1 INTERPRETATION
The following definitions and rules of interpretation apply in the Agreement.
1.1 Definitions
“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.
“Agreement” - means the agreement formed of the Proposal, these terms and conditions and any other document identified in the Proposal as forming part of the agreement.
“Beyondly” - means Beyondly Global Limited.
“Beyondly Group” - means Beyondly, its Affiliates, its subcontractors engaged in relation to the services, and its and their respective directors or other officers, employees and personnel.
“Beyondly Materials” means any and all methodologies, calculations, templates, documents, materials or other knowhow used by Beyondly in relation to the Services or the Deliverables.
“Charges” - means the sums payable for the Services, as set out or identified in the Proposal.
“Client” - means the party named as the Client in the Proposal.
“Client Default” - has the meaning given in clause 3.2.
“Client Materials” - has the meaning given in clause 6.5.
“Confidential Information” - means all information of a confidential or proprietary nature, relating to the business, assets, affairs, customers, operations, know how or trade secrets of a party. Confidential Information of Beyondly includes all reports relating to market intelligence or otherwise, which are supplied to the Client by Beyondly.
“Control” - means in relation to any entity (a) owning directly or indirectly voting securities of that entity carrying fifty percent (50%) or more of the voting rights in such entity; or (b) possessing, directly or indirectly, the power to direct or cause the direction of the management and the policies of that entity, and Control and Controlled shall be understood accordingly.
“Data Providers” – has the meaning given to it in clause 7.1.
“Data Sphere” – means the Data Sphere platform, as described in the Services Description.
“Deliverables” – means any deliverables provided by Beyondly pursuant to this Agreement, including the specific deliverables identified in the Proposal, but not including any of the Methodologies.
“Extended Term” – has the meaning given to it in clause 10.2.
“Force Majeure Event” - has the meaning given in clause 12.
“Initial Term” – has the meaning given to it in clause 10.2.
“Input Data” – has the meaning given to it in clause 7.1.
“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, 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) 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.
“Proposal” - means the proposal, statement of work or other document to which these standard terms and conditions are attached (or in which they are incorporated by reference) and all other annexures thereto.
“Purpose” – the sole purpose stated in the Proposal, and for the Client’s internal use only.
“Scheme Year” – means a calendar year beginning on 1 January and ending on 31 December.
“Services” - means the Services which Beyondly agrees to provide as described in the Proposal and otherwise in the Agreement, which may include any or all of the Services set out in the Schedule.
“Services Description” – the description of each of the Services, as set out in the Schedule.
1.2 Clause, and paragraph headings shall not affect the interpretation of the Agreement.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to writing or written includes email but not fax.
1.8 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.9 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.
1.10 In the case of any conflict between the terms of the Proposal and these standard terms and conditions, the Proposal shall prevail, and the terms of this Agreement apply to the Agreement to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
1.11 Any samples, drawings, descriptive matter or advertising issued by Beyondly, and any descriptions or illustrations contained in Beyondly’s 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 Agreement or have any contractual force.
2. SUPPLIER’S RESPONSIBILITIES
2.1 The Proposal shall only be deemed to be accepted when the client signs Beyondly’s proposal, at which point and on which date the Agreement shall come into existence.
2.2 Beyondly shall provide the Services and deliver the Deliverables to the Client:
2.1.1 in accordance with applicable law;
2.1.2 with reasonable care and skill; and
2.1.3 in accordance with the Services Description in all material respects.
2.2 Beyondly shall use reasonable endeavours to meet any dates specified in the Agreement but any such dates shall be estimates only and time for performance by Beyondly shall not be of the essence of the Agreement.
2.3 Beyondly reserves the right to amend the Services Description 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 Beyondly shall notify the Client in any such event.
2.4 Nothing in the Agreement shall constitute the delegation to Beyondly of any duty imposed on the Client or any of its Affiliates under any applicable law.
