Terms & Conditions
- 1. Formation of Contract
- 1.1. These Terms and Conditions shall apply to and be incorporated into the Contract. No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on Soda unless in writing and signed by a director of Soda. The parties agree that these Terms and Conditions will prevail over any inconsistent terms and conditions contained in, referred to in, the Customer’s signed order form, confirmation of order or specification or as implied by law, trade, custom practice or a course of dealing.
- 1.2. The Customer’s signed order form constitutes an offer by the Customer to purchase the Equipment, Software or Services (as applicable) specified in it on the basis of these Terms and Conditions; accordingly, the earlier of the execution of the Proposal by the parties, or Soda’s commencement or execution of work pursuant to the Proposal, shall establish a Contract for the supply and purchase of that Equipment, Software or Services (as applicable) on these Terms and Conditions.
- 1.3. For the avoidance of doubt, where the relevant Proposal or agreement has not been signed by either (or both) the Customer or Soda, these Terms and Conditions will nevertheless apply to the Contract provided that the Customer has had prior notice of them (regardless of whether the Customer has indicated its acceptance in writing). By instructing Soda to supply any Equipment, Software or Services (as applicable) and/or by paying any charge(s) or invoice(s) of Soda, whether set out in the Contract or otherwise, the Customer indicates its acceptance of the Terms and Conditions.
- 1.4. Certain Services supplied by Soda are subject to Supplemental Terms which will (where applicable) form part of the Customer’s contract with Soda and will supplement and (unless expressly stated otherwise in the relevant Supplemental Terms) incorporate these Terms and Conditions.
- 2. Specification and Change Control
- 2.1. Any Equipment, Software or Services (as applicable) to be supplied by Soda shall be supplied by the means and in accordance with the timetable set out in the Proposal. Where no means are specified, the relevant Equipment, Software or Services shall be supplied by such means as Soda determines appropriate and where no timetable is specified, the relevant Equipment, Software or Services shall be supplied within a reasonable time. Whilst Soda will use its reasonable endeavours to deliver the relevant Equipment, Software or Services by any date or within any period agreed upon, such dates and periods are estimates only, given in good faith, and Soda will not be liable for any failure to deliver by or within such a period nor shall delays in the delivery of a Contract entitle the Customer to refuse to take delivery of the relevant Equipment, Software or Services. Time for delivery shall not be of the essence of the Contract.
- 2.2. The description of any Equipment, Software or Services (as applicable) contained in any order form, invoice, descriptive matter, specifications, catalogue or advertising material published or issued by Soda is for identification only and the use of such description will not constitute a sale by description. Any typographical or other error or omission in any such literature or any other document issued or provided by Soda may be corrected by Soda without any liability on the part of Soda.
- 2.3. Soda reserves the right to supply Equipment and Software which differ from the specifications agreed between the parties and/or to modify any specifications in respect of Services, provided that this does not materially affect the performance of the Equipment or Services.
- 2.4. If at any time after the acceptance of a Contract pursuant to clause 1.2, the scope of the Equipment, Software or Services (as applicable) changes, or if either party wishes to change the scope of the same, it shall submit details of the change or the requested change to the other in writing. If either party identifies or requests a change to the scope or execution of the Equipment, Software or Services (as applicable), Soda shall, within a reasonable time, provide a written estimate to the Customer of:
- 2.4.1. the likely time required to implement the change;
- 2.4.2. any variations to Soda’s charges arising from the change;
- 2.4.3. the likely effect of the change on the Project Plan; and
- 2.4.4. any other impact of the change on the terms of the Contract.
- 2.5. If Soda identifies or requests a change to the scope of the Equipment, Software or Services (as applicable), the Customer shall not unreasonably withhold or delay consent to it. Any request by the Customer for the cancellation or reduction of the scope of the Equipment, Software or Services (as applicable) to be supplied by Soda to the Customer will only be accepted at the discretion of Soda and in any case on the condition that any costs or expenses incurred by Soda up to the date of such cancellation or variation (and all loss or damage resulting to Soda by reason of such cancellation or variation and including, for the avoidance of doubt the payment identified in clause 13.6) will be paid by the Customer to Soda forthwith. Acceptance of such cancellation or variation will only be binding on Soda if in writing and signed by a director of Soda.
