Terms and Conditions
Statement of Work’s Terms and Conditions
Last update: 07/06/2022
These terms and conditions (“Terms”) form part of the agreement between customer (“Customer” or “You”) and Cloud Orca Limited (“Cloud Orca”, “Supplier” or “We”) (each “Party” and collectively “Parties”) for products and services (“Services”) supplied by Cloud Orca to Customer in accordance with the statement of work agreed and signed by Customer and Supplier and these Terms (“Agreement”).
Please read these Terms carefully.
1. DEFINITION AND INTERPRETATION
1.1. Unless otherwise stated, the terms with specific meanings apply to these Terms are as follows:
Acceptance Criteria means the acceptance criteria for Deliverables agreed in writing by Customer and Supplier within and before the end of the project scoping and data modelling period specified in the project timeline section in SoW.
Agreement means the supply of services agreement between Customer and Supplier consisting of SoW, these Terms, and any Change of Scope Form signed by Customer and Supplier.
Business Day means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Change of Scope means any change of scope or execution of any Services or Deliverables pursuant to clause 5.3.
Change of Scope Form means the form used for Change of Scope which, once signed by Customer and Supplier, shall form part of Agreement.
Confidential Information means any information that is not in the public domain and is intended to be protected from disclosure (whether it is proprietary in nature or whether by contract, legal protections such as trade secret laws, or other means). Information may be confidential irrespective of whether it is specifically labelled “confidential”, “proprietary” or otherwise, or whether it is oral, written, drawn or stored electronically. Alternatively, labelling information “confidential” or “proprietary” or other classification does not automatically make the information Confidential Information.
Control has the meaning given in section 1124 of Corporation Tax Act 2010, and the expression change of Control shall be construed accordingly.
Customer means the person or firm who purchases Services from Supplier.
Customer’s Equipment means any equipment, including computer equipment, systems, cabling or facilities, provided by Customer, its agents, subcontractors or consultants which is used directly or indirectly in the supply of Services including any such items may be specified in SoW.
Customer’s Project Manager means the individual appointed by Customer in respect of Services to be performed, as identified in SoW or confirmed to Supplier in writing prior to the start of performance of Services.
Data Protection Legislation means all applicable personal data protection and privacy legislation in force from time to time in the United Kingdom, including but not limited to General Data Protection Regulation (“UK GDPR”); Data Protection Act 2018 and Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
Deliverables means the deliverables set out in SoW produced by Supplier for Customer.
Intellectual Property means algorithms, APIs, databases, data collections, diagrams, formulae, inventions (whether or not patentable), know-how, logos, designs, marks (including brand names, product names, logos, work titles and slogans), methods, network configurations and architectures, processes, proprietary information, protocols, schematics, specifications, software, software code (in any form, including source code and executable or object code), subroutines, techniques, user interfaces, URLs, websites, works of authorship (including written, audio and visual materials) and other forms of technology (whether or not embodied in any tangible form and including all tangible embodiments of the foregoing).
Intellectual Property Rights means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, 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), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Services means any and all products and / or services, including Deliverables, set out in SoW and in any signed Change of Scope Form supplied or produced by Supplier to Customer in accordance with these Terms.
Services Fees means fees payable for Services, as set out in SoW and / or fees for Change of Scope.
Statement of Work (“SoW”) means the description or specification of Services agreed in writing and signed by Supplier and Customer.
Supplier means Cloud Orca Limited who supplies Services to Customer.
Supplier’s Equipment means any equipment, including tools, computer systems, cabling or facilities, provided by Supplier to Customer and used directly or indirectly in the supply of Services.
Supplier’s Project Manager means the individual appointed by Supplier in respect of Services to be performed, as identified in SoW or confirmed to Customer in writing prior to the start of performance of Services.
User Acceptance Testing (“UAT”) means the tests that are to be run on Deliverables by Customer to determine whether Deliverables complies with Acceptance Criteria.
UAT Period means the period of time allocated for UAT, including time required for tweaks and reworks to the solution.
