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Terms & Conditions

Efficio Consulting S.A.

Terms and Conditions

1. Terms

Efficio Consulting S.A. (“Efficio”) accepts instructions to provide services only on these terms and conditions of business together with the terms set out in our engagement letter (to which these terms are attached, the “Engagement Letter”), which together shall be referred to as the “Terms of Engagement” or the “Agreement”. The Terms of Engagement shall constitute the entire agreement between Efficio and the client referred to in the Engagement Letter (the “Client”) relating to the services referred to in the Engagement Letter to be provided to the Client by Efficio (the “Services”). The Terms of Engagement shall apply in relation to the Services and shall prevail over any inconsistent terms or conditions contained, or referred to, in the Client’s correspondence, request for proposal, prior proposal, purchase order or other document of the Client. The Terms of Engagement may only be varied with the written agreement of Efficio. The Client’s signed acceptance of the Engagement Letter or the commencement of performance of the Services at the request of the Client, whichever occurs earlier, shall constitute the Client’s acceptance of the Terms of Engagement.

2. Provision of Services

2.1. Efficio shall use all reasonable skill and care in providing the Services. Efficio shall be entitled to rely, without independent verification or investigation, upon any information and materials that (i) may be made available or provided by or via the Client (including all inputs listed in the Agreement as the Client’s responsibility) or any of its affiliates, employees, agents or advisors (“Client Data”) and / or (ii) may be obtained from the public domain or any generally accepted source used by professional consulting firms.

2.2. As part of the Services, Efficio may agree to provide to the Client access to and use of all or part of Efficio’s online Procurement Engine portal and services available through it or via any other means of access provided by Efficio (the “Portal”). The Client acknowledges that such access to and use by it of the Portal is subject to the separate Portal terms. If there is any conflict between the provisions of this Agreement and the Portal terms, save where expressly stated otherwise, the Portal terms shall prevail in respect of the Portal.

2.3. Nothing in this Agreement shall prevent Efficio from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.

2.4. Efficio warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.

3. Client’s obligations and acknowledgements

3.1. The Client agrees to:

3.1.1. co-operate with Efficio in all matters relating to the Services and provide access in a timely manner where reasonably required for the performance of the Services to the Client’s premises, office accommodation and Client Data. The Client shall ensure that all Client Data is accurate in all material respects and that Client Data or its use does not infringe any intellectual property rights of any third party;

3.1.2. co-operate with Efficio (or procure the relevant co-operation) in all matters relating to the identification and agreement of in-scope expenditure, addressable spend (in relation to which the Services are to be provided), baseline validation, savings measurement methodology and savings sign off (all being terms detailed in the Engagement Letter). The Client agrees not to unreasonably withhold, delay or condition any approval or sign off process as may be reasonably requested from time to time by Efficio;

3.1.3. inform Efficio of all Health and Safety rules and regulations and any other reasonable security requirements that apply at the Client’s premises;

3.1.4. liaise with Efficio and provide all assistance as Efficio may reasonably request to enable Efficio to continue ongoing development of the Services for the benefit of the Client;

3.1.5. comply with all applicable laws and regulations with respect to its activities under this Agreement;

3.1.6. carry out all other Client responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Client’s provision of such assistance as agreed by the parties, Efficio may adjust any agreed timetable or delivery schedule as reasonably necessary;

3.1.7. obtain and shall maintain all necessary licences, consents, and permissions necessary for Efficio, its contractors and agents to perform their obligations under this Agreement.

3.2. The Client acknowledges that Efficio may, in providing the Services, use publicly available information and information contained in reports and other materials provided by third parties, including, without limitation, information provided by or on behalf of the Client and that Efficio does not assume responsibility for and may rely, without independent verification, on the accuracy and completeness of any such information. The Client agrees to furnish or cause to be furnished to Efficio all necessary and appropriate information for use in providing the Services under the Terms of Engagement and hereby warrants that any information relating to the Client that is provided to Efficio by or behalf of the Client will be true and accurate in all material respects and not misleading. The Client agrees that any information or advice (including, without limitation, the Deliverables) rendered by Efficio under the Terms of Engagement is for the confidential use of the Client only and the Client will not, and will not permit any third party to, use any Deliverable for any other purpose or disclose or otherwise refer to such Deliverable, advice or information, without the prior written consent of Efficio such consent not to be unreasonably withheld.