3. CLIENT’S OBLIGATIONS
3.1 The Client shall:
3.1.1 co-operate with Beyondly in all matters relating to the Services;
3.1.2 provide to Beyondly in a timely manner, and in line with any timescale outlined in the Proposal, all documents, data, and information in any form (whether owned by the Client or third party) specified in the Proposal or otherwise requested by Beyondly in connection with the Services;
3.1.3 ensure that the Proposal is, and all documents, data, and information supplied under clause 3.1.2 are, accurate and complete, and (without limitation to this) notify Beyondly of any respect in which they are inaccurate or incomplete promptly (and in any event within 28 days) after becoming aware of the fact;
3.1.4 without limiting clause 3.1.2, where specified in the Proposal or otherwise requested by Beyondly, appoint a representative to act as a point of contact with Beyondly and respond to requests for documents, data, and information;
3.1.5 provide, where specified in the Proposal, or requested by Beyondly for the purpose of the Services, written authority to deal directly with relevant third parties on behalf of the Client or its relevant Affiliates;
3.1.6 obtain, before the date on which the Services are to start, and maintain, all necessary licenses and consents enable Beyondly to provide the Services; and
3.1.7 comply, in all matters relevant to the Purpose, the Services, the Deliverables and the performance of the Agreement, with applicable law.
3.2 If Beyondly’s performance of its obligations under the Agreement is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, or by any failure of the Client to comply with any of its obligations under the Agreement (“Client Default”), then, without prejudice to any other right or remedy it may have:
3.2.1 Beyondly shall be entitled to an extension of time to perform its obligations equal to the delay caused by the Client Default;
3.2.2 Beyondly shall be entitled to charge the Client an additional fee for the reduced time period in order to complete the work and or for any additional work thereby caused (at the rates stated in the Proposal or, if there are no such rates, at Beyondly’s standard rates);
3.2.3 Beyondly shall not be liable for any costs, damages losses or other liabilities sustained or incurred by the Client arising directly or indirectly from Beyondly’s failure to provide the Services in accordance with this Agreement; and
3.2.4 the Client shall pay to Beyondly a sum equivalent to any costs or losses sustained or incurred by Beyondly arising directly or indirectly from the Customer Default.
3.3 If the Client fails to provide any documents, data, or information in line with the timescales outlined in the Proposal, Beyondly shall be entitled at its option to elect to:
3.3.1 charge an additional fee equal to 20% of the total original Charges, in which case the timescales for delivery of the project set out in the Proposal shall be extended by such a period as Beyondly deem necessary in order to complete the Services as a result of the delay (subject to the Client making payment); and/or
3.3.2 terminate this Agreement immediately on giving written notice to the Client, in which case the Client shall immediately pay to Beyondly all of Beyondly’s outstanding unpaid invoices and interest and Beyondly may submit an invoice for any other Charges that would have been paid under the Agreement had it not been terminated early.
3.4 If the Client:
3.4.1 provides any documents, data, or information to Beyondly after the deadline set out in the Proposal; or
3.4.2 after providing any documents, data, or information, provides any additional documents, data, or information or otherwise amends or makes changes to them,
Beyondly shall be entitled to charge additional sums to the Client to review and carry out any additional steps arising as a result, including for amending any work already carried out, and such additional work shall be carried out at Beyondly’s standard day rates in force at the time.
4. USE OF BEYONDLY NAME ETC.
4.1 The Client will use (and shall ensure its Affiliates use) the name or trade or service marks of Beyondly only if expressly permitted by the Proposal, and strictly in accordance with the terms of such permission and with any guidelines or requirements of Beyondly. No such permission may be assigned or sublicensed.
4.2 The Client will not use, and shall ensure its Affiliates do not use, the Services, the Deliverables or any permission referred to in clause 4.1 in any way which:
4.2.1 in the opinion of Beyondly might cause damage to the reputation of Beyondly; or
4.2.2 implies that the business or business of the Client or its Affiliates, or any product or activity of the Client or its Affiliates is more environmentally friendly or has a lesser environmental impact than is actually the case; or
4.2.3 implies Beyondly’s endorsement of or affiliation with the Client, or any part of its business, products or activities.
5. CHARGES AND PAYMENT
5.1 In consideration of the provision of the Services by Beyondly, the Client shall pay the Charges (as well as any additional sums payable pursuant to clauses 3.3 or 3.4 above).
5.2 Beyondly may increase the Charges on an annual basis with effect from each anniversary of the date of the Agreement on not less than 30 days’ prior notice.
5.3 Unless expressly stated otherwise in the Proposal, Beyondly may raise an invoice for each Scheme Year’s Charges:
5.3.1 within 30 days after 1 July for the pEPR Data Service in the year before the Scheme Year to which the Charges relate;
5.3.2 within 30 days after 1 July for the plastic tax data management services in the year before the Scheme Year to which the Charges relate; and
5.3.3 in all other cases, at any time after the Proposal is agreed.
