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Terms and Conditions

TERMS AND CONDITIONS

(1) CDG (being Cloud Doing Good Group Limited) is in the business of providing configuration, customisation, integration, data migration and advisory services for the deployment and support of Oracle NetSuite and associated integrations.

(3) Where a client requests such services from CDG, and CDG is able and willing to provide the relevant services, CDG and the Client will enter into a separate Statement of Work (as defined below) in accordance with these Terms and Conditions.

(4) CDG acknowledges and agrees that, where applicable, the Client Affiliates (as defined below) shall be entitled to receive the benefit of the Services under these Terms and Conditions (including any Statement of Work).

  1. Definitions and Interpretation
    1. In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:

      2. Account Manager(s):

      means the individual separately appointed by each of CDG and the Client from time to time who shall serve as each Party’s respective primary contact in connection with these Terms and Conditions, or such replacement individual as notified in writing by the relevant Party to the other Party pursuant to clause 6.1.

      Affected Party:

      shall have the meaning set out in clause 12.2.

      Applicable Laws:

      means all applicable laws, statutes, regulations and codes from time to time in force.

      Business Day:

      means, any day (other than a Saturday, Sunday or public or bank holiday) on which ordinary banks are open for their full range of normal business in England.

      Business Hours:

      means the period from 9.00 am to 5.00 pm on any Business Day.

      CDG IPRs:

      shall have the meaning set out in clause 10.1.

      CDG Personnel:

      means the employee(s) and/or independent third party consultant(s) of CDG (including the Key Personnel), employed or engaged (as the case may be) by CDG (at its sole discretion) to provide the Services, whose details are set out in the relevant SoW or such additional and/or replacement employee(s) and/or independent third party consultant(s) notified to the Client by CDG from time to time in accordance with clause 4.4.

      Client Affiliate(s):

      means any subsidiary or holding company (as defined in section 1159 of the Companies Act 2006) of the Client expressly identified in a Statement of Work and who CDG agrees in writing shall be entitled to receive the benefit of the Services under these Terms and Conditions.

      Client Equipment:

      means any equipment, including tools, systems or facilities, provided by the Client and/or any of the Client Affiliates, their agents, subcontractors or consultants which is used directly or indirectly in the supply of the Services including any items specified in a Statement of Work.

      Client Materials:

      means all documents, information, items and materials in any form, whether owned by the Client, any Client Affiliates or any third party, provided or otherwise made available by the Client and/or any Client Affiliates to CDG in connection with the Services, including the items provided pursuant to clause 5.1.6.

      Client Personal Data:

      means any personal data that CDG processes in connection with these Terms and Conditions (including all SoWs) in the capacity of a processor on behalf of the Client and/or any Client Affiliate.

      Commencement Date:

      means the date set in the relevant Statement of Work.

      Confidential Information:

      means, in relation to either Party, any confidential or proprietary information which is disclosed to that Party by the other Party pursuant to or in connection with these Terms and Conditions (including all SoWs) that relates to the business, affairs, operations, customers, processes, budgets, pricing policies, product information, strategies, developments, trade secrets, know-how, personnel and suppliers of the disclosing party, together with all information derived by the receiving party from any such information and any other information clearly designated by a Party as being confidential to it (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such) or which ought reasonably be considered to be confidential.

      Control:

      has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of Control shall be construed accordingly.

      Data Protection Legislation:

      means all applicable legislation in force from time to time in the United Kingdom applicable to data protection and privacy including, but not limited to, the UK GDPR; the Data Protection Act 2018 (and regulations made thereunder); the Privacy and Electronic Communications Regulations 2003 as amended and all other legislation and regulatory requirements in force from time to time which apply to a Party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications).

      Deliverables:

      means any output(s) of the Services, any deliverables specified in any Statement of Work and any other documents, products, materials and other items developed by CDG or its agents, contractors and employees (including CDG Personnel) as part of or in relation to the Services in any form or media or otherwise provided by CDG to the Client and/or any Client Affiliates in relation to the Services, including drawings, maps, plans, diagrams, designs, pictures, computer programs, models, process approach, training materials, data, specifications and reports (including drafts).

      Fees:

      means the fees and charges payable by the Client to CDG for the Services, which shall be calculated and payable in accordance with clause 7 and the relevant Statement of Work, but excluding those items set out in clause 7.6.

      Force Majeure Event:

      means any event outside the reasonable control of either Party including without limitation acts of God, flood, drought, earthquake or other natural disaster; collapse of buildings, fire, explosion or accident; disease, virus, epidemic or pandemic (including without limitation Covid-19 and any potential mutation or variant of it and any subsequent similar outbreak), government requirements and acts or omissions, quarantine requirements, lockdown; any labour or trade dispute, strikes, industrial action or lockouts; change of statute or regulation; non-performance by suppliers or subcontractors (other than by companies in the same group as the Party seeking to rely on this clause); interruption or failure of utility service, but only to the extent that such events are not within the reasonable control of the Affected Party. For the avoidance of doubt, an inability to pay is not a Force Majeure Event.

      Intellectual Property Rights:

      means all patents, know-how, registered and unregistered trade marks and service marks (including any trade, brand or business name), domain names, registered designs, design rights, utility models, copyright (including all such rights in computer software and any database rights) and moral rights (in each case for the full period thereof and all extensions and renewals thereof), applications for any of the foregoing and the right to apply for any of the foregoing in any part of the world and any similar rights.