3.3 The Client acknowledges that it is not relying on the advice of Efficio for tax, legal or accounting matters and that it will seek and will rely on the advice of its own professionals and advisors for all such matters.

3.4. As part our engagement, Efficio may be commissioned to provide services to the Client’s associated entities and business units (“Group Entities”). Where Efficio provides Services to a Group Entity, the Client shall procure compliance by that Group Entity with all obligations under the Agreement as if the Group Entity was the principal client and original signatory to the Engagement Letter

4. Content and use of Deliverables

Subject always to payment of Efficio’s fees and expenses in connection with the provision of the Services and subject to the provisions of paragraphs 5 and 6 below, all materials, reports and other information that Efficio creates for the Client’s exclusive use as part of the Services (the “Deliverables”) shall be the property of the Client and shall be treated by Efficio as being confidential information belonging to the Client. Efficio warrants that the Client’s use of any Deliverables, used solely for their intended purpose, shall not violate or infringe any third party intellectual property rights, provided always that no warranty is made with respect to any violation or infringement of any third party’s intellectual property rights arising in connection with information or material that have been provided or made available by the Client or its affiliates, employees, agents or advisors.

5. Efficio’s Property and Confidentiality

5.1. All materials, methodologies, concepts, ideas, know-how, procedures, management tools, software and other intellectual property that Efficio has created prior to this Agreement with the Client or may thereafter create or acquire (the “Efficio IP”) shall, at all times, be and remain the exclusive property of Efficio. Before using any intellectual property created or acquired while performing services for any third party other than the Client, Efficio shall first remove any information or materials that were furnished to Efficio by the Client and which may constitute the Client’s intellectual property. The Client acknowledges that Efficio may retain and reuse certain data contained in or derived from the Deliverables subject always to Efficio’s obligation to anonymise all such data prior to reuse (“Anonymised Data”). Efficio may use Anonymised Data in the future development of its sourcing templates, strategies and systems, all of which shall, at all times, be and remain the exclusive property of Efficio. Except as provided in paragraph 6 below, the Client shall not have or acquire any title or interest in or to any Efficio IP.

5.2. The Client shall keep in strict confidence all Efficio IP and any other confidential information and materials of Efficio which have been disclosed to the Client by Efficio, its affiliates, employees, agents or advisors or any other confidential information relating to Efficio’s business which the Client may obtain. The Client shall restrict disclosure of such confidential material to such of its affiliates, employees, agents or advisors as need to know the same on a reasonable “need to know” basis and the Client shall ensure that such affiliates, employees, agents or advisors are subject to obligations of confidentiality corresponding to those which bind the Client.

6. Licence in relation to Efficio IP and use of the Services and Deliverables

6.1. Subject always to payment of Efficio’s fees and expenses in connection with the provision of the Services, the Client shall have an irrevocable, perpetual, non-exclusive, royalty-free right and licence to use Efficio IP that is contained or incorporated in the Deliverables. Except with the prior written authority of Efficio, the Client may not use, reproduce or display any Efficio IP or prepare any works derived from the Efficio IP for the benefit of any person or entity other than the Client. The Services are personal to the Client and intended to be used solely and exclusively for the Client’s business use.

6.2. The Deliverables and Services and any recommendations made by Efficio to the Client shall not be used or relied upon by any third party. Save as with the prior written authorisation of Efficio, the Client may not publish, disclose or refer to any Deliverables or any recommendations that Efficio may make.

7. Client’s Confidential Information

In connection with the provision of the Services, Efficio may be provided or granted access to information and materials of the Client that may be considered to be confidential or proprietary (the “Client’s Confidential Information”). Efficio shall not disclose or make available any of the Client’s Confidential Information to any other person or make use of any of the Client’s Confidential Information for any purpose save where:

7.1. the Client has provided prior written authorisation; or

7.2. where Efficio discloses and makes available the Client’s Confidential Information on a confidential and restricted basis to its employees and sub-contractors on a reasonable “need to know” basis in connection with the Services; and

7.3. Efficio may use the Client’s Confidential Information for any proper purpose related to the Services

7.4. The Client Data shall, at all times, be and remain the exclusive property of the Client. Except as provided in this Agreement, Efficio shall not have or acquire any title or interest in or to any Client Data.

