These terms and conditions apply to the Order between the following parties:
The following definitions and rules of interpretation apply in these Conditions.
1.1 Definitions:
| Agreement | the agreement for services between the Supplier and the Customer comprising of these Conditions and the Order as amended from time to time; |
|---|---|
| Alternate Contact Officer | the person nominated by you pursuant to clause 7.1; |
| Business Day | a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business; |
| Charges | the charges payable by you for the supply of the Services in accordance with clause 10; |
| Commencement Date | has the meaning given in clause 2.3; |
| Conditions | these terms and conditions as amended from time to time; |
| Contact Officer | the employee nominated by you pursuant to clause 7.1; |
| Customer | you; your; the person or firm named in the Order who purchases Services from the Supplier; |
| Customer Default | has the meaning set out in clause 9.2; |
| Documentation | Any documentation provided by the Supplier; |
| Intellectual Property Rights | patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world; |
| Order | the Customer's order for Services; |
| Registered User | a person authorised by the Customer to use the Software, the number of which is set out in the Order; |
| Software | all computer software and data supplied to the Customer by the Supplier; |
| Supplier | we; our; us; the company registered as Sphinx Technology Limited in United Kingdom with company number 13204878; |
| Support Services | support and maintenance services relating to the Software and the Documentation; |
| Services | the Software, the Documentation and the Support Services as set out in the Order. |
1.2 Interpretation:
1.2.1 Unless expressly provided otherwise in these Conditions, a reference to a legislation or a legislative provision:
1.2.2 Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.2.3 A reference to writing or written includes email.
1.2.4 In the event of a conflict between the Conditions and the Order, the Order shall take precedence.
2.1 We provide background checking technology and expertise to our customers.
2.2 The Order constitutes an offer by you to purchase the Services in accordance with these Conditions.
2.3 The Order shall only be deemed to be accepted when we accept the returned Order, on which date the Services Agreement shall come into existence (Commencement Date). By signing the Order you agree to accept all of the terms within the Agreement.
2.4 Any samples, drawings, descriptive matter or advertising issued by us, and any descriptions or illustrations contained in our catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Services Agreement or have any contractual force.
2.5 This Agreement applies to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.6 Any quotation given by us in the Order shall not constitute an offer and is only valid for a period of 60 Business Days from its date of issue. For the avoidance of doubt, any quotation given by us via email only will not constitute an offer.
3.1 We shall supply the Services to you in accordance with the Order in all material respects.
3.2 We shall use all reasonable endeavours to meet any performance dates specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 We reserve the right to amend the Order if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and we shall notify you in any such event.
3.4 We warrant to you that the Services will be provided using reasonable care and skill.
4.1 In consideration of payment by you of the Charges and your agreement to abide by these Conditions, we grant you a non-exclusive, non-transferable licence to use the Software and the Documentation on the terms of this Agreement.
4.2 You may use the Software and Documentation only for your internal business purposes.
4.3 Except as expressly set out in clause 4.2, you undertake to not (and not attempt to):
4.3.1 copy (except where to the extent copying is reasonably incidental to normal and proper use, back-up or operational security of the Software), modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software or the Documentation in any form or media or by any means; or attempt to copy, reverse-compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software or the Documentation or attempt to gain unauthorised access to any part of the Software or the Documentation or any connected system (and you agree to use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software or the Documentation);
4.3.2 access all or any part of the Software or the Documentation in order to build a product or service which emulates or competes with any part of the Software or the Documentation;
4.3.3 use the Software or the Documentation to facilitate any illegal activity;
4.3.4 use the Software or the Documentation to provide any service to third parties;
4.3.5 to license, sell, rent, lease, transfer, assign, distribute, or otherwise make any part of the Software or the Documentation available to any third party without our prior written consent;
4.3.6 disclose any information which is confidential to us or to seek (whether directly or indirectly) to circumvent our interests or to deploy or use (or assist another to deploy or use) information or processes learned by you as result of your dealings with us or the Software or the Documentation otherwise than for your legitimate business purposes that are not in competition with or deleterious to us;
4.3.7 to make alterations to, or modifications of, the whole or any part of the Software or the Documentation nor permit the Software or the Documentation or any part of it to be combined with, or become incorporated in, any other programs or material, other than for the purpose of creating and maintaining necessary interfaces designed and maintained by us;
4.3.8 obscure any copyright or similar notice published by us; and/ or
4.3.9 permit use of the Services otherwise in accordance with this Agreement.
