Nia & Russ Ltd (N&R)
Terms and conditions of business
This document represents Nia and Russ’s standard software terms of business for the use of its software .
1 Interpretation
1.1 In these terms and conditions of business (Terms) the following expressions shall have the following meanings: –
Software
This relates to N&R’s Intangible Personal Property consisting of mathematical codes, programs, routines, and other functions that controls the functioning and operation of a computer’s hardware. Specifically, software relating to analytics and data science.
Client
any person, firm or company who approaches or briefs the Company with a view to engaging or otherwise using the company’s software.
Company
Nia & Russ Ltd (registered number: 12172230whose registered office is at 21 westbere road NW2 3SP
Contract
any contract between the Company and the Client involving the provision of Executive Selection services by the Company to the Client, incorporating these Terms;
Engagement
The signed or written confirmation by email, by post or fax of the contracted use of any of N&R’s software or solutions meeting the definition of Software. An engagement with N&R is always linked to the approval of its proposal in writing by a Client.
Fees
All N&R Software or solutions are sold to clients on a minimum of three-year contract. With billings for these fees being paid by the client on the anniversary of the software install each year for the duration of that contracted period. The contract shall expire on the anniversary of the contract with each client.
Month
a calendar month;
Payment Terms
30 days from the date of the Company’s invoice;
Install Date
This is linked to the date the client approved the software user acceptance testing.
Third Party
any person, firm or corporation including any subsidiary, associated or holding company of the Client, but not the Client.
1.2 The Contract shall be on these Terms to the exclusion of all other terms and conditions (including any terms or conditions which the Client purports to apply).
1.3 These Terms supersede all previous terms of business relating to software provision.
1.4 No variation of these Terms shall be valid if made without the written consent of a director of the Company.
1.5 The signing or written approval of these terms for and on behalf of the Client or receipt by the Client of Information or the interviewing by or on behalf of the Client (by telephone or in person) or use of the software (whichever first occurs) shall be deemed acceptance of agreement to these Terms.
2 Obligations of the Company
2.1 The Supplier shall ensure that all relevant consents, authorisations, licences and accreditations required to provide the Services are in place at the Actual Services Commencement Date and are maintained throughout the Term. If the Services, or any part of them, are regulated by any regulatory body, the Supplier shall ensure that at the Actual Services Commencement Date it has in place all relevant registrations and shall maintain such registrations during the Term. The Supplier shall notify the Client forthwith in writing of any changes to such registration or any other matter relating to its registration that would affect the delivery or the quality of Services. The Supplier shall be relieved from its obligations under this Contract to the extent that it is prevented from complying with any such obligations due to any acts, omissions or defaults of the client. To qualify for such relief, the Supplier must notify the Client promptly (and in any event within five (5) Business Days) in writing of the occurrence of such act, omission, or default of the Client together with the potential impact on the Supplier’s obligations.
3 Obligations of the Client
3.1 The client shall not sell, license, copy or approve third party suppliers tamper with N&R Software. N&R licensors, and grant the client a limited, non-exclusive, revocable licence to make non-commercial use of the N&R Service and to receive the content made available directly from N&R or through its partners based on the Subscription or Trial you have selected (the “Licence”). This Licence shall remain in effect for a period of 3 years unless terminated by your organisation or N&R.
3.2
3.3 N&R’s Software is licensed, not sold, to you or your organisation, and N&R retains ownership of all copies of the N&R software applications even after installation on Devices. N&R may assign these Agreements or any part of them without restrictions. Your organisation may not assign these Agreements or any part of them, nor transfer or sub-licence your organisation’s rights under this Licence, to any third party.
3.4
3.5 All N&R trademarks, service marks, trade names, logos, domain names, and any other features of the N&R brand are the sole property of N&R. This Licence does not grant you or your organisation any rights to use the N&R trademarks, service marks, trade names, logos, domain names, or any other features of the N&R brand, whether for commercial or non-commercial use.
3.6
3.7 Your Organisation agrees to abide by our User Guidelines and not to use the N&R App Service (including but not limited to its content) in any manner not expressly permitted by the Terms.
3.8
3.9 Third party software libraries included in the N&R Service are licensed to your organisation either under these Terms or under the relevant third party software library’s licence terms as published in the help or settings section of our desktop and mobile client and on our website.
3.10 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under these Terms.
4 Fees, Expenses and Invoicing
4.1 The Company shall be entitled to invoice the Client for the Fees on the anniversary of the agreement.
4.2 The Client agrees to pay all reasonable expenses incurred by the Company in the provision of the software, to be reimbursed by the Client against production by the Company of appropriate invoices and receipts in support.
4.3 All other charges must be separately agreed in writing and will be payable by the Client irrespective of whether a cost in incurred by N&R.
4.4 Fees are payable within the Payment Terms confirmed in writing or signed agreement. Time for payment shall be of the essence.
4.5 The Company reserves the right to charge the Client interest in respect of any amount outstanding after the period for payment from the date of invoice up to and including the date of payment at the rate of 8% per annum above the base rate from time to time of Barclays Bank plc. The Company reserves the right to claim interest under the Late Payment of Commercial Debts (interest) Act 1998.