8. Exceptions

The provisions of paragraphs 5.2 and 7 above shall not apply to any information or materials that:

8.1. are already lawfully known to or in the possession of the receiving party at the time such information or materials are first disclosed or made available to the receiving party by the disclosing party;

8.2. are thereafter lawfully obtained by the receiving party from a person other than the disclosing party;

8.3. are in the public domain or generally known in the relevant trade, industry or business at the time such information or materials are first disclosed or made available to the receiving party or thereafter come into the public domain or become generally known in the relevant trade, industry or business other than by reason of an improper disclosure or use of the same by the receiving party; or

8.4. are lawfully obtained by the receiving party independent of the Services. In addition, the receiving party may disclose and make available the other party’s confidential information to the extent required by any order of any court of competent jurisdiction or of any competent judicial, governmental or regulatory body provided that the receiving party shall use all reasonable endeavours to give the disclosing party prior notice of the full circumstances of the disclosure and the information that will be disclosed and consulting with the disclosing party as to possible steps to avoid or limit the disclosure required.

9. Charges and Payment

9.1. The charges payable for the Services shall be set out in the Engagement Letter.

9.2. Details of charges payable by the Client should the Client elect to terminate by giving notice are also set out in the Engagement Letter.

9.3. All charges quoted to the Client shall be exclusive of VAT which Efficio shall add to its invoices at the appropriate rate.

9.4. Efficio shall invoice the Client in accordance with the payment provisions of the Engagement Letter. The Client shall pay each invoice submitted to it by Efficio, in full and in cleared funds, within 30 days of receipt.

9.4.1. Efficio reserves the right to perform the Services by instalments and to render a separate invoice in respect of each such instalment;

9.4.2. if Efficio exercises its right to perform the Services in accordance with sub-paragraph 9.5.1, then any delay in the provision of such Services, or a failure to perform any further instalment or instalments, shall not entitle the Client to terminate the Terms of Engagement or reject the performance of any instalment or to withhold payment in respect of any instalment previously delivered.

9.5. Where Efficio has commenced performance of the Services at the request of the Client (without the Client having signed Engagement Letter) then Efficio reserves the right to invoice for all services performed during the term of the Agreement (plus all reasonably incurred expenses) using the fee calculation methodology contained in the unsigned Engagement Letter or by reference to the market value of the benefit received (and which Efficio reasonably believes will be received) by the Client as a result of Efficio’s performance of the Services.

9.6. This paragraph 9.6 may be effective in circumstances where Efficio has a bonus fee as part payment for the provision of the Services and where the bonus fee structure has been calculated by reference to agreed “addressable spend” and/or “inscope” categories of Client expenditure. Where the Client elects to remove any part of the agreed “addressable spend” or all or part of any category of expenditure from the scope of the Services at any time after Gate 1 (as defined in the Engagement Letter) then Efficio may make such adjustment to the bonus fee structure as is equitable in light of the Client’s reduction of the level of required Services.

9.7. Unless otherwise agreed in writing by Efficio, all Services shall be deemed completed upon sign off of the last category of expenditure (as described in the Engagement Letter).

9.8. Without prejudice to any other right or remedy that Efficio may have, if the Client fails to pay Efficio on the due date, Efficio may:

9.8.1.charge interest on such sum from the due date for payment at the annual rate of 4% above the base rate from time to time of HSBC Bank, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment or, if higher, Efficio may claim interest under the Late Payment of Commercial Debts (Interest) Acts 1998; and

9.8.2. suspend all services until payment has been made in full.

9.9. All sums payable to Efficio under this Agreement shall become due immediately on its termination, despite any other provisions. This paragraph 9.9 is without prejudice to any right to claim for interest under the law, or any such right under this Agreement.

9.10. Where any dispute arises between Efficio and the Client over the level of negotiated, recognised, anticipated or achievable savings (“Savings”) or the level of billable consultant man days on which Efficio’s changes are to be calculated, the matter shall be referred to an Expert, as defined and appointed in accordance with this paragraph 9.10. The Client may not invoke this determination procedure where the Agreement has been terminated by notice by either party in accordance with the provisions of the Engagement Letter (triggering a termination fee calculated by reference to the number of consultant man-days expended by Efficio)

9.10.1. within seven days of either party serving a resolution notice requiring the appointment of an Expert to resolve a dispute, the parties shall use their respective best endeavours to agree on the appointment of an independent Expert and agree with the Expert the terms of his appointment;

9.10.2. if the parties are unable to agree on an Expert or the terms of his appointment within seven days of either party serving details of a suggested expert on the other, either party shall then be entitled to request that the Centre for Effective Dispute Resolution (“CEDR”) nominate a qualified solicitor and mediator with international experience in procurement. The parties then agree to appoint that nominee as Expert. CEDR, or the Expert, may then provide directions as to the terms of the appointment;