4.4 You undertake to:
4.4.1 include our copyright notice on all entire and partial copies you make of the Software or the Documentation on any medium.
5.1 You acknowledge that all intellectual property rights in the Software and the Documentation anywhere in the world belong to us, that rights in the Software are licensed (not sold) to you, and that you have no rights in, or to, the Software or the Documentation other than the right to use them in accordance with this Agreement.
5.2 The integrity of the Software may be protected by technical protection measures ("TPM") so that the intellectual property rights, including copyright, in the Software are not misappropriated. Whether TPM is in place or otherwise, you must not attempt in any way to remove or circumvent such TPM, nor to apply, manufacture, import, distribute, sell, let for hire, offer, expose or advertise for sale for hire or have in your possession for private or commercial purposes, any means whose sole reasonable purpose is to facilitate the unauthorised removal or circumvention of such TPM.
5.3 You acknowledge that you have no right to have access to the Software in source code form.
5.4 All copyright, rights in relation to databases, design rights, registered designs, patents, trade and service marks (registered and unregistered), know-how, rights in or relating to confidential information or any other intellectual property rights or industrial property rights or other rights of a similar nature anywhere in the world associated with any ideas, concepts, techniques, inventions, processes or works of authorship developed or created by us or our personnel or contractors during the course of providing the Services shall belong exclusively to us.
5.5 You grant us a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by you to us for the Term of the Agreement for the purpose of providing the Services to you.
6.1 You may nominate a person who is employed by you or provides services to you to be a Registered User of the Software. You will promptly notify us of any nominated Registered Users.
6.2 The number of Registered Users which you may nominate is subject to a maximum as set out in the Order. You may change Registered Users at any time, provided that the maximum number does not exceed the number set out in the Order. You will promptly notify us of any changes to the Registered Users.
6.3 We may agree to increase at your request the maximum number of Registered Users which you may nominate. Additional fees may be payable.
6.4 You are responsible for the acts, statements and omissions of your Registered Users and agree that if a Registered User breaches these Conditions then this constitutes a breach of the Agreement by you.
6.5 We will ensure that any claim we may have and wish to bring against any Registered Users in connection with the Agreement is brought against you.
7.1 You must nominate a person to act as Contact Officer for the purposes of this Agreement and another person to act as your Alternate Contact Officer, and promptly notify us of these nominations and any changes to these appointments during the Term.
7.2 The Contact Officer (or the Alternate Contact Officer, when the Contact Officer is not available or unable to perform his or her responsibilities under these Conditions) shall:
7.2.1 act as the official contact person of Customer when communicating or otherwise dealing with us;
7.2.2 ensure that Registered Users are aware of and comply with the Agreement; and
7.2.3 inform us of any actual or alleged breach of the Agreement by any of the Registered Users and take action to establish and implement appropriate steps to remedy and/or prevent a breach of the Agreement by a Registered User.
8.1 Subject to your paying the Charges we shall provide the Support Services to you.
9.1 You shall:
9.1.1 co-operate with us in all matters relating to the Services;
9.1.2 provide us with such information and materials as we may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
9.1.3 obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are due to start; and
9.1.4 comply with any additional obligations as set out in the Agreement.
9.2 If our performance of any of our obligations under the Agreement is prevented or delayed by any act or omission by you or your representative or failure by you or your representatives to perform any relevant obligation (Customer Default):
9.2.1 without limiting or affecting any other right or remedy available to us, we shall have the right to suspend performance of the Services until you remedy the Customer Default;
9.2.2 we shall not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from our failure or delay to perform any of our obligations due to a Customer Default; and
9.2.3 you shall reimburse us on written demand for any costs or losses sustained or incurred by us arising directly or indirectly from the Customer Default.
