- “Affiliate” means any direct or indirect Holding Company or Subsidiary Company of the relevant entity. A Company is a “Subsidiary” of another Company, if the latter company (“Holding Company”): (a) holds a majority of the voting rights in it; or (b) is a member of it and has the right to appoint or remove a majority of its board of directors; or (c) is a member of it and controls alone, pursuant to an agreement with other shareholders or members, a majority of the voting rights in it. “Company” includes any body corporate or any legal entity capable under law of making a contract.
- “Client Infrastructure” means the Client’s systems and technical infrastructure, including those systems that directly or indirectly interface and/or are interoperable with, and/or impact on, the Services, and which are not under Supplier’s management and control and explicitly identified as Supplier’s responsibility under this Contract, including software provided by Client-Contracted Software Vendors and services supplied by Client-Contracted Services Providers, but excluding the Connectivity Infrastructure.
- “Client” means the ‘Client’ specified in the Order Form.
- “Connectivity Infrastructure” means the internet, telecommunications links, broadband and/or third party software and systems which are neither owned or supplied by the Supplier or the Client and which connect the Services and/or the Supplier Software to wide area networks.
- “Contract” means these MSA Terms & Conditions, the Order Form, and the Schedules.
- “Costs” means costs, liabilities, penalties, and charges.
- “Deliverables” means the output/deliverables in respect of any Services, excluding any Materials.
- “Effective Date” means the contract date specified in the Order Form.
- “Fees” means the fees and charges specified in the Order Form.
- “First Payment Date” means the date identified in the Order Form as the ‘First Payment Date’ (or otherwise, the Target Go-Live Date).
- “Hosted Services” means ‘Hosted Services’ as described in the Order Form.
- “Intellectual Property Rights” means all copyrights (including copyright in computer software), database rights, rights in inventions, patent applications, patents, trade marks, trade names, know-how, service marks, design rights (whether registered or unregistered), trade secrets, rights in confidential information and all other industrial or intellectual property rights of whatever nature for the full duration of such rights, including any extensions or renewals.
- “Law” means any applicable laws, regulations, regulatory constraints, obligations, proclamations, rules (including binding codes of practice and statement of principles incorporated and contained in such rules), or applicable judgment of a relevant court of law which is a binding precedent, in each case in force in any jurisdiction that is or may be applicable to this Contract.
- “Licensing Purpose” means in the ordinary course of the Client’s business and for the use(s) envisaged in the Supplier’s published marketing materials of the Hosted Services.
- “Materials” means any tangible materials delivered by Supplier to the Client under this Contract.
- “Minimum Term” means the period of years identified in the Order Form as the ‘Minimum Term’.
- “MSA T&Cs” means these MSA Terms & Conditions.
- “Order Form” means the foregoing ‘Services Order’.
- “Services” means Set-up and Implementation Services, Supplier Software, Hosted Services and additional professional services from time to time upon the completion of a Statement of Work.
- “Set-up and Implementation Services” means ‘Set-up and Implementation Services’ as described in the Order Form.
- “Service and Pricing Description” means Schedule 1.
- “Software” means the Supplier Software, and any software supplied pursuant to this Contract, including all new releases, new versions, updates, and modifications thereto.
- “Supplier Software” means the ‘Supplier Software’ described in the Order Form, including all new releases, new versions (which the parties may have mutually agreed that the Supplier will provide, at additional cost, to the Client, whether as a change in accordance with Clause 14 or otherwise), updates, and modifications thereto.
- “Supplier” means ClearCourse Business Services Limited; company number: 06912469; registered office: 10-12 Eastcheap, London, EC3M 1AJ, United Kingdom; trading as “Fetchify.”
- “System Access” the local and wide area access to the Client Infrastructure as required by the Supplier in order to provide the Services pursuant to this Contract.
- “Target Go-Live Date” means the target date (advised by the Supplier) on which the Client should put some or all of the Hosted Services and/or Supplier Software into live and/or operational use.
- “User Data” means any information, materials, or data: (a) uploaded, stored or created in or using the Supplier Software by: (i) the Client or its users; or (ii) by the Supplier or a third party on the Client’s or its users’ instructions; and/or (b) provided to the Supplier by (or on behalf of) the Client or its users.
2. HOSTED SERVICES
- From the Target Go-Live Date the Supplier shall provide Hosted Services substantially in accordance with the Service and Pricing Description with reasonable skill and care in accordance with good industry practice, subject to the terms of this Contract and provided that the Supplier does not warrant that the Client’s use of Hosted Services will be uninterrupted or error free. The Supplier shall use its reasonable endeavours to meet the timescales specified in the Service and Pricing Description.
- Subject to the Client complying at all times with the terms of this Contract, the Supplier grants to the Client a non-exclusive non-transferable licence for the duration of this Contract to: (a) permit its authorised users to use the Supplier Software via the Hosted Services for the Licensing Purpose and at all times in compliance with the Law, subject to the licensing parameters set out in the Order Form; and (b) use the Materials and Deliverables for the Licensing Purpose.
- The Supplier shall not be responsible for any failure to provide Hosted Services as a result of a failure by the Client to comply with its responsibilities under this Contract and: (a) errors in or corruption of the Client Infrastructure, Connectivity Infrastructure, and/or the Client’s data; and/or (b) the occurrence of a Suspension Event.
- The Supplier reserves the right at its sole discretion to suspend Hosted Services in the event of (each of which shall be a “Suspension Event”): (a) scheduled maintenance services (for which the Supplier shall give to the Client as much notice as is reasonably practicable in the circumstances); (b) a material breach by the Client of the terms of this Contract (including a failure to pay the Fees in accordance with Clause 6 ); (c) where ongoing use by the Client of Hosted Services has, in the Supplier’s reasonable opinion, the prospect of damaging Hosted Services or degrading performance, whether due to failures in or problems with the Client Infrastructure, failures in or problems with the Connectivity Infrastructure, or the occurrence of an Event of Force Majeure.
- In the event of a failure by the Supplier to provide Hosted Services in accordance with this Contract, the Supplier will, at its expense, use all reasonable commercial efforts to correct any such failure(s) promptly (which may include the provision of a temporary workaround) in accordance with the Service and Pricing Description. The Supplier’s provision of corrective services in accordance with this Clause 2.5 shall constitute the Client’s exclusive remedy for any breach of Clause 2.1 . Nothing in this Clause 2.5 purports to limit the Supplier’s liability for any failure of the Supplier to comply with this Clause 2.5 (for which the provisions of Clause 12 shall apply).