5 Liability and indemnity
5.1 This clause 6 sets out the entire financial liability of the Company arising out of or in connection with the Contract.
5.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
5.3 Nothing in these Terms limits or excludes the liability of the Company:
5.3.1 for death or personal injury resulting from negligence; or
5.3.2 for any damage or liability incurred by the Client as a result of fraud or fraudulent misrepresentation by the Company.
5.4 Subject to clause 6.2 and clause 6.3
5.4.1 the Company shall not be liable for:
5.4.1.1 loss of profits; or
5.4.1.2 loss of business; or
5.4.1.3 depletion of goodwill and/or similar losses; or
5.4.1.4 any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
5.4.2 the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the Contract shall be limited to a sum equivalent to the Fees.
5.5 In consideration of the Company entering into a Contract, the Client hereby undertakes to indemnify the Company in respect of any and all liability of the Company for:-
5.5.1 any Loss suffered by the software, howsoever caused; and
5.5.2 PROVIDED THAT this indemnity is given only in respect of any such Loss caused to the Company during or arising out of or connected with an Engagement.
5.6 The Client acknowledges that the limitations and exclusions of the obligations and liabilities of the Company set out herein are reasonable and reflected in the Fees and shall accept risk and/or insure accordingly.
5.7 To the extent permissible by law, all warranties, conditions or terms other than those expressly set out in these Terms are excluded including but not limited to all implied and statutory conditions.
6 Termination
6.1 This Contract shall commence on the Commencement Date and, unless terminated
earlier in accordance with the terms of this Contract or the general law, shall continue until the end of the Term.
6.2 The Client shall be entitled to extend the Term on one or more occasions by giving the Supplier written notice no less than six (6) months prior to the date on which this Contract would otherwise have expired, provided that the duration of this Contract shall be no longer than the total term specified in the Key Provisions.
6.3 In the case of a breach of any of the terms of this Contract by either Party that is capable of remedy (including, without limitation any breach of any KPI and any failure to pay any sums due under this Contract), the non-breaching Party shall, without prejudice to its other rights and remedies under this Contract, issue notice of the breach and allow the Party in breach the opportunity to remedy such breach in the first instance via a remedial proposal put forward by the Party in breach (“Remedial Proposal”) before exercising any right to terminate this Contract in accordance with Such Remedial Proposal must be agreed with the non-breaching Party (such agreement not to be unreasonably withheld or delayed) and must be implemented by the Party in breach in accordance with the timescales referred to in the agreed Remedial Proposal. Once agreed, any changes to a Remedial Proposal must be approved by the Parties in writing. Any failure by the Party in breach to:
6.3.1 put forward and agree a Remedial Proposal with the non-breaching Party in relation to the relevant default or breach within a period of ten (10) Business Days (or such other period as the non-breaching Party may agree in writing) from written notification of the relevant default or breach from the non-breaching Party;
6.3.2 comply with such Remedial Proposal (including, without limitation, as to its timescales for implementation, which shall be thirty (30) days unless otherwise agreed between the Parties); and/or
6.3.3 remedy the default or breach notwithstanding the implementation of such Remedial Proposal in accordance with the agreed timescales for implementation,
shall be deemed, for the purposes of a material breach of this Contract by the Party in breach not remedied in accordance with an agreed Remedial Proposal.
6.4 Either Party may terminate this Contract forthwith by notice in writing to the other Party if such other Party:
6.4.1 commits a material breach of any of the terms of this Contract which is:
6.4.1.1 not capable of remedy; or
6.4.1.2 in the case of a breach capable of remedy, which is not remedied in accordance with a Remedial Proposal; or
6.4.2 has been served with at least two (2) previous breach notices as a result of any material breaches which are capable of remedy within any twelve (12) month rolling period whether or not the Party in breach has remedied the breach in accordance with a Remedial Proposal. The twelve (12) months rolling period is the twelve (12) months immediately preceding the date of the third breach notice.
6.5 The Client may terminate this Contract forthwith by notice in writing to the Supplier if:
6.5.1 the Supplier does not commence delivery of the Services by any Long Stop Date;
6.5.2 the Supplier, or any third party guaranteeing the obligations of the Supplier under this Contract, ceases or threatens to cease carrying on its business; suspends making payments on any of its debts or announces an intention to do so; is, or is deemed for the purposes of any Law to be, unable to pay its debts as they fall due or insolvent; enters into or proposes any composition, assignment or arrangement with its creditors generally; takes any step or suffers any step to be taken in relation to its winding-up, dissolution, administration (whether out of court or otherwise) or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) otherwise than as part of, and exclusively for the purpose of, a bona fide reconstruction or amalgamation; has a liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, receiver, administrative receiver, administrator or similar officer appointed (in each case, whether out of court or otherwise) in respect of it or any of its assets; has any security over any of its assets enforced; or any analogous procedure or step is taken in any jurisdiction;
6.5.3 the Supplier undergoes a change of control within the meaning of sections 450 and 451 of the Corporation Tax Act 2010 (other than for an intra-group change of control) without the prior written consent of the Client and the Client shall be entitled to withhold such consent if, in the reasonable opinion of the Client , the proposed change of control will have a material impact on the performance of this Contract or the reputation of the Client ;
6.5.4 the Supplier purports to assign, subcontract, novate, create a trust in or otherwise transfer or dispose of this Contract;
6.5.5 the NHS Business Services Client has notified the Client that the Supplier or any subcontractor of the Supplier has, in the opinion of the NHS Business Services Client , failed in any material respect to comply with its obligations in relation to the NHS Pension Scheme (including those under any Direction Letter).
