TERMS AND CONDITIONS
These Terms and Conditions set out the terms on which STRAWBERRY GLOBAL TECHNOLOGY LIMITED, with registered company number 03769882, whose registered office is 2 A C Court, High Street, Thames Ditton, Surrey, KT7 0SR (“Strawberry GT”) will supply the goods and/or services set out in an Accepted Order. By submitting an Order to Strawberry GT, accepting a Quotation from Strawberry GT, paying an invoice submitted by Strawberry GT or otherwise accepting these terms, you agree to be bound by the terms herein.
IT IS AGREED as follows:
- DEFINITIONS AND INTERPRETATION
- In these Terms and Conditions the following words shall have the following meanings:
“Acceptable Use Policy” has the meaning given to it in clause 5.2;
“Accepted Order” means an Order that has been accepted by Strawberry GT in writing or by email, or by commencement of the provision of the Services or Goods.
“Charges” means the charges payable by the Customer to Strawberry GT for the provision of the Services and/or Goods, as set out in the Accepted Order(s).
“Data Protection Laws” means either (i) until the date of implementation of the General Data Protection Regulation, the Data Protection Act 1998 or (ii) after the date of implementation of the General Data Protection Regulation, the General Data Projection Regulation, and in both cases all other applicable data protection legislation in force from time to time.
“Documentation” means all operating manuals, user manuals and user documentation and any other documentation provided to the Customer by Strawberry GT or its suppliers which is associated with the use or provision of the Services or Goods.
“Goods” means the goods set out in the Accepted Order(s).
“Force Majeure” means acts of God, war, hostilities, riot, fire, explosion, accident, flood, sabotage, lack of adequate power, failure of telecommunications networks, raw materials or labour, failure of a supplier, strike, lock-out or injunction compliance with governmental laws, regulations or orders, sickness or indisposition of key Strawberry GT employees, inability (through no fault of Strawberry GT) to obtain necessary permissions or consents, or any other cause whether or not of the class or kind enumerated which affects performance of an Accepted Order arising from or attributable to acts, events, omissions or accidents beyond the reasonable control of the party affected.
“Infrastructure” means the software and hardware infrastructure, as set out in the Accepted Order(s).
"Intellectual Property Rights" means any and all patents, trademarks, service marks, copyright, moral rights, rights in design, know-how, confidential information and all or any other intellectual or industrial property rights whether or not registered or capable of registration and whether subsisting in the United Kingdom or any other part of the world together with all or any goodwill relating to the same.
“Order” means either (i) an order for the provision of Services or Goods submitted by the Customer to Strawberry GT; (ii) the acceptance by the Customer of a Quotation; or (iii) in the absence of a separate order or quotation, the payment by the Customer of any invoice from Strawberry GT.
“Quotation” means a quotation order for the provision of Services or Goods which has been prepared by Strawberry GT and delivered to the Customer (in hard copy or electronic form). Unless otherwise specifically set out to the contrary in a Quotation, all Quotations shall be valid for fourteen (14) days from the date of issue. Thereafter, the Customer’s ability to accept the Quotation shall be at the sole discretion of Strawberry GT.
“Services” means the services to be provided by Strawberry GT as set out in all relevant Accepted Order(s).
- The Accepted Order(s) shall form part of, and shall be subject to, these Terms and Conditions.
- The headings are included for convenience only and shall not affect the interpretation or construction of these Terms and Conditions.
- Any undertaking by the Customer not to do any act or thing shall be deemed to include an undertaking that the Customer shall not permit or suffer the doing of that act or thing,
- The expressions “Customer” and “Strawberry GT” shall be deemed to include their respective successors and permitted assignees and their respective employees and agents.
- The words “written” and “in writing” shall be interpreted to include email communication.
- The masculine includes the feminine and the neuter, and the singular includes the plural and vice versa as the context shall admit or require. The expression "person" means any individual, firm, body corporate, unincorporated association, partnership, government, state or agency of a state or joint venture.
- The words "include", "includes", "including" and "included" will be construed without limitation unless inconsistent with the context.
- References in these Terms and Conditions or an Accepted Order to the provisions of statutes or statutory instruments are deemed to include those provisions as amended or substituted form time to time.
- ORDER PROCESS
- Each Order shall be deemed to be an offer by the Customer subject to the terms of these Terms and Conditions and all additional terms referred to in the applicable Order. The Customer shall procure that each Order is complete and accurate and includes full details of the required Services and/or Goods, including but not limited to exact requirements of the Services and/or Goods, any Customer hardware or software to be used to access and use the Services and/or Goods, any Customer information and data affected by the Services and/or Goods. A binding contract shall not come into existence between Strawberry GT and the Customer until acceptance of an Order by Strawberry GT.