3. CLIENT’S RESPONSIBILITIES
- The Client shall: (a) undertake all reasonable enquiries to satisfy itself that the Services are suitable for its needs before entering into this Contract; (b) adopt such processes and make such changes to its working practices as are necessary to make effective use of the Services; (c) have in place appropriate Client Infrastructure and Connectivity Infrastructure necessary for the provision of Services; (d) maintain and upgrade the Client Infrastructure and Connectivity Infrastructure in accordance with good industry practice, the Supplier’s reasonable instructions, and any minimum environment recommendations published as part of Software specifications/guidelines; (e) carry out all of its responsibilities set out in this Contract in a timely and efficient manner and, in particular, not act (or fail to act) in a manner that will delay or otherwise adversely impact on the Supplier (or its subcontractors) performance of Services; (f) provide the Supplier with all necessary information, co-operation, and assistance as may be required by the Supplier in order to provide Services; (g) comply with the Law with respect to its activities under this Contract; (h) provide the Supplier with such technical support, information, and access to systems and/or data as the Supplier reasonably requires in order to maintain System Access for the duration of this Contract; (i) reasonably determine whether it is appropriate (as a matter of good industry practice) to implement any form of additional back-up of User Data (in addition to such back-ups maintained by the Supplier as part of the Hosted Services) and if so either commission directly (or via the Supplier, if available) such additional data back-up services; (j) ensure that any data (including User Data) migrated to the Supplier as part of any data migration project is appropriately cleansed and is free from corruption or material errors; (k) not reverse engineer or decompile the Software (or attempt to do the same), save to the extent permitted by Law.
- The Client recognises that the availability of the Hosted Services is, in part, dependent on the stability of the Connectivity Infrastructure, and that changes to the Connectivity Infrastructure may result in the loss of availability of (or the material degradation of) the Hosted Services. The Client shall not make changes to those elements of the Connectivity Infrastructure that are within its control, without the authorisation of the Supplier. The parties agree that changes to Connectivity Infrastructure that are outside of both parties control (and the consequences of such changes) are not the responsibility of either party; save that both parties shall use their reasonable endeavours to mitigate the adverse impact of such changes on the Hosted Services.
- The Client shall permit the Supplier, on reasonable notice, to test the Client Infrastructure. In the event that the Supplier reasonable considers that the Client Infrastructure is inadequate and/or is (or may be) responsible for performance or functionality failures or degradation, the Client shall make such changes to Client Infrastructure (whether configuration or upgrades) as the Supplier may reasonably recommend.
- Services will be provided pursuant to this Contract if and to the extent that such Services are specified in the Order Form.
- The Supplier shall provide Services using reasonable car and skill and in accordance with good industry practice.
- Each party shall appoint the personnel as specified in the Order Form (“Key Personnel”). Each party shall ensure that its Key Personnel shall be contactable using the contact details specified in the Order Form (as updated from time to time). Each party shall inform the other promptly if any of its Key Personnel resigns or for any other reason ceases to work under this Contract.
- Each party shall use their reasonable endeavours to maintain the continuity of their Key Personnel in respect of the management of this Contract, and if such Key Personnel become unavailable, each party shall promptly replace such individuals and ensure that any disruption to the Contract is minimised.
- The Client shall pay fees as and when they fall due for payment, as specified in the Order Form and the Service and Pricing Description.
- The Supplier shall be entitled to raise invoices for Fees and charges as and when they fall due for payment under Clause 6.1 .
- The Client shall pay the Supplier’s invoices either: (a) within thirty (30) days of the date of the invoice (or within such shorter period as specified in the Order Form); or (b) by direct debit or standing order (if applicable; and if specified in the Order Form).
- The Client may not withhold payment of any amount due to the Supplier because of any set-off, counter-claim, abatement, or other similar deduction.
- All fees payable by the Client to the Supplier under this Contract are payable in Pounds Sterling (unless another currency is specified in the Order Form) and are exclusive of any tax, levy or similar governmental charges, including value added or sales tax, that may be assessed by any jurisdiction, except for income, net worth or franchise taxes on the Supplier.
- If any sum payable under this Contract is not paid ten (10) days after the due date for payment then (without prejudice to the Supplier’s other rights and remedies) the Supplier reserves the right to charge interest on that sum on a daily compounded basis (before as well as after any judgment) at the annual rate of ten per cent measured from the due date to the date of payment, provided that at no time shall the Client be required together pay interest at an effective rate higher than legally permissible.
- All Fees shall increase on each anniversary of the First Payment Date by an amount, as notified by the Supplier, that does not exceed five per cent (5%), measured between the date of review and the last review date (or in the event of the first review date, the First Payment Date) (“Indexed Increase”).
- Unless otherwise specified in the Order Form, after the expiry of the Minimum Term, the Supplier shall be entitled by giving the Client not less than ninety (90) days’ written notice prior to an anniversary of the First Payment Date (“Anniversary Date”) to increase any or all Fees with effect from the Anniversary Date by an amount that exceeds an Indexed Increase (as determined by the Supplier in its sole discretion) (“General Increase”), provided that if the Client objects to a General Increase it shall be entitled to terminate this Contract with effect from the Anniversary Date by giving to the Supplier not less than sixty (60) days’ written notice prior to the Anniversary Date.
7. PROPERTY RIGHTS
- Title to the Materials is and shall at times remain with the Supplier unless otherwise specified in the Order Form. The Supplier and its licensors owns and shall continue to own all Intellectual Property Rights in the Supplier Software, and any Deliverables. Full and unencumbered title (with full title guarantee) in Deliverables shall vest in the Supplier absolutely upon creation. The Client undertakes at the request of the Supplier at all times from the date of this Contract to, and to procure that any and all of its sub-contractors do all acts and execute all documents, papers, forms and authorisations and to dispose to or swear all declarations or oaths reasonably necessary and/or desirable to give effect to the provisions of this Clause 7.1 .
8. TERM AND TERMINATION
- This Contract. This Contract is formed (and becomes legally binding) when the parties complete and sign the Order Form. This Contract shall commence on the Effective Date and shall continue unless and until terminated by either party in accordance with this Clause 8 .
