The following definitions and rules of interpretation will apply.
Business Day: means a day (other than a Saturday, Sunday or public holiday in England) when banks are open for business.
Client: means the customer organisation specified in the Proposal.
Client Materials: means all Documents, information and materials provided by the Client in relation to the Contract.
Client Supplied Items: means any information, software, connectivity, configuration and data to be provided by the Client or by a third party on the Client’s behalf which Falanx Cyber requires for the provision of the Consultancy Services and as may be further specified in the Proposal and/or the Deliverables.
Commencement Date: means the commencement date or preferred start date referred to in the Proposal (including but not limited to commencement dates or preferred start dates that may be referred to in Statement of Work documents or similar) on which this Agreement takes effect.
Confidential Information: means all information which relates to the business, affairs, products, services, developments, trade secrets, personnel, customers, finances, systems, data, processes and/or methods of operation of either Party (including without limitation source code listings and software algorithms, know-how, processes, designs, software, programmes, source or object codes, databases, specifications, data, drawings, licence codes, security configuration, trade secrets, pricing, and the terms of the Proposal) or any other information which may be revealed by one Party to another (whether oral or in writing) and which may reasonably be regarded as being the confidential information of the disclosing Party (whether or not such information is expressly stated to be confidential or marked as such) and in the case of Falanx Cyber, shall include without limitation, similar information of any member of the Falanx Group.
Consultancy Services: means the manpower-based services to be provided by Falanx Cyber to the Client as described in a Proposal.
Contract: means a contract for the supply of Services between Falanx Cyber and the Client established by the written acceptance of an Order in accordance with this Agreement.
Contract Term: means the Initial Period.
“data controller”, “data processor”, “data subject”, “personal data”, “processing”, and “appropriate technical and organisational measures”: will have the meanings given to them in and be interpreted in accordance with the provisions of the EU Data Protection Directive 95/46/EC, the Data Protection Act 2018, and the General Data Protection Regulation 2016/679 (GDPR) and the rules and regulations made or having effect under it.
Deliverables: means all Documents, products and materials developed by Falanx Cyber or its agents, subcontractors, consultants and employees in relation to the Service.
Document: means and includes, in addition to any document in writing, any drawing, map, plan, quotation, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.
DP Laws and Legislation: means the EU Data Protection Directive 95/46/EC, the General Data Protection Regulation 2016/679 (GDPR), the Data Protection Act 2018 and the rules and regulations made or having effect under it, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699), the Electronic Communications Data Protection Directive 2002/58/EC, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and all applicable laws and regulations relating to processing of personal data and privacy, including where applicable the guidance and codes of practice issued by the Information Commissioner.
Effective Date: means the date of the Contract.
Falanx Cyber: means Falanx Cyber Ltd, a company incorporated in England and Wales (registered number 08224292) and having its registered office at The Blade, Abbey Square, Reading, RG1 3BE, United Kingdom, and Falanx Group together with (i) any subsidiary of the Falanx Group from time to time; (ii) any holding company of the Falanx Group from time to time; and (iii) any subsidiary from time to time of such holding company; and the terms “holding company” and “subsidiary” shall have the meanings given to them by section 1159 of the Companies Act 2006 from time to time provided always that those holding companies and subsidiaries may be registered in Great Britain or elsewhere.
Falanx Cyber Data: means all reports, findings, digital forensics analysis, and related data supplied by Falanx Cyber to the Client as part of the Services.
Falanx Cyber Materials: means all Documents and materials (including, without limitation, Falanx Cyber sales collateral, information, intellectual property, manuals and materials) provided by Falanx Cyber relating to the Services.
Good Industry Practice: means in relation to any undertaking and any circumstances the exercise of that degree of professionalism, skill, diligence, prudence and foresight which would normally and reasonably be expected from a well reputed, nationally recognised company engaged in the same or similar type of activity.
Fees: means the charges for the Services as set forth in a Proposal and the price to be paid for the Project calculated (unless otherwise indicated in the Proposal) on a time and materials basis by reference to the Rates and the amount of work undertaken by Falanx Cyber together with the costs of any software, Tools or other items specifically purchased for the purpose of carrying out the Consultancy Services.
Initial Period: means the initial time period for supply of the Services as specified in the Proposal.
