Service Terms & Conditions

Unless otherwise agreed in writing with SharpCloud, these terms and conditions (“Terms”) apply to consulting services provided to you by SharpCloud, whether ordered through an order form, a statement of work, a proposal or some other document signed by you and accepted by us (collectively “Order Form”). By signing an Order Form, you are agreeing to these Terms.

1. Interpretation

The following definitions and rules of interpretation apply in these Terms:

Applicable Laws: the laws or regulations, regulatory policies, guidelines or industry codes which apply to the provision of the Services.

Authorised Persons the directors, employees, officers, professional advisers, agents and contractors of the Recipient Party with a need to know any Confidential Information of the Disclosing Party.

Background IPR: any and all IPRs that are owned by or licensed to either party and which are or have been developed independently of this Agreement (whether prior to the Commencement Date or otherwise) but excluding IPRs in SharpCloud’s solutions.

Business Day: a day, other than a Saturday, Sunday or public holiday in England.

Charges: SharpCloud’ charges for the Services (and expenses if agreed) as set out in each Order Form.

Confidential Information means all information in any medium or format and whether or not marked or described as "confidential", together with all copies, which relates to a party (the "Disclosing Party") or to its employees, officers, customers or clients or affiliates and any employees, officers, customers or clients of any such affiliates, and which is directly or indirectly disclosed by the Disclosing Party to the other party (the "Recipient Party") in the course of their dealings relating to an Order Form hereunder. However, the following information is not "Confidential Information":

a) information which is in the public domain other than as a result of breach of these Terms or any separate confidentiality undertaking between the parties;

b) information which the Recipient Party received, free of any obligation of confidence, from a third party which itself was not under any obligation of confidence in relation to that information; and

c) information which was developed or created independently by or on behalf of the Recipient Party.

Default: any default of either party in complying with its obligations under these Terms.

Due Date: has the meaning given in clause 3.2.

Force Majeure Event: means any act beyond the reasonable control of a party.

IPRs: any and all intellectual property rights of any nature anywhere in the world whether registered, registrable or otherwise.

Services: the services to be delivered by SharpCloud as outlined in each Order Form.

SharpCloud means the legal entity entering into the Order Form as stated in clause 15 below.

Tax: value added tax, sales tax or any equivalent tax chargeable on the provision of the Services.

1.1 Any words following the terms including, include, in particular, for example or any other similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or terms preceding those terms.

2. Services

2.1 SharpCloud agrees to provide the Services as set out in an Order Form.

2.2 In providing the Services, SharpCloud shall:

a) use reasonable efforts to perform the Services within the timelines and milestones (if any) agreed in the Order Form, albeit time shall not be of the essence unless specifically agreed in the Order Form;

b) comply with Applicable Laws in providing the Services; and

c) have the right to make any changes to the Services which are necessary to perform its obligations and to comply with any safety requirement or Applicable Laws. SharpCloud shall notify you in writing as soon we become aware of any such event.

3. Charging and invoicing

3.1 In consideration of the provision of the Services, you agree to pay the Charges to SharpCloud in accordance with the terms agreed in each Order Form and in the currency stated therein. All Charges are stated exclusive of applicable Tax which shall be payable in addition.

3.2 You shall pay the Charges agreed in each Order Form within 30 days of receipt of an undisputed invoice from SharpCloud or alternatively the payment schedule agreed in an Order Form (the Due Date).

3.3 SharpCloud may suspend the supply of the Services if any undisputed payment is overdue. SharpCloud may also charge interest at the rate of 3% per month, or the amount legally permitted if lower, on any undisputed amounts unpaid past the Due Date and/or suspend the Services until payment is made.

3.4 Except as otherwise provided, the parties shall each bear their own costs and expenses incurred in respect of compliance with their obligations under these Terms.

4. SharpCloud’ Assurance

4.1 SharpCloud shall ensure that:

a) each of the persons that provides the Services is suitably qualified, adequately trained and capable of providing the applicable Services in respect of which they are engaged;

b) the SharpCloud personnel engaged in the provision of the Services comply with your reasonable security policies that may relate to the delivery of the Services including those that apply to persons who are allowed access to your physical premises, your network and systems provided that you notify SharpCloud of such security policies in advance.

5. IPRs

5.1 Subject to this clause 5, neither party shall acquire any right, title or interest in or to the other party’s Background IPRs; and you shall not acquire any right, title or interest in or to the IPRs of SharpCloud or its licensors, including the IPRs relating to SharpCloud's solutions; the IPRs relating to SharpCloud's documentation, processes and procedures and the IPRs relating to SharpCloud's know-how;

5.2 You grant to SharpCloud a limited, royalty free, revocable, non-exclusive licence of your Background IPRs for the duration of the Services to enable SharpCloud to provide the Services under an Order Form. SharpCloud shall not use your Background IPRs for any other purpose.

