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:

  1. DEFINITIONS AND INTERPRETATION
    1. 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).

  1. The Accepted Order(s) shall form part of, and shall be subject to, these Terms and Conditions.
  2. The headings are included for convenience only and shall not affect the interpretation or construction of these Terms and Conditions.
  3. 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,
  4. The expressions “Customer” and “Strawberry GT” shall be deemed to include their respective successors and permitted assignees and their respective employees and agents.
  5. The words “written” and “in writing” shall be interpreted to include email communication.
  6. 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.
  7. The words "include", "includes", "including" and "included" will be construed without limitation unless inconsistent with the context.
  8. 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.
  1. ORDER PROCESS
    1. 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.
    2. 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.
    3. The binding contract shall relate only to those Services and Goods outlined in an Accepted Order.
  2. SERVICES
    1. 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.
    2. 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).
    3. 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.
    4. 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. 
    5. 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.
    6. 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.
    7. 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.
  3. GOODS
    1. 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.
    2. 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.
    3. 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).
    4. Subject to clause 4.6, the Customer may only reject Goods delivered to it where notice of rejection is given to Strawberry GT:
      1. in the case of a defect that is apparent on normal visual inspection, within five Business Days of delivery; or
      2. in the case of a latent defect, within a reasonable time of the latent defect having become apparent.
    5. If the Customer fails to give notice of rejection in accordance with clause 4.4, it shall be deemed to have accepted such Goods.
    6. Strawberry GT shall not be liable for a defect in the Goods where:
      1. the Customer makes any further use of such Goods after giving notice in accordance with clause 4.4;
      2. 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;
      3. the defect arises as a result of Strawberry GT following any drawing, design or specification supplied by the Customer;
      4. the Customer alters or repairs such Goods without the written consent of Strawberry GT;
      5. the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
      6. the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
    7. If the Customer rejects Goods under clause 4.4 then the Customer shall be entitled to require Strawberry GT to:
      1. repair or replace the rejected Goods; or
      2. 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.

  1. The terms of these Terms and Conditions and any Accepted Order shall apply to any repaired or replacement Goods supplied by Strawberry GT.
  2. Risk in Goods shall pass to the Customer on delivery.
  3. Title to Goods shall not pass to the Customer until Strawberry GT receives payment in full (in cash or cleared funds) for such Goods.
  4. Until title to Goods has passed to the Customer, the Customer shall:
    1. store such Goods separately from all other goods held by the Customer so that they remain readily identifiable as Strawberry GT's property;
    2. not remove, deface or obscure any identifying mark or packaging on or relating to such Goods; and
    3. 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.
  5. 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.
  1. CUSTOMER’S OBLIGATIONS
    1. 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:
      1. adhering to the Acceptable Use Policy;
      2. providing access to the Customer's premises and to relevant personnel at the request of Strawberry GT;
      3. 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;
      4. ensuring that its systems meet any minimum system specifications notified to the Customer by Strawberry GT from time to time;
      5. 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;
      6. 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;
      7. 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;
      8. 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;
      9. 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
      10. 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.
    2. The Customer shall not, and shall procure that its employees, sub-contractors or any third party shall not use the Services:
      1. in any way prohibited by law, regulation, governmental order or decree;

 

  1. to violate the rights of other customers or users of the Services or any part thereof, including any third party software components;

 

  1. to try to gain unauthorised access to or disrupt any service, device, data, account or network;

 

  1. to spam or distribute malware;

 

  1. in any way that could harm the Services or impair anyone else’s use of the Services, including any third party software component; or

 

  1. 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”.

  1. Customer acknowledges that it shall procure that its employees, sub-contractors or any third party will not:
    1. be under the age of 18;
    2. be incapable of legally entering into binding contracts;
    3. 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
    4. use or permit the use of the Services or Goods other than in accordance with the relevant Accepted Order and Documentation.
  2. 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.
  3. 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.
  1. CHARGES AND PAYMENT
    1. The Customer shall pay the Charges set out in each of the Accepted Order(s), and otherwise arising pursuant to the provisions herein.
    2. Strawberry GT will issue invoices for all Charges in accordance with the provisions of the Accepted Order.
    3. 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.
    4. 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.
    5. 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.
    6. All Charges are exclusive of VAT and all other taxes which shall be payable by the Customer.
    7. 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.
    8. 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.
    9. The Customer shall pay the Charges on the due date without set off or deduction of any kind.
    10. 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.
    11. Time for payment is of the essence. No payment shall be deemed to have been received until Strawberry GT has received cleared funds.
    12. 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.
  2. WARRANTIES AND LIABILITIES
    1. 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.
    2. 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.
    3. 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. 
    4. 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.
    5. In no event shall Strawberry GT (including its respective agents and sub-contractors) be liable for:
      1. 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
      2. 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.

  1. In no event shall Strawberry GT (including its respective agents and sub-contractors) be liable for:
    1. 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;
    2. any unauthorised access to, use of or damage to the Services, Goods and/or Infrastructure by any party other than Strawberry GT;
    3. 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
    4. 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).
  2. Nothing in these Terms and Conditions shall limit or exclude Strawberry GT’s liability for:
    1. death or personal injury caused by the negligence of its employees in the performance of an Accepted Order;
    2. fraud or fraudulent misrepresentation; or
    3. any matter for which it would be unlawful to exclude or restrict liability.
  3. 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.
  4. Both parties accept that the limitations and exclusions set out in these Terms and Conditions are reasonable having regard to all the circumstances.
  1. INDEMNITY

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.

  1. TERM AND TERMINATION
    1. 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.
    2. 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.
    3. 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: 
      1. 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
      2. 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.

  1.  
  2.  
    1. Strawberry GT may terminate all or part of these Terms and Conditions or any Accepted Order immediately on written notice to the Customer where: 
      1. 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

 

  1. the Customer fails to pay to Strawberry GT any sum due under an Accepted Order after the due date for payment.
  1.  
  2.  
    1. 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. 
    2. 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.
  3. CONFIDENTIALITY
  1.  
  2.  
    1. Each party will (unless contrary to law):
      1. keep confidential all information obtained from the other under or in connection with these Terms and Conditions and all Accepted Orders ("Information");
      2. 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;
      3. not use any Information otherwise than for the purposes of these Terms and Conditions or an Accepted Order.
    2. The provisions of clause 9 do not apply to Information which:
      1. is or becomes public knowledge (otherwise than by breach of this clause); or
      2. was in the possession of the party concerned without restriction as to its disclosure before receiving it from the disclosing party; or
      3. is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;

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.

  1. The provisions of this clause 10 will continue to apply notwithstanding any termination of these Terms and Conditions.
  1. DATA PROTECTION
    1. 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.
    2. 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.
    3. 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).   
    4. 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.
  2. NON-SOLICITATION
    1. 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.
    2. 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.
  3. FORCE MAJEURE
    1. If Strawberry GT is prevented or delayed from or in performing any of its obligations under an Accepted Order by Force Majeure, then:
      1. 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;
      2. 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;
      3. 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. 
    2. 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.
  4. GENERAL
    1. 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.
    2. 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.
    3. 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.
    4. 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.
    5. 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.
    6. 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.
    7. 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.
    8. 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. 
    9. 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.
    10. 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.