6.6 Within six (6) months of the Commencement Date the Parties shall develop and agree an exit plan (if applicable) which shall ensure continuity of the Services on expiry or earlier termination of this Contract. The Supplier shall provide the Client with the first draft of an exit plan within four (4) months of the Commencement Date. The Parties shall review and, as appropriate, update the exit plan on each anniversary of the Commencement Date of this Contract.
7 Consequences of expiry or earlier termination of this Contract
7.1 Upon expiry or earlier termination of this Contract, the Client agrees to pay the Supplier for the full term of the contract lier in accordance with this Contract prior to expiry or earlier termination of this Contract.
7.2 Immediately following expiry or earlier termination of this Contract:
7.2.1 the Supplier shall comply with its obligations under any agreed exit plan; and
7.2.2 all data, including without limitation Personal Data, documents and records (whether stored electronically or otherwise) relating in whole or in part to the Services, including without limitation relating to patients or other service users, and all other items provided on loan or otherwise to the Supplier by the Client shall be delivered by the Supplier to the Client provided that the Supplier shall be entitled to keep copies to the extent that: (a) the content does not relate solely to the Services; (b) the Supplier is required by Law and/or Guidance to keep copies; or (c) the Supplier was in possession of such data, documents and records prior to the Commencement Date.
7.3 The Supplier shall cooperate fully with the Client or, as the case may be, any replacement supplier during any re-procurement and handover period prior to and following the expiry or earlier termination of this Contract. This cooperation shall extend to providing access to all information relevant to the operation of this Contract, as reasonably required by the Client to achieve a fair and transparent re-procurement and/or an effective transition without disruption to routine operational requirements.
7.4 Immediately upon expiry or earlier termination of this Contract any licence or lease entered into in accordance with the Key Provisions shall automatically terminate.
7.5 The expiry or earlier termination of this Contract for whatever reason shall not affect any rights or obligations of either Party which accrued prior to such expiry or earlier termination.
7.6 The expiry or earlier termination of this Contract shall not affect any obligations which expressly or by implication are intended to come into or continue in force on or after such expiry or earlier termination.
8 General
8.1 Each right or remedy of the Company is without prejudice to any other right or remedy of the Company whether under the Contract or not.
8.2 If any provision of the Contract is found by any court to be wholly or partly illegal, invalid, void, void able, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, void ness, void ability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
8.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
8.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract shall not be construed as a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
8.5 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
8.6 The Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
8.7 Each party shall comply with the provisions of the Data Protection Act 1998 and all subsequent amendments or re-enactments.
8.8 All amounts due from the Client under the Contract shall be paid in full without any deduction or withholding other than as required by law. The Client shall not be entitled to assert any credit, set-off or counterclaim against the Company in order to justify withholding payment of any such amount in whole or in part.
8.9 Where the actual Remuneration is not known, the Agency will charge an Introduction Fee calculated in accordance with clause 4.2 based on its determination of the Remuneration taking into account the market rate level of remuneration applicable for the position in which the Candidate has been Engaged and with regard to any information supplied to the Agency by the Client and/or comparable positions in the market generally.
8.10 The N&R group reserves the right to use the customer relationship/engagement for marketing and communication purposes inter alia, press releases; case studies or website/sales collateral. Use in such circumstances not to be unreasonably withheld. Any videography; written content; quotes or other content assets from the customer would however be pre-approved in advance of use for external use.
9 Written notice
9.1 Where written notice is required to be given pursuant to these Terms, it shall be delivered by hand or sent by pre-paid first class post or sent by fax:
9.1.1 (in the case of notice to the Company) to Nia & Russ Ltd, level 21 westbere road NW2 3SP or such changed address as shall be notified to the Client by the Company; or
9.1.2 (in the case of communications to the Client) to the registered office (if it is a company) or (in any other case) to an address of the Client set out in any document which forms part of the Contract or such other address as shall be notified to the Company by the Client.
9.2 Written notice shall be deemed to have been received: –
9.2.1 if sent by pre-paid first class post, 2 days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or
9.2.2 if delivered by hand, on the day of delivery; or
9.2.3 if sent by fax on a working day prior to 4pm, at the time of transmission and otherwise on the next working day.
9.3 Communications addressed to the Company shall be marked for the attention of the CFO/CEO
N&R will use the personal data that is provided for data analytics to improve the services provided and that it is necessary for the legitimate interests of business.
In some circumstances N&R will anonymise your personal data (so that it can no longer be associated with you) for research or statistical purposes, in which case we may use this information indefinitely without further notice to you.