5.3 Any new IPRs created by SharpCloud in the course of delivering the Services shall belong to SharpCloud. SharpCloud hereby grants you a non-transferable, revocable, royalty free license to use SharpCloud’s Background IPRs and any IPRs newly created in the course of providing the Services purely for the use of a SharpCloud solution related to the Services and only for so long as duration of your subscription to that SharpCloud solution.

6. Data protection

6.1 The parties shall comply with all applicable data protection laws and requirements in relation to any personal data shared between them including any of your personal data. Any data your provide to SharpCloud shall remain your property.

7. Confidentiality

7.1 The Recipient Party shall, during the term of the provision of the Services, and for a period of three years following its expiry or termination:

a) keep all Confidential Information of the Disclosing Party secret and confidential;

b) not disclose Confidential Information to any third party except with the prior written consent of the Disclosing Party or in accordance with this clause 7; and

c) only use or make copies of Confidential Information in connection with and to the extent necessary for the purposes of the provision and/or use of the Services.

7.2 The Recipient Party may disclose Confidential Information to any Authorized Persons on a "need-to-know" basis solely in relation to the Services and the applicable Order Form, provided that the Recipient Party ensures that such Confidential Information is kept confidential by the applicable Authorized Persons and it remains liable for the acts and omissions of such Authorized Persons.

7.3 The Recipient Party may disclose any Confidential Information to any regulator, law enforcement agency or other third party if it is required to do so by law, regulation, or similar authority. In those circumstances (provided that it is lawful to do so):

a) the Recipient Party must notify the Disclosing Party in writing as soon as practicable before the disclosure and provide the Disclosing Party with a copy of the proposed disclosure;

b) the parties must use all reasonable endeavours to consult with each other with a view to agreeing the timing, content, manner and extent of the disclosure (and the Receiving Party shall take into account the Disclosing Party's reasonable requirements in this regard); and

c) the Recipient Party required to disclose must in any event use all reasonable endeavours to obtain written confidentiality undertakings in its favour from the third party.

7.4 If the Recipient Party is prohibited by law to inform the Disclosing Party before Confidential Information is disclosed, it must (provided that it is lawful to do so) fully inform the Disclosing Party immediately afterwards in writing of the circumstances, timing, content, manner and of the disclosure and the Confidential Information which has been disclosed.

7.5 The undertakings and other provisions of this clause 7 will survive the expiry or termination of an Order Form (in whole or in part).

7.6 The parties agree that damages alone may not be an adequate remedy in the event of breach by the other party of the provisions of this clause 7. Accordingly, either party may, without proof of special damages, seek an injunction or other interim remedy for any threatened or actual breach of this clause 7 and without the posting of a bond or other financial security.

8. Warranties and representations

8.1 Each party warrants, represents, undertakes and represents under each Order Form that:

a) it has full capacity and authority to enter into and to perform its obligations under an Order Form;

b) the person signing or accepting an Order Form is duly authorized to do so;

c) there are no actions, suits or proceedings or regulatory investigations pending or, to that party's knowledge, threatened against or affecting that party before any court or administrative body or arbitration tribunal that might affect the ability of that party to meet and carry out its obligations under an Order Form; and

d) once duly signed and accepted, each Order Form will constitute its legal, valid and binding obligations.

8.2 SharpCloud warrants:

a) it shall discharge its obligations under each Order Form using personnel of required skill, experience and qualifications;

b) the Services will be provided in a professional, competent and workmanlike manner;

c) it has all necessary consents, rights and permission to enter into, and perform its obligations under an Order Form;

d) it will perform and procure the performance of its obligations under an Order Form in compliance with all Applicable Laws.

8.3 Save as provided in this Agreement, no representations, warranties or conditions are given or assumed by SharpCloud in respect of any of the Services and any such representations, warranties or conditions are excluded, save to the extent that such exclusion is prohibited by Applicable Law.

9. Force majeure

9.1 If a Force Majeure Event occurs which prevents, hinders or delays a party (the "Affected Party") from performing any of its obligations under an Order Form, the Affected Party shall not be liable to the other party and shall be released from its obligation to perform the relevant obligations only to the extent that its ability to perform those obligations has been directly affected by the Force Majeure Event.

9.2 Upon cessation of the Force Majeure Event, the Affected Party shall promptly notify the other party of such cessation and resume performance of the affected obligations.

10. Limitations on liability

10.1 Except for fraud, willful misrepresentation, death or personal injury caused by the negligence or willful default of either party or its employees, and subject to clauses 10.2 and 10.3 below, each party’s liability for any cause whatsoever, except as otherwise stated in this clause, and regardless of the form of action, under each Order Form, will be limited to the total amounts paid by you to SharpCloud under the relevant Order Form.