- Acceptance of an Order by Strawberry GT shall be deemed to have occurred on the earlier of: (i) provision by Strawberry GT of the signed Order or an email or other written notification of acceptance of the Order; (ii) where applicable, notification by Strawberry GT that the Services have been activated; or, (iii) if applicable, provision by Strawberry GT of the Goods or Services. Strawberry GT may reject an Order for any reason, in which case Strawberry GT shall notify the Customer that the Order has been rejected.
- The binding contract shall relate only to those Services and Goods outlined in an Accepted Order.
- Strawberry GT shall provide, or procure the provision of the Services to the Customer as set out in the Accepted Order(s). The parties may agree amendments to an Accepted Order only by the submission and acceptance by both parties of new or replacement Order for the Services.
- Customer hereby acknowledges that the Services may contain, or make use of, certain third party software components. Unless otherwise expressly stated by Strawberry GT or through the Services, Strawberry GT, not such third party service provider, provides the Services to the Customer pursuant to these Terms and Conditions and any Accepted Order(s).
- Strawberry GT will use reasonable endeavours to provide the Services promptly, having regard to the availability of personnel, necessary supplies, third party software components required and facilities & commitments to other customers. All dates or times quoted for commencement or completion of any part of the Services are estimates only and should not be relied upon by the Customer.
- Services may be provided onsite or remotely via the Customer’s internet connection or by telephone, at Strawberry GT’s sole option. Customer acknowledges and accepts that were such support is required in relation to any part of the Services reliant on third party software components, that the provision of such support may be delayed dependent on the length of time it takes for that third party software component provider to assist Strawberry GT. Where, in Strawberry GT’s sole and reasonable opinion, it is necessary and/or desirable for the Customer to install remote support software, such software will be provided by Strawberry GT.
- Strawberry GT shall be entitled to make variations and additions to the Services from time to time, acting reasonably, for operational reasons (provided that these do not materially, adversely affect the Services), to comply with any legal or regulatory obligation or for any other reason.
- In the event that a third party software component providers varies, amends or ceases provision of certain software components required by Strawberry GT to continue providing the Services in accordance with an Accepted Order, the parties shall enter into a new updated Order for those Services, taking account of such varied, amended or unavailable third party software component. Where the parties do not agree a new Order for those Services within ninety (90) days of Strawberry GT notifying Customer of such change, Strawberry GT shall be entitled to terminate that Accepted Order on thirty (30) days written notice to Customer at any time.
- Without prejudice to Strawberry GT’s other remedies, Strawberry GT may suspend all or part of the Services without prior notice if Strawberry GT reasonably believes the circumstances justify this to protect itself or others, to comply with any law, where the Customer has failed to pay any Charges, where the Customer has in Strawberry GT’s reasonable opinion breached any aspect of the Acceptable Use Policy or if any events occur which would entitle Strawberry GT to terminate an Accepted Order. In making the decision to suspend the Services, Strawberry GT is not obliged to consider the cost or damage to the Customer that may be caused by suspension of the Services to the Customer. Strawberry GT may also suspend all or part of the Services to carry out maintenance where, in Strawberry GT’s reasonable opinion, it is necessary or desirable to do so. Unless Strawberry GT believes immediate suspension of the Services is required, Strawberry GT shall provide the Customer with as much prior notice as is reasonably practicable.
- Strawberry GT will use reasonable endeavours to procure that delivery of the Goods is carried out in accordance with the applicable Accepted Order. Strawberry GT may deliver the Goods set out in an Accepted Order by instalments, which may be invoiced and paid for separately. References in these Terms and Conditions to Accepted Orders shall, where applicable, be read as references to instalments.
- Delays in the delivery of Goods shall not entitle the Customer to refuse to take delivery of the Goods, claim damages or terminate that Accepted Order, subject always to clause 9.
- If the Customer fails to take delivery of an Order on the delivery date, delivery of the Order shall be deemed to have been completed at 9.00 am on the delivery date and Strawberry GT shall store the Order until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
- Subject to clause 4.6, the Customer may only reject Goods delivered to it where notice of rejection is given to Strawberry GT:
- in the case of a defect that is apparent on normal visual inspection, within five Business Days of delivery; or
- in the case of a latent defect, within a reasonable time of the latent defect having become apparent.
- If the Customer fails to give notice of rejection in accordance with clause 4.4, it shall be deemed to have accepted such Goods.