1.2. Unless otherwise stated, these Terms are interpreted as follows:
all headings, titles and captions are for convenience only, and shall not define, describe, limit or extend the scope or intent of these Terms;
words denoting singular shall include plural and vice versa; and words denoting gender shall include all genders;
person includes natural person, corporate or unincorporated body (whether or not having separate legal personality);
reference to company shall include any company, corporation or other body corporate, whenever and however incorporated or established;
reference to clause, section, paragraph and schedule is reference to respectively clause, section, paragraph and schedule;
reference to statute or statutory provision is reference to it as amended, extended or re-enacted from time to time;
reference to communication form in writing includes email communication;
any obligation on a Party not to do something includes an obligation not to allow such to be done; and
any words following the terms “including”, “include”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. COMMENCEMENT AND DURATION
2.1. The term of Agreement shall commerce and expire on the first milestone’s start date and last milestone’s end date specified in the project timeline section in SoW respectively. The expiry date of Agreement may be altered as part of Change of Scope under the procedure stipulated in clause 5.3.
3. SUPPLIER’S RESPONSIBILITIES
3.1. Supplier shall use reasonable endeavours to supply Services, including delivering Deliverables, to Customer, in accordance with SoW, any signed Change of Scope Form and these Terms in all material respects.
3.2. Supplier shall endeavour to meet such matters specified in SoW and any signed Change of Scope Form, but any such dates shall be estimated only and time for performance by Supplier shall not be of the essence of Agreement.
3.3. Supplier’s Project Manager shall act on behalf of Supplier and have authority to contractually bind Supplier on all matters relating to the relevant Services. Supplier shall use reasonable endeavours to ensure that the same person will be Supplier’s Project Manager throughout the term of Agreement but may replace that person from time to time where reasonably necessary in the interests of Supplier’s business.
3.4. Supplier shall use reasonable endeavours to observe all health and safety and security requirements that apply at Customer’s premises and that have been communicated to and with Customer, but Supplier shall not be liable under these Terms if, as a result of such observation, it is in breach of any of its obligations under these Terms.
4. CUSTOMER’S OBLIGATIONS
4.1. Customer acknowledges and agrees that its cooperation and the cooperation of its employees are essential to the successful providing of Services, and agrees to collaborate with Supplier so that Supplier may provide the Services. Customer shall:
a) cooperate with Supplier in all matters relating to Services, including, matters such as furnishing all of the information and documentation necessary to carry out any task to perform Services, giving the approvals that Supplier needs in reasonable time, reviewing reports and providing the necessary support so as to facilitate and ensure that no measure that may interfere with Service provision is taken;
b) provide access, in the shortest possible time, to Supplier and all related personnel, including the management and Customer’s information and documentation providers and Services users, to the fullest extent required by Supplier and deemed reasonable by Customer;
c) pay Supplier in accordance with SoW, any signed Change of Scope Form and clause 6, which may include deposit in advance of any performance of Services;
d) provide Supplier (including its agents, subcontractors, consultants and / or employees), in a timely manner and at no charge, access to Customer’s premises, office accommodation, data and other facilities as required by Supplier for Supplier to perform and deliver Services;
e) provide to Supplier, in a timely manner, all documents, information, items, materials in any form (whether owned by Customer or a third party) and / or system access required under SoW or otherwise reasonably required by Supplier in connection with Services and ensure that they are accurate and complete in all material respects;
f) be responsible for extracting the data from any required sources, ensuring any data required to be imported to Supplier’s systems must be cleansed and in Supplier’s pre-defined templates and / or formats. Customer shall be responsible for correcting any errors in its provided data, including in case of data corruption.
g) obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable Supplier to supply and deliver Services, including in relation to necessary assignment of Customer software licences to Supplier, the use of all necessary Customer data and access to Customer’s systems, in all cases throughout Supplier’s performance of Services; and
h) comply with any additional responsibilities of Customer as set out in SoW.
4.2. Customer’s Project Manager shall act on behalf of Customer and have authority to contractually bind Customer on all matters relating to the relevant Services, including requesting and agreeing any Change of Scope.
5.1. Supplier undertakes to supply Services to Customer in accordance and compliance with the provisions of these Terms, SoW and any signed Change of Scope Form.
5.2. UAT shall take place within UAT Period, and the time and length of UAT Period are as agreed on SoW, and Customer shall inform Supplier for any deficiency of Deliverables immediately upon discovery during UAT Period. Customer’s Project Manager and Supplier’s Project Manager, or persons designated for UAT of Parties shall communicate with each other closely and timely throughout UAT Period to ensure UAT is conducted properly and smoothly, and any deficiency of Deliverables shall be reported immediately upon discovery during UAT Period.