10.1 You shall be charged in accordance with the Order.
10.2 We shall invoice you in accordance with the Order.
10.3 You shall pay each invoice submitted by us:
10.3.1 within 30 days of the date of the invoice; and
10.3.2 in full and in cleared funds to a bank account nominated in writing by us, and time for payment shall be of the essence.
10.4 All amounts payable by you under the Agreement are exclusive of amounts in respect of value added tax chargeable from time to time ("VAT"). Where any taxable supply for VAT purposes is made under the Agreement by us to you, you shall, on receipt of a valid VAT invoice from us, pay to us such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
10.5 We may change the amounts charged to you at any time, but we shall give you at least one month's written notice if we intend to change any of the amounts payable by you.
10.6 If you fail to make a payment due to us under the Agreement by the due date, then, without limiting our remedies, you shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 10.5 will accrue each day at 8% a year above HSBC plc's base lending rate from time to time, but at 8% a year for any period when that base rate is below 0%. Interest will be payable on demand, together with any debt recovery costs which we incur.
10.7 All amounts due under the Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
10.8 We reserve the right to include mechanisms to inhibit, limit or prevent normal operation of the Software and to activate these or to suspend the Services until you have made all payments due to us.
10.9 You agree to abide by the further payment obligations set out in the Order.
The parties shall comply with their data protection obligations as set out in the Privacy Policy.
12.1 We shall not in any circumstances whatever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with these Conditions for:
12.1.1 loss of profits, sales, business, or revenue;
12.1.2 business interruption;
12.1.3 loss of anticipated savings;
12.1.4 loss or corruption of data or information;
12.1.5 loss of business opportunity, goodwill or reputation; whether or not any of the losses set out in clause 12.1.1 to clause 12.1.5 are direct or indirect or constitute any special, indirect or consequential loss, damage, charges or expenses.
12.2 Our maximum aggregate liability under or in connection with this Agreement whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to a sum equal to the aggregate of the fees paid by you for under the Order in the twelve months prior to the relevant liability arising. This maximum cap does not apply to clause 12.3.
12.3 Nothing in this Licence shall limit or exclude our liability for:
12.3.1 death or personal injury resulting from our negligence;
12.3.2 fraud or fraudulent misrepresentation;
12.3.3 any other liability that cannot be excluded or limited by English law.
12.4 This Agreement set out the full extent of our obligations and liabilities in respect of the supply of the Services. Except as expressly stated in this Agreement, there are no conditions, warranties, representations or other terms, express or implied, that are binding on us. Any condition, warranty, representation or other term concerning the supply of the Services which might otherwise be implied into, or incorporated in, these Conditions, whether by statute, common law or otherwise, is excluded to the fullest extent permitted by law.
12.5 You agree that this clause 12 operates to limit the liability of the acts or omissions of our affiliates, employees, agents and sub-contractors.
13.1 This Agreement begins on the Commencement Date and shall continue for a period specified within the Order (the "Term").
13.2 Based on your election of a package in the Order, and following the Term, this Agreement shall automatically renew for successive twelve (12) month periods (each a "Renewal Term") unless either party provides written termination to the other party at least ninety (90) days prior to the expiration of the then-current Renewal Term.
13.3 In the event you wish to terminate the Agreement before the expiration of the Term or the then-current Renewal Term, you will be responsible for any remaining fees for the unexpired portion of the Agreement.
13.4 In the event you do not wish to renew the Agreement upon the expiration of the then-current Renewal Term, you shall provide written notice of termination to us, specifying the expiration date of the current term, at least ninety (90) days prior to such expiration date.
13.5 In the absence of a termination notice as specified in clause 13.4, this Agreement shall continue in full force and effect for each Renewal Term, and all terms and conditions herein shall apply.
13.6 We reserve the right to amend the terms and conditions of this Agreement under any renewal by providing you with written notice of such changes at least thirty (30) days prior to the commencement of the Renewal Term. In the event that you do not wish to accept the amended terms, you shall have the right to terminate this Agreement within thirty (30) days of receiving the notice of amendment, irrespective of the ninety (90) day notice period as set out in clause 13.4.
13.7 Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:
13.7.1 the other party commits a material or persistent or repeated breach of any term of the Agreement;
13.7.2 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
13.7.3 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
13.7.4 the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Agreement has been placed in jeopardy.
