Standard Terms and Conditions of
Contract for The Provision of Equipment and Services
The following are the standard Terms and conditions under which Strawberry Global Technology Ltd. Hereinafter referred to as “SGT” provides equipment and associated services.
In these Terms and Conditions the under-noted words and expressions shall have the following meaning:
means such documents as are agreed at date of the formation of the Contract together with such
variations in writing as shall be agreed subsequently.
means the trading entity or organisation specifically identified as the party placing the Contract with SGT.
means any trading entity with whom SGT may place order (s) for work and/or supply of goods and/or services in
connection with the Task.
means the work described in the relevant sections of the Contract and/or Appendices thereto in
respect of which the Purchaser has engaged SGT.
means the sum of money specified in the Contract as the consideration for the Task.
means all machinery, apparatus, materials, products, and articles to be provided by SGT under the
means all machinery, apparatus, materials, and articles to be provided by the Purchaser on the site
to be used in conjunction with or in association with the Equipment.
means those tests performed on items of Equipment at SGT’s premises to standard test procedures.
2.1 The acceptance of SGT’s Quotation includes the acceptance of the following Terms and conditions and of the special conditions (if any) stated in or referred to in the Quotation.
2.2 The Contract shall represent the entire agreement between the parties hereto and may not be and shall not be deemed or construed to have been modified, amended, rescinded, cancelled or waived in whole or in part, except as provided for herein or by written instruments signed by the parties hereto.
3 LIMITS OF CONTRACT
3.1 The Quotation includes only such Equipment and work as are specified therein. Notwithstanding
the above SGT reserve the right as detailed design proceeds to make minor changes to the Equipment and work, provided that such changes shall not impair the performance of the Equipment or adversely affect the Contract or the completion date.
4 SUPPLY OF INFORMATION TO SGT
4.1 The Purchaser shall provide SGT with all the information necessary to enable SGT to perform the Contract and in the event that work is delayed or the work in increased by reason of delay in the provision by the Purchaser of the necessary information or of any change or inaccuracy in such information, SGT, shall be at liberty to amend the Contract Price to compensate for any additional costs that may reasonably and properly incurred, and to extend the completion date by a reasonable period.
5 SUPPLY OF INFORMATION BY SGT
5.1 Unless otherwise specified in the Quotation all particulars of weights and dimensions submitted therein are approximations only. Descriptions and illustrations contained in advertising literature provided by SGT are intended merely to present a general idea of the subject matter thereof and shall in no way form part of the Contract.
5.2 SGT will furnish the Purchaser with such information as may reasonably be required to interface the Purchasers Plant with the Equipment.
5.3 SGT will furnish the Purchaser with all necessary documentation to enable the Purchaser to operate the Equipment.
6 COPYRIGHT OF CONFIDENTIALITY
6.1 All specifications, drawings and technical descriptions submitted with or in connection with the Quotation or the Contract are copyright.
6.2 The Purchaser shall keep confidential and not disclose to any third party without the prior consent of SGT in writing any drawings, designs or information (whether of a commercial or technical nature) acquired from SGT in connection with the Quotation or the Contract.
6.3 SGT undertakes to keep confidential and not to disclose without prior consent from the Purchaser in writing to any third party any trade or business secrets or similar confidential information supplied by the Purchaser to SGT relating to plant or processes except as may be necessary for the proper performance of the Contract.
6.4 Subclause 6.2 and 6.3 are each subject to the provision that nothing therein contained shall apply to prevent either party from disclosing information: A in its possession (with full right to disclose) prior to receiving it from the other, or B which is or later becomes public knowledge other than by breach of this clause, or C which it may independently receive from a third party (with full right to disclose)
7 PATENT INDEMNITY
7.1 SGT will indemnify the Purchaser against any claim or infringement of Letters Patent or similar protection (published at the date of the Contract) by the use or sale of the Equipment or parts thereof and against all costs and damages which may be incurred in any action for such infringement provided that this indemnity shall not apply to any infringement which is due to SGT having followed a design or instruction given by the Purchaser or the use of the Equipment or parts thereof in association or combination with the Plant or any other Equipment supplied by SGT or it’s Sub-Contractors.
Furthermore, this indemnity is also conditional upon the Purchaser giving SGT the earliest possible notice in writing of any claim being made or any action threatened or brought against the Purchaser so that SGT may at its sole discretion either procure for the Purchaser at SGT’s expense the right to continue the use of the Equipment or parts thereof or to modify or replace such Equipment or parts thereof. SGT also reserves the right in the event of any claim for action threatened or brought against the Purchaser to conduct at its own expense any litigation that may ensue and all negotiations for settlement of the claim.