- Either party shall be entitled to terminate this Contract on expiry of the Minimum Term specified in the Order Form and each subsequent anniversary of the First Payment Date by giving to the other party not less than ninety (90) days’ prior written notice.
- Either party shall be entitled to terminate this Contract if no Minimum Term is specified in the Order Form by giving to the other party not less than thirty (30) days’ prior written notice.
- Either party shall be entitled to terminate this Contract immediately if the other party commits any material breach of this Contract and fails to remedy that breach within thirty (30) days of written notice of that breach (the 30 day period only applies where a breach is capable of remedy – if it is incapable of remedy, the Contract may be terminated by written notice immediately)
- Insolvency. Either party shall be entitled to terminate either this Contract immediately by giving written notice to the other party if that other party has a winding up petition presented or enters into liquidation whether compulsorily or voluntarily (otherwise than for the purposes of amalgamation or reconstruction without insolvency) or makes an arrangement with its creditors or petitions for an administration order or has a receiver, administrator or manager appointed over any of its assets, or a court or arbiter with authority to so determine, determines that the debtor is unable to pay its debts.
9. CONSEQUENCES OF TERMINATION
- On termination of this Contract howsoever caused: (a) the rights and duties created by Clauses 6 , 7 , 10 , 11 , 12 , 15 , 16 , and 17 shall survive; (b) the rights of either party which arose on or before termination shall be unaffected.
- On termination of this Contract howsoever caused: (a) each party shall return, in good condition, the tangible property of the other party (if any) that was made available under this Contract in accordance with that other party’s reasonable instructions; (b) all licences granted shall terminate; and (c) the parties shall cooperate as regards the migration of User Data to the Client, subject to any data retention that is required by Law.
- Each party that receives (“Receiving Party”) non-public business or financial information (excluding the receipt by the Supplier of Cleansed Data) (“Confidential Information”) from the other (or the other’s Affiliates) (“Disclosing Party”), whether before or after the date of
this Contract shall:
- keep the Confidential Information confidential;
- not disclose the Confidential Information to any other person other than with the prior written consent of the Disclosing Party or in accordance with Clauses 10.2 , or 10.3 ; and
- not use the Confidential Information for any purpose other than the performance of its obligations or its enjoyment of rights under this Contract (“Permitted Purpose”).
- The Receiving Party may disclose Confidential Information to its own, or any of its Affiliates, officers, directors, employees agents and advisers who reasonably need to know for the Permitted Purpose (each a “Permitted Third Party”), provided that the Receiving Party shall remain liable to the Disclosing Party for the acts, omissions, and compliance with the terms of this Clause 10 of such Permitted Third Party as if such Permitted Third Party was the Receiving Party (and a party to this Contract). The Receiving Party shall ensure that each Permitted Third Party is made aware of and complies with all the Receiving Party’s obligations of confidentiality under this Clause 10 .
- If required by Law, the Receiving Party may disclose Confidential Information to a court or regulatory authority or agency, provided that the Receiving party shall (if legally permissible) provide reasonable advance notice to the Disclosing Party and co-operate with any attempt by the Disclosing Party to obtain an order for providing for the confidentiality of such information.
- The parties agree that any breach of the restrictions contained in this Clause 10 may cause irreparable harm to the innocent party, whereupon the innocent party shall be entitled to injunctive relief without the necessity of proving damages or the inadequacy of money damages, posting any bond or other security in addition to all other legal or equitable remedies.
- The Supplier shall not own (or claim ownership rights in respect of) User Data.
- The Client is responsible for the accuracy, reliability, lawfulness, and integrity of all User Data. The Client warrants that User Data shall not be defamatory or offensive and that it, and its users, have all consents, licenses and permissions (including the consent of any Data Subjects) in respect of User Data as are required for Client (and its users) to lawfully upload, store, distribute, publish, share and/or Process the User Data (as applicable): (a) in/through the Supplier Software; and/or (b) to/with other Client users or any third parties who are authorised by the Client or by Law to view/access the User Data. The Client shall indemnify and hold harmless the Supplier for Costs arising from a breach of this Clause 11.2 , including all Costs associated with handling a complaint or allegation which, if substantiated, would constitute a breach by the Client of this Clause 11.2 .
- The Client acknowledges that the provision of high-quality services requires the Supplier to analyse data to
identify trends, optimise services, and provide clients with the opportunity to use such information to enhance their own services. The Client therefore grants to the Supplier a non-exclusive, perpetual, irrevocable, royalty free, worldwide licence to use, modify, adapt, and create derivative works of User Data for any purposes, and commercially exploit and/or sublicense any or all of such rights on any terms, provided always that such User Data must at all times be cleansed such that individuals, the Client, and/or any legal entities cannot be identified in any circumstances (“Cleansed Data”).
- The parties shall comply with Schedule 2.
- Neither party shall exclude or limit its liability for:
- death or personal injury caused by its
- fraudulent misrepresentation; and/or
- breach of Clause 10 .
- death or personal injury caused by its
- Subject to Clause 12.1 , the Supplier shall not be liable for loss of profit, loss of revenue, loss of anticipated savings, or loss of goodwill.
- The Client agrees that it will have no remedy in respect of any untrue statement or representation made to it upon which it relied in entering into this Contract and that its only remedies can be for breach of contract (unless the statement was made fraudulently).
- The Supplier’s Contractual Liability to the Client shall not exceed one hundred and fifty per cent (150%) of the fees paid (plus any unpaid fees that are payable) under the Contract in the 12 month period prior to the date in which the claim (or series of connected claims) arose. “Contractual Liability” means liability howsoever arising under or in relation to the subject matter of this Contract that is not:
- unlimited by virtue of Clause 12.1 ; or
- excluded pursuant to Clauses 12.2 and 12.3 .
- The Supplier’s Data Liability to the Client shall not exceed £250,000 (two hundred and fifty thousand pounds). “Data Liability” means liability howsoever arising under or in relation to Schedule 2 (Data Processing) that is not: (a) unlimited by virtue of Clause 12.1; (b) excluded pursuant to Clauses 12.2, 12.3, and 12.4.
- Except as expressly provided in this Contract, the Supplier hereby excludes any implied condition or warranty concerning the merchantability, quality or fitness for purpose of its services, whether such condition or warranty is implied by statute or common law.