- 2.6. If the Customer wishes Soda to proceed with the change, Soda has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its Charges, the Project Plan and any other relevant terms of the Contract to take account of the change.
- 3. Support Services
- 3.1. Where our Proposal expressly identifies Services for the support of equipment and software (including any Equipment and Software) (“Support Services”) then Soda will use reasonable endeavours to support the Software in accordance with the Service Levels with effect from the date of final acceptance of the Software in accordance with clause 8.2.
- 3.2. The Customer acknowledges that complex software is never wholly free from defects, errors, bugs, security vulnerabilities, or compatibility issues and except as expressly and specifically provided in clause 6, the Services and the Project Deliverables provided by us under or in connection with this Contract (including the Software Deliverables and the Software Services) are provided “as is” and as available. We exclude, and you waive, any and all warranties, representations, terms and conditions (to the extent that they may lawfully be so excluded) implied by law or by custom or trade practice in respect of the provision of such services.
- 4. Prices
- 4.1. Unless otherwise stated in writing, quotations are valid for 14 days from the date of issue and are exclusive of:
- 4.1.1. VAT and any other relevant taxes which Soda shall add to its invoices at the appropriate rate; and
- 4.1.2. any chargeable expenses and disbursements which are incurred by Soda personnel on behalf of the Customer including but not limited to hotels, subsistence, travelling, mileage at 45p per mile, supplies and the cost of any materials or services reasonably and properly provided by third parties required by Soda for the supply of services. Such expenses, materials and third party services shall be invoiced by Soda.
- 4.2. Subject to 13.2.2, Soda may:
- 4.2.1. at any time by giving the Customer fourteen (14) days’ written notice, increase its prices to take account of any increase in the direct cost to Soda of supplying the Equipment, Software or Services (as applicable) (including, but not limited to, any change in telecommunication provider rates or Third Party Software Vendor licence fees or other third party costs) and such increased prices ruling at the date of supply of Equipment, Software or Services (as applicable) by Soda shall be substituted for the previous contract price;
- 4.2.2. where the Proposal relates to Support Services, at any time by giving the Customer fourteen (14) days’ written notice, increase its prices to take account of any matter or matters that Soda consider to be a significant change in the scope, complexity or scale of the Support Services Such increased prices ruling at the date Soda notifies the Customer of the change in the scope of the Support Services shall be substituted for the previous contract price; and
- 4.2.3. where the Proposal relates to Support Services and includes an Initial Term, at any time after the first anniversary of the Commencement Date by giving to the Customer not less than thirty (30) days’ written notice, increase the Charges provided that the increases shall be no more frequent than once in any 12-month period.
- 4.1. Unless otherwise stated in writing, quotations are valid for 14 days from the date of issue and are exclusive of:
- 5. Payment
- 5.1. The Customer shall pay the Charges to Soda in accordance with these Terms and Conditions:
- 5.1.1. Clause 5.2 shall apply if the Services are to be provided on a time-and-materials basis.
- 5.1.2. Clause 5.3 shall apply if Equipment, Software or Services (as applicable) are to be provided for a fixed price.
- 5.1. The Customer shall pay the Charges to Soda in accordance with these Terms and Conditions:
The remainder of this clause 5 shall apply in either case.
- 5.2. Where the Services are provided on a time-and-materials basis:
- 5.2.1. the Charges payable for the Services shall be calculated in accordance with Soda’s agreed daily fee rates as amended from time to time;
- 5.2.2. Soda’s agreed daily fee rates are calculated on the basis of Normal Working Hours;
- 5.2.3. Soda shall be entitled to charge at an overtime rate for part days and for time worked by members of the project team outside the hours referred to in clause 5.2.2 on a pro-rata basis. Overtime will be calculated by multiplying Soda’s agreed time-based overtime charging rates (as may be set out in the Proposal and/or notified by Soda to the Customer from time to time) by the time spent by Soda’s personnel performing the Services; and
- 5.2.4. Soda shall invoice the Customer monthly in arrears for its charges for time and materials, subject to any cap where the services are provided on a capped time-and-materials basis (together with expenses and VAT where appropriate) for the month concerned.