- Strawberry GT shall not be liable for a defect in the Goods where:
- the Customer makes any further use of such Goods after giving notice in accordance with clause 4.4;
- the defect arises because the Customer failed to follow Strawberry GT's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
- the defect arises as a result of Strawberry GT following any drawing, design or specification supplied by the Customer;
- the Customer alters or repairs such Goods without the written consent of Strawberry GT;
- the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
- the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
- If the Customer rejects Goods under clause 4.4 then the Customer shall be entitled to require Strawberry GT to:
- repair or replace the rejected Goods; or
- repay the price of the rejected Goods in full.
Once Strawberry GT has complied with the Customer's request, it shall have no further liability whatsoever to the Customer in respect of the defect.
- The terms of these Terms and Conditions and any Accepted Order shall apply to any repaired or replacement Goods supplied by Strawberry GT.
- Risk in Goods shall pass to the Customer on delivery.
- Title to Goods shall not pass to the Customer until Strawberry GT receives payment in full (in cash or cleared funds) for such Goods.
- Until title to Goods has passed to the Customer, the Customer shall:
- store such Goods separately from all other goods held by the Customer so that they remain readily identifiable as Strawberry GT's property;
- not remove, deface or obscure any identifying mark or packaging on or relating to such Goods; and
- maintain such Goods in satisfactory condition and keep them insured on Strawberry GT's behalf for their full price against all risks with an insurer that is reasonably acceptable to Strawberry GT.
- If before title to Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 9.3.2 inclusive, then, without limiting any other right or remedy Strawberry GT may have, Strawberry GT may at any time require the Customer to deliver up all Goods in its possession and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the relevant Goods are stored in order to recover them.
- CUSTOMER’S OBLIGATIONS
- At all times, throughout the term of an Accepted Order, the Customer shall comply with all obligations set out therein and all terms and conditions referred to herein, including but not limited to:
- adhering to the Acceptable Use Policy;
- providing access to the Customer's premises and to relevant personnel at the request of Strawberry GT;
- appointing an authorised person who is able to make binding decisions for the Customer with regard to all Accepted Orders, including authorising any change to the Services and/or Goods and taking decisions and making information available as requested by Strawberry GT either within the timescales reasonably required by Strawberry GT or in the absence of a required timescale as soon as reasonably practicable following the request being made;
- ensuring that its systems meet any minimum system specifications notified to the Customer by Strawberry GT from time to time;
- providing all materials reasonably required by Strawberry GT to enable Strawberry GT to perform its obligations under an Accepted Order and the Customer hereby grants to Strawberry GT a worldwide, non-exclusive, royalty free licence to use, store and maintain all material provided to Strawberry GT, or used, stored or processed through the Customer’s use of the Services, on Strawberry GT’s servers and publish such material on the internet for the purpose of providing the Services to you. The Customer warrants that all such materials will be accurate in all material respects and will not include material which is illegal, the accessing holding transmitting or supplying of which would be a criminal offence or which is otherwise unlawful or in breach of any applicable law or code of practice applying to such materials. In particular, the Customer warrants that all necessary licences, consents and waivers (including those from rights owners, performers and other contributors) are obtained and paid for by the Customer. The Customer warrants that all such material does not infringe the intellectual property rights of any third party and it has the authority to grant the licence in this clause to us and will defend, indemnify and hold us harmless against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services and/or Goods or of any claim or action that any such material infringes, or allegedly infringes, the Intellectual Property Rights of a third party. Without prejudice to the foregoing, Strawberry GT may decline to use any materials provided by the Customer on any reasonable grounds;
- providing reasonable facilities which may be required by Strawberry GT pursuant to these Terms and Conditions and any Accepted Order, including for the avoidance of doubt all equipment and secretarial services necessary for the performance of the Services and delivery of the Goods and so as to enable Strawberry GT to properly fulfil its obligations hereunder;
- ensuring that it has all necessary consents, permissions and licences to make use of the Services and procuring all necessary rights from third parties (including Intellectual Property Rights licences of computer software and website content) which are from time to time required in order for Strawberry GT to be able legally to provide the Services to the Customer;
- comply with any security policy notified to it from time to time by Strawberry GT and, in particular, ensure that all passwords and user names provided to it by Strawberry GT are at all times kept confidential, used properly and not disclosed to unauthorised people. If the Customer has any reason to believe that any password or user name has become known to someone not authorised to use it or is being or is likely to be used in an unauthorised way or of any other breach of security then the Customer will inform Strawberry GT immediately;
- being entirely liable for all activities conducted and charges incurred under its passwords and user names whether authorised by it or not and the Customer acknowledges that Strawberry GT shall not be liable for any loss of confidentiality or for any damages arising from the Customer's inability to comply with these Terms and Conditions. It is the Customers responsibility to ensure that their network is configured in a secure manner. A Customer may not, through action or inaction, allow others to use their network for illegal or inappropriate actions. A Customer may not permit their network, through action or inaction, to be configured in such a way that gives a third party the capability to use their network in an illegal or inappropriate manner; and
- ensuring that all communication details which it provides to Strawberry GT are at all times true, current, accurate and complete. The Customer will promptly notify Strawberry GT of any change to such details and acknowledges that Strawberry GT will not be liable for any loss suffered or incurred by the Customer as a result of its failure to notify such changes to Strawberry GT. Customers are advised that a failure to at all times have true, accurate and complete communication details may result in the temporary suspension of a Customer's account.