Upon the end of UAT Period, Customer shall, in good faith and with reasonable judgement, give written acceptance to Deliverables in accordance with Acceptance Criteria, unless there is any outstanding deficiency of Deliverables that Customer has already informed Supplier during UAT period. Notwithstanding, if Customer fails to give the written acceptance to Supplier for any reason within five (5) Business Days and there is no outstanding deficiency of Deliverables that Customer has already informed Supplier during UAT Period, all Deliverables shall be deemed accepted by Customer.
For the avoidance of doubt, deficiency of Deliverables means Deliverables which do not meet Acceptance Criteria or do not function properly as reasonably expected by ordinary users.
5.3. All Services supplied by Supplier to Customer must be prior agreed in SoW, and no amendment shall be made except in accordance with the procedure as follows:
i. Party who wishes to change the scope or execution of any Services, including Deliverables or periods specified in the timeline section in SoW, shall discuss with the other Party in good faith to at least cover:
a) an estimated time to implement the proposed change;
b) any additional Services Fees for implementation of the proposed change; and
c) any other impact with regard to Agreement.
ii. Supplier shall document outcomes of the discussion inclusive of a) to c) above in Change of Scope Form and send the same to Customer.
iii. Customer shall review the received Change of Scope Form and sign the same to agree on the proposed change.
Unless and until any Change of Scope and related additional Services Fees are agreed in writing pursuant to this clause, Customer and Supplier shall continue to perform in accordance with SoW.
Notwithstanding, Supplier may, at Supplier’s sole discretion, from time to time and without notice to Customer, change Services and / or Deliverables in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect nature, function or Services Fees for Services and Deliverables.
5.4. Customer acknowledges and agrees that circumstances may occur beyond Supplier’s reasonable control which may affect Supplier’s performance of Services, such as certain Salesforce integration projects that involve third-party applications interfering Supplier’s performance of Services and affecting Supplier’s Services delivery. In this kind of circumstances, Supplier shall be entitled to factor the related cost into Services Fees.
5.5. If Supplier’s performance of its obligations under Agreement is prevented or delayed by any action, inaction or omission of Customer, its agents, subcontractors, consultants or employees then, without prejudice to any other right or remedy Supplier may have, Supplier shall be entitled and allowed an extension of time to perform its obligations equal to the delay caused by Customer.
6. SERVICES FEES, PAYMENT AND EXPENSES
6.1. In consideration of the provision of Services supplied by Supplier, Customer shall pay Services Fees at once or by instalments with initial deposit before any Services performed by Supplier, whichever is agreed in SoW and / or signed Change of Scope Form. Services Fees shall be paid in British Pound Sterling (GBP/£), unless otherwise specified in SoW or agreed in writing by Customer and Supplier.
6.2. If Services Fees are fixed fees, Supplier will issue invoice to Customer for Services Fees and related value-added tax (“VAT”) in accordance with SoW and signed Change of Scope Form or, if Services Fees are agreed to be calculated on a time and materials basis, Supplier shall issue an invoice with breakdown of time and items chargeable to Customer for Services Fees in arrears for Supplier’s charges for time, expenses, materials and related VAT on a weekly basis, or otherwise agreed in writing by Customer and Supplier. Customer shall pay Supplier the invoice amount in full and in cleared funds by way of the method nominated in SoW or otherwise in writing by Supplier from time to time within seven (7) calendar days from the date of the invoice issued by Supplier, failing which Supplier will be entitled to not to start performing or suspend supplying Services to Customer immediately until the invoice amount are paid in full and cleared.
6.3. Customer shall reimburse all reasonable expenses properly and necessarily incurred by Supplier for Services, subject to production of receipts or other appropriate evidence of payment. If any individual of Supplier is required to travel (abroad or not) to supply Services, Supplier shall be responsible for any necessary insurances, inoculations and immigration requirements, as applicable.
6.4. Unless otherwise stated, Services Fees exclude the cost (a) of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by individuals whom Supplier engages in connection with Services; and (b) to Supplier of any materials or services procured by Supplier from third parties for the provision of Services as such items and their costs are set out in SoW. These costs, including any related VAT, shall be payable by Customer, and Supplier shall submit invoices supported by relevant receipts within thirty (30) calendar days from the day of such expenses to Customer for reimbursement.