7.2 The Purchaser warrants to SGT that any design or instruction given to SGT by the Purchaser will not be such as to cause infringement of any Letters Patent, Registered Design, Trademark, Trade Name, Copyright or similar protection. In the event of any such instruction being likely to cause infringement, the Purchaser will amend the contract so that, at the risk and expense of the Purchaser, SGT shall:
A disregard the existence of the conflicting rights in the satisfaction of the Task, or
B delay the implementation of the Task pending the outcome of any negotiation necessary
to obtain illustration of the conflicting right (s) by the Purchaser, or
C under-take extra development work to avoid infringement of the conflicting right (s).
8.1 The Equipment will be submitted to the standard Tests. Certification that the Equipment has passed the Standard Tests will be supplied on request. If the Purchaser wishes to be present during the Testing, at least five working days’ notice must be given to SGT who will arrange the appropriate demonstration and will advise the Purchaser of the charge thereof, if any. Should the Purchaser fail to attend any such Test or demonstration at the time appointed then the Test or demonstration shall take place as though the Purchaser were in attendance and, where practical, the results of the Test or demonstration shall be made available to the Purchaser at SGT’s premises.
9.1 Unless others specified in the Quotation, all packing containers and materials are non-returnable and no charges for packing or the materials are included except when specifically stated. Charges for the return of packing materials will not be accepted unless otherwise agreed.
10.1 Unless otherwise specified in the Quotation the cost of Transport of Equipment to the Purchaser’s site is not included in the Contract Price.
10.2 In the absence of any specific instructions from the Purchaser, SGT will select the method of Transport and the
carrier whose Standard Conditions of Carriage will then apply but by so doing SGT will not thereby assume any liability in connection with Transport nor shall the carrier in any way be deemed to be an agent of SGT.
10.3 Unless otherwise specified, SGT shall not be responsible for off-loading the Equipment and moving it to the place of installation.
11 DELIVERY, PROPERTY AND TITLE
11.1 SGT will not be liable for any loss arising directly or indirectly due to late delivery or non- delivery. Claims for goods lost or damaged in transit will only be considered if notified in writing:
(a) To the carrier in accordance with its conditions of carriage.
(b) To SGT within three days of delivery if goods are damaged or short delivered or within fourteen days from date of notification of despatch in the event of non-arrival.
11.2 Unless otherwise stated in the contract, the Purchaser will assume responsibility for providing adequate insurance of the Equipment subsequent to such delivery.
11.3 Any times quoted for delivery are to date from a written acceptance of the Purchaser’s order to proceed, and receipt of all necessary information and drawings to enable SGT to put the work in hand. The time for such delivery shall be extended by a reasonable period if delay in such delivery is caused by industrial dispute or by any cause beyond the reasonable control of SGT. Any other times quoted in the Quotation are estimates only not involving SGT in any liability for failure to meet them.
12.1 The action taken by SGT will be dependent upon the terms and conditions of the company’s suppliers and the manufacturer’s warranty.
12.2 In the case of Equipment delivered to the Purchaser that is subsequently reported as being “dead on arrival,” the Purchaser must notify SGT within 3 days of delivery.
12.3 SGT will not accept the return of any Equipment for credit that is not returned in its original packaging; is not in resaleable condition; and has not been inspected by the company’s engineers.
12.4 The acceptance of all returns will be at the discretion of SGT.
13 TERMS OF PAYMENT
13.1 Payments must be made by the Purchaser within twenty-one (21) days from the invoice date.
13.2 If SGT are unable, due to causes within the control of the Purchaser or that of other contractors, to deliver all or any of the Equipment by the date specified in the Contract, SGT shall be entitled to arrange either at their own works or elsewhere on behalf of the Purchaser; all charges for packing and storage, for insurance, for demurrage, for additional carriage, and for any re-testing and necessary refurbishing shall be payable by the Purchaser. In any case, the Purchaser will make any payment due to SGT on delivery as though delivery was made on the date of notification that the Equipment is ready for delivery.
13.3 Final payment shall not be withheld on account of minor defects or omissions in the Equipment which do not affect its use.
13.4 In signing SGT’s Credit Application Form the Purchaser agrees that the directors of their company will be personally liable for any losses incurred by SGT, or for invoices that remain unpaid, in the event of their company ceasing to trade or being unable to pay its debts.