- 5.3. Where Equipment, Software or Services (as applicable) are provided for a fixed price, the price for the Equipment, Software or Services (as applicable) shall be the amount set out in the Proposal or in Soda’s quotation. Where the price envisages deposit payments, payment in instalments and/or Project Milestones, the Charges shall be paid to Soda in advance, in the instalments as set out in the Proposal or on it achieving the corresponding Project Milestone as applicable. On achieving a Project Milestone, Soda shall invoice the Customer for the Charges that are then payable, together with expenses and the costs of materials (and VAT, where appropriate).
- 5.4. The Customer shall pay each invoice submitted to it by Soda in full, and in cleared funds, within seven (7) days of receipt of the invoice for services and/or within thirty (30) days of receipt of the invoice for hardware (or in accordance with such other payment terms as may be specified in the Proposal). Time for payment shall be of the essence of the Contract.
- 5.5. Without prejudice to any other right or remedy that Soda may have, if the Customer fails to pay Soda on the due date Soda may charge interest on such sum from the due date for payment at the annual rate of 3% above the base lending rate from time to time of Barclays Bank Plc (or at a rate of 3% in the event that the base rate of the bank is less than zero), accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment.
- 5.6. All payments payable to Soda under the Contract shall become due immediately on termination of the Contract, despite any other provision. This condition is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
- 5.7. All amounts due under this Contract shall be paid by the Customer to Soda in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). Soda may, without prejudice to any other rights it may have, set off any liability of the Customer to Soda against any liability of Soda to the Customer, whether such liability is present or future, liquidated or unliquidated, and whether or not either such arises under the Contract, another agreement or otherwise.
- 5.2. Where the Services are provided on a time-and-materials basis:
- 6. Third Party Contracts
- 6.1. If any payments due to Soda in respect of Equipment, Software or Services (as applicable) are to be paid by a third party then the Customer agrees that immediately on delivery of the Equipment, Software or Services in question the Customer will sign the acceptance note for the leasing company or other third party and will generally take all steps as may be necessary to ensure that payment is made to Soda for the Equipment, Software or Services in accordance with these Terms and Conditions.
- 6.2. It is agreed and acknowledged between Soda and the Customer that:
- 6.2.1. in providing the Services to the Customer, Soda may enter into binding contractual commitments (“Third Party Contracts”) on the Customer’s behalf with telecommunication providers and other third parties (“Third Party Providers”);
- 6.2.2. the Customer acknowledges that the Third Party Contract creates rights and obligations between Soda and the Third Party Provider; and
- 6.2.3. notwithstanding that the Customer is not a party to the Third Party Contract, the Customer is and shall be at all times responsible and held liable for any and all call and data charges, termination fees and any other charges and fees that may be charged by the Third Party Provider to Soda in respect of the Services provided to the Customer (“Third Party Charges”) and the Customer undertakes to pay such sums on an indemnity basis and defend, indemnify, keep indemnified and hold Soda harmless against any and all third party claims, actions, and proceedings, and all losses, damages, expenses and costs (including without limitation legal costs) associated therewith.
- 7. Software Supply
- 7.1. Where Software supplied is Third Party Software, Soda shall supply or otherwise make available to the Customer a copy of the Third Party Software Licence on request from the Customer, whether by means of the Third Party Software Vendor’s website or otherwise. In supplying any such Third Party Software Licence Soda shall be permitted to redact such information contained in the Third Party Software Licence as it deems reasonably necessary to protect its Confidential Information. The Customer shall be responsible for ensuring that the Customer’s use of the Third Party Software is properly licensed.
- 7.2. The parties acknowledge that the Customer’s rights to use the Third Party Software, and the restrictions on the Customer’s use of the Third Party Software, shall be as set out in the Third Party Software Licence.
- 7.3. The Customer must abide by the terms of the Third Party Software Licence and ensure that all persons using the Third Party Software supplied (or otherwise made available) by Soda to the Customer abide by the terms of the Third Party Software Licence.