13.8 Without affecting any other right or remedy available to it, we may terminate the Services Agreement with immediate effect by giving written notice to you if:
13.8.1 you fail to pay any amount due under the Agreement within 14 days of being given written notice requiring payment to be made.
13.9 Without affecting any other right or remedy available to it, we may suspend the supply of Services under the Agreement or any other contract between you and us if:
13.9.1 you fail to pay any amount due under the Agreement on the due date for payment;
13.9.2 you become subject to any of the events listed in clauses 13.7.2 to 13.7.4, or we reasonably believe that you are about to become subject to any of them; and
13.9.3 we reasonably believe that you are about to become subject to any of the events listed in clauses 13.7.2 to 13.7.4.
14.1 On termination or expiry of the Agreement you shall immediately pay to us all of our outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, we shall submit an invoice, which shall be payable by you immediately on receipt;
14.2 On the termination or expiry of Agreement you shall forfeit all rights granted to you under the Agreement and you agree that you shall immediately stop using all parts of the Services and, to the extent reasonably possible, delete or remove the Software from all computer equipment in your possession.
14.3 Termination or expiry of the Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
14.4 Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Agreement shall remain in full force and effect.
15.1 Where requested by you, acting reasonably, we shall enter into a three-party source code escrow agreement in respect of the Software with you and an escrow agent of our choice, any and all charges and fees associated with such arrangement being at your expense.
15.2 These Conditions are binding on you and us and on our respective successors and assigns.
15.3 Both parties shall comply with all applicable laws, statutes and regulations relating to anti-bribery and anti-corruption, including but not limited to the Bribery Act 2010.
15.4 Neither party shall (except with the prior written consent of the other) during the term of the Agreement, and for a period of one year after it has terminated, solicit the services of any senior staff of the other party who have been engaged in the management of the Agreement either as principal, agent, employee, independent contractor or in any other form of employment or engagement other than by means of a national advertising campaign open to all-comers and not specifically targeted at such staff of the other party.
15.5 Force majeure.
15.5.1 Except for the failure to make payment, neither party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control.
15.6 Assignment and other dealings.
15.6.1 We may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of our rights and obligations under the Agreement.
15.6.2 You shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of your rights and obligations under the Agreement.
15.7 Confidentiality.
15.7.1 Each party shall, during the Term of this Agreement and thereafter, keep confidential all, and shall not use for its own purposes (other than implementation of an licence) nor without the prior written consent of the other party disclose to any third party (except its professional advisors or as may be required by any law or any legal or regulatory authority), information of a confidential nature (including trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party or any of its affiliates, unless that information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this Agreement, or subsequently comes lawfully into the possession of such party from a third party. Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information. This clause shall survive termination of this Agreement, however arising for a period of three years following expiration or termination of this Agreement.
15.7.2 No party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
15.7.3 You agree that we may use your name and logo on our website, other promotional material and customer reference lists that we may provide to potential customers, subject to your approval such approval not to be unreasonably withheld.
15.8 Entire agreement.
15.8.1 The 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.
15.8.2 Each party acknowledges that in entering into the Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Agreement.
15.8.3 Nothing in this clause shall limit or exclude any liability for fraud.
15.9 Variation.
15.9.1 No variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
15.10 Waiver.
15.10.1 A waiver of any right or remedy under the Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
15.11 Severance.
15.11.1 If any provision or part-provision of the 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 deleted under this clause 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.
15.12 Notices.
15.12.1 Any notice or other communication given to a party under or in connection with the Agreement shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by email to the address specified in the Agreement.
15.12.2 Any notice or communication shall be deemed to have been received:
15.12.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
15.13 Third party rights.
15.13.1 Unless it expressly states otherwise, the Agreement does not give rise to any rights under the Agreements (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.
15.14 Governing law.
15.14.1 The Agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of United Kingdom.
15.15 Jurisdiction.
15.15.1 Each party irrevocably agrees that the courts of United Kingdom shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Agreement or its subject matter or formation.
16.1 It is a condition of the Agreement that you promptly report any faults.
Date of Last Review: 19 March 2024