6.5. Time of payment is of the essence. Without prejudice and in addition to any other right or remedy that Supplier may have pursuant to these Terms or by law, Customer fails to pay Supplier any sum due under SoW and these Terms on the due date, Supplier shall be entitled to and at Supplier’s sole discretion, charge interest on that overdue sum from the due date until that overdue sum is paid in full and cleared, and Customer shall pay such interest. Interest under this clause shall accrue, from the payment due date and on a daily basis, each day at 8% a year above the Bank of England’s base rate from time to time, but at 8% a year for any period when that base rate is below 0%, until actual payment is made in full and cleared.
6.6. Any and all VAT chargeable under these Terms and SoW is payable by Customer in addition to and at the same time of Services Fees, which 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).
7. COMPLIANCE WITH LAWS AND POLICIES
7.1. In addition to applicable laws, Supplier shall comply with Mandatory Policies that Customer may have in place, provided that they are reasonable and reasonably practicable in performing Supplier’s obligations under Agreement, and Customer shall give Supplier not less than 30 days’ notice of any change to such Mandatory Policies.
7.2. If any Change of Scope is required for the compliance purposes under clause 7.1, the procedure and exception to the procedure under clause 5.3 apply.
8. INTELLECTUAL PROPERTY RIGHTS
8.1. Supplier assigns to Customer any Intellectual Property Rights in any Deliverables specifically created, prepared or developed by Supplier under Agreement for, on behalf of, or in conjunction with Customer or its Affiliates, to the fullest extent permitted. Supplier shall, as appropriate, communicate to Customer full information regarding the creation of any such Deliverables.
8.2. Deliverables shall be regarded as proprietary Confidential Information of the Customer.
8.3. Supplier shall, promptly at Customer’s request, do (or procure to be done) or execute such instruments or documents as Customer shall request in order to register, establish, maintain, perfect or defend its exclusive legal rights in or to such Deliverables.
8.4. Unless otherwise agreed between Customer and Supplier, Services Fees do not include any licences or authorisations of the holders or owners of the tools, computer programmes and / or software on which Supplier shall use to execute or perform Services.
8.5. Pre-existing rights shall mean for the purpose of Agreement any and all Intellectual Property Rights that existed before the entry into force of Agreement and which belong to each Party or to third parties. Each Party shall retain exclusive Intellectual Property Rights over such pre-existing rights. In this respect, Supplier shall retain all rights, ownerships and interests over all the engineering tasks, methodologies, procedures, techniques, trade secrets, work documents and know-how developed by Supplier as pre-existing rights.
9. PERSONAL DATA PROCESSING
9.1. Unless expressly stated otherwise in these Terms, the definitions in article 4 of UK GDPR apply.
9.2. Both Parties shall comply with all applicable requirements of Data Protection Legislation. Clause 9 is in addition to, and does not relieve, remove or replace, either Party’s obligations or rights under Data Protection Legislation.
9.3. Parties acknowledge that for the purposes of Data Protection Legislation, Customer is the controller, and Supplier is the processor.
9.4. Without prejudice to the generality of clause 9.2,
a) Customer shall ensure having all necessary appropriate consents and notices in place to enable lawful transfer of personal data to Supplier for performance of Services throughout the term of Agreement;
b) Supplier shall only process personal data supplied by Customer strictly in accordance with Customer’s written instruction, and ensure that all personnel who have access to and / or process such personal data are obliged to fully comply with Data Protection Legislation, unless any personal data processing, sharing or disclosure is compelled by applicable laws or orders from courts of competent jurisdictions which, to the extent permitted by law, Supplier is required to promptly notify Customer in advance of such personal data processing, sharing or disclosure;
c) Supplier shall ensure having appropriate technical and organisational measures in place to protect against unauthorised or unlawful access to or 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 (those measures may include, where appropriate, pseudonymisation and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it). These measures shall be reviewed and approved by Customer;
d) Supplier shall not transfer any personal data supplied by Customer outside of the United Kingdom without prior written consent from Customer, except pursuant to clause 9.5. Notwithstanding, any transfer of personal data outside the United Kingdom must fulfill the appropriate safeguard requirements, such as adequacy decisions or international data transfer agreement, and have in place effective legal remedies available to data subjects;
e) Supplier shall notify Customer immediately after discovery or upon being aware of any personal data breach; and
f) unless prohibited by applicable laws, Supplier shall delete or return any personal data and all related copies to Customer upon Customer’s written instruction.
9.5. Customer acknowledges and agrees that Supplier may subcontract all or part of the commissioned processing to Cloud Orca Philippines Company in Philippines. Notwithstanding, Supplier acknowledges and agrees that Supplier will fully comply with Data Protection Legislation for any transfer of personal data outside of the United Kingdom, and is fully accountable and liable to all actions, inactions and omissions of Cloud Orca Philippines Company in personal data processing under Agreement.
9.6 Supplier shall maintain complete and accurate records and information to demonstrate compliance with clause 9, and Supplier shall allow such compliance to be audited by Customer or Customer’s designated auditors upon Customer’s request.
10.1. Each Party undertakes not to, at any time throughout the term of Agreement, and for a period of 2 years after termination or expiry of Agreement, disclose to any party any Confidential Information, including but not limited to Confidential Information in relation to SoW, business, affairs, customers, clients or suppliers of the other Party or of any member of the group of companies to which the other Party belongs, except:
a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the Party’s rights or carrying out the Party’s obligations under or in connection with Agreement. Each Party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other Party’s Confidential Information comply with this clause; and / or
b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
10.2. No Party shall make, or permit any party to make, any public announcement concerning Agreement, including any details of SoW, without the other Party’s prior written consent which shall not be unreasonably withheld or delayed, except as required by law, any governmental or regulatory authority, any court or other authority of competent jurisdiction.
10.3. For the avoidance of doubt, no Party shall use the other Party’s Confidential Information for any purpose other than to perform that Party’s obligations under Agreement.
11.1. Parties confirm and warrant to each other that they have all the necessary rights, power and authority to enter into Agreement and to supply any material, information, content or access to any of them to each other for the purposes of the supply of Services.
11.2. Supplier represents and warrants that all Services shall be performed with reasonable care and skill and, if not specified in SoW, within reasonable time, within the meanings of sections 13 and 14 of Supply of Goods and Services Act 1982 respectively.
11.3. Customer represents and warrants that all materials or access provided to Supplier, including but not limited to all materials and access included in clause 4, belong to Customer and / or Customer is fully entitled and authorised to provide them to Supplier for the purpose of performing and delivering Services under SoW and any signed Change of Scope Form, and Supplier’s access to, possession and / or use of such materials or access for the purpose of performing and delivering Services to Customer under Agreement will neither infringe any legal or proprietary rights of any third party, including Intellectual Property Rights, nor violate any applicable law.
11.4. Customer represents and warrants that Customer has all the licences and authorisations mentioned in clause 8.4 which are and will be valid throughout the term of Agreement, for Supplier to use to perform and deliver Services.
12. LIMITATION OF LIABILITY
12.1. Each Party is solely responsible for all its actions, inactions and omissions under Agreement.
12.2. Supplier shall perform Services under Agreement with reasonable care, skill and diligence.
12.3. Supplier shall be liable for losses under Agreement only in accordance with the provisions set out under a) to c):
a) Supplier shall be unrestrictedly liable for losses caused intentionally or with gross negligence by Supplier, its legal representatives or senior executives and for losses caused intentionally by other assistants in performance; in respect of gross negligence of other assistants in performance, Supplier’s liability shall be as set forth in the provisions for simple negligence in c) of this clause below;
b) except for losses caused intentionally or with gross negligence by Supplier, its legal representatives or senior executives and for losses caused intentionally by other assistants in performance, Supplier shall not be liable for loss of profits, loss of anticipated savings, loss of business opportunity, loss of goodwill, or any indirect, special, incidental, consequential or exemplary damages, arising out of or in connection with Agreement or any related contracts. Supplier shall be liable for loss of data only up to the amount of typical recovery costs which would have arisen had proper and regular data backup measures been taken; and
c) Supplier shall be liable for losses caused by the breach of its primary obligations by Supplier, its legal representatives or assistants in performance. Primary obligations are such basic duties which form the essence of Agreement, which were decisive for the conclusion of Agreement and on the performance of which Customer may rely on. If Supplier breaches its primary obligations through simple negligence, then its ensuing liability shall be limited to 50% of fees owed by Customer for Services rendered.
12.4. Notwithstanding any other provision in these Terms, the liability of Parties shall not be limited in any way in respect of:
a) death or personal injury caused by negligence;
b) fraud or fraudulent misrepresentation; and / or
c) any other losses which cannot be excluded or limited by applicable law.
To the maximum extent permitted by law, any more extensive liability of Supplier is excluded.
12.5. Unless Customer notifies Supplier that Customer intends to make a claim in respect of an event within the notice period, Supplier shall have no liability for that event. The notice period for an event shall start on the day on which Customer became, or ought reasonably to have become, aware of its having grounds to make a claim in respect of the event and shall expire six (6) months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
13.1. Without affecting any other right or remedy available to it, either Party may terminate Agreement with immediate effect by giving written notice to the other Party if:
a) fails to pay any undisputed amount (being genuinely in dispute) due under SoW or signed Change of Scope Form on the due date for payment and remains in default not less than seven (7) calendar days after being notified in writing to make such payment;
b) the other Party commits a material breach of any term of Agreement and such breach is irremediable or, if such breach is remediable and fails to remedy that breach within a period of fourteen (14) calendar days after being notified in writing to do so.
c) the other Party repeatedly breaches any of the terms of Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to Agreement;
d) the other Party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of Insolvency Act 1986 (IA 1986) as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of IA 1986;
e) the other Party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other Party with one or more other companies or the solvent reconstruction of that other Party;
f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other Party (being a company, limited liability partnership or partnership) other than for the sole purpose of a scheme for a solvent amalgamation of that other Party with one or more other companies or the solvent reconstruction of that other Party;
g) an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other Party (being a company);
h) the holder of a qualifying floating charge over the assets of that other Party (being a company) has become entitled to appoint or has appointed an administrative receiver;
i) a person becomes entitled to appoint a receiver over all or any of the assets of the other Party or a receiver is appointed over all or any of the assets of the other Party;
j) a creditor or encumbrancer of the other Party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within fourteen (14) calendar days;
k) the other Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
l) any event occurs, or proceeding is taken, with respect to the other Party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13.1 a) to k).
13.2. For the purposes of clause 13.1 b), material breach means a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which the terminating party would otherwise derive from:
a) a substantial portion of Agreement; or
b) any of the obligations set out in clause 6 of these Terms.
In deciding whether any breach is material, no regard shall be had to whether it occurs by some accident, mishap, mistake or misunderstanding.
13.3. Without affecting any other right or remedy available to Supplier, Supplier may terminate Agreement with immediate effect by giving written notice to Customer if there is a change of Control of Customer.
14. CONSEQUENCES OF TERMINATION
14.1. Upon termination or expiry of Agreement,
a) Customer shall, within a reasonable time, return all of Supplier’s Equipment. Until Supplier’s Equipment has been returned to or repossessed by Supplier, Customer shall be solely responsible for its safe keeping;
b) Supplier shall, within a reasonable time, return all of Customer’s Equipment. Until Customer’s Equipment has been returned to or repossessed by Customer, Supplier shall be solely responsible for its safe keeping;
c) Supplier shall, on request, return any other materials supplied by Customer not used up in the provision of Services; and
d) any rights, remedies, obligations or liabilities of Parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of Agreement which existed at or before the date of termination or expiry shall not be affected.
14.2. Upon termination or expiry of Agreement, Customer shall on receipt immediately pay to Supplier any and all outstanding unpaid invoices and interest (to the extent not genuinely disputed) and, in respect of Services supplied but for which no invoice has been submitted, Supplier shall submit invoice for such sum within 7 calendar days, and Customer shall immediately pay to Supplier (unless the subject of genuine dispute) accordingly.
15. NON-SOLICITATION AND EMPLOYMENT
15.1. Customer shall not, without Supplier’s prior written consent, at any time from the commencement date of Agreement to the expiry of one (1) year after the end of Agreement pursuant to clause 2, solicit or entice away from Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of Supplier in the provision of Services.
15.2. Any consent given by Supplier in accordance with clause 15.1 shall be subject to Customer paying to Supplier a sum equivalent to 100% of the then current annual remuneration of Supplier’s employee, consultant or subcontractor or, if higher, 100% of the annual remuneration to be paid by Customer to that employee, consultant or subcontractor.
16.1. Customer agrees, throughout the term of Agreement until its expiry or termination pursuant to clauses 2 and 13, Customer shall not, directly or indirectly, engage or collaborate with in any form, or seek, receive or procure from, any Salesforce partner, for any services identical (or similar) to Services supplied to Customer by Supplier under Agreement. This does not apply to any unfinished engagements or collaborations Customer entered into prior to the commencement of Agreement.
17. FORCE MAJEURE
17.1. Force Majeure Event means any circumstance not within a Party’s reasonable control including, without limitation:
a) acts of God, flood, drought, earthquake or other natural disaster;
b) epidemic or pandemic or related direction of the government to suspend performance;
c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
d) nuclear, chemical or biological contamination or sonic boom;
e) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
f) collapse of buildings, fire, explosion or accident;
g) any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the Party seeking to rely on this clause, or companies in the same group as that Party); and
h) interruption or failure of utility service.
17.2. If a Party is prevented, hindered or delayed in or from performing any of its obligations under Agreement by a Force Majeure Event (“Affected Party”), Affected Party shall not be in breach of any terms of Agreement or otherwise liable for any such failure or delay in the performance of such obligations but on the condition that Affected Party complies with clause 17.5. The time for performance of such obligations shall be extended accordingly.
17.3. The corresponding obligations of the other Party will be suspended, and its time for performance of such obligations extended, to the same extent as those of Affected Party.
17.4. An event shall not be a Force Majeure Event if, and to the extent that, it arises, directly or indirectly, from the action, inaction or omission of the Party claiming Force Majeure Event or from such Party’s lack of funds.
17.5. Affected Party shall:
a) as soon as reasonably practicable after the start or once became aware of the Force Majeure Event, notify the other Party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under these Terms and SoW; and
b) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
17.6. If the Force Majeure Event prevents, hinders or delays Affected Party’s performance of its obligations for a continuous period of more than two (2) months, the Party not affected by the Force Majeure Event may terminate Agreement by giving four (4) weeks’ written notice to Affected Party.
18. ASSIGNMENT AND OTHER DEALINGS
18.1. Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights, interests or obligations under Agreement without prior written consent from Supplier.
18.2. Supplier may at any time assign, mortgage, charge, delegate, declare a trust over or deal in any other manner with any or all of its rights or interest under Agreement.
19.1. Save Change of Scope pursuant to clause 5.3, no variation of SoW shall be effective.
20.1. A waiver of any right or remedy under Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
20.2. A failure or delay by a Party to exercise any right or remedy provided under Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
20.3. A Party that waives a right or remedy provided under Agreement or by law in relation to one party or takes or fails to take any action against that party, does not affect its rights in relation to any other party.
21. RIGHTS AND REMEDIES
21.1. The rights and remedies provided under Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
22.1. If any provision or part-provision of these Terms is or becomes illegal, invalid or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of these Terms.
22.2. If any provision or part-provision of these Terms is deemed deleted pursuant to clause 22.1, Parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
23. ENTIRE AGREEMENT
23.1. Agreement constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, arrangements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
23.2. Each Party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty or otherwise (whether made innocently or negligently) that is not set out in Agreement. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in Agreement.
24.1. If there is an inconsistency between any of the provisions of SoW or any signed Change of Scope Form, the provisions of the latest signed Change of Scope Form shall prevail.
25. NO PARTNERSHIP OR AGENCY
25.1. Nothing in Agreement is intended to, or shall be deemed to, establish or attempt to establish any partnership or joint venture between Parties, constitute a Party the agent of the other Party, or authorise or attempt to authorise any party to make or enter into any commitments for or on behalf of any other party.
25.2. Each Party confirms it is acting and shall act only on its own behalf and not for the benefit of any other party.
26. THIRD PARTY RIGHTS
26.1. Unless it expressly states otherwise, Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of Agreement.
27.1. Notices given under Agreement by either Party shall be in writing and emailed to the designated email addresses addressing to the designated addressees specified in SoW, which will be deemed sufficient and received in the next Business Day such notice is sent. These do not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other alternative dispute resolution methods.
28. GOVERNING LAW
28.1. Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
29.1. Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with Agreement or its subject matter or formation.
30.1. Clauses 10, 14 – 15 and 28 – 29 of these Terms survive any expiry or termination of Agreement