Intellectual Property Rights (or IPRs): means patents, rights to inventions, copyright and related rights, moral rights, trademarks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world.
Order: means any order placed by the Client for the supply of Services and which are subject to the terms of the Proposal.
Party: means the Client or Falanx Cyber as the context requires.
Parties: means the Client and Falanx Cyber.
Project: means a customised Falanx Cyber Services project as described in a Statement of Work.
Proposal: means a Falanx Cyber document setting forth the Service proposed to the Client, complete with applicable Fees and related details.
Rates: means the rates to be charged for the Project as set out in the Proposal or rates which are notified to the Client in accordance with these Terms and Conditions.
Services: means information security solutions, supply of Falanx Cyber Data, Software, Services, manpower services and support and maintenance as set forth in the Proposal.
Service Levels: means in measurable terms, the level of service a Client will be furnished with within a given time period specified in the Proposal.
Service Definitions: means the definition of the service as released and updated from time to time by Falanx Cyber.
Service Specification: means any specification for Services set out in the relevant Proposal.
Software: means Falanx Cyber’s proprietary software in machine-readable object code form including any corrections, updates, upgrades, modifications and enhancements provided to the Client under the Contract.
Staff: means the individuals engaged by Falanx Cyber to deliver the Project which may include employees of Falanx Cyber, registered Falanx Cyber Associates or subcontractors to Falanx Cyber.
Statement of Work: means a detailed plan describing a Services Project and setting out the responsibilities, timetable, specifications, and related details.
Term: means the length and duration of the Contract.
Third Party: means an individual or organisation who is not a Party to the Agreement and does not have any rights under or in connection with it by virtue of the Contracts (Rights of Third Parties) Act 1999.
Third Party Software: means software owned or licensed by a third party and which may be delivered to the Client if specifically stated in the Proposal as a Deliverable or which may be used in the provision of the Consultancy Services.
Tools: means the software, documentation and other tools used by Falanx Cyber to deliver the Services which may also be Third Party Software.
Working Day: means a weekday (excluding any Saturday, Sunday, Public and Bank Holiday in England), from 9am to 5pm.
1.2 Clause headings and the use of bold face do not form part of or affect the interpretation of the Terms & Conditions of Supply.
1.3 References to any legislation shall include any statutory or other re-enactment or modification of that legislation (whether before or after the date of the Contract).
1.4 Where the context requires, words denoting the singular include the plural and vice versa and words denoting any gender include all genders.
1.5 References to clause and schedule numbers are to clauses and schedules in the Terms & Conditions of Supply so numbered.
1.6 Any obligation on a Party not to do something includes an obligation not to allow that thing to be done.
1.7 The Terms & Conditions of Supply shall be binding on, and ensure to the benefit of, the Parties to the Contract and their respective personal representatives, successors and permitted assigns, and references to any Party shall include that Party’s personal representatives, successors and permitted assigns.
1.8 In the event of any conflict or ambiguity in the provisions of these Terms and Conditions and the other documents constituting the Contract, the following descending order of precedence shall be applied:
(a) the Proposal; and
(b) the Terms and Conditions.
2. APPLICATION OF TERMS & CONDITIONS OF SUPPLY
2.1 The Terms & Conditions of Supply are the terms upon which Falanx Cyber is prepared to deliver the Service to the Client and they shall govern the delivery of Falanx Cyber Services to the entire exclusion of all other terms and conditions.
2.2 For a Client wanting to avail itself of Falanx Cyber Services, Falanx Cyber will prepare for the Client a Proposal detailing the Service, Deliverables and Fees, against which the Client can raise an Order.
2.3 Each Order by the Client for the supply of Services from Falanx Cyber shall be deemed to be an Offer by the Client to purchase Falanx Cyber Services subject to the Terms & Conditions of Supply.
2.4 An Order will be deemed to be accepted on:
(a) Falanx Cyber issuing written acceptance of the Order, at which point, and on which date, the relevant Contract will come into existence (the “Commencement Date”).
2.5 The Terms & Conditions of Supply apply to each Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing (including any terms or conditions which the Client purports to apply under any purchase order, confirmation of order, specification or other document).
3.1 The Term shall commence on the Commencement Date for the duration of the Project as defined in the Proposal or unless terminated in accordance with the Terms & Conditions of Supply. Unless otherwise specified in the relevant Proposal the term of this Agreement shall be twelve (12) months from the date of this Agreement.