14 CONTRACT PRICE ADJUSTMENT
14.1 If, by any reason of any rise or fall in the cost of materials, labour or transport, or of conforming to any Act of Parliament or to any order, regulation or by-law made with statutory authority by Government Departments or by local or other authorities, that shall be applicable to the Equipment above or below such costs ruling at the date of Quotation, the costs to SGT of performing its obligations under the Contract shall be increased or reduced, the amount of such increase or reduction shall be added to or deducted from the Contract Price as the case may be, provided that no account shall be taken of any amount, by which any cost incurred by SGT has been increased by its default or negligence.
14.2 In the event that SGT incur extra costs due to variation or suspension of the work by the Purchaser’s instructions or absence of instructions, or to interruptions, delays, overtime or shift work occasioned by the Purchaser, and not covered by the Contract, mistakes or work for which SGT are not responsible, or to any specified site environment or Plant conditions, the Purchaser will accept such extra costs as an addition to the Contract Price and will pay SGT accordingly.
14.3 In the event that SGT’s Quotation includes imported Equipment, the price of the Equipment will be converted into sterling at the ruling rate of exchange, which will be stated in the Quotation. The Purchaser agrees that if the rate of exchange alters by more than 5%, between the times of Quotation and importation, the Contract Price will be amended to reflect the revised Equipment Price.
15.1 SGT will, at its own discretion, repair or replace any Equipment or part supplied in accordance with the Contract, which during the twelve months immediately following delivery (the Warranty period) has been found by SGT to be defective due to SGT, or their sub-contractors’ workmanship or materials, and which has been returned prepaid to SGT. Any repair or replacement as above will be affected without Labour charge to the Purchaser, providing that the Equipment has been properly used, operated and maintained and that the SGT recommended facilities, environment conditions and instructions have been employed throughout the Warranty period.
15.2 The Warranty will not be applicable to faults attributable to:
(a) actions outside the control of SGT which affects the performance of the Equipment.
(b) The use of the Purchaser’s non-specified or any third-party programme with the
15.3 In the case of Equipment made solely in accordance with the Purchaser’s specifications and designs and in respect of any installation work carried out by, or on its own behalf, of SGT’s entire liability and the Purchasers sole remedies shall be as follows:
(a) SGT accepts liability for death or personal injury to the extent that it results from the negligence of SGT, its employees, agents or subcontractors.
(b) Subject to paragraph (d) below, SGT accepts liability for direct physical damage or tangible property to the extent that
such damage is caused by the negligence of SGT, its employees, agents or sub-contractors.
(c) The total liability of SGT to the Purchaser over the above (whether in Contract or in tort including negligence) in respect of any one cause of loss or damage claimed to result from any breach of SGT’s obligations hereunder shall be limited to actual money damaged, which shall not exceed the smaller of £1,000,000 or the cost of the Equipment provided that such monetary limit shall not apply to any liability on the part of the SGT referred to in paragraph (a) above.
(d) Except as provided in paragraph (a) but otherwise not withstanding any other provision herein contained, in no event shall SGT be liable for the following loss or damage however caused, and even if foreseeable by, or in the contemplation of SGT.
(i) economic loss which shall include loss of profits, business revenue, goodwill or anticipated savings.
(ii) damage in respect of special indirect or consequential loss or damage (other than death, personal injury and damage
to tangible property).
(iii) any claim made against the Purchaser by any other party (save as expressly provided in Paragraph (b) above).
(e) Except in respect of the liability of SGT referred to in Paragraph (a) above no claim may
be or action brought (whether in Contract or tort including negligence) by the Purchaser
in respect of any Equipment supplied by SGT more than one year after date of invoice for the relevant Equipment.
(f) Nothing in these conditions shall confer on the Purchaser any rights or remedies to which the Purchaser would not
otherwise be legally entitled.
(g) Changes in the specified Plant such as to alter the agreed interface between the
Equipment and the Plant.
(h) Any adjustments made to the Equipment by the Purchaser, including non-scheduled maintained.
(i) Failure of the power supply of air-conditioning or other environmental control. (j) Misuse of the Equipment by the
15.4 This warranty applies to European Countries only. Special arrangements maybe negotiated for other countries of the world, otherwise, no liability is accepted.
16 TRANSFER AND SUB-LETTING
16.1 Notwithstanding any sub-contracting specified in the Contract, SGT reserves the right to assign, sub-let or otherwise dispose of the Contract or any part thereof, or the benefit or advantage of the Contract, or any part thereof as circumstances may require, but will not enter into any such transaction without prior notification to the Purchaser unless any such transaction be within the normal business practice of SGT.
17.1 Without prejudice or its rights in law, SGT reserve the right to terminate the Contract at any time in the event of a serious breach of the Contract terms and conditions by the Purchaser, by giving notice to the Purchaser in writing, to expire at the end of such period as may be specified in the Contract under this clause, or if no such period is specified, at the end of one month. Upon the expiration of the notice, the Contract shall be terminated without prejudice to the rights of both SGT and the purchaser accrued to the date of termination. 17.2 If either party petitions for reorganisation under the bankruptcy laws, is adjudicated as bankrupt, has a receiver appointed for its business, or makes an assignment for the benefit of creditors, then the other party may immediately terminate the Agreement.
18.1 Unless otherwise specified in writing, the Contract shall in all respects be considered as a Contract made in England, and subject to English law. Clause heading shown in the body of the Contract and all appendices thereto, which form part of the Contract, are for information only and shall not affect the interpretation or construction of the Contract.
19 FORCE MAJEURE
19.1 If either the Purchaser or SGT are prevented or delayed in performing any requirement or obligation of the Contract which affects the production of the Equipment as a result of circumstances beyond the reasonable control of the Purchaser or SGT as the case may be, such requirement for as long as and to such extent as may be justified by the circumstances must be made immediately in writing by one party to the other.
19.2 The work on the Contract has substantially ceased as a result of circumstances falling within the provisions of the Contract and is not resumed within a reasonable time, either party may, by giving notice in writing, terminate the Contract.
19.3 If the Contract is terminated, under this condition the parties shall agree, and the purchaser shall pay, such proportion of the Contract Price as the work actually done bears for the work for which the Contract Price was fixed, together with such costs necessarily incurred by SGT in connection with the termination as has not been paid.
20.1 The Purchaser agrees that if at any time, any question, dispute or difference whatsoever arises between the Purchaser or SGT upon, in relating to or in connection with the Contract, the Purchaser or SGT may give notice to the other in writing, of the existence of such question, dispute or difference and both parties will attempt to reach a solution.
If no such mutually acceptable solution can be found, the question, dispute or difference will then be referred to the arbitration of a person to be mutually agreed upon, or failing agreement within 14 days of receipt of such notice, of some person appointed by the chairman for the time being of the British Computer Society, in accordance with the Arbitration Act 1950, or any statutory modification or re-enactment thereof.
21.1 All notices, requests and demands given to or made upon the parties hereto shall, except as otherwise specified herein, be in writing and delivered or mailed to any such party at its registered address.
21.2 Any party by notice may hereafter to all parties, designate a changed address for such party within the UK. Any notice, if mailed properly addressed, postage prepaid, registered or certified mail receipts, shall be deemed received within the fourth business day thereafter, or when it is actually received, whichever is the sooner.
22.1 No failure on the part of either party to exercise, and no delay in exercising, any rights or remedy hereunder shall operate as a waiver thereof nor shall any single or partial exercise of any right, or remedy hereunder, preclude any other or further exercise of any other right or remedy granted hereby or by any related document or by law.
Microsoft Cloud Solution Provider (CSP) - Terms & Conditions
These Terms describe the Supplier’s role as a Microsoft Cloud Solution Provider (CSP) and set out the Services the Supplier will provide in connection with the Customer’s subscription to Microsoft Cloud Services.
By submitting an Offer or by accepting these Terms, whether as part of the Supplier’s online ordering process or otherwise, the Customer agrees to contract on the basis of these Terms and in doing so agrees that they prevail over any other terms which the Customer may seek to impose or introduce, including (without limitation) any terms set out in or relating to any purchase order, acceptance or acknowledgement issued by the Customer.
The Customer understands and accepts that agreement to these Terms gives rise to (i) a direct contractual relationship between the Customer and Microsoft for a subscription to the Microsoft Products described in the accompanying Order, and (ii) a commitment for the Supplier to provide the Customer with Services in support of that subscription.
Any person submitting an Offer, or making any other representation, on behalf of the Customer represents and warrants that they have the legal right and authority to bind the Customer to the terms of the Agreement.
The Customer has evaluated Microsoft Cloud Services and satisfied itself as to it suitability, and confirms that it has not relied on any representation or statement other than as set out in the Agreement.
The Agreement supersedes all and any previous agreements in relation its subject matter, including (without limitation) any related non-disclosure agreements previously entered into by the parties.
1.1The following definitions and rules of interpretation apply in the Agreement.
Acceptable Use Policy: the Supplier’s acceptable use policy available at https://www.strawberrygt.com/en/terms-and-conditions
Additional Services: those services (if any) which the Customer has requested the Supplier to provide in addition to those comprised in the Support Services, details of which are set out in the Order.
Agreement: the agreement between the Customer and the Supplier comprising: (i) these Terms, (ii) the Order, and (iii) any documents specifically referred to or incorporated into these Terms.
Business Day: a day other than a Saturday, Sunday or public holiday in England.
Confidential Information: all and any confidential information (in whatever form) whether or not marked as such including but not limited to commercial, financial, marketing and technical information relating to the disclosing party’s business, services, products, clients, consultants, employees, suppliers, finances, proprietary computer software, website, know how, trade secrets, intellectual property, future product plans, future project plans and documentation in any form or medium whatsoever whether disclosed orally or in writing relating to any of the foregoing (including copies thereof).
Credit Account Application Form: the Supplier’s standard credit account application form;
Customer: the legal person (whether company, partnership, individual or otherwise), identified in the Order, to whom the Services will be provided.
Customer Data: the data provided and/or supplied by the Customer, or on the Customer's behalf, in connection with the Agreement.
Documentation: any documents provided by the Supplier in connection with the Services, including (without limitation) technical documentation, operations manuals and specification(s).
Effective Date: the date set out in the Order.
Fees: the fees set out in the Order and/or any other fees or charges payable under the Agreement, including all fees and charges incurred by the Customer in respect of the use of the Products, whether on a consumption basis or otherwise.
Initial Term: the initial term set out in the Order, which shall commence on the Effective Date.
Microsoft Cloud Services – Azure, Office 365, EMS, Microsoft 365, Windows 10 and all products and services that are available on the Cloud Services Provider. All available on Microsoft.com
Normal Business Hours: 8.30 am to 5.30 pm local UK time, each Business Day.
Offer: the offer made by the Customer when it confirms acceptance (by any means, including by email) of a Quotation.
Order: the binding order formed when the Supplier accepts the Offer, either expressly or by acting in accordance with the Offer.
Products: those Microsoft cloud services and products and/or services the Customer has subscribed for, details of which are set out in the Order.
Quotation: a quotation issued by the Supplier on these Terms.
Renewal Period: the period described in clause 3.
Services: the Support Services and, if applicable, any Additional Services.
Service Levels: the service levels described or referred to in the Order
Support Services: the support services described in the Order.
Terms: these cloud solution provider terms.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
2.1In its role as a CSP, the Supplier (i) is a reseller of Microsoft Cloud products and services, and (ii) is the Customer’s exclusive contact for the provision of day to day management and support in connection with the use of the Products, such as billing and agreed technical support, further details of which are set out in these Terms and the accompanying Order.
2.2The Customer acknowledges and accepts that the Supplier is not responsible for the provision of Microsoft Cloud products and services, including without limitation any faults, deficiencies or other issues connected with those products and services, full responsibility for which rests exclusively with Microsoft.
2.3By entering into this Agreement, the Customer understands that it is subscribing for the Products and in so doing agrees to enter into a direct contractual relationship with Microsoft for the provision of those Products on Microsoft’s standard terms set out At www.microsoft.com or on such other Microsoft terms and conditions as may be required to allow the Customer to access and use the relevant Products (the Microsoft Contract).
2.4The Customer hereby confirms that it has review Fed the said Microsoft terms and agrees to comply with them as a fundamental condition of this Agreement. The Customer further agrees and accepts that (i) the Supplier will have no responsibility or liability under the Microsoft Contract, and (iii) the Supplier’s only responsibilities and obligations are those expressly undertaken in this Agreement.
3.1Upon payment of the Fees by the Customer, (i) the Customer may use the Products on the terms of the Microsoft Contract, and (ii) the Supplier will provide the Services in connection with the Customer’s use of those Products.
3.2The Customer’s use of the Products and the Supplier’s provision of the Services shall commence on the Effective Date and run for the Initial Term. Thereafter the Agreement shall automatically continue for successive periods equal to the Initial Term (each a Renewal Period), unless:
(a)either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Term or any Renewal Period, in which case the Agreement shall terminate upon the expiry of the Initial Term or Renewal Period, as applicable; or
(b)otherwise terminated in accordance with the provisions of the Agreement.
3.4The Supplier may, on prior notice to the Customer, make changes to the Services, provided such changes do not have a material adverse effect on the Customer's business operations. Enhanced support services are available upon request.
3.5The Supplier will provide the Services with reasonable skill and care, in accordance with the terms of the Agreement and will use reasonable endeavours to comply with any time schedules agreed in writing with the Customer. Any such times or dates shall be estimates only and time for performance by the Supplier shall not be of the essence.
3.6The Supplier will use reasonable endeavours to ensure the continuity of the Services and of any personnel engaged in the Services but shall have discretion to make changes if needed, in which event it shall provide replacements of similar status and experience. The Supplier shall ensure that the said personnel are suitably qualified and have the necessary levels of skill and expertise required to carry out any tasks for which they are responsible.
3.7The Supplier shall appoint a manager who shall have authority contractually to bind the Supplier on all matters relating to the Services. The Supplier shall use reasonable endeavours to ensure that the same person acts as manager throughout the term of this Agreement but may replace him/her from time to time where reasonably necessary in the interests of the Supplier's business.
3.8The Supplier reserves the right to make changes to the Services (i) as a result of any changes to its role as CSP, including any changes required by Microsoft, (ii) which are necessary to comply with applicable law or safety requirements, or (iii) which do not materially affect the nature or quality of the Services. The Supplier will notify the Customer of any such changes.
3.9Either party may request changes to the nature or scope of the Services, which shall be submitted in writing and be of sufficient detail to enable the other party to assess the scope and/or impact of the proposed change and any such request shall be processed in accordance with clause 6.
4.2The Customer shall on or prior to the Effective Date provide to the Supplier valid, up-to-date and complete payment details (such as completed standing order) or approved purchase order information acceptable to the Supplier and any other required valid, up-to-date and complete contact and billing details.
4.3If the Supplier has not received payment in accordance with the terms of the Agreement the Supplier may, without prejudice to any other rights and remedies and without liability to the Customer, suspend access to all or part of the Services and/or the Products (as applicable) and the Supplier shall be under no obligation to lift the said suspension while the invoice(s) concerned remain unpaid.
4.4All amounts and fees stated or referred to in the Agreement:
(a)shall be payable in pounds sterling unless otherwise stated in the Order;
(b)are non-cancellable and non-refundable;
(c)are payable in full, net of all charges, and without set-off, deduction or withholding; and
(d)are exclusive of value added tax or other local taxes, which shall be added to the Supplier's invoice(s) at the appropriate rate.
4.5The Supplier shall be entitled to increase the Fees upon 30 days' prior notice to the Customer.
5.1The Customer shall:
(a)provide the Supplier with:
(i)all necessary co-operation in relation to the Agreement; and
(ii)such documents, data, drawings, plans, diagrams, designs, reports, specifications or other information as the Supplier may reasonably require in order to provide the Services, including but not limited to Customer Data, security access information and configuration services, and ensure all information is complete, true and accurate in all material respects;
(b)appoint a representative, who shall have the authority contractually to bind the Customer on matters relating to the Services;
(c)make available such Customer staff and applicable sub-contractors or suppliers (if any) as may be required for the Supplier to provide the Services and ensure that they co-operate fully with the Supplier in all material respects;
(d)carry out all other Customer responsibilities set out in the Agreement in a timely and efficient manner;
(e)obtain and maintain all Customer licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under the Agreement;
(f)ensure that its network and systems comply with all relevant specifications;
(g)be solely responsible for procuring and maintaining the network connections and/or telecommunications required in connection with the use of the Products or provision of the Services and for any problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet; and
(h)comply with all applicable laws and regulations with respect to its activities under the Agreement.
5.2The Customer acknowledges that the Supplier’s ability to provide the Services depends on the Customer satisfactorily complying with the obligations stated in this Agreement and that should the Customer delay or fail to perform any such obligations the Supplier will not be liable for any delay, loss or damage, cost increase or other consequences arising from such failure. The Supplier shall have no obligation to provide the Services in the event of misuse or incorrect use of the Products, use of equipment or software not approved or designated for use with the Products, any fault in any such equipment or software and/or operator error.
5.3The Customer shall not access, store, distribute or transmit any Viruses, or breach the terms of the Supplier’s Acceptable Use Policy The Supplier reserves the right, without liability and without prejudice to its other rights, to disable the Customer's access to any material that breaches the provisions of this clause 5. At or prior to the Effective Date, the Customer will confirm whether it has experienced any significant Virus issues in the previous 12 months and will provide the Supplier with all relevant details in relation to the same. The Customer also undertakes to promptly notify the Supplier of any such Virus issues (including, without limitation, any ransomware attacks) it experiences during the term of the Agreement.
The Customer may request changes to the Services or the Products at any time during the term of the Agreement. In response to such a request, the Supplier shall provide a Quotation. An Order will be formed only when the Supplier accepts the Customer Offer and the Agreement will then be amended in accordance with the Order. Unless or until the Supplier accepts the Customer Offer, the Supplier will be under no obligation with respect to the change request.
7.Data and security
7.1The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
7.2The Customer warrants that it owns all rights in the Customer Data and that the Supplier’s use and processing of the Customer Data in accordance with the Agreement will not infringe third party rights. The Customer hereby grants the Supplier the non-exclusive worldwide right and licence to process, copy, store, transmit, display, print, view and otherwise use the Customer Data to the extent required for the provision of the Services.
7.3The Customer accepts full responsibility in respect of the security and backup of any and all Customer Data and for the security and safety of its systems and software. The Customer agrees to take regular data backups to protect against data loss, corruption or other damage. The Supplier’s liability in relation to any data loss, corruption or security will be limited to that resulting from its failure to comply with any written contractual commitments given and the Supplier does not otherwise accept responsibility in those respects. Unless backup arrangements are agreed in writing and specifically comprised in the Services, the Supplier is not responsible for maintaining backup copies of any Customer Data.
(a)the Customer acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where the Customer is located in order to carry out the Services and any other obligations on the part of the Supplier under the Agreement;
(b)the Customer shall ensure that it is entitled to transfer the relevant personal data to the Supplier so that the Supplier may lawfully use, process and transfer the personal data in accordance with the Agreement on the Customer's behalf;
(c)the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
(d)the Supplier shall process the personal data only in accordance with the terms of the Agreement and any lawful and reasonable instructions given by the Customer from time to time; and
(e)each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
7.5The Customer accepts that the processing of electronic communications is a fundamental requirement for the provision of the Services and the Customer therefore consents to the Supplier’s interception and storage of electronic communications and Customer Data in connection with the Services. The Customer accepts that electronic communications involve transmission over the Internet, and over other networks, which are outside the Supplier’s control. The Customer accepts the risk associated with electronic communications and the possibility that they may be accessed by unauthorised parties and agrees that the Supplier is not responsible for any related delay, loss or damage.
8.Third party providers and content
9.1The Customer acknowledges and agrees that the Supplier and/or its licensors own any intellectual property rights in the Services and the Documentation. Except as expressly stated herein, the Agreement does not grant the Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
9.2The Supplier confirms that it has the rights in relation to the Services and the Documentation necessary to grant all the rights it purports to grant under, and in accordance with, the terms of the Agreement.
9.3All rights in or relating to Microsoft Cloud Services, including any and all related content, software, data, information or other materials, is owned by Microsoft or its licensors.
9.4‘Strawberry’ and the Strawberry logo are trade marks owned by the Supplier and all rights therein are specifically reserved.
10.1Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Agreement. A party's Confidential Information shall not be deemed to include information that:
(a)is or becomes publicly known other than through any act or omission of the receiving party;
(b)was in the other party's lawful possession before the disclosure;
(c)is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
(d)is independently developed by the receiving party, which independent development can be shown by written evidence; or
(e)is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
10.2Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of the Agreement.
10.3Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Agreement.
10.4Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
10.5The Customer acknowledges that the Documentation and information relating to the Services constitute the Supplier's Confidential Information. The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.
10.6No party shall make, or permit any person to make, any public announcement concerning the Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
10.7This clause 10 shall survive termination of the Agreement, however arising.
11.1The Customer is responsible for setting up its account with the Supplier and will ensure that all information provided is true, accurate, up to date and not misleading in any respect. The Customer shall keep the account information updated on an ongoing basis.
11.2The Customer will keep all account information, including username(s) and passwords(s) (together, Account Details), secure and strictly confidential and will employ reasonable security processes in its use of the Services. The Customer is responsible for all activities and/or transactions carried out using the Account Details, whether authorised by the Customer or otherwise, including any related charges or expenses. The said account is for the Customer’s use only and the Customer undertakes not to authorise or permit anyone else to use its account and not to transfer or assign it to anyone else. The Customer agrees to notify the Supplier immediately if it becomes aware of any unauthorised use of its account or the Account Details. You agree that we are not responsible for any errors or failures in payment arising from incorrect payment or bank details provided by you.
12.1This clause 12 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, officers, agents and sub-contractors) to the Customer:
(a)arising under or in connection with the Agreement;
(b)in respect of any use made by the Customer of the Services and/or Documentation or any part of them; and
(c)in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement.
12.2The Customer agrees and accepts that the Supplier’s exclusive liability shall be in relation to the Services and that the Supplier shall have no liability in respect of the Products or pursuant to the Microsoft Contract.
12.3Except as expressly and specifically provided in the Agreement:
(a)the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer's direction; and
(b)all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Agreement, including (without limitation) any implied term(s) as to satisfactory quality or fitness for purpose.
(a)for death or personal injury caused by the Supplier's negligence;
(b)for fraud or fraudulent misrepresentation; or
(c)for any other liability which may not be excluded or limited under applicable law.
12.5Subject to clause 12.4:
(a)the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for (i) any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, in each case whether direct or indirect, or (ii) any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Agreement; and
(b)the Supplier's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement shall be limited to the Fees paid or payable by the Customer during the 3 months immediately preceding the date on which the claim arose.
13.1Without prejudice to any other right, power or remedy and without liability, the Supplier reserves the right to limit or suspend the Services:
(a)if it is reasonably necessary to protect the interests of the Customer or the Supplier, or the interests of any third party (including other customers) and/or to protect the security or operation of the Supplier’s systems or network or those of its customers;
(b)if the Customer breaches any of the terms of the Agreement or the Supplier reasonably believes the Customer has breached or is about to breach;
(c)if the Customer fails to pay any Fees when due;
(d)if the Customer fails to cooperate regarding any suspected or actual breach of the terms of the Agreement; or
(e)if required to do so by law or further to a request from any regulatory or governmental authority.
13.2The Supplier may also temporarily suspend all or any part of the Services for the purpose of repair, maintenance or improvement of any systems. The Supplier shall use all reasonable endeavours to keep any such suspensions to a minimum and to carry out such works outside normal working hours wherever possible.
13.3The Supplier shall not be liable for any suspension of the Services under the above circumstances and the Customer shall not be entitled to any setoff, discount, refund or other credit as a result of such suspension and/or disconnection and the Customer agrees that any such downtime will be exempt from measurement under the Service Levels.
14.2Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:
(b)the other party commits a material breach of any other term of the Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
(c)the other party is or may be (in the reasonable opinion of the first party) unable to pay its debts or has a receiver, administrator, administrative receiver or liquidator or similar appointed or calls a meeting of its creditors or ceases for any other reason to carry on business.
14.3On termination of the Agreement for any reason:
(a)all rights, entitlements , permissions and licences granted under the Agreement shall immediately terminate, including any use of or access to the Products or the Services;
(b)the Customer shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the Supplier; and
(c)any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.
14.4If, upon termination of this Agreement, the Customer wishes to transition to another CSP provider, the Supplier undertakes to provide such assistance and support as the Customer may reasonably require to effect a smooth transition to the replacement CSP provider, subject to (i) payment of the Supplier’s reasonable fees and expenses in connection with the said assistance and support, (ii) the Customer first entering into an agreement with the replacement CSP for the provision of the relevant Products, and (iii) ensuring the termination of the Services upon the conclusion of the transfer.
The Supplier shall have no liability to the Customer under the Agreement if it is prevented from or delayed in performing its obligations under the Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
If there is an inconsistency between any of the provisions of the Agreement, the Order shall prevail over the Terms and the Terms shall prevail over any documents referred to or incorporated into the Terms.
No variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
Except as expressly provided in the Agreement, the rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
20.1If any provision (or part of a provision) of the Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
20.2If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
21.1The Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover, including (without limitation) any non-disclosure agreements previously entered into by the parties relating to the subject matter hereunder.
21.2Each of the parties acknowledges and agrees that in entering into the Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to the Agreement or not) relating to the subject matter of the Agreement, other than as expressly set out in the Agreement.
22.1The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.
22.2The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.
Each party confirms it is acting on its own behalf and not for the benefit of any other person. Nothing in the Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
The Agreement does not confer any rights on any person or party (other than the parties to the Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
25.1Any notice required to be given under the Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in the Agreement, or such other address as may have been notified by that party for such purposes.
25.2A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.
The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).