1. Definitions. In addition to any other definitions set out in this Agreement, the following will apply:
“Confidential Information” includes proprietary and third party information that is marked as confidential or, from its nature, content or the circumstances in which it is disclosed, might reasonably be considered to be confidential. It does not include information that the recipient already knew, that becomes public through no fault of the recipient, that was independently developed by the recipient or that was lawfully given to the recipient by a third party.
“Deliverables” means all documents, analysis, output, products and materials developed by Cloudreach specifically for Customer in connection with an Order Form, including data, reports and specifications (including drafts). Deliverables shall not include any Licensed Materials.
“Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in Confidential Information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and all similar or equivalent rights or forms of protection in any part of the world.
“Licensed Materials” (i) all Cloudreach proprietary materials developed at any time independently of Cloudreach’s work under any Order Form, including but not limited to: software, applications, methodologies, code, tools, policies, records, working papers, knowledge, data, know-how, architectures, concepts, techniques, templates, user interfaces; (ii) any developments that constitute improvements, modifications or other supplemental functionality/feature sets to Cloudreach’s independently developed proprietary materials; and (iii) third party licensed materials.
“Order Form” means a signed order form describing the Services, Deliverables and Licensed Materials, which may include project scope, milestones, service/subscription term, assumptions, dependencies, fees, and any other applicable terms and conditions.
“Services” mean those services to be provided by Cloudreach to Customer, as set out in an Order Form.
“Service or Subscription Period” means the period during which a particular Solution will be provided.
“Solution” means the combination of Services, Deliverables and/or Licensed Materials covered by an agreed Order Form.
2. Term; Termination. The term (“Term”) of this Agreement will begin on the Effective Date and continue until termination. This Agreement may be terminated at any time by either Party as described in the applicable Exhibit or Order Form or upon written notice if the other Party breaches any material term of this Agreement and such breach remains uncured for 15 business days following written notice from the other Party. Either Party may terminate this Agreement immediately upon notice if the other Party becomes insolvent, makes or has made an assignment for the benefit of creditors, is the subject of proceedings in voluntary or involuntary bankruptcy instituted on behalf of or against such Party, or has a receiver or trustee appointed for substantially all of its property. Upon any termination, Cloudreach shall be entitled to be paid for all work performed, all deliverables provided, all accrued charges and all costs incurred up to the effective date of termination.
3. Exhibits; Order Forms; Precedence. Each Exhibit and Order Form shall be incorporated into and governed by this Agreement. Order forms shall define the: (i) Solution to be provided by Cloudreach; (ii) the applicable fees (“Fees”); (iii) the Service or Subscription Period; and (iv) any additional terms and conditions. The Parties agree that this Agreement and the applicable Exhibits and Order Form(s) for the Solution shall govern and supersede any terms and conditions stated on any purchase order submitted by Customer for such Solution. In the event of any conflict between this Agreement and an Exhibit or Order Form, the following order of precedence shall prevail: (i) the main body of this Agreement; (ii) Exhibits; and (iii) Order Forms.
4. Services; Warranties.
(a) Cloudreach and Customer have entered into the Agreement for their benefit and for the benefit of their affiliates. In consideration of the Customer’s payment of the Fees, Cloudreach and/or its affiliates will provide the Solution to the Customer in accordance with and subject to the terms of the applicable Order Form. Unless otherwise specified, each Order Form shall be limited to the specific Customer affiliate entering into such Order Form.
(b) With respect to Order Forms between Cloudreach or its affiliates on the one side and Customer or an affiliate of Customer on the other side, any such party shall be entitled to enforce any and all of the provisions of this Agreement against the other party as though it were party to this Agreement and those provisions were made for its benefit, with the exception of the right to amend or to terminate this Agreement, which rights may only be exercised by Customer and/or Cloudreach.
(c) Cloudreach warrants that at the time of performance all Services will be performed in a good and workmanlike manner and in accordance with generally accepted industry standards. EXCEPT FOR THE FOREGOING, CLOUDREACH MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, AND CLOUDREACH SPECIFICALLY DISCLAIMS ALL OTHER SUCH WARRANTIES, INCLUDING THE WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE OR USE. CLOUDREACH DOES NOT WARRANT THAT ANY PARTY OF THE SOLUTION WILL BE FREE FROM DEFECTS. ANY OPEN SOURCE SOFTWARE PROVIDED AS PART OF THE SOLUTION IS PROVIDED “AS IS”.
(d) Cloudreach may recommend third party products. No warranty shall be attributable to Cloudreach with respect to such recommendation or products; the Customer shall look solely to the warranties and remedies provided by any such third party with whom it may contract.
