to any Data;

(c)  not to disclose Data to any other party except in accordance with your specific instructions;

(d)  to have appropriate processes and procedures in place to safeguard all Data against any unauthorised access, loss, destruction, theft, use or disclosure; and

(e)  at all times to comply with your reasonable instructions.

10.3   You shall indemnify and keep us fully and effectively indemnified on demand against any claims, losses, costs, fines or damages suffered by us due to breach by you (or your employees, agents or subcontractors) of your data protection obligations (including breach of the Act) under this Agreement.

11      Force Majeure

11.1   We reserve the right to defer the date for performance of our obligations under the Agreement or to terminate the Agreement (in full or part) on reasonable notice (acting in good faith) or otherwise obtain relief from our obligations hereunder, if we are prevented from, or delayed in, carrying on our business due to a Force Majeure Event, which shall include acts, events, omissions or accidents beyond our reasonable control, including, but not limited to strikes, lockouts or other industrial disputes (whether involving our workforce  or any other party), failure of a utility service or transport network, war, riot, civil commotion, malicious damage, compliance with any law, regulation or rule, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors, or such other similar event.

11.2   In the event of termination of the Agreement due to Force Majeure you shall pay all sums then due to us.

12      Variation

Subject to the terms of the Agreement no variation of the Agreement shall be valid unless it is in Writing and signed by, or on behalf of, each of the parties.

13      Assignment

You shall not, without our prior written consent, assign, transfer, charge, mortgage, subcontract or deal in any other manner with all or any of your rights or obligations under this Agreement. We may, at any time, assign, transfer, charge, mortgage, subcontract or deal in any other manner with all or any of our rights or obligations under this Agreement.

14      No Partnership or Agency

Nothing in the Agreement is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name of/on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

15      Third Party Rights

A person who is not a party to the Agreement shall not have any rights in connection with it.

16      Dispute Avoidance and Resolution

16.1   Any dispute which may arise between the parties concerning this Agreement shall be determined as provided in this clause 16.

16.2   For the purpose of this clause 16, a dispute shall be deemed to have arisen when one party serves on the other a notice in Writing stating the nature of the dispute.

16.3   Unless this Agreement has already been lawfully terminated by the date of the notice of dispute, both parties shall, in every case, continue to perform their obligations with all due diligence regardless of the nature of the dispute and, for the avoidance of doubt, you shall continue to make Payments in accordance with this Agreement.

16.4   After service of the notice of dispute, the following procedure shall be followed by the parties (all periods specified in this clause 16 shall be extendable by mutual agreement):

(a)  within two (2) Business Days, the parties’ Project Managers shall meet to attempt to settle the dispute;

(b)  if the parties’ Project Managers are unable to reach a settlement within fourteen (14) Business Days of the date of the notice, then senior managers or executives shall meet within fourteen (14) Business Days of the meeting provided for at 16.4(a) to attempt to settle the dispute;

(c)  if the senior managers or executives are unable to reach a settlement within seven (7) Business Days from the date  of their meeting, the Chief Executive of each of the parties shall meet within a reasonable time to attempt to settle the dispute; and

(d)  if no settlement results from the meeting specified in clause 16.4(c), for the following fourteen (14) Business Days the parties shall attempt to settle the dispute by mediation by an independent mediator, with costs to be shared equally between the parties.

16.5   If no settlement is reached under the provisions of clause 16.4:

(a)  if the dispute is of a technical nature then such dispute shall be referred for expert determination by an expert appointed at the request of either party by the President for the time being of the British Computer Society. The expert’s decision shall (in the absence of clerical or manifest error) be final and binding on the parties and his fees for so acting shall be borne by the parties in equal shares unless he determines that the conduct of either party is such that such party should bear all of such fees;

(b)  in the case of a dispute over purely legal issues, or where disposition of the legal issues would dispose of all other issues in dispute, the matter shall be brought before the English High Court in the most expeditious manner possible, and the parties agree to co-operate in the speedy conduct of such legal proceedings; and

(c)  in any other case, the dispute shall be determined by the English High Court and the parties submit to the exclusive jurisdiction of such court for such purposes. The commencement of mediation shall not prevent the parties commencing or continuing court proceedings.

17      Notices

17.1   A notice given to a party under the Agreement:

(a)  shall be in Writing in English;

(b)  shall be signed by or on behalf of the party giving it;

(c)  shall be sent for the attention of the person, at the address or fax number specified in the Work Order (or to such other address, fax number or person as that party may notify to the other, in accordance with the provisions of this clause 17); and shall be:

(i)   delivered personally; or

(ii)  by commercial courier; or

(iii) sent by fax; or

(iv) sent by pre-paid first-class post or recorded delivery; or

(v)  sent by airmail requiring signature on delivery.

17.2   If a notice has been properly sent or delivered in accordance with this clause 17, it will be deemed to have been received as follows:

(a)  if delivered personally, at the time of delivery; or

(b)  if delivered by commercial courier, at the time of signature of the courier’s receipt; or

(c)  if sent by fax, at the time of transmission; or

(d)  if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second day after posting; or

(e)  if sent by airmail, five (5) days from the date of posting.

17.3   For the purposes of this clause 17, all times are to be read as local time in the place of deemed receipt; and if deemed receipt under this clause is not within business hours (meaning 9.00am to 5.30pm Monday to Friday on a day that is not a public holiday), the notice is deemed to have been received when business next starts in the place of receipt.

17.4   To prove delivery, it is sufficient to prove that:

(a)  if sent by fax, the notice was transmitted by fax to the fax number of the party; or

(b)  if sent by pre-paid first-class post, the envelope containing the notice was properly addressed and posted.

17.5   The provisions of this notice clause 17 shall not apply to the service of any process in any legal action or proceedings.

18      Miscellaneous

18.1   The parties to the Agreement shall not do anything which brings or might reasonably be expected to bring the other into disrepute.

18.2   The parties shall comply with all reasonable health and safety and security requests made by the other in performing their obligations under the Agreement.

18.3   The Customer shall permit BlueSheep immediately on the provision of notice to inspect and have access to any premises (and to the computer equipment located there) at or on which BlueSheep is providing Software or Services, and have access to any records kept in connection with the Software or Services, for the purposes of ensuring that the Customer is complying with the terms of the Agreement.

18.4   Each party acknowledges that, in entering into the Agreement, 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 the Agreement. Each party agrees that its only remedies in respect of those representations and warranties that are set out in the Agreement shall be for breach of contract.

18.5   Unless specifically provided otherwise, rights arising under the Agreement are cumulative and do not exclude rights provided by law.

18.6   Unless expressly stated otherwise (in Writing) we make no warranties or representations as to the suitability, compatibility or interoperability of any Software, Services, equipment or materials provided by us, and we exclude all liability for any non-interoperability.

19      Entire Agreement

This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

20      Severance

If any court or competent authority finds that any provision of this Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected. If any invalid, unenforceable or illegal provision of this Agreement would be valid, enforceable and legal if some part of it were deleted, the parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the parties’ original commercial intention.

21      Counterparts

The Agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one Agreement.  No counterpart shall be effective until each party has executed at least one counterpart.

22      Governing Law and Jurisdiction

22.1   Any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes) shall be governed by, and construed in accordance with, the laws of England and Wales.

22.2   The parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).