- The Customer shall not, and shall procure that its employees, sub-contractors or any third party shall not use the Services:
- in any way prohibited by law, regulation, governmental order or decree;
- At all times, throughout the term of an Accepted Order, the Customer shall comply with all obligations set out therein and all terms and conditions referred to herein, including but not limited to:
- to violate the rights of other customers or users of the Services or any part thereof, including any third party software components;
- to try to gain unauthorised access to or disrupt any service, device, data, account or network;
- to spam or distribute malware;
- in any way that could harm the Services or impair anyone else’s use of the Services, including any third party software component; or
- in any application or situation where failure of the Services, including any third party software component, could lead to the death or serious bodily injury of any person, or to severe physical or environmental damage,
together the “Acceptable Use Policy”.
- Customer acknowledges that it shall procure that its employees, sub-contractors or any third party will not:
- be under the age of 18;
- be incapable of legally entering into binding contracts;
- divulge any passwords that allow the Customer to have access to the Services to a third party and shall use all reasonable endeavours to keep all passwords confidential and inaccessible to third parties; or
- use or permit the use of the Services or Goods other than in accordance with the relevant Accepted Order and Documentation.
- Strawberry GT shall not be liable for any loss, damage, delay or failure that results from the delay or failure of the Customer to comply with its obligations under these Terms and Conditions or an Accepted Order and the time for performance of Strawberry GT’s obligations under an Accepted Order shall be extended by Strawberry GT a result of any failure or delay by the Customer. The Customer shall reimburse Strawberry GT on written demand for any costs or losses sustained as a direct or indirect result of the Customer’s default under these Terms and Conditions or an Accepted Order.
- Strawberry GT shall not be responsible for products or services supplied which incorporate or are based upon information or materials supplied by the Customer or third parties. Responsibility for decisions taken on the basis of advice given by Strawberry GT will remain with the Customer.
- CHARGES AND PAYMENT
- The Customer shall pay the Charges set out in each of the Accepted Order(s), and otherwise arising pursuant to the provisions herein.
- Strawberry GT will issue invoices for all Charges in accordance with the provisions of the Accepted Order.
- The Charges are subject to change at any time. Strawberry GT will notify the Customer in writing of any change in the Charges at least thirty (30) days before the change comes into force.
- Unless otherwise expressly set out to the contrary in the applicable Accepted Order, the Customer shall pay all expenses reasonably incurred by Strawberry GT that are attributable to the provision of the Services. Such expenses shall include without limitation the cost of travel outside normal business hours to and from supported sites, any reasonable overnight accommodation required in respect of such travel and delivery costs.
- Strawberry GT reserves the right to invoice the Customer in advance in respect of all fees payable as disbursements to third parties such as hardware or software vendors. In such cases, all monies paid by the Customer shall be held on account by Strawberry GT on behalf of the Customer.
- All Charges are exclusive of VAT and all other taxes which shall be payable by the Customer.
- Strawberry GT reserves the right to charge the Customer interest on any payment not made by the due date as set out in the relevant Accepted Order(s). Interest will be calculated on a daily basis, both before and after any judgement, at the rate of 4% above the base lending rate from time to time of the Bank of England for the period from the date such payment is due until the date on which it is actually paid. Such payment shall be compounded quarterly and payable on demand.
- The acceptance of any monies by Strawberry GT shall not be construed as an acceptance of such monies as the correct and full amount due and owing to Strawberry GT or as a waiver by Strawberry GT of any claims it may have against the Customer.
- The Customer shall pay the Charges on the due date without set off or deduction of any kind.
- In the event of a bona fide dispute regarding any invoice or other request for payment, the Customer shall immediately notify Strawberry GT in writing and the parties shall attempt to promptly and in good faith resolve any dispute regarding amounts owed. Strawberry GT reserves the right to suspend performance of the Services and Goods until the dispute has been resolved.
- Time for payment is of the essence. No payment shall be deemed to have been received until Strawberry GT has received cleared funds.
- Strawberry GT and its suppliers may make a search in relation to the Customer with a credit reference agency (and make other credit enquiries from time to time), keep a record of that search and enquiries, and share that information with third parties. Strawberry GT may also make enquiries about the principle directors/proprietors of the Customer with a credit reference agency.
- WARRANTIES AND LIABILITIES
- Customer warrants and represents that (i) none of its data or information supplied for use, or accessed or used by Customer, in the Services and/or Goods, nor (ii) will its use of the Services and/or Goods, infringe(s) the Intellectual Property Rights of any third party.
- Each of Strawberry GT and the Customer warrant to the other that they shall at all times act in accordance with the Data Protection Laws.
- All other warranties, representations, guarantees, conditions and terms, unless expressly set out in these Terms and Conditions or the Accepted Order(s) whether express or implied by statute, common law, trade usage or otherwise and whether written or oral are hereby expressly excluded to the fullest extent permissible by law.
- Subject to clause 7.5, 7.6, 7.7, 8 and any contrary provisions expressly set out in any Accepted Order, the maximum aggregate liability of Strawberry GT (including its respective agents and sub-contractors) arising from or in connection with these Terms and Conditions or any Accepted Order, whether arising in contract, tort (including negligence) or otherwise, shall not exceed the total Charges paid by the Customer under the relevant Accepted Order in the 12 months prior to the date on which the liability first arose.
- In no event shall Strawberry GT (including its respective agents and sub-contractors) be liable for:
- any loss of profits, income, revenue, business, anticipated savings, use, contracts, management time, goodwill or reputation, or any wasted expenditure or business interruption, or loss of software or data (whether direct or indirect); nor
- any special, indirect, incidental, punitive, exemplary, or consequential damages arising out of or in connection with an Accepted Order;
whether or not caused by or resulting from its negligence or a breach of its statutory duties or a breach of its obligations howsoever caused even if it is advised of the possibility of such loss.
- In no event shall Strawberry GT (including its respective agents and sub-contractors) be liable for:
- any defect or default arising from or caused by any unapproved changes made to the Services, Goods and/or Infrastructure or resulting from abnormal usage;
- any unauthorised access to, use of or damage to the Services, Goods and/or Infrastructure by any party other than Strawberry GT;
- any failure of the Services, Goods and/or Infrastructure which results from interference or other use (including inappropriate use, maintenance, development, modification, repairs or adaptation) by the Customer or any third party not authorised by Strawberry GT which is not in accordance with standard use of the Services, Goods and/or Infrastructure or Strawberry GT’s specific instructions; or
- any failure of the Services, Goods and/or Infrastructure that is due to any integration or interoperability issues arising with any third party or Customer systems or legacy systems (unless Strawberry GT has specifically advised the Customer in respect of the same).
- Nothing in these Terms and Conditions shall limit or exclude Strawberry GT’s liability for:
- death or personal injury caused by the negligence of its employees in the performance of an Accepted Order;
- fraud or fraudulent misrepresentation; or
- any matter for which it would be unlawful to exclude or restrict liability.
- In the event that Strawberry GT fails to comply with its obligations under these Terms and Conditions or any Accepted Order then it shall be entitled to be given a reasonable opportunity to correct any errors and re-perform its obligations and provide the Services and/or Goods hereunder.
- Both parties accept that the limitations and exclusions set out in these Terms and Conditions are reasonable having regard to all the circumstances.
8.1 Each party shall indemnify the other, on a pound for pound basis, for any loss suffered as a result of that party’s breach of the warranties set out at clauses 7.1 and 7.2. For the avoidance of doubt, the limitation at clause 7.4 shall not apply to this clause 8.
8.2 Each party must notify the other promptly of any claim arising out of this clause 8 and must give the other party:
8.2.1. sole control over the defence and settlement of such claim; and
8.2.2. reasonable assistance in the defence and settlement of that claim, providing that the party giving such assistance is reimbursed by the other party for its reasonably incurred out of pocket expenses.
- TERM AND TERMINATION
- These Terms and Conditions shall come into force on the Effective Date and shall remain in force until terminated by either party on the provision of not less than thirty (30) days’ notice in writing (save that no termination may take effect until all Accepted Orders have been completed or terminated and all payments thereunder have been received by Strawberry GT), unless terminated earlier in accordance with clause 9.3.