5. Scope Assumptions; Dependencies. Customer will provide all necessary access and cooperation to enable Cloudreach to perform its obligations under an Order Form. Without limiting the generality of the foregoing, key project assumptions and dependencies will be set out in an Order Form. Where it is discovered that an assumption is incorrect, or a Customer or any other dependency is creating an issue, Cloudreach will notify the Customer in writing and the Parties will negotiate in good faith to agree a resolution within 10 business days. Where the parties cannot arrive at a mutually satisfactory resolution, Cloudreach in its sole discretion may terminate the Service Period on a further 15 business days’ notice to the other Party. Cloudreach shall have no liability for any failure to deliver any Solution resulting in whole or in part from an incorrect assumption or a dependency outside of Cloudreach’s control.
6. Change Requests.
(a) Any change request to an Order Form must be requested by a Party in writing and Cloudreach shall, within a reasonable time, provide a written estimate to the Customer of: (i) the likely time required to implement the change; (ii) any necessary variations to Cloudreach's charges arising from the change; (iii) the likely effect of the change and any required amendment to the applicable Order Form; and (iv) any other impact of the change on this Agreement. If the Customer wishes Cloudreach to proceed with the change, Cloudreach has no obligation to do so unless and until the Parties have agreed in writing the necessary variations.
(b) Notwithstanding Section 5(a), Cloudreach may, from time to time on reasonable notice, modify the Solution in order to comply with any applicable safety or statutory requirements or overcome any technical issues or make improvements, provided that such changes do not materially affect the nature, scope of, or the charges for the Solution or materially adversely affect the Customer. Cloudreach may discontinue offering the Solution or any portion of the Solution on 90 days’ notice to Customer. If Cloudreach discontinues offering all or part of the Solution, Customer will owe Cloudreach only the amount accrued up to the effective date of such termination.
7. Fees and Expenses; Payment; Taxes.
(a) Customer shall pay Cloudreach the Fees for the Solution as set forth in the fee schedule contained in the applicable Order Form. Time and material engagements will be based on an 8-hour working day and where overtime is required, an overtime rate equivalent to 150% of the calculated hourly rate will be payable.
(b) Customer shall pay the reasonable travel expenses of Cloudreach employees that are incurred in the course of Cloudreach’s performance of Services, provided that such expenses are in accordance with the limits of the Cloudreach travel and expenses policy attached as Exhibit B. Time spent by Cloudreach personnel travelling to Customer premises will be charged by Cloudreach on an hourly basis at 50% of the relevant individual’s calculated hourly rate.
(c) Customer shall pay invoiced amounts within 30 days of the invoice date. Cloudreach may charge interest for late payments at the lower of: (i) 12% per annum; or (ii) the maximum legal interest rate permitted by applicable law starting on the due date until the date of payment. All payments are to be made in the currency indicated on an applicable Order Form.
(d) All charges quoted to the Customer shall be exclusive of VAT, which will be added to invoices at the appropriate rate as required by applicable law.
8. Insurance. During the Term of this Agreement, the Parties will maintain the insurance coverages set out in Exhibit A.
9 Confidentiality. To the extent that Confidential Information of either Party and its affiliates is disclosed and/or received by the other Party or its affiliates, each Party agrees not to use the other Party’s Confidential Information except in the performance of, or as authorized by, this Agreement, and not to disclose, sell, license, distribute or otherwise make available such information to third parties. Use by third party contractors may be permitted so long as such contractor has a need to know and is required to maintain the confidentiality of such information as required by this Section 9.
10. Intellectual Property Rights.
(a) Subject to Sections 10(b) and (c), as between Cloudreach and Customer, all Intellectual Property Rights in the Deliverables are and shall be owned by Customer, and Customer shall have all right, title and interest in and to such Deliverables. Customer shall also retain all rights and ownership in its proprietary Confidential Information.
(b) The Licensed Materials shall remain the exclusive property of Cloudreach or its third party licensor(s). Subject to the payment of any applicable Fees and/or third party charges, Cloudreach grants to Customer a royalty-free, non-exclusive, non-transferable license to use such Licensed Materials solely for Customer’s internal business purposes and as part of the Solution, in accordance with the limitations set forth in this Agreement and any applicable Order Form. Cloudreach shall also retain all rights and ownership in its proprietary Confidential Information.
(c) Customer acknowledges that Cloudreach provides similar services to other customers and that nothing in this Agreement shall be construed to prevent Cloudreach from carrying on such business or from acquiring, licensing, marketing, distributing, developing for itself or others or having others develop for it, similar products, services or materials performing the same or similar functions as the Services and Deliverables contemplated by this Agreement or any Order Form. Therefore, notwithstanding Section 9(a), Cloudreach has the right to retain and use copies of the Deliverables, provided, however, that the foregoing does not include rights to distribute, disclose or create derivative works from Customer’s Confidential Information that is incorporated into the Deliverables.