- 7.4. The parties acknowledge that the Third Party Software Licence creates rights and obligations between the Customer and the Third Party Software Vendor, and that Soda is not a party to the Third Party Software Licence.
- 7.5. Soda shall as far as it is able pass on to the Customer the benefits of any Third Party Software Vendor warranties in relation to any Third Party Software. Save as provided in clause 7.6, Soda gives no warranties or guarantees and makes no representations concerning the Software, and all such warranties, guarantees, representations, and all conditions and any other terms whatsoever implied by statute or otherwise, are hereby excluded from the Contract between Soda and the Customer to the fullest extent permitted by applicable law.
- 7.6. Where the Software is created by the employees of Soda as part of Software Development Services and where this clause 7.6 is expressly identified as being applicable in the Proposal (but not otherwise), then Soda warrants that the Project Deliverables in that Software will, at the date of Customer’s acceptance of the Software (in accordance with clause 8.2 below), and for thirty (30) days after that date, perform in accordance with the technical specification contained in the Proposal. Soda shall not be in breach of the warranty at this clause 7.6 to the extent the breach of any such warranty arises from (i) compliance by Soda (or any third party acting on behalf of Soda) with the Customer’s written instructions (ii) any modification of the Project Deliverables after delivery by Soda to the Customer if such modification was not made by and/or on behalf of Soda or with the written approval of Soda or (iii) operation or use by the Customer or any third party of some or all of the Project Deliverables in combination with products, information, specification, instructions, data, materials not provided or approved by Soda.
- 8. Acceptance Testing
- 8.1. Where acceptance testing is expressly envisaged as being applicable in the Proposal (but not otherwise) then, prior to launch of the Equipment, Software or Services (as applicable), Soda shall undertake such acceptance tests in relation to the relevant Equipment, Software or Services as it deems fit, and as may be reasonably required by the Customer. The acceptance criteria for such tests shall be objective. The Customer shall promptly provide such assistance as Soda may reasonably require in order to complete such acceptance tests. In the event that any acceptance tests are not successfully completed, Soda shall be given the opportunity to retest such elements which were not successfully completed and/or (with the consent of the Customer, not to be unreasonably withheld or delayed) to modify the acceptance tests or acceptance criteria. Soda shall notify the Customer once all acceptance tests have been successfully completed (“a Notification”) and shall provide reasonable evidence of such completion on request. If, within ten (10) Business Days of receipt of a Notification the Customer has not provided Soda with a confirmation as to whether or not the tests have been successfully completed, then a confirmation of the successful completion of the relevant acceptance tests shall be deemed to have been served on Soda by the Customer.
- 8.2. Acceptance of the Equipment, Software or Services (as applicable) shall be deemed to have occurred on whichever is the earliest of; (i) the date that the Customer notifies (or pursuant to clause 8.1 is deemed to have notified) Soda that the relevant acceptance tests have been successfully completed or (ii) the date that the relevant Equipment, Software or Services (as applicable) are put into commercial or operational use.
- 9. Customer’s Obligations
- 9.1. The Customer shall:
- 9.1.1. co-operate with Soda in all matters relating to the Contract and appoint an authorised representative of the Customer who has the authority to contractually bind the Customer on matters relating to the Contract;
- 9.1.2. provide in a timely manner such access to the Customer’s premises, systems and data (including, where agreed in the Contract, providing Soda with access to the Customer’s systems by use of remote desktop support software) and such office accommodation and other facilities, as is requested by Soda;
- 9.1.3. provide in a timely manner such information as Soda may request, and ensure that such information is accurate in all material respects;
- 9.1.4. comply with any Mandatory Policies that are notified to it from time to time;
- 9.1.5. take all steps to ensure the welfare and safety of any Soda personnel at any premises of the Customer and ensure that its premises and all plant and equipment which is used by Soda’s personnel or with which they may come into contact or to which they may be exposed complies with the Health and Safety at Work Act 1974, all relevant statutory provisions (as defined in that Act) and all other obligations imposed by statute and common law relating to health and safety; and
- 9.1.6. be responsible (at its own cost) for the performing or procuring the performance of the Customer Responsibilities including preparing the relevant premises for the supply of the Equipment, Software or Services (as applicable).