5.4 Unless otherwise agreed, the Client shall pay each invoice submitted to it by Beyondly within 30 days of the end of the month of invoice, in full and cleared funds to a bank account nominated in writing by Beyondly from time to time, and time for payment shall be of the essence of the Agreement.
5.5 Without prejudice to any other right or remedy that it may have, if the Client fails to pay Beyondly any sum due under the Agreement on the due date, then without limiting Beyondly’s other remedies under this Agreement:
5.5.1 the Client 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 5.5.1 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%;
5.5.2 Beyondly may suspend all or part of the Services until payment has been made in full.
5.6 All sums payable to Beyondly under the Agreement are exclusive of VAT, which the Client shall pay in addition.
5.7 The Client shall make all payments under the Agreement in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6. INTELLECTUAL PROPERTY RIGHTS
6.1 Beyondly (or its licensors, where relevant) shall retain ownership in all Intellectual Property Rights in the Deliverables, the Beyondly Materials and otherwise in the Services and anything provided to the Client in connection with the Services.
6.2 Beyondly hereby grants to the Client a non-exclusive, non-assignable, non-sublicensable, royalty free licence to use copy and modify the Deliverables solely for the Purpose.
6.3 The Client undertakes:
6.3.1 not to use, copy or modify the Deliverables except as permitted by the licence in clause 6.2;
6.3.2 not to provide the Deliverables to any third party, except as necessary in order to carry out the Purpose; and
6.3.3 to ensure that its Affiliates, and any Third Party Recipient comply with the restrictions set out in 6.3.1 and 6.3.2 above. Third Party Recipient means any third party to whom the Client or any of its Affiliates may directly or indirectly provide the Deliverables.
6.4 The Client (or its licensors, where relevant) shall retain ownership of all Intellectual Property Rights in any documents which it supplies to Beyondly in connection with the Services, not including any of the Input Data.
6.5 The Client hereby grants to Beyondly a non-exclusive, non-assignable, royalty free and irrevocable licence to use, copy and modify any data and other material referred to in clause 6.4 (“Client Material”) for the purposes of providing the Services and creating the Deliverables. For the avoidance of doubt, the Client shall:
6.5.1 acquire no rights in the Beyondly Materials, or in any calculation or operations carried out for the Client, or in any work containing or derived from Client Material, or in any methodology or calculation working provided or used by Beyondly; and
6.5.2 have no right to receive or access any of the things referred to in clause 6.5.1 above, or their results.
6.6 Each party warrants to the other that it has the power to grant the rights granted by it in this clause 6, without infringing the rights of any third parties.
6.7 The licence granted to the Client under this clause 6, and any permission referred to in clause 4.1, shall automatically terminate on any termination or expiry of the Agreement.
7. DATA GATHERING
7.1 The Client shall, and shall ensure that its suppliers and any other third parties who submit data relating to the Client (collectively, the “Data Providers”) shall, provide Beyondly with all data, information, evidence and other inputs reasonably required for the performance of the Services, including but not limited to data relating to the Customer’s supply chain, packaging, and related operational inputs as required by Beyondly (collectively, the “Input Data”).
7.2 The Client shall be solely responsible for the accuracy, completeness, consistency, and reliability of all Input Data, whether provided directly by the Client or by any other Data Provider. The Supplier shall be entitled to rely on all Input Data and shall be under obligation to audit, verify, or validate such Input Data and shall have no responsibility for investigating the source, accuracy, or completeness of any such Input Data.
7.3 Beyondly shall have no liability (whether in contract, tort (including negligence), misrepresentation, restitution or otherwise) for any loss, damage, cost or other liability arising out of or in connection with:
7.3.1 any inaccuracy, incompleteness, error or omission in the Input Data; or
7.3.2 any failure by the Client or any Data Provider to provide the Input Data in a timely manner and in line with any timescale outlined in the Proposal, or in the format or detail reasonably required by Beyondly.
7.4 The Client shall indemnify and hold harmless Beyondly from and against all claims, liabilities, damages, losses, costs, and expenses (including reasonable legal fees) arising out of or in connection with:
7.4.1 Beyondly’s use of or reliance on any Input Data; and
7.4.2 any failure by the Client to comply with its obligations under this clause 7, including any failure by a Data Provider as set out in this clause 7.
7.5 Beyondly makes no representation, warranty, or guarantee, express or implied, as to the accuracy, completeness, or fitness for purpose of any outputs, deliverables, or conclusions derived from or based on any Input Data, and shall not be liable for any consequences arising as a result of relying on the same.