- The provision of Services may be terminated only in accordance with the terms of the relevant Accepted Order or, where no terms are set out in the relevant Accepted Order, on the provision of ninety (90) days written notice to the other party.
- Either party may terminate all or part of these Terms and Conditions or any Accepted Order immediately on written notice to the other party where:
- the other party is in material breach of these Terms and Conditions or an Accepted Order and fails (where the breach is capable of remedy) to remedy the breach within 30 days of the receipt of a request in writing to remedy the breach, such request setting out the breach and indicating that failure to remedy the breach may result in termination of these Terms and Conditions or the Accepted Order; or
- the other party becomes the subject of a voluntary arrangement under section 1 of the Insolvency Act 1986, is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, has a receiver, manager, administrator or administrative receiver appointed over all or any parts of its undertaking, assets or income, has passed a resolution for its winding-up, or has a petition presented to any court for its winding-up or for an administration order or has ceased or threatened to cease to trade;
nothing in this clause 8.3 shall restrict a party’s ability to claim damages for any loss suffered as a result of any termination of these Terms and Conditions or an Accepted Order in accordance with this clause 8.3.
- Strawberry GT may terminate all or part of these Terms and Conditions or any Accepted Order immediately on written notice to the Customer where:
- there is a change of control (as defined in Section 416 of the Income and Corporation Taxes Act 1988) of the Customer or the Customer’s parent company; or
- Strawberry GT may terminate all or part of these Terms and Conditions or any Accepted Order immediately on written notice to the Customer where:
- the Customer fails to pay to Strawberry GT any sum due under an Accepted Order after the due date for payment.
- Termination of these Terms and Conditions or an Accepted Order shall be without prejudice to any rights of either party arising on or before such termination, which includes without limitation, all sums due to Strawberry GT for Services and/or Goods supplied (including for the avoidance of doubt any Charges incurred in respect of work in progress) prior to the date of termination.
- The provisions of clauses 6 (to the extent of any unpaid obligations), 7, 8, 9.6, 10, 11, 13 and 14 and any clauses required for their interpretation shall survive the termination of these Terms and Conditions and shall remain in full force and effect.
- Each party will (unless contrary to law):
- keep confidential all information obtained from the other under or in connection with these Terms and Conditions and all Accepted Orders ("Information");
- not disclose any Information to any third party without the prior written consent of the other except to such persons and to such extent as may be strictly necessary for the performance of these Terms and Conditions or an Accepted Order;
- not use any Information otherwise than for the purposes of these Terms and Conditions or an Accepted Order.
- The provisions of clause 9 do not apply to Information which:
- is or becomes public knowledge (otherwise than by breach of this clause); or
- was in the possession of the party concerned without restriction as to its disclosure before receiving it from the disclosing party; or
- is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
- Each party will (unless contrary to law):
and nothing in this clause 9 prevents either party from disclosing any Information for a proper purpose to a public authority or any regulatory body, or to a court of law in the United Kingdom or elsewhere in legal proceedings, or to its senior management, its auditors, bankers, lawyers or other professional advisers.
- The provisions of this clause 10 will continue to apply notwithstanding any termination of these Terms and Conditions.
- DATA PROTECTION
- In the event that Strawberry GT engage any third party software provider or subcontractor in the provision of the Services and/or Goods, Strawberry GT shall be permitted to allow such third party access to and use of the Customer’s data, subject always to that access and use being only that required to provide the Customer with the Services and/or Goods and any other use by a third party being prohibited.
- Customer hereby grants Strawberry GT the right to transmit Customer’s data outside of the EEA to a third party software provider or subcontractor engaged by Strawberry GT in the provision of the Services and/or Goods, provided that Strawberry GT has in place with such third party contractual obligations at least as stringent as those required by Data Protection Laws.
- The Customer and Strawberry GT acknowledge and agrees that the Customer is the data controller and that Strawberry GT is a data processor in respect of all personal data of Customer personnel (as such terms are defined in the Data Protection Laws).
- Strawberry GT will only process personal data for the purposes of providing the Customer with the Services and/or Goods. Strawberry GT has in place and will maintain for the duration of these terms and conditions appropriate technical and organisational measures against the accidental, unauthorised or unlawful processing, destruction, or disclosure of personal data and adequate security programmes and procedures to ensure that unauthorised persons do not have access to any equipment used to process personal data.
- During the period that these Terms and Conditions are in effect and for a period of twelve (12) months thereafter, the Customer agrees not to solicit or to offer employment to any employees of Strawberry GT without the prior written consent of Strawberry GT.
- In the event that the Customer breaches clause 12.1, it shall be liable to pay, by way of liquidated damages, immediately on demand, and without prejudice to any other remedy that Strawberry GT may have, the equivalent of twelve (12) months gross salary of the employee so solicited and/or employed. This provision shall be without prejudice to the right to seek injunctive relief.
- FORCE MAJEURE
- If Strawberry GT is prevented or delayed from or in performing any of its obligations under an Accepted Order by Force Majeure, then:
- its obligations under that Accepted Order (or, where the Force Majeure only affects some of the Services, such obligations as relate to those Services) shall be suspended for so long as the Force Majeure continues and to the extent that that party is so prevented, hindered or delayed;
- the parties shall, without prejudice to the other provisions of this clause 12.1 consult with a view to taking such steps as may be appropriate to mitigate the effects of such Force Majeure;
- Strawberry GT shall use all reasonable endeavours to mitigate the effects of the Force Majeure upon the performance of its obligations under that Accepted Order.
- If any Force Majeure prevails for a continuous period in excess of two (2) calendar months, either party shall be entitled to terminate the affected Accepted Order in its entirety (if the provision of all Services and Goods are affected by Force Majeure) or in part (insofar as it relates to the Services and Goods affected by Force Majeure) by giving not less than ten (10) days’ notice in writing to the other party.
- If Strawberry GT is prevented or delayed from or in performing any of its obligations under an Accepted Order by Force Majeure, then:
- These Terms and Conditions together with the Accepted Order(s) shall constitute the entire agreement and understanding between the parties and supersedes all prior agreements, understandings or arrangements (whether oral or written) relating to their subject matter.
- Each of the parties acknowledges that in entering into these Terms and Conditions or an Accepted Order it has not relied on or been induced by any representation, warranty, undertaking, promise or assurance made or given by any other party or any other person, whether or not in writing, at any time prior to the execution of these Terms and Conditions or an Accepted Order other than those expressly set out in these Terms and Conditions or an Accepted Order.
- If any part of any provision of these Terms and Conditions or an Accepted Order shall be found to be invalid or unenforceable, then the remainder of such provision and all other provisions of these Terms and Conditions and such Accepted Order shall remain valid and enforceable.
- Strawberry GT may alter or amend these Terms and Conditions at any time in the event that a third party software provider engaged by Strawberry GT in the provision of the Services and/or Goods amends, updates or varies their terms and conditions such that these Terms and Conditions are no longer suitable for the Services and/or Goods. In the event that Strawberry GT alters or amends these Terms and Conditions, it shall provide the Customer with written notice and a copy of the amended or updated Terms and Conditions. By placing an Order after such amendment, the Customer will be deemed to have accepted any amendment to these Terms and Conditions in respect of that Order and all Orders submitted and/or accepted prior to such date. Save as otherwise set out in this clause 14.4 or any Accepted Order, no amendment or variation of the terms of these Terms and Conditions shall be effective unless it is made or confirmed in a written document signed by both parties.
- No delay in exercising or non-exercise by either party of any of its rights under or in connection with these Terms and Conditions or an Accepted Order shall operate as a waiver or release of that right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.
- Nothing in these Terms and Conditions, the Accepted Order(s) or any document referred to in it or any arrangement contemplated by it shall be construed as creating a partnership between the parties for any purpose whatsoever and neither party shall have the power or authority to bind the other party or impose any obligations on it to the benefit of any third party.
- The parties do not intend any term of these Terms and Condition or any Accepted Order to be enforceable by any third party pursuant to the Contracts (Rights of Third Parties) Act 1999.
- The Customer may not assign the benefit or delegate the burden of these Terms and Condition nor any Accepted Order nor sub-license any of its rights thereunder (including to any affiliate companies) without the prior written consent of Strawberry GT. Any consent provided by Strawberry GT under this clause is given on condition that the assignee or licensee, as the case may be, agrees to comply with the terms of these Terms and Conditions and any Accepted Order(s) as if they were the Customer. Strawberry GT may assign any or all of its rights and obligations under these Terms and Conditions and any Accepted Order without the consent of the Customer, providing that Strawberry GT shall notify the Customer of any such assignment.
- These Terms and Conditions and all Accepted Orders shall be construed in accordance with the laws of England and Wales. The parties irrevocably submit to the exclusive jurisdiction of the courts of England to settle any dispute arising out of or in connection with these Terms and Conditions or any Accepted Order.