4. FALANX CYBER’S RESPONSIBILITIES
4.1 Falanx Cyber will provide the Service with all due skill and care using suitably trained and qualified staff.
4.2 Falanx Cyber will perform the Services with levels of care, skill and diligence in accordance with the standard of Good Industry Practice.
4.3 Falanx Cyber will use all reasonable endeavours to provide the Services in material accordance with Falanx Cyber’s Proposal and that the Deliverables shall be fit for any purpose expressly or implicitly made known to the Client by Falanx Cyber.
4.4 Falanx Cyber warrants that it shall:
(a) use all reasonable endeavours to ensure that the Deliverables, and all goods, materials, standards and techniques used in providing the Service are of the best quality and are free from defects;
(b) co-operate with the Client in matters relating to the Service;
(c) before the date on which the Service is to start, obtain and, at all times, maintain during the Term, all necessary licences and consents in relation to the Service;
(d) observe all security requirements of the Client;
(e) not do or omit to do anything which may cause the Client to lose any licence, authority, consent or permission on which it relies for the purposes of conducting its business; and
(f) notify the Client in writing within 30 (thirty) working days upon the occurrence of a change of control of Falanx Cyber.
4.5 If Falanx Cyber’s performance of its obligations under the Contract is prevented or delayed by any direct act or omission of the Client, Falanx Cyber shall not be liable for any costs, fees or losses sustained or incurred by the Client that arise directly from such prevention or delay.
4.6 Falanx Cyber will use reasonable endeavours to ensure that its Staff and Associates comply with any relevant site rules and regulations notified to Falanx Cyber when at the Client’s premises.
5. CLIENT RESPONSIBILITIES
5.1 The Client will use reasonable endeavours to co-operate with Falanx Cyber in order to facilitate timely completion of the Project and will promptly notify Falanx Cyber if it becomes aware of any circumstances that may or will result in a delay to any agreed timescales or that may cause Falanx Cyber to be unable to perform its obligations under the Contract in any way.
5.2 The Client will make available free of charge and risk to Falanx Cyber at the times stated in the Proposal, or otherwise in a timely manner, all necessary personnel, materials, equipment and resources (“Client Resources”) reasonably required by Falanx Cyber to carry out the Services, and (to the extent applicable) the Client shall, at its expense, remove such Client Resources which are at Falanx Cyber’s premises and which have not been incorporated into the Deliverables, at the expiry or earlier termination of the Contract.
5.3 The Client will provide such information as may be required by Falanx Cyber for the performance of Falanx Cyber’s obligations under the Contract, such information to be as accurate and complete as possible.
5.4 The Client will provide, where applicable, adequate office accommodation and all necessary access to the areas in which the Project is to be performed at the Client’s sites, and other facilities to enable Falanx Cyber’s Staff to carry out the Project, taking all reasonable steps to ensure the health and safety of Falanx Cyber’s Staff while they are at Client sites.
5.5 The Client will use reasonable endeavours to ensure that its employees comply with Falanx Cyber’s site procedures and regulations when at Falanx Cyber’s premises.
5.6 The Client will supply the Client Supplied Items to Falanx Cyber in accordance with the due dates set out in the Proposal and/or any Statement of Work and otherwise as requested, orally or in writing.
5.7 The Client will ensure that any of its staff (including, for the avoidance of doubt, sub-contractors and Third Parties) who are or will be involved in the Project possess the appropriate skills and experience for the tasks assigned to them and are available at such times as are reasonably required by Falanx Cyber.
5.8 The Client may be required to sign an authorisation form or similar document (the “Consent Form”) giving its consent to specifics of the Services including testing targets, dates and times. Falanx Cyber shall not be required to schedule or provide any Services until the Client has signed the Consent Form.
6. CHANGE CONTROL
6.1 If either Party requests a material change to the scope or execution of the Service, Falanx Cyber shall, within a reasonable time, provide a written estimate to the Client of:
(a) the likely time required to implement the change;
(b) any necessary variations to Falanx Cyber’s Fees arising from the change; and
(c) the likely effect of the change on any applicable Proposal.
6.2 If the Client wishes Falanx Cyber to proceed with the change, Falanx Cyber has no obligation to do so unless and until the Parties have agreed in writing the necessary variations to its Fees and any applicable Proposal.