- Neither party shall be liable for any delay or failure in performing its duties under this Contract caused by any circumstances beyond its reasonable control. Without limitation, the following shall be regarded as causes beyond either party’s reasonable control: (a) act of God, explosion, flood, tempest, fire or accident; (b) unusual atmospheric conditions and unusual conditions in outer space which may affect signals to and from and the workings of satellites; (c) war or threat of war, sabotage, insurrection, civil disturbance or requisition; (d) import or export regulations or embargoes; (e) any change in any Law(s) that has an impact on the parties’ rights and/or responsibilities under this Contract; (f) any breach by a third party of the Computer Misuse Act 1990 or the Communications Act 2003 that has the object or effect of directly or indirectly interfering with or damaging the Client Infrastructure, and/or the Supplier’s hardware, software and/or network infrastructure (g) any government guidance or instruction(s) applicable to either party or its suppliers, arising as a result of any epidemic, pandemic, or outbreak of disease; each an “Event of Force Majeure”.
13. ASSIGNMENT AND SUBCONTRACTING
- Neither party shall assign or otherwise transfer this Contract or any of its rights and duties under this Contract without the prior written consent of the other, such consent not to be unreasonably withheld or delayed, provided that the Supplier shall be entitled (and the Client hereby irrevocably consents) to assign in whole or in part, or novate the entirety of this Contract, to any Affiliate as part of a bona fide corporate restructuring by providing not less than seven (7) days’ prior written notice to the Client.
- The Supplier may sub-contract the performance of any of its duties. The Supplier will remain liable for the acts and omissions of its sub-contractors. The Supplier shall be entitled, at its sole discretion, to replace such service providers from time to time without notice to the Client.
- The rights and liabilities of the parties hereto are binding on, and shall inure to the benefit of, the parties and their respective successors and permitted assigns.
- Subject to Clause 14.4 , no changes to this Contract shall be valid unless made in writing and signed by the authorised representatives of both parties.
- Either party shall be entitled from time to time to request a change to the scope of the Services (“Change”). Neither party shall be entitled to charge for considering and/or negotiating a Change unless such consideration requires the Supplier to undertake detailed scoping in which case the Supplier shall be entitled to charge.
- A Change will be effective when it is documented in writing in a standard Supplier change control form.
- The Supplier reserves the right to make changes to Hosted Services from time to time provided that the Supplier has given the Client not less than sixty (60) days’ prior written notice of such change (a “Change Notice”) and provided further that in the event that such a change removes material Hosted Services functionality to the material detriment of the Client’s use of Hosted Services the Client shall be entitled by giving the Supplier not less than thirty (30) days’ prior written notice prior to the Change Notice taking effect to terminate this Contract. In the event that the Client has prepaid Fees covering a period that is shortened by termination by the Client in accordance with this Clause 14.4, the Supplier shall refund to the Client a proportion of the prepaid Fees in respect of such period, pro rated on a daily basis.
- Neither party shall unreasonably withhold its consent to the other’s request to re-schedule the date or time of performance of Services.
- For the duration of this Contract and a period of twelve (12) months thereafter, each party shall not, and shall ensure that any of its Affiliates shall not, without the prior written consent of the other, solicit, entice away, and/or actively initiate recruitment (whether directly or indirectly) of any employee of the other who performed (or is performing) a material function for the other party (excluding administrative, secretarial, or other back-office functions).
- If a party breaches Clause 15.1 , it shall pay the other party an amount equal to the last twelve (12) months’ salary of the applicable individual in recognition of the value of the individual to the other party and cost of recruiting and training a replacement. The parties agree that this sum is a genuine pre-estimate of the loss likely to be suffered by the other party in these circumstances and not a penalty.
- The parties shall attempt to resolve any dispute arising out of or relating to this Contract (including any dispute relating to any non-contractual obligations arising out of or in connection with it) (the “Dispute”) through discussions between senior representatives.
- Where the Dispute is not resolved within forty (40) days of the start of discussions in accordance with Clause 16.1 above, the parties shall attempt to resolve the Dispute in good faith through an Alternative Dispute Resolution (“ADR”) procedure as recommended by the Centre for Effective Dispute Resolution.
- If the Dispute has not been resolved by an ADR procedure within forty (40) days of the initiation of that procedure, or if either of the Supplier or the Client will not participate in an ADR procedure, either of the parties shall be entitled to refer the Dispute to the High Court of England and Wales and the parties submit to its exclusive jurisdiction for that purpose.
- Clauses 16.1 to 16.3 above shall not restrict either party’s ability to commence court proceedings in respect of any:
- matter relating to its Confidential Information or Intellectual Property Rights; and/or
- unpaid invoice.
17. GENERAL PROVISIONS
- Publicity. The Client hereby irrevocably consents to the Supplier referring to the Client as a client of the Supplier in its sales and marketing literature (including its web site).
- Third Party Rights. The parties hereby exclude to the fullest extent permitted by law any rights of third parties to enforce or rely upon any of the provisions of this Contract.
- Relationship. Nothing in this Contract shall render the Client a partner or an agent of the Supplier and the Client shall not purport to undertake any obligation on the Supplier’s behalf nor expose the Supplier to any liability nor pledge or purport to pledge the Supplier’s credit.
- Entire Agreement. This Contract supersedes any prior contracts, arrangements and undertakings between the parties in relation to its subject matter and constitutes the entire contract between the parties relating to the subject matter.
- Severance. If any part of this Contract is held unlawful or unenforceable that part shall be struck out and the remainder of this Contract shall remain in effect.
- No Waiver. No delay, neglect or forbearance by either party in enforcing its rights under this Contract shall be a waiver of or prejudice those rights.
- No Bribery. Each party warrants to the other that it: (a) has not and will not commit an offence under the Bribery Act 2010 in relation to this Contract or any other contract between the parties; and (b) has adequate procedures (as defined in section 7(2) of that Act) in place to prevent its associated persons from committing an offence under that Act.
- Counterparts. This Contract may be executed in any number of counterparts and by each of the parties on separate counterparts each of which when executed and delivered shall be deemed to be an original, but all the counterparts together shall constitute one and the same agreement.