7.6 Beyondly shall have no liability to the Client for any submission to HMRC, the Environment Agency, the Northern Ireland Environment Agency, Companies House, The Conduct Committee of the Financial Reporting Council, DESNZ or any other authority, the responsibility for which shall rest solely with the Client.
7.7 Beyondly shall retain ownership of all Input Data (including all Intellectual Property Rights subsisting in the same) and be entitled to use the same for its own purposes.
8. CONFIDENTIALITY
8.1 Each party undertakes that it shall not at any time from the date of the Agreement until five years after termination or expiry of the Agreement, disclose to any person any Confidential Information disclosed to it by or on behalf of the other party in connection with the Agreement, except as permitted by clause 8.2.
8.2 Each party may disclose the other party’s Confidential Information:
8.2.1 to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Agreement. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 8; and
8.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
8.3 No party shall use any other party’s Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Agreement.
8.4 The obligations of a party under this clause 8 shall not apply to any information which:
8.4.1 was at the time of its disclosure, or subsequently becomes, lawfully in the public domain otherwise than through breach of the Agreement;
8.4.2 was in its possession prior to disclosure, or subsequently comes into its possession from another source, in either case without any obligation of confidentiality; or
8.4.3 was independently developed by it.
8.5 Despite any other provision of this clause 8, the Client agrees that Beyondly may (i) include the Client’s name and company logo on its client list and make such list available to other existing or potential clients and (ii) subject to the Client’s prior written approval, not to be unreasonably withheld or delayed, publicise the work it has done for the Client in the form of case studies (whether made available to existing or potential clients or published more generally) or as press releases or in such other manner as Beyondly may reasonably propose.
8.6 Nothing in this clause 8 restricts the use of any Deliverable in compliance with clause 6, provided that under no circumstances shall the Client be entitled to sight or copies of any details of the specific calculations carried out by Beyondly or of any methodologies or other knowhow used by Beyondly in relation to the same.
9. LIMITATION OF LIABILITY
9.1 Nothing in the Agreement excludes or limits liability of Beyondly to the Client for:
9.1.1 fraud or fraudulent misrepresentation;
9.1.2 death or personal injury caused by negligence; or
9.1.3 any matter for which it would be unlawful for the parties to exclude liability or which, by law, cannot be excluded.
9.2 Subject to clause 9.1:
9.2.1 Beyondly’s total aggregate liability for any loss, damage or other liability under or arising out of or in connection with the this Agreement or any collateral contract, including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise, shall be limited to the total amount of the Charges paid under the Agreement.
9.2.2 Beyondly shall not be liable under or arising out of or in connection with this Agreement or any collateral contract, including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise, for:
(a) any consequential, indirect, special or punitive loss or damages;
(b) any loss of actual or anticipated use, sales, profits or revenue, business, contracts or cost savings;
(c) any loss or corruption of software, data or information;
(d) any fine or penalty imposed by HMRC, the Environment Agency, the Northern Ireland Environment Agency, Companies House, The Conduct Committee of the Financial Reporting Council, DEFRA or any other government department, authority or agency, or under law, and whether in the United Kingdom or elsewhere;
(e) loss, restriction or forfeiture of licences; increased cost of working; cost (or increased cost) of insurance; or wasted costs; or
(f) any results obtained from, or any use made of, the Deliverables or any other outcomes of the Services.
9.2.4 All conditions, warranties and other terms which may be implied by law (statutory or otherwise), custom of trade or course of dealings, or otherwise, are hereby excluded.
9.3 Subject to clause 9.1, if the Client wishes to make a claim for any matter under or arising out of or in connection with the performance or non performance of this Agreement or any collateral contract (a “Claim”), it must do so no later than twelve months after the day on which the Client became, or ought reasonably to have become, aware of its having grounds to make the Claim. If it fails to give such notice, Beyondly shall have no liability for that Claim. The notice must be in writing and must identify the event or events giving rise to the Claim and the grounds for the Claim in reasonable detail.
9.4 The Client agrees that no member of the Beyondly Group other than Beyondly itself shall have any obligation or liability to the Client, and the Client shall not bring any claim against any member of the Beyondly Group other than Beyondly.