10.2 The remedies provided in these Terms are the sole and exclusive remedies of the parties. Except for fraud, willful misrepresentation, death or personal injury caused by the negligence or willful default of either party or its employees, in no event shall either party be liable, whether in contract or tort, for any incidental, indirect, special, consequential or unforeseeable loss or damage (including, without limitation, loss of profits, loss of business, loss or opportunity, loss, corruption or recovery of data, loss of opportunity or loss of goodwill), however arising, even if advised of the possibility of such loss or damages being incurred.

10.3 All claims must be brought within 12 months of the date the claim arose failing which the claimant party’s rights hereunder shall lapse.

11. Termination

11.1 Either Party may issue a termination notice of an Order Form (which should specify the termination date) (“Termination Notice”) to the other party if one or more of the following occurs or exists:

a) The other party is in material Default (which could constitute a single material Default, or a number of Defaults or repeated Defaults that, taken together, constitute a material Default) of the Order Form, and such Default is either:

(i) irremediable; or

(ii) capable of being remedied but has not been remedied within 30 days of the date of receipt of the Termination Notice;

b) it wishes to terminate the Order Form for convenience at any time on giving not less than thirty days prior written Termination Notice to the other party.

c) Termination of a particular Order Form under clause 11.1(b) shall not terminate any on-going Order Forms at that time and each party shall continue to provide comply with their respective obligations under those Order Forms and you shall pay the Charges for the Services as agreed in the relevant Order Forms;

d) if a Force Majeure Event occurs that affects all or a substantial part of the Services and which continues for more than 15 Business Days.

e) SharpCloud may terminate this Agreement and /or any applicable Order Form if you have failed to pay an undisputed invoice within 14 days after SharpCloud has notified you in writing that the Due Date for payment has elapsed and payment is due.

12. Consequences of termination and survival

12.1 Following the service of a Termination Notice for any reason, SharpCloud shall continue to provide and/or procure the provision of the Services under applicable Order Forms until the expiry of the Termination Period.

12.2 On termination or expiry of an Order Form any provision of these Terms that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Order Form shall remain in full force and effect.

12.3 Termination or expiry of an Order Form shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of these Terms which existed at or before the date of termination or expiry.

13. General

13.1 If there is an inconsistency between these Terms and an Order Form, the provisions in the Order Form shall prevail in preference to these Terms.

13.2 Neither party may at any time assign any or all of its rights and obligations under an Order Form without the prior written consent of the other party which shall not be unreasonably withheld, delayed or conditioned. No consent shall be required for assignments to an affiliate or on an acquisition or change of control of a party provided that written notice of assignment is given to the other party within 60 days.

13.3 No variation of these Terms or an Order Form shall be effective unless it is in writing and signed by each party’s authorised representative.

13.4 No failure or delay by a party to exercise any right or remedy provided these Terms 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.

13.5 The rights and remedies of the parties provided under these Terms are in addition to, and not exclusive of, any of its rights or remedies provided by law.

13.6 Nothing in these Terms is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute a party the agent of the other party, or authorize a party to make or enter into any commitments for or on behalf of the other party.

13.7 If any provision or part-provision of these Terms or in an Order Form is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the terms.

13.8 These Terms constitute the entire agreement between the parties for the provision of the Services stated in an Order Form and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

13.9 These Terms do not give rise to any rights to any third party to enforce these Terms.

14. Notices

14.1 A notice given to a party shall be in writing and sent to the party at the address or email address given in the Order Form or as otherwise notified in writing to other party.

14.2 This clause 14 sets out the delivery methods for sending a notice to a party under an Order Form and, for each delivery methods, the date and time when the notice is deemed to have been received or given:

a) if delivered by hand, at the time the notice is left at the address;

b) if sent by post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or

c) if sent by pre-paid air courier providing proof of delivery, at 9.00 am on the fifth Business Day after posting; or

d) if sent by email, at the time a delivery receipt is received against a transmission or 24 hours from the time of transmission, whichever is earlier. If the transmitted email bounces back or is undelivered, then the party sending such a notice shall send that notice through a delivery method provided in the sub-clauses a), b), or c) above.

14.3 If deemed receipt under clause 14.2 would occur outside business hours in the place of receipt, it shall be deferred until business hours resume. In this clause 14.3, business hours means 9.00 am to 5.00 pm local time at place of delivery Monday to Friday on a day that is not a public holiday in the place of receipt.

14.4 This clause 14 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

15. Governing law

15.1 These Terms are entered into with you by the SharpCloud entity named in the table below. These Terms shall be construed and governed by the laws of the State or country as set out in the table below and subject to the exclusive venue stated therein, without regard to principles of conflicts of laws. The parties waive any right to a trial by jury, if applicable.