9.10.3. the Expert is required to prepare a written decision and give notice of the decision to the parties within a maximum of two months of the matter being referred to the Expert;

9.10.4. if the Expert dies or becomes unwilling or incapable of acting, or does not deliver the decision within the time required by this paragraph 9.10.4, then:

9.10.4.1. either party may apply to the CEDR to discharge the Expert and to appoint a replacement Expert with the required expertise; and

9.10.4.2. this paragraph 9.10 shall apply to the new Expert as if he were the first Expert appointed.

9.10.5. The parties are entitled to make submissions to the Expert including oral submissions and will provide (or procure that others provide) the Expert with such assistance and documents as the Expert reasonably requires for the purpose of reaching a decision.

9.10.6. Each party shall with reasonable promptness supply each other with all information and give each other access to all documentation and personnel and/or things as the other party may reasonably require to make a submission under this paragraph 9.10.6 (for the avoidance of doubt nothing in this paragraph will constitute any waiver of legal privilege nor oblige a party to disclose privileged information).

9.10.7. The Expert shall act as an expert and not as an arbitrator, the Expert shall determine the amount of Savings recognised in accordance with methodologies contained in the Engagement Letter and/or the level of relevant consultant may days which are billable by Efficio. The Expert’s written decision on the matters referred to him shall be final and binding on the parties in the absence of manifest error or fraud

9.10.8. The Expert may direct that any legal costs and expenses incurred by a party in respect of the determination shall be paid by another party to the determination on the general principle that costs should follow the event, except where it appears to the Expert that, in the circumstances, this is not appropriate in relation to the whole or part of such costs. The Expert’s fees and any costs properly incurred by him in arriving at his determination (including any fees and costs of any advisers appointed by the Expert) shall be borne by the parties equally or in such other proportions as the Expert shall direct.

9.10.9. All matters concerning the process and result of the determination by the Expert shall be kept confidential among the parties and the Expert.

9.10.10. Each party shall act reasonably and co-operate to give effect to the provisions of this paragraph 9 including acting promptly and in good faith at all times in relation to the appointment of the Expert and the agreement of the Expert’s terms of appointment and otherwise do nothing to hinder or prevent the Expert from reaching his determination. Each party agrees not to unreasonably withhold any consent which may be required at any time in relation to the Expert determination process contemplated by this paragraph 9.

10. Limitation of Liability

10.1. This paragraph 10 sets out the entire financial liability of Efficio (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client arising out of or in connection with this Agreement including without limitation in respect of:

10.1.1. any breach of this Agreement;

10.1.2. any use made by the Client of the Services, the Efficio IP, the Deliverables or any part of them; and

10.1.3. any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.

10.2. All warranties, conditions and other terms implied by statute of common law are, to the fullest extent permitted by law, excluded from this Agreement. Efficio makes no representation or warranty, express or implied, regarding suitability, originality, fitness for a particular use or purpose, or results to be derived from the use of any materials, Deliverables or Services provided under this Agreement. Efficio does not guarantee that any recommendations may be implemented at the cost or with the results that Efficio may estimate or project or that any work, product or Deliverable will be error free

10.3. Nothing in this paragraph limits or excludes the liability of Efficio:

10.3.1. for death or personal injury resulting from negligence;

10.3.2. for fraud or fraudulent misrepresentation by Efficio.

10.4. Subject to paragraph 10.2 and 10.3, Efficio shall not be liable, whether in tort (including fraud, negligence or breach of statutory duty), contract, misrepresentation or otherwise for:

10.4.1. loss of profit; or

10.4.2. loss of business; or

10.4.3. depletion of goodwill and/or similar losses; or

10.4.4. loss of anticipated savings; or

10.4.5. loss of use or interruption of business; or

10.4.6. loss or corruption of data or information;

10.4.7. loss or corruption of data or information;

10.5. Efficio’s total liability in contract tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of this Agreement shall be limited to the fees paid (excluding payments for taxes and expenses by the Client to Efficio for the Services) during the 12 months immediately preceding the date on which the claim arose.

11. Status of Efficio

11.1 Efficio will be acting solely as an independent contractor in performing the Services and neither Efficio nor any of its employees, associated consultants or sub-contractors shall be deemed to be employees of the Client for any purpose.

11.2. The Terms of Engagement constitute a contract for services with the Client and the Client acknowledges that Efficio (and all of its employees, associated consultants or sub-contractors) provides expert procurement consultancy services and at no time provides staff augmentation or provision of manpower.

11.3. Nothing in the Terms of Engagement is intended to, or shall operate to, create a partnership between the parties or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

12. Suspension/Termination

12.1. Subject to paragraph 12.3, this Agreement shall terminate automatically on completion of the project or assignment as set out in the Engagement Letter.

12.2. Without prejudice to any other rights or remedies which the parties may have, either party may, at any time and for any reason, suspend the performance of the Services and/or terminate Efficio’s engagement to perform the Services, in whole or in part, by giving not less than 30 days written notice to the other party or immediately on giving notice to the other if:

12.2.1. the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 15 days after being notified in writing to make such payment

12.2.2. the other party commits a material breach of any of the Terms of Engagement and (if such breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or

12.2.3. an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party or an order is made for the appointment of an administrator to manage the affairs, business and property of the other party; or

12.2.4. a receiver is appointed of any of the other party’s assets or undertaking; or

12.2.5. the other party ceases, or threatens to cease, to trade; or

12.2.6. the other party takes or suffers any similar or another action in any jurisdiction in consequence of debt; or

12.2.7 (in relation only to Efficio’s rights of suspension and/or termination), the Client has failed to provide to Efficio a purchase order in accordance with the Engagement Letter or within 15 days of request in writing by Efficio.

12.3. Upon termination of this Agreement for any reason

12.3.1. the Client shall immediately pay to Efficio (i) all of Efficio’s outstanding unpaid invoices, (ii) the bonus fee payable upon early termination as set out in the Engagement Letter and (iii) interest and, in respect of Services supplied but for which no invoice has been submitted, Efficio may submit an invoice, which shall be payable immediately on receipt;

12.3.2. each party shall return and make no further use of any equipment, property, documentation and other items (and all copies of them) belonging to the other party;

12.3.3. Efficio may destroy or otherwise dispose of any of the Client Data in its possession unless Efficio receives, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to the Client of the then most recent back-up of the Client Data. Efficio shall use reasonable commercial endeavours to deliver the back-up to the Client within 30 days of its receipt of such a written request, provided that the Client has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Client shall pay all reasonable expenses incurred by Efficio in returning or disposing of Client Data; and

12.3.4. the accrued rights of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.

13. Publicity

Save with the prior written consent of Efficio, the Client shall not publicly disclose (in any press release, prospectus, offer document or otherwise) that Efficio is performing the Services, the nature of the Services or any Deliverables

14. Employees of Efficio

14.1. During the provision of Services by Efficio and for a period of one year after the termination of the Agreement for any reason, the Client shall not directly or indirectly:

14.1.1. enter into an agreement or arrangement for the provision of services (including as an officer, employee, partner, consultant, sub-contractor, agent or otherwise) with any current or former employee of Efficio or any consultant or sub-contractor engaged by Efficio (“Efficio Personnel”) who, at the time of entering into such agreement or arrangement with the Client, is providing or has at any time in the past year provided any Services to the Client under the Terms of Engagement; or

14.1.2. solicit, induce, persuade or attempt to solicit, induce or persuade any Efficio Personnel who is providing or has provided the Services to the Client under the Terms of Engagement to terminate his or her employment or consultancy agreement with Efficio.

14.2. Should the Client breach any provision of paragraph 14.1 above, the Client agrees to pay to Efficio on demand an introduction fee equivalent to 25% of the annualised payments made to the relevant Efficio Personnel prior to the breach calculated at 35 hours per week over 52 weeks.

15. Force Majeure

Efficio shall have no liability to the Client under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes, failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.

16. Compliance with Laws and Policies

16.1. In performing its obligations under the agreement, both parties shall comply with:

161.1. all applicable laws, statutes and regulations from time to time in force; and

16.1.2. Efficio’s policies (as amended from time to time) as follows, or have and maintain throughout the term of this agreement its own policies and procedures to ensure its compliance: (i) modern slavery and human trafficking; (ii) corporate and social responsibility; (iii) anti-bribery and anti-corruption; (iv) ethics; and (v) data and privacy

16.2. Without prejudice to the generality of paragraph 16.1, neither party will engage in any activity, practice or conduct which would constitute an offence:

16.2.1. under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK; and

16.2.2. under sections 1, 2 or 4, of the Modern Slavery Act 2015 if such activity, practice or conduct were carried out in the UK.

16.3. Either party may terminate this agreement with immediate effect by giving written notice to the other if that other commits a breach of paragraph 16.1.

17. Data Protection

17.1. For the purposes of this paragraph, “Data Protection Legislation” is: (a) up to but excluding 25 May 2018, the Data Protection Act 1998 and thereafter (i) unless and until the General Data Protection Regulation ((EU) 2016/679) (GDPR) is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK; and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998 (DPA); and (b) the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426) (Privacy Regulations) as amended by the Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2011 (SI 2011/1208); the Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2015 (SI 2015/355); and the Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2016 (SI 2016/524). “Data controller”, “data processor”, “personal data” and “data subject” have the meanings in the Data Protection Legislation.

17.2. The parties acknowledge and agree that, the primary purpose of the Services is not the processing of personal data and the primary content of the Client Data is not personal data. To the extent the Client Data contains personal data, the Client will be considered the data controller of the same with rights to determine the purposes for which the personal data is analysed, reviewed, disclosed or processed. Nothing in the Terms of Engagement will restrict or limit in any way the Client’s rights or obligations as owner and/or data controller of the personal data for such purposes. The parties further acknowledge and agree that, for the purposes of the Data Protection Laws, Efficio will be considered the data processor of the personal data. As data controller of the personal data, the Client is directing Efficio to analyse, review, disclose or process, as applicable, Client Data in accordance with these Terms of Engagement.

17.3. Both parties will comply with all applicable requirements of the Data Protection Legislation. This paragraph 17.3 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.

17.4. Without prejudice to the generality of paragraph 17.3, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Efficio for the duration and purposes of this agreement.

17.5. Without prejudice to the generality of paragraph 17.3, Efficio shall, in relation to any Personal Data processed in connection with the performance by Efficio of its obligations under this agreement:

17.5.1. process that personal data only on the written instructions of the Client unless Efficio is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Supplier to process personal data;

17.5.2. ensure that it has in place appropriate technical and organisational measures, 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 data to be protected, having regard to the state of technological development and the cost of implementing any measures;

17.5.3. ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and

17.5.4. not transfer any personal data outside of the European Economic Area unless Efficio has provided appropriate safeguards in relation to the transfer and the data subject has enforceable rights and effective legal remedies;

17.5.5. 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;

17.5.6. notify the Client without undue delay on becoming aware of a personal data breach

17.5.7. at the written direction of the Client, delete or return Personal Data and copies thereof to the Client on termination of the agreement unless required by applicable law to store the Personal Data; and

17.5.8. maintain complete and accurate records and information to demonstrate its compliance with this clause 17 and allow for audits by the Client or the Client’s designated auditor.

17.6. The Client consents to Efficio appointing third party processors of Personal Data under this agreement for the purposes of assisting with the provision of the Services. Efficio will inform the Client of the identify of such third parties from time to time and Efficio confirms that it has entered or (as the case may be) will enter with the third party processor into a written agreement incorporating terms which are substantially similar to those set out in this agreement. As between the Client and Efficio, Efficio shall remain fully liable for all acts or omissions of any third party processor appointed by it pursuant to this clause 17.6.

17.7. Either party may, at any time on not less than 30 days’ notice, revise this agreement by replacing it with any applicable controller to processor standard clauses or similar terms forming party of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).

18. Waiver

18.1. A waiver of any right of this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.

18.2. Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.

19. Severance

19.1. If any provision (or part of a provision) or this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable, or illegal, the other provisions will remain in force.

19.2. If any invalid, enforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, that provision will apply with whatever modification is necessary to make it valid, enforceable and legal.

19.3. The parties agree, in the circumstances referred to in paragraph 19.1 and if paragraph 19.2 does not apply, to attempt to substitute for any invalid, unenforceable or illegal provision a valid, enforceable and legal provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision.

20. Status of pre-contractual statements

Each of the parties acknowledges in entering into the Terms of Engagement that it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to the Terms of Engagement or not) relating to the subject matter of this Agreement, other than as expressly set out in the Terms of Engagement.

21. Assignment

21.1. The Client shall not, without the prior written consent of Efficio, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

21.2. Efficio may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

22. Rights of Third Parties

This Agreement is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else.

23. Variation

No variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

24. Governing Law and Jurisdiction

24.1. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the law of England and Wales.

24.2. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter.