OS2i Agreement for the provision of research services

BETWEEN

1. OS2i Limited (Registered Company Number 4402671) of Office 439, 91 Western Road, Brighton BN1 2NW (“the Supplier”); and
2. The client as detailed on the Schedule A (“the company”)

WHEREAS

The Company wishes the Supplier to provide to the Company the range of research services as requested in Schedule A.

The Supplier has agreed to provide the Services on the terms and subject to the conditions set out in this Agreement.

WHEREAS

The Company wishes the Supplier to provide to the Company the range of research services as requested in Schedule A.

The Supplier has agreed to provide the Services on the terms and subject to the conditions set out in this Agreement.

1. Definitions and Interpretation

In this Agreement, unless the context shall otherwise require, the following expressions shall have the following meanings:-

“Business Hours”  means any 8 hours period from 07:30 to 01.00 hours local time in India (GMT -5.5).

“Commencement Date” means the date as set in the Schedule A.

“Fee” means the fee, exclusive of VAT, payable by the Company for the Services, as set out in the Schedule A.

“Schedule” means the Schedule A

2. Appointment as Supplier

The Company hereby appoints the Supplier to provide the Services and the Supplier hereby accepts such appointment on the terms and conditions of this Agreement.

3. Duration of Appointment

This Agreement shall commence on the Commencement Date as detailed in the “schedule A”.

4. Provision of Services

4.1 The Supplier shall perform the Services with reasonable care and skill, and to the best of the Supplier’s ability, and shall comply with all reasonable and lawful directions given by the Company and shall at all times give to the Company such explanations, information and assistance as may be required by the Company.

4.2 The number of days to be worked and the hours of work during the term of this Agreement shall be as set out in the Schedule [A].  Should the Company require the Supplier to provide services in addition to or in excess of the Services “Additional Services”, the Company shall make a request of the Supplier. The Supplier shall respond in writing within 3 working days, indicating the cost of the same and any limitations or conditions applying to the supply.

4.3 Representatives from the Supplier and the Company shall meet if required in order to review and monitor the ongoing performance of the Services and the achievement of the Standards. Where the parties identify any areas of difficulty or underachievement, they shall in good faith attempt to agree upon a solution which the Supplier and/or the company shall then implement.

4.4 The Supplier shall provide the Services on a consultancy basis and nothing in this Agreement shall be deemed to imply that the relationship between the Company and the Supplier is that of employer and employee. The Supplier shall have no authority to make statements, representations or commitments of any kind or take other action which would be binding upon the Company.

4.5 The Company agrees and accepts that the Supplier shall enter into a sub-contract with its Indian subsidiary company in order to provide the Services, but that the sub-contracting does not relieve the Supplier of the primary contractual responsibility for the performance of this Agreement.

5. Fees and Expenses

5.1 The Company shall pay the Supplier, as remuneration for performance of the Services, the Fee for the term of this Agreement, commencing on the Commencement Date. The Company shall pay the Supplier’s invoices, at the latest, 14 days following the invoice-raised date.

5.2 Should any complete invoice amount remain unpaid for a period of 2 weeks from the due date, the Supplier shall be entitled to suspend the provision of the Services pending settlement. The Company shall only be entitled to withhold the disputed amount of the invoice and not any subsequent undisputed invoices. Both parties agree to resolve any disputed elements of invoices in good faith and in a timely fashion.

5.3 Where the Supplier provides any Additional Services pursuant to a request or otherwise, the Supplier shall raise invoices for the same on the published invoicing dates. All such invoices shall be subject to the payment requirements set out in this Clause 5.

6. Supplier’s Undertakings

6.1 The Supplier warrants, represents and undertakes to the Company that now and at all times during the continuance of this Agreement the Supplier:

6.1.1 is not and shall not be prohibited from performing the Services to the best of the Supplier’s ability;

6.1.2 is not and shall not be in breach of any agreement with any third party (including without limitation any contract of employment);

6.1.3 is and shall be the legal and beneficial owner of all intellectual property rights required in order to perform the Services (without prejudice to the provisions of Clause 8 hereof).

7. Confidentiality

7.1 In order to permit the provision of the Services, either party (the “Disclosing Party”) or their respective employees or persons otherwise engaged in the party’s business may allow access to or disclose to the other party (the “Recipient”) (whether before or after the date of this Agreement) information, documents, drawings, samples, technical information, access codes, know-how, trade secrets and/or data in any form whatsoever and other information concerning that party and the customers, accounts, finances or business methods, dealings, transactions or affairs of that party whether belonging to that party or a third party and other confidential information (altogether “the Confidential Information”). The Recipient shall, relative to any and all Confidential Information:

7.1.1 subject to Clause 7.2 below, at all times keep such Confidential Information secret and confidential, and shall not disclose or divulge any part of it to any third party (excepting always the Company and permitted sub-contractors);

7.1.2 conspicuously label, where possible, such Confidential Information as being Confidential Information;

7.1.3 not without the written consent of the Disclosing Party use such Confidential Information for any purpose other than for the purposes of this Agreement;

7.1.4 not copy or reproduce in any manner or form such Confidential Information or any part thereof unless in the performance of the Services without the prior written approval of the Disclosing Party;

7.1.5 cease to use and return such Confidential Information to the Disclosing Party if so requested at any time within 48 hours of such request and immediately if this Agreement terminates or expires for any reason whatsoever;

7.1.6 to warrant that any persons or parties with whom the Recipient may have dealings regarding the Confidential information enter into written confidentiality agreements with the Recipient prior to disclosure of any Confidential Information to such person on appropriate terms to ensure that such persons shall maintain confidentiality on the foregoing terms; and

7.1.7 use best endeavours to bring to the attention of the Disclosing Party all information known to the Recipient regarding the proposed publication or disclosure (unless such publication or disclosure is properly made with the written consent of the Disclosing Party) of any Confidential Information.

7.2 The following shall be exempt from the provisions of Clause 7.1 above:

7.2.1 Confidential Information which is or becomes public knowledge other than through any act or omission constituting a breach of the Recipient’s obligations under this Agreement;

7.2.2 Confidential Information which the Recipient can prove by documentary evidence to the Disclosing Party was already in the Recipient’s possession and at the Recipient’s free disposal before its disclosure hereunder; and

7.2.3 Confidential Information received in good faith from a third party having no obligation of confidentiality and which is free to disclose such Confidential Information.

7.3 If a breach of any condition of this Clause 7 occurs or if the Company has reasonable grounds for believing that such a breach has occurred or will occur then (without prejudice to its other rights hereunder):

7.3.1 the Disclosing Party may require the immediate return of all Confidential Information in the hands of the Recipient and/or any third party and may immediately repossess such Confidential Information; and

7.3.2 the Disclosing Party shall not be obliged to continue the supply of any Confidential Information to the Recipient in terms of any contract, agreement or arrangement between the Disclosing Party and the Recipient.

7.4 The Confidential Information shall at all times remain the property of the Disclosing Party. Nothing in this Agreement shall be construed as granting any rights to the Recipient in relation to the Confidential Information. In particular, no licenses to patents, inventions, know-how, trade marks or copyrights are implied or granted under this Agreement save insofar as required for the performance of the Services. For the avoidance of doubt, any and all intellectual property rights embodied in the Confidential Information disclosed by the Disclosing Party pursuant to this Agreement shall belong to and be the absolute property of the Disclosing Party or such third party as may have rights therein.

7.5 Use of Company Identity

The company hereby grants permission for the Supplier to use their company identify/Logo as part of its portfolio shown on its web site and/or marketing material. This clause supersedes any terms and conditions or clauses the company has in existence in relation to the use of its identity/Logo.

8. Intellectual Property

8.1 For the purposes of this Clause 8, “Intellectual Property” shall mean any and all intellectual property of whatever nature anywhere in the world and all rights pertaining thereto whether recorded or registered in any manner or otherwise including without prejudice to the foregoing generality patents, trade marks, registered designs and applications for any of the same, copyright, database rights (howsoever so called), design rights, semi-conductor topography rights, mask works, trade secrets, know-how and all other legal rights protecting intangible proprietary information.

8.2 The Supplier hereby assigns and, insofar as it is not competent for the Supplier currently to assign, hereby undertakes and agrees to assign any specific Intellectual Property that may be developed by the Supplier during the "Appointment" or "Agreement".

8.3 The Supplier hereby waives any and all moral rights (and/or equivalent or similar rights the Supplier may have in any jurisdiction insofar as it is competent for the Supplier to do so) in any and all work done by the Supplier pursuant to the Agreement.

8.4 The Supplier shall execute and perform, at the expense of the Company, both during the continuance of the Consultancy and at all times thereafter, all such applications, assignments, documents and acts as may be required by the Company for the purpose of obtaining and enforcing in such countries as the Company may direct, patent and/or other legal protection in respect of any and all Intellectual Property assigned and/or to be the assigned hereunder and for vesting the same in the Company.

9. Data Protection

9.1 The parties each undertake to the other to observe and comply with the provisions of the Data Protection Act 1998 in the performance of this Agreement.

9.2 The Supplier warrants and undertakes to the Company to have appropriate technical and organisational measures in place to protect any personal data provided by the Company against unauthorised or unlawful processing and against accidental loss or destruction and that it has taken all reasonable steps to ensure the reliability of any Supplier staff who will have access to personal data supplied by the Company hereunder.

9.3 The Supplier will act only on the instructions of the Company in relation to any personal data provided by the Company and hereby agrees to allow the Company access, on reasonable notice, to inspect the technical and organisational measures used by the Supplier to ensure the protection of the data. The Supplier will consider all reasonable suggestions the Company may make regarding the level of protection afforded to the data and to make any changes necessary to ensure appropriate compliance with the Data Protection Act.

9.4 The Company agrees and accepts that the Supplier will pass all personal data to its subsidiary company based in India and the Company warrants and undertakes to obtain all necessary consents required to enable the Supplier to transfer the data to its Indian subsidiary.

10. Liability

10.1 Each party shall indemnify the other and keep the other fully and effectively indemnified on demand against any loss of or damage to any property or injury to or death of any person caused by any negligent act or omission or breach of this Agreement by that party, its employees, agents or sub-contractors.

10.2 Except in respect of injury to or death of any person or any other liability which cannot be limited or excluded by law (for which no limit applies), the Supplier hereby excludes its liability to the Company to the extent permissible under the applicable law. In any event, the respective liability of the Supplier and the Company under sub-clause 10.1 in respect to each event or series of connected events shall not exceed £500,000. [The total of all payments made under this Agreement by the Company at the date of the event giving rise to the claim, or £ 500,000. ]

10.3 Notwithstanding anything else contained in this Agreement, the Supplier shall not be liable to the Company for loss of profits or contracts, loss of goodwill or other special, indirect or consequential loss whether arising from negligence, breach of contract or howsoever.

11. Termination

11.1 This Agreement may be terminated by either party forthwith on giving notice in writing if the other party shall have a liquidator, receiver, administrative receiver or administrator appointed, or shall pass a resolution for winding-up (otherwise than for the purposes of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect, or if the other party shall become subject to an administration order or shall enter into any voluntary arrangement with its creditors or shall cease or threaten to cease to carry on business.

11.2 This Agreement may also be terminated forthwith by either party on giving notice to the other if the other party is in material breach of the terms of this Agreement and has failed to remedy such breach (in the case of a breach capable of remedy) within 30 days of receiving a written notice requiring it to do so.

11.3 The Company shall have the right to terminate this Agreement forthwith by written notice if the Supplier commits any serious breach, or repeats or continues after written warning, any serious breach of the Supplier's obligations hereunder.

11.4 Without prejudice to the other provisions hereof, the Company shall be entitled to terminate this Agreement by giving to the Supplier notice as detailed in the Service Agreement. The Supplier may terminate by giving to the Company notice as detailed in the Service Agreement prior written notice.

12. Tax liabilities

The Supplier shall be responsible for all income tax liabilities and National Insurance or similar contributions in respect of the Fee and the Supplier hereby agrees to indemnify the Company in respect to any claims that may be made by the relevant authorities against the Company in respect to income tax or National Insurance or similar contributions relating to the Supplier's services hereunder.

13. Notices

Any notice required to be given hereunder shall be in writing and shall be deemed to be duly served, in the case of notice to either Company or Supplier, if left at or sent by first class recorded delivery post to the registered office of the company or supplier or such other address as may be notified. Any such notice shall be deemed to be served at the time when the same is handed to or left at the address of the party to be served, or, if served by post, on the third day (not being a Sunday or public holiday) next following the day of posting.

14. Continuation of Agreement

The expiry or earlier termination of this Agreement shall not operate to affect such of the provisions which are intended to operate or have effect after such expiry or termination (including, without limitation, the provisions of Clauses 6, 7, 8 and 9).

15. Non-Waiver

No failure by the Company to exercise, nor any delay in exercising, any right hereunder shall operate as a waiver of that or any other right or remedy of the Company, nor shall any partial exercise preclude any further or other exercise.

16. Entire Agreement

This Agreement supersedes all prior agreements, arrangements and understandings between the parties and constitutes the entire agreement between the parties relating to the subject matter hereof (save that neither party seeks to exclude liability for any fraudulent pre-contractual misrepresentation upon which the other party can be shown to have relied). No addition to or modification of any provision of this Agreement shall be binding upon the parties unless made by a written instrument signed by a duly authorised representative of each of the parties. In the event of any conflict between this Agreement and the terms set out in any communication, whether upon initial acceptance of these terms or at any time thereafter, the terms of this Agreement shall prevail.

17. Assignment

Neither party shall be entitled to assign or transfer this Agreement or any interest herein without the prior consent in writing of the other party.

18. Variation

No reliance has been made by any party upon any representation made prior to execution hereof. This Agreement shall not be varied unless such variation shall be expressly agreed to in writing by both parties.

19. Waiver

No forbearance, delay or indulgence by either party in enforcing the provisions of this Agreement shall prejudice or restrict the rights of that party, nor shall any waiver of its rights operate as a waiver of any subsequent breach and no right, power or remedy herein conferred upon or reserved for either party is exclusive of any other right, power or remedy available to that party and each such right, power or remedy shall be cumulative.

20. Severability

Notwithstanding that the whole or any part of any provision of this Agreement may prove to be illegal or unenforceable, the other provisions of this Agreement and the remainder of the provision in question shall remain in full force and effect.

21. Third Party Rights

The parties confirm their intent not to confer any rights on any third parties by virtue of this Agreement except for the third-party rights (the “Third-Party Rights”) set out in the Schedule and accordingly the Contracts (Rights of Third Parties) Act 1999 shall apply to this Agreement only in respect to the Third-Party Rights.

22. Governing law

This Agreement shall be governed by and construed in all respects in accordance with the laws of England & Wales and the parties hereto hereby irrevocably submit to the jurisdiction of the English courts in all matters relating to the subject matter hereof.

23. Permanently Employing OS2i staff.

Should the Company employ an existing member of OS2i staff, or employ a member of staff within one calendar month of their ceasing to be employed by OS2i, a placement fee of £5000 will be invoiced to the Company at time of the employee's start date.