- Notices. All notices (which include invoices and correspondence) under this Contract shall be in writing and shall be sent to the address of the recipient set out in this Contract or to such other address as the recipient may have notified from time to time. Any notice may be delivered personally, by a reputable courier service, by first-class post, or by email and shall be deemed to have been served if by hand when delivered, if by courier service or first class post 48 hours after delivery to the courier or posting (as the case may be), or if by email immediately.
- Interpretation. In this Contract: (a) any reference to a Clause means a reference to a Clause of this Contract unless the context requires otherwise; (b) unless the context otherwise requires, the words “including” and “include” and words of similar effect shall not be deemed to limit the general effect of the words which precede them; (c) the headings are for ease of reference only and shall not affect the construction or interpretation of the Contract; and (d) references to any enactment, order, regulation or other similar instrument shall be construed as a reference to the enactment, order, regulation or instrument as amended or re-enacted by any subsequent enactment, order,regulation or instrument.
- Hierarchy. To the extent there is any inconsistency between the provisions of these MSA Terms & Conditions, the Order Form, the Schedules, any documents incorporated into this Contract, the following order of precedence shall apply: (a) first these MSA Terms & Conditions; (b) second the Schedules; (c) third the Order Form; (d) fourth documents incorporated into this Contract.
- Law. This Contract is governed by the laws of England.
MSA: Schedule 1 – Pricing Details
1. Purchasing, Price and Payment
Our pricing is described on our website at https://fetchify.com/pricing/
- Our products can be purchased in two ways:
- Annual or monthly subscription plans with included lookups. Payments are billed at time of order and must be settled in advance.
- Annual licence (for UK data only). Payments are billed annually and must be settled in advance.
- You will have the option to automatically renew a subscription plan. If you select this option, you authorise us to arrange withdrawal of funds from any of your payment methods as necessary.
- A subscription plan becomes due for renewal when it reaches the end of its period (year or month) or when all included lookups are used up. We will notify you by email when a plan becomes due for renewal.
- Annual licence payments are not refundable.
- Automatic subscription renewals can be disabled at any time.
- We may terminate your use of the Products immediately if you do not have a valid licence or subscription plan in place.
- Where we provide goods or services without specific charge to you, then it (or they) is deemed to be provided free of charge, and not to be associated with any other goods or service for which a charge is made. Accordingly, there is no contractual nor other obligation upon us in respect of those goods or service.
MSA: Schedule 2 – Data Processing
1. Defined Terms
- For the purposes of this Schedule 4:
- “Applicable Laws” means (for so long as and to the extent that they apply to the Supplier) the law of the European Union, the law of any member state of the European Union and/or the Data Protection Legislation;
- “Data Controller”, “Data Subject”, “Personal Data”, “Data Processor”, and “Process” shall have the meaning specified in the Data Protection Legislation; and
- “Data Protection Legislation” means the Data Protection Act 2018, the Privacy and Electronic Communications Regulations 2003 and any related act or regulation in the UK, including statutory modification or re-enactment of it.
2. Data Processing terms
- In relation to the Processing of any Personal Data in the User Data, the parties agree that the Client and/or its user(s) is/are the Data Controller and the Supplier is the Data Processor.
- This Schedule 4 sets out the subject matter, duration, nature and purpose of the processing by the Supplier, as well as the types and categories of Personal Data and the obligations and rights of the Client.
- The Supplier shall in respect of such Personal Data:
- process that Personal Data only on the documented written instructions of the Client unless the Supplier is required by Applicable Laws to otherwise process that Personal Data. Where the Supplier is relying on Applicable Laws as the basis for processing Personal Data, the Supplier shall promptly notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from notifying the Client;
- ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Client, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the Personal Data to be protected, having regard to the state of technological development and the cost of implementing any measures;
- ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential;
- not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Client has been obtained and the Client has provided appropriate safeguards in relation to the transfer;
- assist the Client, at the Client’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach, notifications, impact assessments and consultations with supervisory authorities or regulators;
- notify the Client without undue delay on becoming aware of a Personal Data breach;
- at the written direction of the Client, delete or return Personal Data and copies thereof to the Client on termination of the Contract unless required by Applicable Laws to store the Personal Data; and
- maintain complete and accurate records and information to demonstrate its compliance with this Schedule 4 and allow for audits by the Client on reasonable notice and immediately inform the Client if, in the opinion of the Supplier, an instruction infringes the Data Protection Legislation.
- Subject matter and duration of the processing of Personal Data:
- The nature and purpose of the processing of Personal Data:
- Such processing, in accordance with the Client’s instructions, as is necessary to provide the services pursuant to the Contract, which may include: the collection of data; recording of data; organisation of data; storage of data; alteration of data; retrieval of data; consultation with regard to data; use of data; disclosure of data to permitted third parties; combining data; and/or erasure of data.
- The types of Client Personal Data to be Processed:
- The Client may submit Personal Data in the course of using the Services, the extent of which is determined and controlled by the Client in its sole discretion, which may include, but is not limited to Personal Data relating to the following: name; personal contact details; professional contact details; IP addresses; cookie data; login credentials; and traffic data including web logs.
- The categories of Data Subject to whom the Client Personal Data relates:
- The Client may submit Personal Data to the Supplier, the extent of which is determined and controlled by the Client in its discretion, and which may include, but is not limited to, Personal Data relating to the following categories of data subjects: the Client’s customers, employees, business partners and suppliers.
- The obligations and rights of the Client:
MSA: Schedule 3 – Third Part IP
- The provisions of this Schedule apply to the extent identified in the Order Form.
2. Supplier Distributed IP and Services
- In this paragraph, the following words have the following meanings: (a) “Supplier-Distributed Service Providers” means the third party ‘Supplier-Distributed Service Providers’ described below; (b) “Supplier-Distributed Service Terms” means the additional terms applicable to the re-supply by the Supplier of services by Supplier-Distributed Service Providers as set out at paragraph 4; (c) “Supplier-Distributed IP Vendors” means the third party ‘Supplier-Distributed IP Vendors’ described below; (d) “Supplier-Distributed Vendor Licences” means software licensing terms in respect of the re-supply by the Supplier of software supplied by Supplier-Distributed IP Vendors as set out at paragraph 3.
- The Client acknowledges that: (a) in order to make use of the Hosted Services it must agree to Supplier-Distributed Vendor Licences and Supplier-Distributed Service Terms; and (b) any termination of the Supplier-Distributed Vendor Licence(s) and/or Supplier-Distributed Service Terms may prevent it from making substantial use of the Hosted Services, but shall not entitle it to terminate this Contract and/or receive any refund under this Contract, save that if such termination arises as a result of a breach by the Supplier of paragraph 2.4 below the Supplier shall use all reasonable endeavours to mitigate any adverse impact on the Hosted Services, failing which the Client shall be entitled to terminate this Contract and receive a refund of any prepaid fees covering any period of this Contract that has been shortened due to early termination.
- The Client agrees that it will abide by the terms and conditions of Supplier-Distributed Vendor Licences and Supplier-Distributed Service Terms.
- The Supplier shall ensure that the Supplier-Distributed IP Vendor and/or Supplier-Distributed Service Provider (as applicable) does not terminate the Supplier-Distributed Vendor Licence or and Supplier-Distributed Service Terms (as applicable) as a result of the Supplier’s breach of paragraph 2.5 below.
- The Supplier shall make payment to Supplier-Distributed IP Vendors and Supplier-Distributed Service Providers in respect of the grant of Supplier-Distributed Vendor Licences and the provision of services under the Supplier-Distributed Service Terms, subject to the Client’s: (a) payment to the Supplier of Fees in respect of Supplier-Distributed Vendor Licences and Supplier-Distributed Service Terms; and (b) compliance, in full, with the terms and conditions of the Supplier-Distributed Vendor Licences and Supplier-Distributed Service Terms.
- The Client shall indemnify and hold harmless the Supplier for all Costs arising from a breach of this paragraph 2, including all Costs associated with handling a compliant or allegation which, if substantiated, would constitute a breach by the Client of this paragraph 2.
- The parties acknowledge that the Supplier’s Fees are in part dependent on the costs imposed on it by third party technology and/or infrastructure providers which are outside of its control. As such, the Supplier shall be entitled to increase the Fees at any time by giving the Client not less than thirty (30) days’ written notice if any Supplier-Distributed IP Vendor and/or Supplier-Distributed Service Provider has increased its fees or charges in a manner that increases the costs imposed on the Supplier under this Contract, provided that such increase shall be limited to the additional cost imposed on the Supplier as may be apportioned to this Contract. Both parties will work collaboratively to mitigate the impact of any such third party costs and will endeavour to keep such increases to a minimum.
3. Supplier Distributed Vendor Licences
- Royal Mail PAF ® terms. Client may freely use PAF® Data in Solutions in accordance with these Client Terms. Client must not make copies of PAF® Data except as permitted by these terms or reasonably necessary for back-up, security, business continuity and system testing purposes. Client may use PAF® Data for Data Extraction but Extracted Data: (i) may only be accessed by Users, and (ii) must not be supplied or any access to it provided to any third party. Client must not permit access to, display or communicate to the public any Solutions, except for the purposes of capturing or confirming address details of third parties. Except as set out in these terms, Client must not: (i) transfer, assign, sell or licence Solutions or their use to any other person, (ii) use Solutions to create a product or service distributed or sold to any third party which relies on any use of PAF® Data, including copying, looking up or enquiring, publishing, searching, analysing, modifying and reformatting, or (iii) copy, reproduce, extract, reutilise or publish Solutions or any of them. Client may provide PAF® Data to their subcontractors who may use it to the extent necessary for: (a) the provision of information technology services to the Client, or (b) acting on behalf of the Client, in each case for the Client’s own business purposes and not those of the sub-contractor and provided that each such sub-contractor agrees to observe the restrictions on use of PAF® Data contained in these Client Terms and that the Client is responsible for any breaches of those terms by such sub-contractor. Client rights are personal, limited and non-transferable. The Client acknowledges that Royal Mail is the owner of the intellectual property rights in PAF® Data and the PAF® brand and it does not acquire and is not granted any rights to use those intellectual property rights other than as set out in these Client Terms. Client must cease use of PAF® Data if their right to use PAF® Data is terminated and also destroy any copies of PAF® Data they hold. Client must ensure that: (a) these Client Terms bind their Users, (b) only their Users exercise the use rights of Solutions and PAF® Data granted to Client further to these Client Terms, and (c) in the event of termination or expiry of Client’s rights to use Solutions and PAF® Data, the rights of Users to use them also terminate. User: an individual authorised by Client to use a Solution; Royal Mail: Royal Mail Group Limited, acting by its Address Management Unit; PAF® Data: Royal Mail’s database known as PAF®, and including the database known as the “Alias File”; Data Extraction: the extraction of PAF® Data or any part of it for the generation of new address records in a new or existing database; Solution: a product or service or other solution which benefits from or includes PAF® Data (including the provision of PAF® Data itself), in whatever form, however produced or distributed and whether or not including other functionality, services, software or data.
- Open Geo-coded National Address File (G-NAF) terms. By exercising the Licenced Rights (defined below), Client accepts and agree to be bound by the terms and conditions of this Licence (“Public Licence”). To the extent this Public Licence may be interpreted as a contract, Client is granted the Licenced Rights in consideration of Client’s acceptance of these terms and conditions, and the Supplier grants Client such rights in consideration of benefits the Supplier receives from making the Licenced Material available under these terms and conditions. Section 1 – Definitions. a. Adapted Material means material subject to Copyright and Similar Rights that is derived from or based upon the Licenced Material and in which the Licenced Material is translated, altered, arranged, transformed, or otherwise modified in a manner requiring permission under the Copyright and Similar Rights held by the Supplier. For purposes of this Public Licence, where the Licenced Material is a musical work, performance, or sound recording, Adapted Material is always produced where the Licenced Material is synched in timed relation with a moving image. b. Adapter’s Licence means the licence Client apply to Client’s Copyright and Similar Rights in Client’s contributions to Adapted Material in accordance with the terms and conditions of this Public Licence. c. Copyright and Similar Rights means copyright and/or similar rights closely related to copyright including, without limitation, performance, broadcast, sound recording, and Sui Generis Database Rights, without regard to how the rights are labelled or categorized. For purposes of this Public Licence, the rights specified in Section 2(b)(1)-(2) are not Copyright and Similar Rights. d. Effective Technological Measures means those measures that, in the absence of proper authority, may not be circumvented under laws fulfilling obligations under Article 11 of the WIPO Copyright Treaty adopted on December 20, 1996, and/or similar international agreements. e. Exceptions and Limitations means fair use, fair dealing, and/or any other exception or limitation to Copyright and Similar Rights that applies to Client’s use of the Licenced Material. f. Licenced Material means the artistic or literary work, database, or other material to which the Supplier applied this Public Licence. g. Licenced Rights means the rights granted to Client subject to the terms and conditions of this Public Licence, which are limited to all Copyright and Similar Rights that apply to Client’s use of the Licenced Material and that the Supplier has authority to license. h. Supplier means the individual(s) or entity(ies) granting rights under this Public Licence. i. Share means to provide material to the public by any means or process that requires permission under the Licenced Rights, such as reproduction, public display, public performance, distribution, dissemination, communication, or importation, and to make material available to the public including in ways that members of the public may access the material from a place and at a time individually chosen by them. j. Sui Generis Database Rights means rights other than copyright resulting from Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases, as amended and/or succeeded, as well as other essentially equivalent rights anywhere in the world. k. Client means the individual or entity exercising the Licenced Rights under this Public Licence. Client’s has a corresponding meaning. Section 2 – Scope. a. Licence grant. 1. Subject to the terms and conditions of this Public Licence, the Supplier hereby grants Client a worldwide, royalty-free, non-sublicensable, non-exclusive, irrevocable licence to exercise the Licenced Rights in the Licenced Material to: A. reproduce and Share the Licenced Material, in whole or in part; and B. produce, reproduce, and Share Adapted Material. 2. Use restriction. Client must not use the Licensed Material for the generation of an address or a compilation of addresses for the sending of mail unless Client have verified that each address to be used for the sending of mail is capable of receiving mail by reference to a secondary source of information other than the Licensed Material. 3. Exceptions and Limitations. For the avoidance of doubt, where Exceptions and Limitations apply to Client’s use, this Public Licence does not apply, and Client do not need to comply with its terms and conditions. 4. Term. The term of this Public Licence is specified in Section 6(a). 5. Media and formats; technical modifications allowed. The Supplier authorizes Client to exercise the Licenced Rights in all media and formats whether now known or hereafter created, and to make technical modifications necessary to do so. The Supplier waives and/or agrees not to assert any right or authority to forbid Client from making technical modifications necessary to exercise the Licenced Rights, including technical modifications necessary to circumvent Effective Technological Measures. For purposes of this Public Licence, simply making modifications authorized by this Section 2(a)(4) never produces Adapted Material. 6. Downstream recipients. A. Offer from the Supplier – Licenced Material. Every recipient of the Licenced Material automatically receives an offer from the Supplier to exercise the Licenced Rights under the terms and conditions of this Public Licence. B. No downstream restrictions. Client may not offer or impose any additional or different terms or conditions on, or apply any Effective Technological Measures to, the Licenced Material if doing so restricts exercise of the Licenced Rights by any recipient of the Licenced Material. 7. No endorsement. Nothing in this Public Licence constitutes or may be construed as permission to assert or imply that Client is, or that Client’s use of the Licenced Material is, connected with, or sponsored, endorsed, or granted official status by, the Supplier or others designated to receive attribution as provided in Section 3(a)(1)(A)(i). b. Other rights. 1. Moral rights, such as the right of integrity, are not licensed under this Public Licence, nor are publicity, privacy, and/or other similar personality rights; however, to the extent possible, the Supplier waives and/or agrees not to assert any such rights held by the Supplier to the limited extent necessary to allow Client to exercise the Licenced Rights, but not otherwise. 2. Patent and trademark rights are not licensed under this Public Licence. 3. To the extent possible, the Supplier waives any right to collect royalties from Client for the exercise of the Licenced Rights, whether directly or through a collecting society under any voluntary or waivable statutory or compulsory licensing scheme. In all other cases the Supplier expressly reserves any right to collect such royalties. Section 3 – Licence Conditions. Client’s exercise of the Licenced Rights is expressly made subject to the following conditions. a. Attribution. 1. If Client Share the Licenced Material (including in modified form), Client must: A. retain the following if it is supplied by the Supplier with the Licenced Material: i. identification of the creator(s) of the Licenced Material and any others designated to receive attribution, in any reasonable manner requested by the Supplier (including by pseudonym if designated); ii. a copyright notice; iii. a notice that refers to this Public Licence; iv. a notice that refers to the disclaimer of warranties; v. a URI or hyperlink to the Licenced Material to the extent reasonably practicable; B. indicate if Client modified the Licenced Material and retain an indication of any previous modifications; and C. indicate the Licenced Material is licensed under this Public Licence, and include the text of, or the URI or hyperlink to, this Public Licence. 2. Client may satisfy the conditions in Section 3(a)(1) in any reasonable manner based on the medium, means, and context in which Client Share the Licenced Material. For example, it may be reasonable to satisfy the conditions by providing a URI or hyperlink to a resource that includes the required information. 3. If requested by the Supplier, Client must remove any of the information required by Section 3(a)(1)(A) to the extent reasonably practicable. 4. If Client Share Adapted Material Client produce, the Adapter’s Licence Client apply must not prevent recipients of the Adapted Material from complying with this Public Licence. Section 4 – Sui Generis Database Rights. Where the Licenced Rights include Sui Generis Database Rights that apply to Client’s use of the Licenced Material: a. for the avoidance of doubt, Section 2(a)(1) grants Client the right to extract, reuse, reproduce, and Share all or a substantial portion of the contents of the database; b. if Client include all or a substantial portion of the database contents in a database in which Client have Sui Generis Database Rights, then the database in which Client have Sui Generis Database Rights (but not its individual contents) is Adapted Material; and c. Client must comply with the conditions in Section 3(a) if Client Share all or a substantial portion of the contents of the database. For the avoidance of doubt, this Section 4 supplements and does not replace Client’s obligations under this Public Licence where the Licenced Rights include other Copyright and Similar Rights. Section 5 – Disclaimer of Warranties and Limitation of Liability. a. Unless otherwise separately undertaken by the Supplier, to the extent possible, the Supplier offers the Licenced Material as-is and as-available, and makes no representations or warranties of any kind concerning the Licenced Material, whether express, implied, statutory, or other. This includes, without limitation, warranties of title, merchantability, fitness for a particular purpose, non-infringement, absence of latent or other defects, accuracy, or the presence or absence of errors, whether or not known or discoverable. Where disclaimers of warranties are not allowed in full or in part, this disclaimer may not apply to Client. To the extent possible, in no event will the Supplier be liable to Client on any legal theory (including, without limitation, negligence) or otherwise for any direct, special, indirect, incidental, consequential, punitive, exemplary, or other losses, costs, expenses, or damages arising out of this Public Licence or use of the Licenced Material, even if the Supplier has been advised of the possibility of such losses, costs, expenses, or damages. Where a limitation of liability is not allowed in full or in part, this limitation may not apply to Client. c. The disclaimer of warranties and limitation of liability provided above shall be interpreted in a manner that, to the extent possible, most closely approximates an absolute disclaimer and waiver of all liability. Section 6 – Term and Termination. a. This Public Licence applies for the term of the Copyright and Similar Rights licensed here. However, if Client fail to comply with this Public Licence, then Client’s rights under this Public Licence terminate automatically. b. Where Client’s right to use the Licenced Material has terminated under Section 6(a), it reinstates: 1. automatically as of the date the violation is cured, provided it is cured within 30 days of Client’s discovery of the violation; or 2. upon express reinstatement by the Supplier. For the avoidance of doubt, this Section 6(b) does not affect any right the Supplier may have to seek remedies for Client’s violations of this Public Licence. c. For the avoidance of doubt, the Supplier may also offer the Licenced Material under separate terms or conditions or stop distributing the Licenced Material at any time; however, doing so will not terminate this Public Licence. d. Sections 1, 5, 6, 7, and 8 survive termination of this Public Licence. Section 7 – Other Terms and Conditions. a. The Supplier shall not be bound by any additional or different terms or conditions communicated by Client unless expressly agreed. b. Any arrangements, understandings, or agreements regarding the Licenced Material not stated herein are separate from and independent of the terms and conditions of this Public Licence. Section 8 – Interpretation. a. For the avoidance of doubt, this Public Licence does not, and shall not be interpreted to, reduce, limit, restrict, or impose conditions on any use of the Licenced Material that could lawfully be made without permission under this Public Licence. b. To the extent possible, if any provision of this Public Licence is deemed unenforceable, it shall be automatically reformed to the minimum extent necessary to make it enforceable. If the provision cannot be reformed, it shall be severed from this Public Licence without affecting the enforceability of the remaining terms and conditions. c. No term or condition of this Public Licence will be waived and no failure to comply consented to unless expressly agreed to by the Supplier. d. Nothing in this Public Licence constitutes or may be interpreted as a limitation upon, or waiver of, any privileges and immunities that apply to the Supplier or Client, including from the legal processes of any jurisdiction or authority.
- Kadaster terms. The Client shall comply with the terms set out at: https://www.kadaster.nl/algemene-leveringsvoorwaarden
- Ordnance Survey. The Client shall comply with the terms set out at: https://www.ordnancesurvey.co.uk/business-government/products/code-point-open
- Kartverket terms. The Client shall comply with the terms set out at: https://www.kartverket.no/data/Lisens/
- Posti terms. The Client shall comply with the terms set out at: https://www.posti.com/globalassets/contact-us/sourcing/posti-group—purchasing-terms-and-conditions-for-services-1-6-2017.pdf
- Here terms. The Client shall comply with the terms set out at: https://legal.here.com/en-gb/terms
- Australian Electoral Commission terms. The Client acknowledges that the data was sourced from the Australian Electoral Commission and is used under licence. © Commonwealth of Australia (Australian Electoral Commission) 2020. Limited End-user licence provided by the Australian Electoral Commission: Client may load, display, print and reproduce views obtained from the Data (Commonwealth Electoral Boundaries (various years)), retaining this notice, for Client’s personal use, or use within Client’s organisation only. Client must not create a Derivative Product in which the Data is altered, abridged or supplemented. The Australian Electoral Commission gives no warranty regarding the Data’s accuracy, completeness, currency or suitability for any particular purpose. In these Conditions: “the Australian Electoral Commission” means the Commonwealth of Australia, represented by the Australian Electoral Commission, and includes any agency which succeeds to the functions of that agency; “the Data” means the Commonwealth Electoral Boundaries (various dates); “Derivative Product” means a distinct product in which the Data is altered, abridged or supplemented, and/or which incorporates additional functionality.
- In this paragraph, the following words have the following meanings: (a) “USPS” means United States Postal Service, 475 LENFANT PLZ SW, WASHINGTON, DC 20260- 6803; (b) “USPS Licence” means licensing agreements entered into between USPS and the Client available from https://postalpro.usps.com/AISCopyright_License
- The Client acknowledges that: (a) in order to make use of the Hosted Services it must enter into a USPS Licence; and (b) the Supplier will have no contractual obligations or responsibilities in respect of the USPS Licence, subject to paragraph 6.4 below; and (c) any termination of the USPS Licence (other than as a result of a breach by the Supplier of paragraph 6.4 below) may prevent it from making substantial use of the Hosted Services, but shall not entitle it to terminate this Contract and/or receive any refund under this Contract.
- The Client agrees that it will enter into the USPS Licence and will maintain the USPS Licence for the duration of this Contract and abide by the terms and conditions of the USPS Licence.
- The Supplier shall ensure that USPS does not terminate the USPS Licence as a result of the Supplier’s breach of paragraph 6.5 below.
- The Supplier shall make payment to USPS in respect of the grant of the USPS Licence, subject to the Client’s: (a) payment to the Supplier of Fees in respect of the USPS Licence; and (b) compliance, in full, with the terms and conditions of the USPS Licence.
- The Client shall indemnify and hold harmless the Supplier for all Costs arising from a breach of this paragraph 6, including all Costs associated with handling a compliant or allegation which, if substantiated, would constitute a breach by the Client of this paragraph 6.
- The parties acknowledge that the Supplier’s Fees are in part dependent on the costs imposed on it by third party technology and/or infrastructure providers which are outside of its control. As such, the Supplier shall be entitled to increase the Fees at any time by giving the Client not less than thirty (30) days’ written notice if USPS, has increased its fees or charges in a manner that increases the costs imposed on the Supplier under this Contract, provided that such increase shall be limited to the additional cost imposed on the Supplier as may be apportioned to this Contract. Both parties will work collaboratively to mitigate the impact of any such third party costs and will endeavour to keep such increases to a minimum.