9.5 Beyondly’s obligations in respect of the Services are owed to the Client only, and it has and assumes no duty of care or other obligation or liability to any other person, whether an Affiliate of the Client or not. Without limiting the generality of this, each Deliverable, report, advice, recommendation or other product of the Services (each of the foregoing a Product) is for the use of the Client only. The Client undertakes not to make a Product available to any other person without the prior written consent of Beyondly, which it may give or withhold in its sole discretion. If such consent is given, it shall be given on the basis that such other person acknowledges that the Product is made available for information only and may not be further disclosed, and that Beyondly assumes no duty of care or other obligation or liability to such other person. The Client shall ensure that any person to whom a Product is made available (whether by the Client itself, or by Beyondly or any other person with the Client’s permission) shall not bring any claim against the Beyondly Group, whether in respect of the Product or the Services.
9.6 This clause 9 applies whether the obligation or liability in question arises for breach or under any indemnity or otherwise.
10. TERM AND TERMINATION
10.1 The Agreement shall come into effect in accordance with clause 2.1.
10.2 Unless otherwise specified in the Proposal, and except where the Agreement is for a fixed term of one year or less or is otherwise terminated earlier in accordance with this clause 10, this Agreement continues until the end of the Scheme Year set out in the Proposal (“Initial Term”) and automatically extends for an additional Scheme Year (“Extended Term”) at the end of the Initial Term and at the end of each Extended Term, provided that either party may give written notice to the other party not later than 30 June before the end of the Initial Term or the relevant Extended Term, to terminate this agreement at the end of the Initial Term or the relevant Extended Term, as the case may be.
10.3 Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving notice to the other party, with the effect of termination for repudiatory breach, if:
10.3.1 the other party, being the Client, fails to pay any Charges or other amount due under the Agreement on their due date, and fails to remedy such failure within five days after notice of nonpayment from Beyondly;
10.3.2 the other party commits a material breach of any other term of the Agreement and (if such breach is remediable) fails to remedy that breach within a period of thirty days after being notified to do so;
10.3.3 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;
10.3.4 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
10.3.5 the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
10.3.6 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
10.3.7 an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
10.3.8 the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
10.3.9 a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
10.3.10 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
10.3.11 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause
10.3.3 to clause 10.3.10 (inclusive); or
10.3.12 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
11. OBLIGATIONS ON TERMINATION AND SURVIVAL
11.1 Obligations on termination or expiry
11.1.1 On termination or expiry of the Agreement for any reason the Client shall immediately pay to Beyondly all of Beyondly’s outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, Beyondly may submit an invoice, which shall be payable immediately on receipt. If termination takes place before a stage or milestone has been completed, the Client shall pay part of the Charges for that stage or milestone, proportionate to the part of the stage or milestone which was completed.
11.1.2 On termination or expiry of the Agreement for any reason, all licences granted by Beyondly to the Client shall automatically terminate.
11.1.3 If Beyondly terminates this Agreement pursuant to clause 10.3, and such termination takes effect on or after 1 July in a Scheme Year, then the Client shall be obliged to pay to Beyondly all Charges that would have been payable by the Client had the Agreement continued for the duration of the following Scheme Year.
11.2 Survival
11.2.1 On termination or expiry of the Agreement, the following clauses shall continue in force: clause 1 (Interpretation), clause 3.2 (Use of Beyondly name etc.), clause 6 (Intellectual property rights), clause 8 (Confidentiality), clause 9 (Limitation of liability), clause 11 (Consequences of termination), clause 15 (Waiver), clause 17 (Severance), clause 22 (Governing law) and clause 23 (Jurisdiction).
11.2.2 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.
12. DATA SPHERE
12.1 This clause 12 shall apply if the Services include providing the Client with access to Data Sphere, and shall apply to the Data Sphere platform only.
12.2 The Client acknowledges that the Client and any of its Data Providers may be required to agree to a separate terms of use as a condition of accessing the Data Sphere platform.
12.3 The Client shall be responsible for, and shall indemnify Beyondly for any loss, damage, costs or other liabilities arising out of, any and all acts and omissions of the Data Providers who make use of the Data Sphere platform, including for any Input Data provided by them.
12.4 The Client shall, and shall procure that all Data Providers who access Data Sphere shall:
12.4.1 not rent, lease, sub-license, loan, provide, or otherwise make available, the Data Sphere platform in any form, in whole or in part to any person without prior written consent from Beyondly;
12.4.2 not copy any part of the Data Sphere platform;
12.4.3 not translate, merge, adapt, vary, alter or modify, the whole or any part of the Data Sphere platform, nor permit the Data Sphere platform to be combined with, or become incorporated in, any other programs;
12.4.4 not disassemble, de-compile, reverse engineer or create derivative works based on the whole or any part of the Data Sphere platform nor attempt to do any such things:
12.5 The Client shall, and shall procure that all Data Providers who access Data Sphere shall:
12.5.1 not use the Data Sphere platform in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with these terms, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, such as viruses, or harmful data, into the Data Sphere platform;
12.5.2 not infringe the Intellectual Property Rights subsisting in the Data Sphere platform;
12.5.3 not transmit any material that is defamatory, offensive or otherwise objectionable in relation to the use of the Data Sphere platform; and
12.5.4 ensure that any data or other information submitted through the Data Sphere platform is accurate, complete and not misleading.