(d) Customer acknowledges and agrees that Customer’s use of the Deliverables and/or Solution may be conditional on either: (i) Cloudreach obtaining a written licence (or sub-license) from the relevant licensor or licensors on such terms as will entitle Cloudreach to license such rights to the Customer; (ii) the Customer obtaining a written license from the relevant licensor or licensors as the case may be; or with respect to open source or other free third party applications; or (iii) Customer authorising Cloudreach to accept such third party applications’ terms and conditions on behalf of Customer.
(a) Cloudreach shall defend and indemnify Customer against damages arising from a third party claim where there is a finding by a court of competent jurisdiction that the Customer’s use of the Deliverables infringes the intellectual property rights of that third party; provided that Customer: (i) promptly notifies Cloudreach in writing of any such suit; (ii) grants Cloudreach sole control of the proceedings (including without limitation the right to settle on behalf of Customer); and (iii) cooperates at all times with Cloudreach in connection with its defense at the reasonable expense of Cloudreach.
(b) If Customer is enjoined from using any Deliverable, Cloudreach shall: (i) obtain the right for Customer to continue to use such Deliverable; or (ii) replace or modify the Deliverable so as to make it non-infringing and substantially comparable in functionality. If after using commercially reasonable efforts Cloudreach is unable to do either (i) or (ii) above, such Deliverable shall be returned to Cloudreach and Cloudreach’s sole liability shall be to refund Customer the amount paid to Cloudreach for such item or portion thereof.
(c) Cloudreach will have no obligation to indemnify Customer with respect to any infringement claim based upon: (i) use or modification of a Deliverable other than in accordance with applicable documentation or instructions provided by Cloudreach; (ii) any use of the Deliverables in combination with other products, technologies or data not supplied by Cloudreach; (iii) any refusal to accept or use suitable modified or replacement deliverables provided by Cloudreach to avoid infringement; (iv) any Deliverables provided on the basis of the Customer’s express instructions or specifications; (v) Customer’s failure to comply with the terms of any license agreement or other licensor or manufacturer requirements applicable to any software or other products provided by Cloudreach; or (vi) Customer’s negligence, breach or willful misconduct.
12. Limitation of Liability.
(a) IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR INDIRECT DAMAGES, BUSINESS INTERRUPTION, LOST BUSINESS PROFITS, LOSS OF ANTICIPATED SAVINGS, LOSS OF OR CORRUPTION OF DATA, LOSS OF REPUTATION OR GOODWILL, OR LOSS OF BUSINESS OPPORTUNITY ARISING OUT OF THIS AGREEMENT OR ANY SOLUTION, EVEN IF A PARTY HAS BEEN ADVISED OF OR WAS AWARE OF THE POTENTIAL FOR SUCH DAMAGES IN ADVANCE.
(b) EITHER PARTY’S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT, INCLUDING IN CONNECTION WITH ANY SOLUTION PROVIDED BY CLOUDREACH (WHETHER IN CONTRACT, TORT, OR OBLIGATION TO INDEMNIFY), SHALL BE LIMITED TO THE FEES PAID BY CUSTOMER TO CLOUDREACH UNDER THE RELEVANT ORDER FROM IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM FOR THE SOLUTION THAT IS THE SUBJECT MATTER OF THE CLAIM UP TO A MAXIMUM OF ￡750,000.
(c) IN NO EVENT SHALL CLOUDREACH BE LIABLE FOR ANY CLAIM MADE BY CUSTOMER OR ANY OTHER PERSON TO THE EXTENT SUCH CLAIM ARISES OUT OF MATERIALS PROVIDED BY CUSTOMER TO CLOUDREACH TO USE IN DEVELOPING, PERFORMING OR CUSTOMIZING ANY SERVICES OR DELIVERABLES.
(d) Nothing in this Agreement limits or excludes either Party's liability for: (i) death or personal injury resulting from negligence; (ii) fraud or fraudulent misrepresentation; (iii) willful misconduct; or (iv) payment of sums properly due and owing to the other in the course of normal performance of this Agreement and all Order Forms.
13. Employee Non-Solicitation. Unless otherwise agreed in an Exhibit, during the term of any Order Form hereunder and for one (1) year thereafter, each Party agrees not to solicit or recruit for employment any employee of the other Party, provided that this shall not prevent employees from responding to publicly advertised roles where they have not been targeted or invited to apply by the other Party. If either Cloudreach or the Customer commits any breach of this Section 13, the breaching party shall, on demand, pay to the claiming party a sum equal to one year's basic salary that was payable by the claiming party to that employee plus the recruitment costs incurred by the claiming party in replacing such person.
14. Force Majeure. Neither Party will be liable for any loss, damage or delay resulting from any event beyond such Party’s reasonable control (a “Force Majeure”) and delivery and performance dates will be extended to the extent of any delays resulting from a Force Majeure. Each Party will promptly notify the other upon becoming aware that any Force Majeure has occurred or is likely to occur and will use its best efforts to minimize any resulting delay in or interference with the performance of its obligations under this Agreement.
15. Relationship Between the Parties; Rights of Third Parties. Cloudreach will require that its personnel comply with all reasonable instructions and directions issued by Customer when on Customer’s premises. Cloudreach is an independent contractor and shall not be deemed an employee, partner, joint venturer or agent of Customer. Nothing in this Agreement shall create or confer any rights or other benefits in favour of any person other than the Parties to this Agreement and Order Form.
16. Compliance with Laws. The parties shall: (i) comply with all applicable laws, rules, statutes and regulations relating to anti-bribery and anti-corruption including but not limited, to the U.K. Bribery Act 2010 (Relevant Requirements); (ii) not undertake, nor cause nor permit to be undertaken, any activity which either: (a) is illegal under any applicable laws, decrees, promulgations, rules, or regulations in effect in any country; or (b) would have the effect of causing the other party to be in violation of any applicable laws, decrees, promulgations, rules, or regulations in effect, including but not limited to the United Kingdom and any other country where the Solution will be performed; (iii) promptly report to the other party any request or demand for any undue financial or other advantage of any kind received by it in connection with the performance of this Agreement or any applicable Order Form.
17. Data Protection. To the extent that Customer is established within the European Economic Area or Switzerland or where otherwise required by applicable data protection laws, the Parties agree to the terms of the Data Processing Agreement set out in Exhibit C.
18. Marketing. Customer consents to Cloudreach’s use of the Customer's name, trademarks or service marks and reference to this Agreement in promotional and marketing materials, public announcements or required disclosures, subject to any branding or other guidelines provided by Customer from time to time.
19. Entire Agreement; Survival. This Agreement, including all Exhibits and any Order Forms, contains the complete agreement between the Parties relating to the subject matter hereof and supersedes all prior negotiations, representations and understandings. Those Sections that by their nature should logically survive shall remain in force after any termination of this Agreement.
20. Severability. In case any one or more of the provisions contained in this Agreement should be invalid, illegal, or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not be in any way affected or impaired thereby.
21.Amendment; Waiver. Any modification, amendment or waiver must be in writing and signed by both Parties.
22. Notices. Any notices sent under this Agreement shall be delivered by reliable means to the addresses listed at the beginning of this Agreement, shall reference this Agreement and, in the case of Cloudreach, shall be delivered to the attention of the person listed below with a copy to firstname.lastname@example.org.
23. Assignment. Neither party may assign any of its rights or obligations under this Agreement or any Order Form without the prior written consent of the other such consent not to be unreasonably withheld, provided that Cloudreach can assign to any of its affiliates or to an acquirer of all or substantially all of the assets of a party without the consent of the Customer.
24. Governing Law; Jurisdiction. This Agreement shall be governed by the laws of England and Wales. Cloudreach and Customer agree that any controversy or claim arising out of or relating to this Agreement or the breach thereof shall be submitted to binding arbitration via the London Court of International Arbitration (LCIA) under under the LCIA Rules.
Exhibit A: Insurance
1. Cloudreach shall maintain, throughout the duration of the Agreement and each Order Form the following insurance with companies which are licensed to provide the applicable insurance:
(a) Worker’s Compensation Insurance or other similar social insurance in accordance with the laws of the country, state or territory exercising jurisdiction over the employee with the minimum limits required by law.
(b) Employer’s Liability Insurance, including coverage for occupational injury, illness and disease, with minimum limits:
Bodily Injury by Accident ￡1,000,000 each accident
Bodily Injury by Disease ￡1,000,000 each employee
Bodily Injury by Disease ￡1,000,000 policy limit
(c) Commercial General Liability in an amount not less than ￡,000,000 combined single limit per occurrence.
(d) Professional Liability Insurance (Errors & Omissions) in an amount not less than ￡2,000,000 per claim for damages arising from any acts, errors or omissions.
2. At Customer’s reasonable request, Cloudreach shall furnish Customer with certificates of insurance evidencing compliance with the requirements listed above. Cloudreach shall not modify its insurance in such a way that would adversely affect Customer.
3. Customer shall maintain, throughout the duration of the Agreement and each Order Form the following insurance with companies which are licensed to provide the applicable insurance:
Exhibit B: Travel and Expenses Policy (Europe)
When working away from base overnight, Customer will reimburse cost of meals on presentation of receipts, up to the following limits:
Transport - flight / taxi
Approved Flight/Train/Ferry limits
Travel should not exceed the limits below for a return trip:
All travel must be in economy class.
Taxis can be taken for business purposes if it is the most cost-effective means of transport or there is a genuine business need. The following guidelines apply: