1. Definitions and Interpretation
1.1 The following words shall have the following meanings:
Affiliates: in relation to a party, any subsidiary or holding company, or subsidiary of that holding company and in the case of the EFL, any of its Associates as set out on the Purchase Order.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Charges: the charges payable by the EFL for the supply of the Goods, Services and/or Deliverables by the Supplier, as set out in the Contract.
Contract: the contract between the EFL and the Supplier for supply of the Goods, Services and/or Deliverables in accordance with the Purchase Order, Mandatory Policies, these terms and conditions and any agreed schedules, annexes or appendices.
Control: as defined in section 1124 of the Corporation Tax Act 2010.
Data Protection Laws means the Data Protection Act 2018, General Data Protection Regulation (EU) 2016/679) (each to the extent in force in the United Kingdom at the relevant time), the Regulation of Investigatory Powers Act 2000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699), the Privacy and Electronic Communications Directive 2002/58/EC as implemented by the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426) together with the equivalent legislation of any other applicable jurisdiction and all other applicable law, regulations and codes of conduct in any relevant jurisdiction relating to the processing of Personal Data and privacy including the guidance and codes of practice issued by the Information Commissioner and any laws, regulations, guidance and codes of conduct succeeding or replacing the foregoing.
Deliverables: all documents, products, data, outputs and materials developed by the Supplier or its agents, subcontractors and personnel as part of or in relation to the Services in any form (including drafts), including computer programs, data, reports and specifications and any Key Deliverables set out in the Contract, and any services, methods, equipment and facilities developed or procured specifically for the Services provided to the EFL.
EFL Materials: all images, logos, branding, indicia, materials, equipment, tools, drawings, specifications, information and data supplied by or on behalf of the EFL to the Supplier, or otherwise proprietary (including for this purpose lawfully licensed by third parties) to the EFL, its Affiliates and/or their licensors to which the Supplier has access.
IP Rights: all intellectual property rights which do or will subsist now or in the future in any part of the world, whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of the same and including patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up and trade dress, goodwill, 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).
Mandatory Policies: any of the EFL's and/or its Affiliates' policies and codes referred to in the Contract or notified by the EFL or its Affiliates to the Supplier, as amended from time to time.
Purchase Order: the form, letter or summary attached to these terms and conditions relating to the Goods, Services and/or Deliverables.
Services: the services, including any Deliverables, to be provided by the Supplier pursuant to the Contract.
Supplier IPRs: all IP Rights subsisting in the Supplier's services, methods, equipment and facilities prior to the Start Date and/or thereafter during the Term which are used in relation to the Goods or Services (excluding the Deliverables, EFL Materials (and modification or enhancement to the same) incorporated in them).
Term: the duration of the Contract as set out in the Purchase Order, subject to earlier termination in accordance with the Contract.
1.2 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and includes subordinate legislation made from time to time under that statute or statutory provision.
1.3 Words following the terms including, include, in particular, for example or any similar expression shall be illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.4 A reference to holding company or subsidiary shall have the meaning given in section 1159 of the Companies Act 2006.
1.5 A reference to writing or written includes email.
1.6 Words defined in the Purchase Order have the meaning set out thereon.
2. Commencement and Term
2.1 The Contract shall commence on the Start Date and shall continue, unless terminated earlier in accordance with its terms, for the Term.
2.2 Any purported performance by a party of its obligations relating to the subject matter of this Contract prior to the date of signature (including supply of Goods, Services and/or Deliverables and/or payment of any Charges), shall be deemed to be subject to the terms of this Contract.
2.3 The parties agree that this Contract is non-exclusive as against the EFL, and its Affiliates and nothing herein shall prevent the EFL or its Affiliates from procuring goods, services or deliverables the same or similar to those hereunder from any other third party.
3. Supply of Goods, Services and/or Deliverables
3.1 In supplying the Goods, Services and/or Deliverables, the Supplier shall at its cost:
(a) co-operate with the EFL, its Affiliates and appointed contractors in all matters relating to the provision of the Goods, Services and/or Deliverables, and comply with all instructions of or authorised by the EFL;
(b) perform the Services in accordance with the highest standard of care, skill and diligence in accordance with best practice in the Supplier's industry;
(c) ensure the Goods, Services and/or Deliverables conform with the description and other particulars stated or referred to in the Contract and all samples, drawings, descriptions and specifications provided by the Supplier to (and expressly agreed in writing by) the EFL;
(d) comply with all applicable laws, statutes, regulations and codes, along with Mandatory Policies (including in relation to anti-bribery and anti-slavery) each as from time to time in force;
(e) meet any performance dates and times for the Services and/or provision and delivery of the Goods and Deliverables to or at the applicable delivery locations (properly packed and secured an accompanied by a delivery note of particulars as required by the EFL) specified in the Contract or otherwise subsequently agreed in writing between the parties (time being of the essence for all such performance and delivery);
(f) use the best quality materials, equipment, consumables, standards and techniques, and ensure that all equipment, consumables, goods and materials supplied and used in the Goods, Services and Deliverables or transferred to the EFL, will be free from defects in workmanship, installation and design and are fit for purpose, including purposes expressly or impliedly known by the Supplier;
(g) ensure the Goods and Deliverables are of the best quality;
(h) obtain and at all times maintain all licences and consents required for the provision of the Goods, Services and/or Deliverables;
(i) hold all relevant EFL Materials in safe custody at its own risk, maintain the EFL Materials in good condition until returned to the EFL, and not dispose or use the EFL Materials other than in accordance with the EFL's written instructions or authorisation (the Supplier agreeing to make them available for collection by the EFL or any of its nominated recipients on request);
(j) use a sufficient number of suitably skilled, trained, qualified and experienced personnel to perform the Services (and remove from the Services any personnel whom the EFL lawfully and reasonably believes is unsuitable);
(k) not do or omit to do anything which may cause the EFL or any of its Affiliates to lose any licence, consent or permission on which it relies;
(l) observe all health and safety rules and regulations and security requirements that apply at any of the EFL's or its Affiliates' or other applicable third party premises;
(m) make good all and any damage caused by the Supplier, its personnel and/or permitted contractors in the performance of the Services and delivery of any Goods or Deliverables;
(n) ensure all software (if any) to be provided or used in relation to the Services (or included in any Deliverables or Goods) shall be free from viruses, worms, time locks or anything else that would impair performance of the Services and/or use of the Goods or Deliverables, and/or any of the systems or equipment of the EFL, its Affiliates or appointed contractors; and
(o) provide to the EFL high quality user instructions, manuals and training and other documentation for the Goods, Services and/or Deliverables without further charge.
3.2 The Supplier warrants and represents that it has and will continue to have the full right and title to enter this agreement, supply the Goods, Services and/or Deliverables and license use of the Supplier IPR to the EFL and its Affiliates.
3.3 The EFL or its Affiliates may inspect and test Goods prior to or on delivery. The Supplier shall remain fully responsible for the Goods despite any such inspection or testing and any such inspection or testing shall not reduce or otherwise affect the Supplier's obligations under the Contract.
3.4 Title and risk in the Goods shall pass (as between the parties) to the EFL on completion of delivery.
4. EFL's obligations
4.1 The EFL shall, in relation to the Goods, Services and/or Deliverables:
(a) provide reasonable co-operation to the Supplier at reasonable times;
(b) provide or use reasonable endeavours to procure for the Supplier, reasonable access to the EFL's premises, data and other facilities as reasonably and necessarily required for provision of the Services by the Supplier;
(c) provide such information as the Supplier may reasonably require for provision of the Goods and Services; and
(d) to the extent the Goods or Deliverables concern any equipment, software or other materials requiring maintenance, be entitled to maintain the Goods or Deliverables itself, or through any third party, and such maintenance will not breach this Contract or invalidate any applicable Supplier warranty or other obligation herein.
5. Intellectual property
5.1 As between the parties, the Supplier shall retain ownership of all Supplier IPRs and the EFL shall retain ownership of all IP Rights in the EFL Materials.
5.2 The Supplier grants the EFL and its Affiliates, or shall procure the direct grant to the EFL of, a fully paid-up, worldwide, non-exclusive, royalty-free, licence to copy and modify the Supplier IPRs for the purpose of receiving and using the Goods, Services and Deliverables in the EFL's and/or any of its Affiliates business and for all other purposes envisaged pursuant to the Contract.