6.3 Falanx Cyber shall be entitled to increase the Rates by giving the Client not less than thirty (30) Working Days’ written notice setting out such increases. Upon any increase in the Rates, the Fees shall be adjusted accordingly.
7. FEES AND PAYMENT
7.1 In consideration of the provision of the Services by Falanx Cyber, the Client shall pay the Fees as set out in each Proposal.
7.2 The Client will provide Falanx Cyber with a valid purchase order following acceptance of the Proposal for the amount stated therein. Upon receipt of that purchase order, Falanx Cyber will invoice the Client for a percentage of the Fees. Such percentage will be 100% unless stated otherwise in the Proposal. For the avoidance of doubt, the Client’s failure to issue a valid purchase order in accordance with this clause shall not prevent Falanx Cyber from invoicing in respect of the Services at any point after acceptance of the proposed Proposal.
7.3 Falanx Cyber shall have no obligation to commence Services until a valid purchase order has been received. Failure to provide a valid purchase order as described in this clause ahead of the agreed Start Date may (at Falanx Cyber’s sole discretion) be deemed to be a cancellation of the Services by the Client for the purposes of Clause 8, below.
7.4 Any estimates of the Fees set out in the Proposal and/or the Deliverables will be expressed exclusive of Value Added Tax and any similar taxes. All such taxes are payable by the Client and shall be applied in accordance with United Kingdom legislation in force at the tax point date or the legislation of any other jurisdiction which is applicable to this Agreement.
7.5 Without prejudice to any other right or remedy that it may have, if the Client fails to pay Falanx Cyber on the due date:
(a) the Client shall pay interest on the overdue amount at the rate of 5% per annum above the Lloyds Bank plc base rate. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount;
(b) In addition to any interest charged for sums not received on or before the Payment Date, Falanx Cyber may also choose, without prejudice to any other remedy it may have at any time after payment has become due, to terminate or suspend performance of this Agreement; and
(c) Falanx Cyber may, at its discretion, suspend all Services in the event any undisputed invoice has (1) not been paid on time by the Client; and (2) Falanx Cyber has notified the Client in writing within 5 days of such delayed payment and followed up with a phone call (not voicemail) indicating that the undisputed invoice is immediately due.
7.6 All sums payable to Falanx Cyber under the Contract shall become due on its termination, despite any other provision. This clause is without prejudice to any right to claim for interest under the law, or any such right under these Terms & Conditions of Supply.
7.7 All Fees due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
8. DELAY IN DELIVERY, CLIENT CANCELLATION AND RESCHEDULING
8.1 Falanx Cyber shall use its reasonable endeavours to achieve any dates agreed for delivery but shall be under no liability for any failure to achieve such dates.
8.2 Subject to Clause 8.3, the Client may at any time prior to the performance of the Services under the Contract, by notice in writing cancel or reschedule all or some of the Services.
8.3 The Client acknowledges that cancellation or rescheduling of the Services at short notice would make reallocation of Falanx Cyber’s committed resources to alternative tasks impractical, as a result of which Falanx Cyber would suffer financial loss. Accordingly, the Client agrees that, for any notice of cancellation or rescheduling received by Falanx Cyber prior to the scheduled commencement of the Services, Falanx Cyber shall have the right to charge a percentage of the Charges for the cancelled or rescheduled Services in accordance with the following table:
|Working days before scheduled provision of the Services that notice is received by Falanx Cyber:||Falanx Cyber entitled to charge (% of Charges for cancelled or rescheduled Services):|
|Greater than 10, but fewer than 28||50%|
5 or fewer
8.4 Irrespective of the table in Clause 8.3, should the Client request a cancellation within 6 to 10 days of an agreed start date for scheduled Service provisions of ten (10)days duration or more, a rescheduling charge of 100% of the agreed charge for the Services will be payable to Falanx Cyber. Charging of Cancellation Charges is at Falanx Cyber’s discretion.
8.5 On receipt of any notice given in accordance with this Clause 8, Falanx Cyber shall cease and/or reschedule performance of the cancelled Services as soon as reasonably practicable. If the Client reschedules the Services for another date, the Fees for the Services as re-booked will be payable in addition to any Cancellation Charges.