- Any notice required or permitted under the terms of these Terms and Condition or any Accepted Order or required by law must be in writing and must be: (a) delivered in person; (b) sent by registered mail return, receipt requested; (c) sent by overnight air courier; (d) transmitted by facsimile; or (e) transmitted by email, in each case forwarded to the appropriate address set forth herein or notified to it by the other party. Either party may change its address for notices by written notice to the other party. Notices will be considered to have been given either (i) at the time of actual delivery if in person, (ii) three (3) business days after posting, if by registered mail, (iii) one (1) day after delivery to an overnight air courier service or (iv) the moment of transmission by facsimile or email, with receipt of such facsimile or email confirmed.
Acceptable Use Policy
This Acceptable Use Policy (AUP) governs your use of our Services and/or any access to or use of our website at www.strawberrygt.com (Website). Unless otherwise indicated, capitalised terms not defined in this document shall bear the definitions set out in our terms of business which accompany this AUP or via which you linked to this AUP (Terms).
By using or applying for use of our Services and/or the Website, you agree to abide by the terms of this AUP, which is hereby incorporated into any agreement between you and us.
References herein to “our, “we’ or ‘us’ are references to Strawberry Global Technology Limited, with registered company number 03769882, whose registered office is 2 A C Court, High Street, Thames Ditton, Surrey, KT7 0SR.
Prohibited Uses – Overview
You may use the Services and the Website only for lawful purposes. You may not use them:
- in any way that breaches any applicable local, national or international law or regulation.
- In any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect.
- for the purpose of harming or attempting to harm anyone, including minors, or in any manner which will, or is likely to, infringe the personal rights of others;
- in any manner that will, or is likely to, infringe the copyright, trademark, trade secret or other intellectual property rights of others;
- to transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam);
- in connection with any defamatory, indecent, obscene, offensive, threatening or abusive conduct or activity;
- to knowingly transmit any data, send or upload any material that contains viruses, Trojan horses, ransomware, worms, time-bombs, bots, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware; or
- in any way that is inconsistent with our Terms.
Without prejudice to the generality of the principles set out above, unacceptable use includes, but is not limited to, the following:
- use which causes damage, detriment or disruption to our business, including the Services, the Website and/or the business or activities of our clients, or which may generate or create any liability for us or our clients.
- use of any methods or techniques for extracting data from the Services or the Website without our consent (e.g. data scraping or data mining).
- deceptive practices or ways of working.
- actions that restrict or inhibit anyone in their use or enjoyment of the Services or the Website.
- causing or attempting to cause security breaches or disruptions of Internet communications (e.g. accessing data of which you are not an intended recipient, or logging into a server or account that you are not expressly authorized to access).
- executing any form of network monitoring that will intercept data not intended for you.
- circumventing user authentication or security of any host, network or account.
- interfering with or denying service to any user (e.g., denial of service attack).
- using any programme/script/command, or sending messages of any kind, designed to interfere with, or to disable a user's terminal session.
- furnishing false or incorrect data of any kind.
- sending junk mail or other advertising material to individuals who did not specifically request such material.
- exporting or re-exporting data or content in violation of export or import laws or without all required approvals, licenses and exemptions.
We will determine, in our discretion, whether there has been a breach of this AUP. When a breach has occurred, we may take such action as we deem appropriate.
Failure to comply with this AUP constitutes a material breach of the Terms, and may result in our taking all or any of the following actions:
• Immediate, temporary or permanent withdrawal of your right to use the Services and/or the Website.
• Immediate, temporary or permanent removal of any data, content or other material provided by you.
• Issue of a warning to you.
• Legal proceedings against you for reimbursement of all costs on an indemnity basis (including, but not limited to, reasonable administrative and legal costs) resulting from the breach.
• Further legal action against you.
• Disclosure of such information to law enforcement and other regulatory authorities.
We exclude liability for actions taken in response to breaches of this AUP. The responses described in this policy are not limited, and we may take any other action we reasonably deem appropriate.
Changes to this Policy
We may revise this acceptable use policy at any time by amending this page. Amendments shall automatically come into effect 30 days after being posted on the Website unless you notify us that you do not agree to any of the proposed amendments. Some of the provisions contained in this AUP may also be superseded by provisions or notices published elsewhere on our Website.
Waiver and Severance
Any failure or delay in exercising or enforcing this Policy shall not constitute a waiver of this Policy or of any other right or remedy.
If you have any questions concerning compliance with this AUP, please contact us at firstname.lastname@example.org
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).