      Key Personnel:

      means any one or more CDG Personnel nominated by CDG as being a ‘Key Person’ in relation to the applicable Services and identified as such in the relevant SoW.

      Services:

      means the services, including any Deliverables, to be provided by CDG under these Terms and Conditions (including any Statement of Work), together with any additional services that the Parties agree to in writing as being subject to the terms and conditions of these Terms and Conditions.

      Services Commencement Date:

      means the date specified in the relevant Statement of Work.

      Services Expiry Date:

      means the date specified in the relevant Statement of Work.

      Statement of Work/SoW:

      means the detailed plan, signed by the Parties in accordance with clause 3 (Statement of Work Contract Process), which describes the Services to be provided by CDG, the timetable for their performance and the related matters listed in the template statement of work set out in Schedule 1.

      Terms and Conditions:

      Term:

      means means the terms set out in clauses 1 to 28 (inclusive) of this document, together with the Schedules and (unless otherwise expressly stated or the context otherwise requires) each Statement of Work

      means the term of these Terms and Conditions, as determined in accordance with clause 2.1

      UK GDPR:

      has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.

      VAT:

      value added tax chargeable in the UK.
    2. Unless the context otherwise requires, each reference in these Terms and Conditions to:
      1. “writing”, and any cognate expression, includes a reference to any communication effected by electronic transmission or similar means but excluding fax;
      2. a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
      3. a Schedule is a schedule to these Terms and Conditions;
      4. a clause or paragraph is a reference to a clause of these Terms and Conditions (other than the Schedules) or a paragraph of the relevant Schedule;
      5. a "Party" or the "Parties" refer to the parties to these Terms and Conditions;
      6. a company shall include any company, corporation or other body corporate, wherever and however incorporated or established;
      7. a person shall include any natural person, corporate or unincorporated body (whether or not having separate legal personality);
      8. any gender shall include any other genders;
      9. the singular number shall include the plural and vice versa;
      10. the words and phrases "other", "including" and "in particular" 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.
    3. The headings used in these Terms and Conditions and any SoW are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions or any Statement of Work.
    4. Without prejudice to clause 3.4, if there is an inconsistency between any of the provisions in the main body of these Terms and Conditions and the Schedules, the provisions in the main body of these Terms and Conditions shall prevail to the extent of that inconsistency only.
  2. Commencement and Duration
    1. The Client may from time to time request that CDG provides Services to the Client and/or any of the Client Affiliates by agreeing a Statement of Work with CDG pursuant to clause 3.
    2. Each Statement of Work shall commence on the Services Commencement Date and, unless terminated earlier in accordance with these Terms and Conditions, shall continue until the Services Expiry Date.
  3. Statement of Work Contract Process
    1. Each Statement of Work shall be agreed in the following manner:
      1. the Client shall ask CDG to provide any or all of the Services required by the Client and/or any Client Affiliate and the Client shall provide CDG with as much information as CDG reasonably requests in order to prepare a draft Statement of Work for the Services requested;
      2. following receipt of the information requested from the Client, CDG shall, as soon as reasonably practicable either:
        a)inform the Client that it is unable to provide the requested Services; or b)provide the Client with a draft Statement of Work;
      3. if CDG provides the Client with a draft Statement of Work pursuant to clause 3.1.2(b), CDG and the Client shall discuss and use reasonable endeavours to agree that draft Statement of Work
    2. Unless otherwise agreed in writing by the Parties, the Fees shall be set out in each Statement of Work.
    3. Once a Statement of Work has been agreed and signed in accordance with clause 3.1.4, no amendment shall be made to it except in accordance with the express terms of these Terms and Conditions. In respect of each signed Statement of Work, CDG shall provide the Services to the Client from the applicable Services Commencement Date in accordance with the terms of these Terms and Conditions and in accordance with the terms of that Statement of Work.
    4. Each Statement of Work, once signed by each of the Parties, shall be incorporated within and form part of these Terms and Conditions and shall not be a separate contract between the Parties. If there is an inconsistency, conflict or ambiguity between any of the provisions of these Terms and Conditions and the provisions of a Statement of Work, the provisions of the relevant Statement of Work shall prevail.
  4. Provision of the Services
    1. CDG shall make available to the Client the CDG Personnel to provide the Services on the terms of these Terms and Conditions and the relevant Statement of Work.
    2. CDG shall, during the Term, use all reasonable endeavours to provide the Services:
      1. in accordance with the terms of these Terms and Conditions and each relevant Statement of Work in all material respects;
      2. with reasonable skill and care and with reasonable diligence and expertise and in a reliable and professional manner;
      3. in accordance with all reasonable and lawful instructions given to it by the Client to ensure minimal disruption to the Client’s business (save that CDG shall not be liable or responsible under these Terms and Conditions if, as a result of such compliance, it is in breach or default of any of its obligations under these Terms and Conditions);
      4. in accordance with all Applicable Laws; and
      5. in accordance with any performance dates or delivery timetables specified in a Statement of Work, but any such dates shall be estimates only and time for performance by CDG shall not be of the essence of these Terms and Conditions.
    3. At all times, CDG shall:
      1. ensure that the CDG Personnel are suitably qualified to carry out the Services; and
      2. procure that the Key Personnel attend meetings (whether in-person or virtually) scheduled and agreed with the Client on reasonable notice and at reasonable intervals.