12.6 Beyondly acknowledges that all Intellectual Property Rights in the Data Sphere platform belong to Beyondly or its licensors, and nothing in this Agreement operates to assign any rights in the Data Sphere platform to the Client.
12.7 Beyondly will use reasonable endeavours to ensure that the Data Sphere platform is always available and uninterrupted, but does not warrant that the Data Sphere platform will always be available or uninterrupted, and gives no guarantees in relation to the same.
13. FORCE MAJEURE
13.1 Force Majeure Event means any circumstance not within a party’s reasonable control including, without limitation; acts of God, flood, drought, earthquake or other natural disaster; epidemic or pandemic; terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or legal restrictions; collapse of buildings, fire, explosion or accident; any labour or trade dispute, strikes, industrial action or lockouts (provided not limited to the workforce of the party seeking to rely on this clause, or its Affiliates) and interruption or failure of utility service or internet access, or portal or online service operated by any third party.
13.2 If a party (“Affected Party”) is prevented, hindered or delayed in or from performing any of its obligations under the Agreement by a Force Majeure Event, the Affected Party shall not be in breach of the Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
13.3 The Affected Party shall promptly after it becomes aware that the Force Majeure Event is affecting performance, notify the other party of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Agreement.
13.4 The Affected Party shall use commercially reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
14. ASSIGNMENT AND OTHER DEALINGS
14.1 The Agreement is personal to the Client and the Client 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 the Agreement.
14.2 Beyondly may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under the Agreement.
15. VARIATION
No variation or agreed termination of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
16. WAIVER
16.1 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.
16.2 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.
17. RIGHTS AND REMEDIES
The rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
18. SEVERANCE
18.1 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 the Agreement.
18.2 If any provision or part-provision of the Agreement is deemed deleted under clause 18.1 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.
19. ENTIRE AGREEMENT
18.1 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.
19.2 Each party agrees that it 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.
20. NO PARTNERSHIP OR AGENCY
20.1 Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
20.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
21. THIRD PARTY RIGHTS
21.1 Unless it expressly states otherwise, and except for the rights conferred on members of the Beyondly Group under clauses 9.4 and 9.5, the Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.
22. NOTICES
Any notice or notification given to a party under or in connection with the Agreement shall be in writing (and is not effective unless in writing), and sent to the address or email address specified in the Proposal. However, either party may change its address or email address for notices on not less than 15 days’ notice to the other.
23. GOVERNING LAW
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 law of England and Wales.
24. JURISDICTION
Each party irrevocably agrees that the courts of England and Wales shall have 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.
SCHEDULE
Services Description
Data Gathering
Service whereby Beyondly contacts the suppliers of the Client, requesting that they provide an array of data/information on the products and packaging they supply.
Obligation Calculations
Service whereby Beyondly receives raw data files including but not limited to, sales reports and packaging information, to be used in conjunction with business activity awareness, to assist in calculating the Client’s bi-annual OR annual packaging and nation data submissions.
Data Insights
Service whereby Beyondly provides a report in the format determined by Beyondly, displaying an array of analytics relating to the Client’s packaging data, data submission, obligation, and associated costs (included some projected/estimated costs).
Data Sphere
Access to the Data Sphere online platform, through which the Client’s suppliers can provide data through.
Plastic Tax Quarterly Data Management
Service whereby Beyondly receive raw data files including but not limited to, import/manufacture reports and packaging information, to be used in conjunction with business activity awareness, to calculate client’s quarterly plastic tax return. Beyondly is not a registered tax agent, and so does not submit this data directly to HMRC on behalf of Clients – totals are sent to the Client for them to report.
Plastic Tax Data Screening & Guidance
Service whereby Beyondly reviews a Client’s quarterly plastic tax records/data and accompanying methodology against HMRC guidance, to ascertain completeness and accuracy. Beyondly will provide a series of recommendations where it feels there are gaps and/or improvements to be made, to assist Clients in the accuracy of their reporting.