5.3 The EFL grants the Supplier a fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable licence to copy and modify the EFL Materials for the Term solely for the purpose of providing the Goods, Services and/or Deliverables to the EFL and its Affiliates in accordance with the Contract.
5.4 In relation to the Deliverables, and to the extent the Supplier makes any modification or enhancement of the EFL Materials and/or any EFL Materials otherwise become vested in the Supplier, in consideration of the EFL's obligations herein the Supplier hereby assigns (by way of present and future assignment) all Deliverables, EFL Materials and/or modifications or enhancements to the same, together with all rights (including IP Rights) in such Deliverables and EFL Materials to the EFL unconditionally and waives (and shall procure all relevant waivers) of moral and similar rights.
6. Charges and payment
6.1 In consideration for and subject to the provision of the Goods, Services and Deliverables, the EFL shall pay the Supplier the Charges in accordance with this clause 6. The Charges constitute complete compensation for the Goods, Services and Deliverables and all costs and expenses of the Supplier in connection with the same.
6.2 Unless expressly stated otherwise on the Purchase Order, any payment due from a party hereunder excludes value added tax (VAT), which the paying party shall pay to the receiving party at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.
6.3 Unless expressly stated otherwise in the Contract, the Supplier shall submit invoices to the EFL on completion of the Services or delivery of the Goods (as the case may be) along with all supporting information required by the EFL.
6.4 The EFL shall pay each invoice due and submitted to it by the Supplier, within 45 days of the end of the month in which the invoice was received, in sterling to a UK clearing bank account nominated in writing by the Supplier (or such other period as set out in this Contract).
6.5 If either party fails to pay any sum due pursuant to this Contract interest shall accrue on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment, each day at 2% a year above the Bank of England's base rate from time to time.
6.6 The EFL shall be entitled to set-off, deduct or withhold any liability of the Supplier to the EFL from any payment due to the Supplier hereunder. The Supplier shall not be entitled to set-off, deduct or withhold any liability of the EFL to the Supplier from any payment due to the EFL hereunder.
7.1 Each party undertakes that it shall not at any time during the Term, and for a period of 3 years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party (and, in the case of the EFL, those of its Affiliates), except as permitted by clause 7.2.
7.2 Each party may disclose the other party's confidential information:
(a) to its employees, officers, representatives, subcontractors, Affiliates or advisers who need to know such information for the purposes of carrying out the party's obligations or exercising rights under the Contract, provided that all such of its recipients are required to comply with this clause 7;
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority; and/or
(c) to enforce its obligations and/or exercise rights granted hereunder.
7.3 Neither party shall use any other party's confidential information for any purpose other than to perform its obligations under the Contract.
7.4 The Supplier shall not make any announcement in connection with the Contract or Goods, Services and/or Deliverables to be provided hereunder without the prior written consent of the EFL. In the event of any delay or failure in connection with the Goods, Services and/or Deliverables to which the EFL is to make a press release or similar announcement, the Supplier will promptly supply the EFL will all assistance, co-operation and information reasonably required by the EFL in connection with the same (including, where the failure is the fault of the Supplier, publicly accepting responsibility for such failure).
8.1 The Supplier shall indemnify the EFL and each of its Affiliates against all liabilities, costs, expenses, damages and losses (including interest, penalties and legal and all other professional costs and expenses) suffered or incurred by the EFL and/or its Affiliates arising out of or in connection with any claim for:
(a) infringement of a third party's IP Rights arising out of, or in connection with, the receipt, use or supply of the Goods, Services and/or Deliverables (excluding the EFL Materials);
(b) personal injury or death arising out of, or in connection with, the use of the Goods, Services and/or Deliverables; or
(c) otherwise the receipt or use of the Goods, Services and/or Deliverables by the EFL or its Affiliates in accordance with the Contract.
9.1 Without affecting any other right or remedy available to it, either party to the Contract may terminate it with immediate effect by giving written notice to the other party if that other party:
(a) commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 10 Business Days after being notified in writing to do so; or
(b) takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business, or any analogous procedure in the relevant jurisdiction.
9.2 Without prejudice to its others rights or remedies, the EFL may terminate the Contract immediately by giving written notice to the Supplier if:
(a) any allegation or claim is made that the Goods, Services and/or Deliverables infringe the IP Rights or other rights of a third party (save in circumstances where such allegation or claim is in respect of EFL Materials within the Goods, Services or Deliverables);
(b) the Supplier makes (or is alleged to have made) any act or omission which may be materially prejudicial to the reputation or goodwill of the EFL, its competitions and/or member clubs and or represent a conflict of interests; or
(c) there is a change of Control of the Supplier.
9.3 The EFL shall be entitled to terminate the Contract at any time during the Term on service of no less than 14 days written notice to the Supplier.
9.4 On termination of the Contract for whatever reason:
(a) save for termination by the EFL pursuant to clause 9.1 or 9.2, the EFL shall pay to the Supplier all Charges in respect of Goods, Services and/or Deliverables supplied up to the date of termination in accordance with clause 6;
(b) any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect (including clauses 5, 7, 8, 10, 11, 12 and 13); and
(c) termination or expiry of the Contract shall not affect any of the rights, remedies, obligations or liabilities of the parties accrued prior thereto.
10.1 Any notice to a party under or in connection with the Contract shall be in writing and shall be: delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company/LLP) or its principal place of business (in any other case) (and with a copy of any such hard copy notice also being sent by email as follows); or sent by email to the address specified for that party in the Purchase Order (or other address notified from time to time)(and in the case of any notice to the EFL, with a copy to firstname.lastname@example.org).
10.2 A notice shall be deemed received: if delivered by hand, at the time the notice is left at the proper address; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or, if sent by email on the next Business Day after transmission.
11. Data Protection
11.1 This clause 11 applies only to the extent the provision of the Goods, Services and/or Deliverables include processing of Personal Data. 'Personal Data', 'Processing', 'Data Controller', 'Data Processor' and 'Data Subject' shall have the meaning given in the Data Protection Legislation
11.2 Both parties will comply with all applicable requirements of the Data Protection Legislation.
11.3 To the extent, for the purposes of the Data Protection Legislation, the EFL is the data controller of any Personal Data made available by the EFL or its Affiliates to the Supplier and the Supplier is the data processor ('EFL Personal Data') clause 11.4 shall apply.
11.4 Without prejudice to the generality of clause 11.2, the Supplier shall, in relation to any EFL Personal Data processed in connection with the performance by the Supplier of its obligations under this agreement:
(a) process that Personal Data only on the written instructions of the EFL;
(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the EFL (such approval not relieving or mitigating the Supplier's obligations herein), to protect against unauthorised or unlawful processing of EFL Personal Data and against accidental loss or destruction of, or damage to, EFL 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 data to be protected, having regard to the state of technological development and the cost of implementing any measures;
(c) ensure that all personnel who have access to and/or process EFL Personal Data are obliged to keep the EFL Personal Data confidential; and
(d) not transfer any Personal Data outside of the European Economic Area unless the prior written consent of EFL has been obtained and the following conditions are fulfilled:
(i) EFL or the Supplier has provided appropriate safeguards in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any EFL Personal Data that is transferred; and
(iv) the Supplier complies with reasonable instructions notified to it in advance by the EFL with respect to the processing of the EFL Personal Data;
(e) assist the EFL 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;
(f) notify the EFL without undue delay (and in any event within 24 hours) on becoming aware of an EFL Personal Data breach;
(g) at the written direction of the EFL, delete or return EFL Personal Data and copies thereof to the EFL on termination of the agreement unless required by applicable English law to store the EFL Personal Data;
(h) appoint a Data Protection Officer where required for the purpose of Data Protection Legislation and ensure compliance of such person with all tasks required to be carried out for such role;
(i) maintain complete and accurate records and information as required by Data Protection Legislation and otherwise to demonstrate its compliance with this clause and allow for audits by the EFL or the EFL's designated auditor; and
(j) not appoint any third party processor of EFL Personal Data, without the EFL's prior written consent.
11.5 To the extent each party acts as a Data Controller in relation to Personal Data which both parties process pursuant to this Contract, each party shall:
(i) promptly notify the other if it receives a request from a Data Subject in accordance with the Data Protection Laws which may reasonably affect the other party's processing of such Personal Data. The parties will provide reasonable assistance to each other in promptly investigating and dealing with such request in order to ensure that the Data Subject's rights under the applicable Data Protection Laws are satisfied;
(ii) at the written direction of the other party, delete or return Personal Data and copies thereof to that party on termination of this Contract unless required or permitted by applicable law to continue processing the Personal Data;
(iii) to the extent it transfers any such Personal Data outside of the European Economic Area, ensure it continues to comply with adequacy and other requirements relating to the same pursuant to Data Protection Laws;
(iv) use reasonable endeavours to ensure that a notice is provided to all affected Data Subjects in relation to any data sharing with the other party under this Contract; and
(v) promptly notify the other if it becomes aware of a breach of this Contract which may reasonably affect that other party's processing of such Personal Data, in which case the party in breach shall take all reasonable steps to remedy such breach.
12. Staff Transfer
12.1 The relationship between the Supplier and EFL will be that of independent contractors. Nothing in this Contract shall render any employee of the Supplier an employee, worker, agent or partner of EFL. Nothing in this Contract shall render any employee of EFL an employee, worker, agent or partner of the Supplier. The parties acknowledge and agree that they do not intend the termination or expiry of all or part of the Services under this Contract ('Exit Transfer') shall constitute a "relevant transfer" for the purpose of the Transfer of Undertakings (Protections of Employees) Regulations 2006 ('Regulations') in relation to any employee of the Supplier ('Supplier Employee'). If, following an Exit Transfer, the contract of employment (or any rights or liabilities in connection with any such contract) of any Supplier Employee transfers or is alleged to transfer within the period from the Exit Transfer until the later of the date three months after that Exit Transfer and the date three months after the first day of the subsequent Season to the EFL and/or any third party appointed by the EFL to provide all or part of the Services after the Exit Transfer ('Replacement Supplier') then the Supplier shall indemnify and keep indemnified the EFL and any Replacement Supplier in full from and against all liabilities, losses, costs and/or expenses incurred or suffered by the EFL and/or Replacement Supplier arising out of or in connection with the same (including the employment and/or termination of any Supplier Employee, and/or any other act or omission of the Supplier in respect of such Supplier Employee).
13.1 The EFL shall not be liable for any failure to perform, or delay in performing, any of its obligations (other than indemnity obligations) pursuant to the Contract if and to the extent that the failure or delay is caused by any event beyond its reasonable control PROVIDED the EFL shall give prompt notice in writing of such event to the Supplier and use all reasonable endeavours to mitigate the delay or prevention in performance of its obligations
13.2 No failure or delay by any party in exercising its rights under this Contract will operate as a waiver of that right nor will any single or partial exercise by either party of any right preclude (i) any further exercise of any other right nor (ii) the legality, validity or enforceability in other jurisdictions of that or any other provision of this Contract.
13.3 If any term of the Contract is found to be illegal, void or unenforceable by any court having competent jurisdiction, such invalidity of that provision shall not affect the validity of the remaining provisions of the Contract.
13.4 This Contract constitutes the entire agreement between the parties with respect to its subject matter and will not be varied or cancelled unless expressly agreed in writing by a duly authorised representative of each party.
13.5 Save in relation to the Affiliates of the EFL which have rights to enforce this Contract, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
13.6 The Supplier shall not assign, transfer, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this agreement without the prior written consent of the EFL (and the Supplier shall remain fully liable for the acts and omissions of any permitted subcontractor).
13.7 No variation of this Contract shall be effective unless it is in writing and signed by the parties
13.8 This Contract may be executed in any number of counterparts (but shall not be effective until each party has executed at least one counterpart), each of which, when executed and delivered, shall be an original and together shall have effect as if each party had executed and delivered the same document. The parties agree that electronic signatures shall be acceptable.
13.9 If the Supplier's registered office and primary place of business is located outside the United Kingdom (or if otherwise agreed by the EFL), transmission of an executed counterpart of this Contract (but for the avoidance of doubt not just a signature page) by email (in PDF, JPEG or other agreed format) shall take effect as delivery of an executed counterpart of this Contract, and each party shall provide the other with the original of such counterpart as soon as reasonably possible thereafter.
13.10 This Contract shall be governed by and construed in accordance with English law and the parties irrevocably agree that the English courts shall have exclusive jurisdiction to settle any dispute arising out of or in connection with it.