    4. If, at any time during the Term, CDG decides for any reason (at its sole discretion) to change by way of addition or replacement any of the CDG Personnel, it shall notify the Client in writing of its decision as soon as reasonably practicable along with the identity of the additional and/or replacement CDG Personnel.
    5. CDG reserves the right, if necessary, to alter and/or adapt the provision of the Services to comply with any Applicable Laws and CDG shall notify the Client as soon as reasonably practicable in any such event.
    6. CDG shall, during the Term, maintain in force with a reputable insurance company, adequate insurance to cover all risks that would normally be insured against by a prudent businessman in connection with the risks associated with these Terms and Conditions.
    7. If CDG’s performance of its obligations under these Terms and Conditions or any Statement of Work is prevented or delayed by any act, breach, delay, failure or omission of the Client, any Client Affiliate or their agents, subcontractors, consultants or employees, then, without prejudice to any other right or remedy it may have, CDG shall not be deemed to be in breach of these Terms and Conditions or otherwise liable to the Client and shall be allowed an extension of time to perform its obligations equal to the delay caused by the Client.
  5. Client’s Obligations
    1. The Client shall, and where applicable, shall procure that each Client Affiliate shall:
      1. co-operate with CDG in all matters relating to the Services;
      2. provide all necessary information to CDG that is reasonably requested by CDG for its provision of the Services;
      3. in the event that CDG requires the decision, approval, consent or any other communication from the Client in order to continue with the provision of the Services (or any part thereof) at any time, the Client shall provide the same in a reasonable and timely manner without undue delay;
      4. if the nature of the Services requires that CDG has access (whether physical or remote) to the Client’s and/or any Client Affiliates premises, office accommodation, data, systems, and other facilities the Client shall ensure that CDG has access to the same at the times to be agreed between CDG and the Client, in a timely manner and at no charge to CDG;
      5. inform CDG in advance of all health and safety and security requirements that apply at the Client's and/or any Client Affiliates premises from time to time;
      6. provide to CDG (and any of CDG’s agents, subcontractors, consultants and employees (including CDG Personnel)) in a timely manner all documents, information, items and materials in any form (whether owned by the Client, any Client Affiliate or any other third party) as requested by CDG from time to time in connection with the Services and ensure that they are accurate and complete and not misleading;
      7. ensure that all the Client Equipment is in good working order and suitable for the purposes for which it is used in relation to the Services and conforms to all relevant United Kingdom standards or requirements and those requirements notified to the Client by CDG from time to time;
      8. obtain and maintain all necessary licences and consents and comply with all Applicable Laws as required to enable CDG to provide the Services, including in relation to the use of all Client Materials and the use of the Client Equipment, in all cases before the date on which the relevant Services are to start;
      9. notify CDG in writing as soon as reasonably practicable after it undergoes a change of Control;
      10. not knowingly act or fail to act or otherwise do or omit to do anything which in CDG’s reasonable opinion causes (or is likely to cause) damage to and/or prejudice CDG’s good name and/or reputation; and
      11. comply with any additional obligations imposed on it as set out in a Statement of Work.
    2. The Parties acknowledge and agree that the Client shall have a direct contractual relationship with Oracle-NetSuite and potentially other third party software providers. Nothing in these Terms and Conditions or any Statement of Work purports to alter the terms of the arrangement between the Client and Oracle-NetSuite with respect to the provision of Oracle-NetSuite software and services from Oracle-NetSuite or other third party software providers to the Client and under no circumstances whatsoever shall CDG have any liability or responsibility to the Client and/or any Client Affiliate in relation to the provision, availability or performance of Oracle-NetSuite software and services or third party software.
  6. Governance
    1. The Parties acknowledge that they have each appointed an Account Manager to oversee the delivery and receipt of the Services. The Account Managers shall arrange and convene meetings (in such form and manner as agreed in writing between the Parties from time to time) on a regular basis, at least monthly, to discuss matters relating to these Terms and Conditions and each relevant Statement of Work. If either Party decides to replace its Account Manager during the Term, it shall notify the other Party of its decision in writing as soon as reasonably practicable and shall provide details of the identity of the replacement Account Manager (including an email address for the purposes of the notices provisions in clause 22).
    2. If the Client, at any time during the Term, makes enquiries of CDG as to the possibility of CDG making alterations to the existing Services and/or providing any additional services to the Services (which may include the provision of further resource in the form of additional CDG Personnel and/or an increase or decrease to the set number of contracted hours allocated to the Client where CDG provides the Services on a ‘service as a subscription’ basis), then the Parties agree to hold good faith discussions in this respect. In circumstances where CDG agrees to provide any alterations to the existing Services and/or additional services (as the case may be), the terms of such agreement (including the nature and scope of the altered and/or additional services (as applicable) and resources to be provided and any associated fees and charges) shall be recorded in writing and signed by the Parties.
  7. Fees, Payment and Records
    1. In consideration of the provision of the Services by CDG, the Client shall pay the Fees to CDG in accordance with the provisions of this clause 7 and the relevant SoW.
    2. Where CDG has agreed with the Client to provide Services on a time and materials basis:
      1. CDG’s daily fee rates for those CDG Personnel (and other employees or consultants of CDG involved in the provision of the Services) shall be as set out in the relevant SoW and are calculated on the basis of an 7.5 hour day;
      2. CDG shall be entitled to charge on a pro rata basis for part days worked by CDG Personnel;
      3. CDG shall invoice the Client monthly in arrears for its charges for time (together with VAT where appropriate) for the month concerned, calculated as provided in this clause 7 and the relevant SoW.
    3. Where the Fees are calculated on an agreed payment schedule basis, the agreed payment schedule Fees shall be as set out in the relevant SoW. An agreed payment schedule Fees basis shall include a change request process.
      1. A “Change” includes (i) any new or additional services not initially forming a part of the Services, (ii) any modification or enhancement introducing new functionality to the Services not including SoW, (iii) any material change in volume of the Services and (iv) any material change in the Services as a result of a change in Applicable Laws.
      2. CDG will use reasonable endeavours to accept and deliver the Change, on the basis of agreement from the Client to any variation in Fees based on any time rates set out in the Statement of Work and/or project delivery timing resulting from the requested Change.
      3. CDG agrees to use reasonable endeavours to minimise any requisite variation to Fees and/or project delivery timing.
    4. Where CDG has agreed with the Client to provide Services on a ‘service as a subscription’ basis:
      1. CDG shall make available to the Client the nominated CDG Personnel for the set number of contracted hours allocated to the Client in any given calendar month or calendar quarter (as applicable), as stipulated in the relevant SoW;
      2. the Fees shall be calculated on a subscription basis at a flat rate each calendar month or quarter (as applicable), as stipulated in the relevant SoW;
      3. the Client shall not be entitled to any refund and/or deduction of the Fees (or any part thereof) on the basis that the Client does not access the allocated number of contracted hours during the relevant calendar month or calendar quarter (as applicable); and
      4. any changes to the set number of contracted hours allocated to the Client, as referred to in clause 7.4.1, shall be agreed by the Parties in accordance with clause 6.2.
      5. The Fees for each phase/stage of the Services shall, where applicable, be subject to the relevant assumptions and dependencies set out in the relevant SoW which may include, for example, a specific number of iterations or prescribed guardrails.
      6. Fees shall exclude the following costs which shall be payable and shall be paid by the Client monthly in arrears, subject to submission of an appropriate invoice: the cost of hotel, subsistence, travelling (standard/economy class only) and any other ancillary expenses reasonably incurred by the CDG Personnel, provided always that CDG shall obtain the Client's written approval before incurring any such expense (such approval not to be unreasonably withheld or delayed).
      7. CDG shall invoice the Client for the Fees at the intervals specified in the relevant Statement of Work. If no intervals are so specified, CDG shall invoice the Client at the end of each month for Services performed during that month.
      8. All payments required to be made pursuant to these Terms and Conditions by either Party shall, save as otherwise stipulated in a SoW, be made within thirty (30) days of receipt by that Party of the relevant invoice. For the avoidance of doubt, the Client shall be solely responsible for payment of the Fees, notwithstanding that Client Affiliates may receive the benefit of the Services.
      9. All payments required to be made pursuant to these Terms and Conditions by either Party shall be made in Pound Sterling in cleared funds to such bank in the United Kingdom as the receiving Party may from time to time nominate in writing.
      10. Where any payment pursuant to these Terms and Conditions is required to be made on a day that is not a Business Day, it may be made on the next following Business Day.
      11. All sums payable to CDG under these Terms and Conditions:
        1. are exclusive of VAT, and the Client shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and
        2. 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).
      12. Without prejudice to clause 13.2.1, any undisputed sums which remain unpaid following the expiry of the period set out in clause 7.8 shall incur interest on a daily basis at 3% above the base rate of the Bank of England from time to time until payment is made in full of any such outstanding sums.
      13. CDG may at any time prior to the relevant anniversary of the Services Commencement Date under a SoW, increase the Fees under that SoW on an annual basis with effect from each anniversary of the Services Commencement Date provided that such increase does not exceed the percentage increase in the Retail Prices Index All Items in the 12-month period immediately preceding the relevant anniversary of the Services Commencement Date, based on the latest available figure for the percentage change over 12 months in the Consumer Prices Index All Items as published by the Office for National Statistics (or any replacement or successor body).
      14. Each Party shall:
        1. keep, or procure that there are kept, such records and books of account as are necessary to enable the amount of any sums payable pursuant to these Terms and Conditions to be accurately calculated; and
        2. at the reasonable request of the other Party and on reasonable advance notice, allow that Party or its agent to inspect those records and books of account and, to the extent that they relate to the calculation of those sums, to take copies of them (any such copies shall be treated as being Confidential Information for the purposes of these Terms and Conditions).
  8. Limitation of Liability
    1. The restrictions on liability in this clause 8 apply to every liability arising under or in connection with these Terms and Conditions including liability in contract, tort (including negligence), misrepresentation, restitution, under an indemnity or otherwise.
    2. Nothing in these Terms and Conditions excludes or limits any liability which cannot legally be excluded or limited including liability for:
      1. death or personal injury caused by negligence;
      2. fraud or fraudulent misrepresentation; and
      3. any other liability which cannot be excluded or limited by law.
    3. Subject to clauses 8.2, 8.4, 8.5, 8.6 and 8.7, CDG’s total aggregate liability howsoever arising under and/or in connection with these Terms and Conditions:
      1. for loss arising from CDG’s failure to comply with its data processing obligations under clause 15 (Data Protection), shall not exceed £500,000; and
      2. for all other loss or damage under these Terms and Conditions, shall be limited to a sum equal to 100% of the total Fees paid and payable (in respect of Services actually provided) by the Client to CDG under these Terms and Conditions.
    4. Subject to clauses 8.2, 8.5, 8.6 and 8.7, CDG’s total aggregate liability in connection with each SoW:
      1. for loss arising from CDG’s failure to comply with its data processing obligations under clause 15 (Data Protection), shall not exceed £500,000; and
      2. for all other loss or damage under these Terms and Conditions, shall be limited to a sum equal to 100% of the total Fees paid and payable (in respect of Services actually provided) by the Client to CDG under the relevant SoW.
    5. Subject to clause 8.2, CDG shall not under any circumstances whatsoever be liable under these Terms and Conditions (including each SoW) for any:
      1. loss of profits (whether direct, indirect or consequential);
      2. loss of sales or business (whether direct, indirect or consequential);
      3. loss of agreements or contracts (whether direct, indirect or consequential);
      4. loss of anticipated savings (whether direct, indirect or consequential);
      5. loss of revenue (whether direct, indirect or consequential);
      6. wasted expenditure (whether direct, indirect or consequential);
      7. loss of use or corruption of software, data or information (whether direct, indirect or consequential);
      8. loss of or damage to goodwill (whether direct, indirect or consequential); and
      9. indirect or consequential loss.
    6. Except as expressly provided in these Terms and Conditions and to the fullest extent permitted by Applicable Laws:
      1. the Client shall be solely responsible, as between the Client and CDG, for any opinions, recommendations, forecasts or other conclusions made or actions taken by the Client, any Client Affiliate, any client of the Client or a Client Affiliate or any other third party based (wholly or in part) on the results obtained from the use of the Services by the Client and/or any Client Affiliate; and
      2. CDG shall have no liability for any damage caused by errors or omissions in any information or instructions provided to CDG by the Client and/or any Client Affiliate in connection with the Services.
    7. CDG shall not be liable for any loss or damage suffered or incurred by the Client and/or any Client Affiliate that results directly or indirectly from the Client’s and/or any Client Affiliates’ failure to follow any reasonable instructions given by CDG.
    8. CDG has given certain commitments with regard to the delivery and performance of the Services in clause 4 of these Terms and Conditions. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from these Terms and Conditions.
    9. CDG and the Client acknowledge and agree that the allocation of risk and liability contained in these Terms and Conditions is reasonable in all circumstances.
  9. Warranties
    1. CDG warrants that as at the Commencement Date, it is an approved Oracle partner in relation to NetSuite configuration, operations and maintenance. CDG shall endeavour to maintain this status for the duration of these Terms and Conditions.
    2. Each Party warrants that it has full capacity and authority, and all necessary licences, permits and consents to enter into and perform these Terms and Conditions and that those signing these Terms and Conditions are duly authorised to bind the Party for whom they sign.
    3. The Client:
      1. warrants to CDG that it will, and procures that each Client Affiliate will, at all times comply with all Applicable Laws with respect to its activities under these Terms and Conditions;
      2. warrants to CDG that the receipt and use of the Client Materials and/or Client Equipment in the performance of these Terms and Conditions by CDG (including its agents, subcontractors or consultants and including the CDG Personnel) shall not infringe the rights, including any Intellectual Property Rights, of any third party; and
      3. shall indemnify and keep indemnified CDG against any and all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by CDG arising out of or in connection with any breach of the warranties set out in clause 9.3.1 and/or clause 9.3.2.
  10. Intellectual Property Rights
    1. CDG and, where applicable, its licensors shall retain ownership of any and all Intellectual Property Rights owned by or belonging to CDG (or its licensors, as the case may be), whether existing on, after or before the Commencement Date including without limitation any and all Intellectual Property Rights that may subsist in the Deliverables (excluding, for the avoidance of doubt, any Intellectual Property Rights in the Client Materials) (CDG IPRs). The Client acquires no rights in or to the CDG IPRs other than those expressly granted by these Terms and Conditions.
    2. CDG grants to the Client, or shall procure the direct grant to the Client of, a fully paid-up, worldwide, non-exclusive licence during the Term to use the CDG IPRs in connection with the Client’s receipt of the Services and for its internal business purposes (such licence to automatically expire upon the termination of these Terms and Conditions, subject always to earlier revocation by CDG).  This license shall be royalty-free, unless otherwise specified as part of a managed service offering being provided by CDG.
  11. Confidentiality
    1. Each Party undertakes that, subject to clause 11.4 and except as provided by clauses 11.2 or 11.3 or as otherwise authorised in writing by the other Party, it shall (and in relation to the Client, it shall procure that any Client Affiliate shall):
      1. keep confidential all Confidential Information;
      2. not disclose any Confidential Information to any other party without the owner’s prior written consent;
      3. not use any Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with these Terms and Conditions;
      4. not make any copies of, record in any way or part with possession of any Confidential Information; and
      5. ensure that none of its directors, officers, employees, agents, sub-contractors or advisers does any act which, if done by that Party, would be a breach of the provisions of clauses 11.1.1 to 11.1.4 (inclusive) above.
    2. CDG may only disclose the Client's Confidential Information to CDG Personnel who need to know the information for or in connection with the provision of the Services. CDG shall ensure that the CDG Personnel are aware of, and comply with, these confidentiality obligations.
    3. Each Party may disclose the other Party's Confidential Information as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
    4. Clause 11.1 shall not apply to the extent that:
      1. such information was in the possession of the Party making the disclosure, without obligation of confidentiality, prior to its disclosure; or
      2. such information was obtained from a third party without obligation of confidentiality; or
      3. such information was already in the public domain at the time of disclosure otherwise than through a breach of these Terms and Conditions; or
      4. such information was independently developed without access to the other Party's Confidential Information.
      5. The provisions of this clause 11 shall continue in force in accordance with their terms for a period of five (5) years after termination of these Terms and Conditions.
      6. Except as required by Applicable Laws, neither Party shall make, or permit any person to make, any public announcement, communication or circular concerning the terms of these Terms and Conditions without the prior written consent of the other Party (such consent not to be unreasonably withheld or delayed).
  12. Force Majeure
    1. No Party to these Terms and Conditions shall be in breach of these Terms and Conditions nor liable for any failure or delay in performing its obligations under these Terms and Conditions where such failure or delay results from a Force Majeure Event.
    2. If either Party is delayed or prevented from or hindered in performing its obligations under these Terms and Conditions by a Force Majeure Event (Affected Party), such Affected Party shall:
      1. give notice in writing of such delay or prevention to the other Party as soon as reasonably possible, stating the commencement date and extent of such delay or prevention, the cause thereof and its estimated duration;
      2. use reasonable endeavours to mitigate the effects of such delay or prevention on the performance of its obligations under these Terms and Conditions; and
      3. resume performance of its obligations as soon as reasonably possible after the removal of the cause of the delay or prevention.
    3. A Party cannot claim relief if the Force Majeure Event is directly attributable to that Party's wilful act, neglect or failure to take reasonable and proportionate precautions against the relevant Force Majeure Event.
    4. As soon as practicable following the Affected Party's notification pursuant to clause 12.2.1, the Parties shall consult with each other in good faith and use all reasonable endeavours to agree appropriate terms in an attempt to mitigate the effects of the Force Majeure Event and to facilitate the continued performance of these Terms and Conditions.
    5. The Affected Party shall notify the other Party as soon as practicable after the Force Majeure Event ceases or no longer causes the Affected Party to be delayed in complying with or being unable to comply with its obligations under these Terms and Conditions. Following such notification, these Terms and Conditions shall continue to be performed on the terms existing immediately prior to the occurrence of the Force Majeure Event unless agreed otherwise by the Parties in writing.
  13. Termination and Suspension
    1. Either Party may terminate these Terms and Conditions on not less than ninety (90) days written notice, to expire on or at any time after twelve (12) months from the Commencement Date.
    2. Either Party may immediately terminate these Terms and Conditions by giving written notice to the other Party if:
      1. any sum owing to that Party by the other Party under any of the provisions of these Terms and Conditions which is not subject to a bone fide dispute is not paid within ten (10) Business Days of the due date for payment;
      2. the other Party commits a material breach of any of the provisions of these Terms and Conditions (other than a failure to pay any amounts due under these Terms and Conditions which is dealt with under clause 13.2.1) and, if the breach is capable of remedy, fails to remedy that breach within thirty (30) days’ after being given written notice giving full particulars of the breach and requiring it to be remedied;
      3. an encumbrancer takes possession of, or where the other Party is a company, a receiver is appointed over, any of the property or assets of that other Party;
      4. the other Party makes any voluntary arrangement with its creditors or, being a company, becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
      5. the other Party, being an individual or firm, has a bankruptcy order made against it or, being a company, goes into liquidation (except for the purposes of bona fide amalgamation or re-construction and in such a manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on that other Party under these Terms and Conditions);
      6. the other Party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
      7. anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the other Party; or
      8. that other Party ceases, or threatens to cease, to carry on business.
    3. For the purposes of clause 13.2.2, a breach shall be considered capable of remedy if the Party in breach can comply with the provision in question in accordance with the terms of these Terms and Conditions in all respects.
    4. Without limiting its other rights or remedies, CDG may suspend provision of the Services under these Terms and Conditions (including any SoW) if the Client becomes subject to any of the events listed in clauses 13.2.3 to 13.2.7 (inclusive) or CDG reasonably believes that the Client is about to become subject to any of them, or if the Client fails to pay any amount due under these Terms and Conditions on the due date for payment.
    5. If CDG becomes entitled to terminate these Terms and Conditions for any breach and the breach relates to a specific Service or group of Services, CDG may terminate these Terms and Conditions in relation to the Service(s) concerned leaving these Terms and Conditions in force in respect of all other Services.
    6. If CDG becomes entitled to terminate these Terms and Conditions for any reason, CDG may elect to terminate these Terms and Conditions in whole (including all SoWs) or to terminate any one or more of all of the affected SoWs.
    7. Where these Terms and Conditions is terminated in whole, all SoWs shall automatically terminate.
    8. Without prejudice to clause 13.1, CDG may terminate any SoW for convenience at any time by giving not less than one (1) month’s prior written notice to the Client.
    9. Where either Party terminates a SoW or a SoW expires, the remainder of these Terms and Conditions and all other SoWs shall remain in full force and effect.
    10. The rights to terminate these Terms and Conditions or any SoW given by this clause 13 shall not prejudice any other right or remedy of either Party in respect of the breach concerned (if any) or any other breach.
  14. Effects of Termination
    1. Upon the termination of these Terms and Conditions for any reason and of all remaining SoWs that may have continued in force following the termination of these Terms and Conditions:
      1. any sum owing by either Party to the other Party under any of the provisions of these Terms and Conditions shall become immediately due and payable;
      2. in respect of Services supplied but for which no invoice has been submitted, CDG may submit an invoice, which shall be payable and shall be paid by the Client within fifteen (15) days of receipt;
      3. CDG shall on request return any of the Client Materials not used up in the provision of the Services;
      4. any provision of these Terms and Conditions which, either expressly or by implication is intended to come into or continue in force on or after the termination of these Terms and Conditions shall remain in full force and effect;
      5. termination shall not affect or prejudice any right to damages or other remedy which the terminating Party may have in respect of the event giving rise to the termination or any other right to damages or other remedy which any Party may have in respect of any breach of these Terms and Conditions which existed at or before the date of termination;
      6. save as provided in this clause 14 and except in respect of any accrued rights, neither Party shall be under any further obligation to the other; and
      7. each Party shall (except to the extent referred to in clause 11) immediately cease to use, either directly or indirectly, any Confidential Information, and shall promptly return to the other Party (or at the other Party’s election, destroy) any documents in its possession or control which contain or record any Confidential Information.
  15. Data Protection
    For the purpose of this clause 15, the terms Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing, appropriate technical and organisational measures and Commissioner shall have the meanings given in the Data Protection Legislation.
    1. Both Parties will comply with all applicable requirements of the Data Protection Legislation.
    2. The Parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the Controller and CDG is the Processor of Client Personal Data. The scope, nature and purpose of processing by CDG, the duration of the processing and the types of Client Personal Data and categories of Data Subject shall be as set out in the relevant Statement of Work.
    3. Without prejudice to the generality of clause 15.1, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Client Personal Data to CDG for the duration and purposes of these Terms and Conditions.
    4. Without prejudice to the generality of clause 15.1, CDG shall, in relation to any Client Personal Data processed in connection with these Terms and Conditions:
      1. process that Client Personal Data only on the documented written instructions of the Client, which shall be to process the Client Personal Data for the purposes set out in the relevant Statement of Work, unless CDG is required by Applicable Laws to otherwise process that Client Personal Data;
      2. implement appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Client Personal Data and against accidental loss or destruction of, or damage to, Client Personal Data, which the Client has reviewed and confirms are 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;
      3. ensure that any personnel engaged and authorised by CDG to process Client Personal Data keep the Client Personal Data confidential;
      4. assist the Client insofar as this is possible (taking into account the nature of the processing and the information available to CDG), and at the Client’s cost and written request, in responding to any request from a Data Subject and in ensuring the Client’s compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
      5. at the written direction of the Client, delete or return Client Personal Data and copies thereof to the Client on termination of these Terms and Conditions unless required by Applicable Laws to store the Client Personal Data. Client Personal Data shall be considered deleted where it is put beyond further use by CDG; and
      6. maintain records to demonstrate its compliance with this clause 15 and allow for reasonable audits by the Client or its designated auditor, for this purpose, on reasonable written notice and provided that:
        • a) any such audit takes place during normal Business Hours and with no unreasonable disruption to CDG’s business;
        • b)the Client (or its designated auditor) will have access only to information relating to the processing of Client Personal Data and CDG’s compliance with its associated obligations under these Terms and Conditions;
        • c)the Client (or its designated auditor) will not have access to any information that is proprietary to CDG or confidential information that CDG holds on behalf of third parties.
    5. Each Party will notify the other Party without undue delay if it becomes aware of a Personal Data Breach involving the Client Personal Data.
    6. The Client provides its prior, general authorisation for CDG to:
      1. appoint Processors to Process Client Personal Data including those referenced in the relevant Statement of Work, provided that CDG shall:
        • a)ensure that the terms on which it appoints such Processors comply with the Data Protection Legislation, and are consistent with the obligations imposed on CDG;
        • b)remain responsible for the acts and omissions of any such Processor as if they were the acts and omissions of CDG;
        • c)inform the Client of any intended changes concerning the addition or replacement of the Processors, giving the Client the opportunity to object to such changes provided that if the Client objects and cannot demonstrate, to CDG’s satisfaction, that the objection is due to an actual or likely breach of Data Protection Legislation, the Client shall indemnify CDG for any losses, damages, costs (including legal fees) and expenses suffered or incurred by CDG in accommodating the objection; and
      2. transfer Client Personal Data outside of the UK as required for the purpose of performing its obligations under these Terms and Conditions, provided that CDG shall ensure that all such transfers are effected in accordance with Data Protection Legislation. For these purposes, the Client shall promptly comply with any request of CDG, including to enter into standard data protection clauses adopted by the Commissioner from time to time.
    7. Either Party may, at any time on not less than thirty (30) days’ notice, revise this clause 15 by replacing it with any applicable controller to processor standard clauses or similar terms adopted under the Data Protection Legislation or forming part of an applicable certification scheme (which shall apply when replaced by attachment to these Terms and Conditions).
    8. CDG’s liability for losses arising from breaches of this clause 15 is set out at clause 8 (Limitation of Liability).
  16. No Waiver
    No failure or delay by either Party in exercising any of its rights or remedies under these Terms and Conditions shall be deemed to be a waiver of that right or remedy, and no waiver by either Party of a breach of any provision of these Terms and Conditions shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
  17. Costs
    Subject to any express provisions to the contrary in these Terms and Conditions, each Party to these Terms and Conditions shall pay its own costs of and incidental to the negotiation, preparation, execution and completion of these Terms and Conditions (including all SoWs).
  18. Assignment
    These Terms and Conditions is personal to the Parties. Neither Party may assign, transfer, mortgage, charge, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under these Terms and Conditions without the prior written consent of the other Party, such consent not to be unreasonably withheld.
  19. Relationship of the Parties
    Nothing in these Terms and Conditions shall constitute or be deemed to constitute a partnership, joint venture, agency or other fiduciary relationship between the Parties other than the contractual relationship expressly provided for in these Terms and Conditions.
  20. Non-Solicitation
    1. Each Party agrees that it shall not (and in the case of the Client, the Client shall procure that each Client Affiliate shall not) directly or indirectly, by or through itself, any member of its group of companies, its agent or otherwise, without the prior written consent of the other Party, at any time from the Commencement Date to the expiry of eighteen (18) months after the date of termination of these Terms and Conditions, solicit or entice away (or attempt to solicit or entice away) from the employment of the other Party any person employed or engaged by such other Party in the provision of the Services or (in the case of the Client) in the receipt of the Services.
    2. Any consent given by a Party in accordance with clause 20.1 (Consenting Party) shall be conditional upon the other Party paying to the Consenting Party a sum equivalent to 25% of the then current annual remuneration of the Consenting Party’s employee, worker or independent contractor or, if higher, 25% of the annual remuneration to be paid by the other Party to that employee, worker or independent contractor in connection with their new employment or engagement with that other Party.
  21. Third Party Rights
    1. No part of these Terms and Conditions is intended to confer rights on any third parties and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to these Terms and Conditions.
    2. Subject to clause 18, these Terms and Conditions shall continue and be binding on the transferee, successors and permitted assigns of either Party as required.
  22. Notices
    1. Any notice given to a Party under or in connection with these Terms and Conditions shall be in writing and shall be:
      1. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office address (if a company) or its principal place of business (in any other case); or
      2. sent by email to the relevant Party’s then current Account Manager (using the email address set out within the definition of ‘Account Manager(s)’ at the beginning of these Terms and Conditions or such other email address notified in writing by the relevant Party to the other Party).
    2. Any notice shall be deemed to have been received:
      1. if delivered by hand, at the time the notice is delivered to the proper address;
      2. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; and
      3. if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume, provided that in each case the sender has not received a message stating that the email cannot be delivered for any reason.
    3. This clause 22 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
  23. Entire Agreement
    1. These Terms and Conditions including any SoW contains the agreement between the Parties with respect to its subject matter and shall prevail over any inconsistent terms or conditions contained in any document presented by the Client including the Client’s purchase order, confirmation of order, or specification, or implied by law or trade custom.
    2. Nothing in this clause shall limit or exclude any liability for fraud or fraudulent misrepresentation.
  24. Variation
    Except as otherwise expressly set out in these Terms and Conditions, no variation of these Terms and Conditions shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).
  25. Counterparts
    These Terms and Conditions may be entered into in any number of counterparts and by the Parties to it on separate counterparts each of which when so executed shall be an original, but all the counterparts together shall constitute one and the same instrument.
  26. Severance
    In the event that one or more of the provisions of these Terms and Conditions is found to be unlawful, invalid or otherwise unenforceable, that/those provision(s) shall be deemed severed from the remainder of these Terms and Conditions. The remainder of these Terms and Conditions shall be valid and enforceable.
  27. Dispute Resolution
    1. Any dispute arising between the Parties out of or in connection with these Terms and Conditions shall be dealt with in accordance with this clause 27.
    2. The dispute resolution process may be initiated at any time by either Party serving a notice in writing on the other Party that a dispute has arisen. The notice shall include reasonable information as to the nature of the dispute.
    3. Within twenty (20) days of service of the notice in accordance with clause 27.2, each Party’s respective Account Manager shall in good faith meet to discuss the dispute and attempt to resolve it.
    4. The specific format for the resolution of the dispute under clause 27.3 shall be left to the reasonable discretion of the Parties, but may include the preparation and submission of statements of fact or of position.
    5. Nothing in this clause 27 shall prevent the Parties commencing or continuing court proceedings in relation to the dispute under clause 28.2 which clause shall apply at all times.
  28. Law and Jurisdiction
    1. These Terms and Conditions (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, English law.

    Subject to the provisions of clause 27, any dispute, controversy, proceedings or claim between the Parties relating to these Terms and Conditions (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the exclusive jurisdiction of the English courts, to which the Parties irrevocably submit.