- 9.2. If Soda’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer or the Customer’s Personnel (including any failure to perform or procure the performance of the Customer Responsibilities or any delays or postponements by the Customer of any installation dates specified by Soda, of dates for scheduled service visits or otherwise) then:
- 9.2.1. Soda be granted relief from any failure of it to carry out the Services, deliver the Equipment/Software or otherwise comply with its obligations under the Contract; and
- 9.2.2. the Customer shall in all circumstances be liable to pay to Soda on demand all reasonable costs, charges or losses sustained or incurred by it (including, without limitation, any direct, indirect or consequential losses, loss of profit and loss of opportunity to deploy resources elsewhere), subject to Soda confirming such costs, charges and losses to the Customer in writing.
- 9.1. The Customer shall:
- 10. Limitation of Liability
- 10.1. The Customer agrees and acknowledges that the level of the Charges takes fully into account the limits of Soda’s entire financial liability (set out below) for the applicable Equipment, Software or Services (as applicable) supplied or to be supplied to the Customer, the Customer’s use of them, and for anything else in connection with any Contract between Soda and the Customer for Equipment, Software or Services (as applicable).
- 10.2. Nothing in these Terms and Conditions shall limit or exclude the liability of Soda in respect of (i) death or personal injury caused by negligence or (ii) fraud or (iii) any other liability which cannot by law be limited or excluded.
- 10.3. Subject to Clause 10.2, Soda shall not be liable to the Customer whether in contract, tort (including for negligence or breach of statutory duty), or for negligent or innocent misrepresentation, or otherwise, for any of the following types of loss or damage, even if the Customer has been advised of the possibility of such loss or damage (i) loss or depletion of goodwill or reputation or (ii) loss of profits, revenue, contracts or anticipated savings; or (iii) loss or damage arising from loss, damage or corruption of data or information; or (iv) loss of use; or (v) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
- 10.4. Subject to Clause 10.2, if the Customer incurs any loss, in connection with or arising (i) from the performance or non-performance of the obligations of Soda under a Contract for Equipment, Software or Services (as applicable) or (ii) as a result of any advice given or failed to be given to the Customer by Soda and Soda’s liability (whether for a breach of contract or tort (including negligence or breach of statutory duty), or for negligent or innocent misrepresentation or otherwise) as a result thereof is established (a “Supplier Default”), then the total aggregate liability of Soda to the Customer under the Contract or otherwise for that Supplier Default and any previous Supplier Defaults shall in no circumstances exceed:
- 10.4.1. where the Supplier Default relates to Equipment or Software supplied by Soda, the sum of the amount paid by the Customer to Soda for the Equipment or Software that are directly affected by the Supplier Default;
- 10.4.2. where the Supplier Default relates to Support Services:
- 10.4.2.1. except where such failure would constitute a Service Level Termination Event (in which case clause 10.4.2(b) shall apply), the sum of any Service Credits applicable to the relevant Service Level failure and, in any event, not exceeding the sum of the amount paid by the Customer to Soda for the Support Fees in respect of the month in which the relevant failure to achieve the Service Levels occurs. For the avoidance of doubt, save for clause 13.5, Service Credits will be the Customer’s sole remedy and constitute Soda’s entire liability to the Customer for any failure relating to Support Services and/or any failure to meet Service Levels;
- 10.4.2.2. and such failure constitutes a Service Level Termination Event giving rise to a right of termination, the sum of the amount paid by the Customer to Soda for the Support Services during the preceding twelve months immediately prior to the act or omission giving rise to the loss (or if the event giving rise to the loss occurs during the first twelve (12) months of the Contract, the amount paid by the Customer for the Support Services during that period).
- 10.4.3. where the Supplier Default relates to a Service supplied by Soda (other than Support Services in respect of which Soda’s liability is limited as outlined at clause 10.4.2) the sum of the amount paid by the Customer to Soda for the service element(s) of the Service(s) that are directly affected by Supplier Default (the “Affected Services”) during the preceding twelve months immediately prior to the act or omission giving rise to the loss (or if the event giving rise to the loss occurs during the first twelve (12) months of the Contract, the amount paid by the Customer for the Affected Services during that period).
- 11. Warranties
- 11.1. Soda warrants to the Customer that:
- 11.1.1. it has the legal right and authority to enter into the Contract and perform its obligations under these Terms and Conditions; and
- 11.1.2. it shall comply with all applicable laws in relation to its performance of the Contract.
- 11.2. The Customer warrants to Soda that:
- 11.2.1. the Customer has the legal right and authority to enter into the Contract and perform its obligations under these Terms and Conditions;
- 11.2.2. none of the information, documents, drawings, software, images, content or sounds (together with any database made up of any of these) and other materials owned or controlled by the Customer, embodied in any medium, which are supplied or made available by or on behalf of the Customer to Soda in connection with a Contract infringe any Intellectual Property Right or any right of confidence, right of privacy or right under data protection legislation of any third party;
- 11.2.3. in relation to its use of the Software neither it nor any of its employees or associated parties will attempt to or permit any third party to reverse engineer, decompile, monitor or in any way replicate the coding, software or functionality of any Software;
- 11.2.4. it has, and shall maintain throughout the term, the full capacity, authority and any necessary licences and approvals under applicable laws to enter into and perform its obligations contained in the Contract; and
- 11.2.5. it shall comply with all applicable laws in relation to its performance of the Contract.
- 11.3. It is acknowledged and agreed by the Customer that:
- 11.3.1. In respect of the Equipment, Software or Services (as applicable) supplied by Soda, whilst Soda will endeavour to use its experience and expertise to advise the Customer, Soda acts as a supplier to the Customer only. The Customer assumes sole responsibility ensuring that the Equipment, Software or Services (as applicable) supplied by Soda meet its requirements and for results obtained from the use of the same by the Customer and for conclusions drawn from such use;
- 11.3.2. Soda shall not have any obligation or duty, and shall not bear any liability or responsibility, in relation to any of those matters which the Customer expressly undertakes, warrants, or bears responsibility for in the Contract; and
- 11.3.3. except as expressly set out in these Terms and Conditions, Soda gives no warranties or guarantees and makes no representations concerning the supply the Equipment, Software or Services (as applicable), and all such warranties, guarantees, representations, and all conditions and any other terms whatsoever implied by statute or otherwise, are hereby excluded from the Contract between Soda and the Customer to the fullest extent permitted by applicable law.
- 11.4. The Customer undertakes to defend, indemnify, keep indemnified and hold Soda harmless against any and all third party claims, actions, and proceedings, and all losses, damages, expenses and costs (including without limitation legal costs) associated therewith, where any of the same arise out of or in connection with either the Customer’s use of or access to any of the Equipment, Software or Services (as applicable) including those arising out of (i) the failure of the Customer to fully observe or perform any of its obligations contained in the Contract; or (ii) any loss, damage or injury to property or person caused or contributed to by the conduct or negligent act, error or omission of the Customer or its agents, employees, contractors or directors; or (iii) any breach by the Customer of any warranty, undertaking or other terms or conditions of the Contract between Soda and the Customer.
- 11.1. Soda warrants to the Customer that:
- 12. Confidentiality
- 12.1. Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Contract. Confidential Information shall not include information that:
- 12.1.1. is or becomes publicly known other than through any act or omission of the receiving party;
- 12.1.2. was in the other party’s lawful possession before the disclosure;
- 12.1.3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
- 12.1.4. is independently developed by the receiving party, which independent development can be shown by written evidence; or
- 12.1.5. is required to be disclosed by law, for the purpose of legal or regulatory proceedings, by any court of competent jurisdiction or by any regulatory or administrative body or the disclosing Party’s insurers (provided that before any such disclosure, the disclosing Party shall, to the extent legally permissible, shall give the other party reasonable notice of the proposed disclosure).
- 12.2. Each party shall hold the other’s Confidential Information in confidence for the Term and for a period of five (5) years thereafter.
- 12.3. We shall be entitled to disclose any Confidential Information to our employees, agents and advisors for the purposes of providing the Services in accordance with this Contract.
- 12.4. Each party shall take all reasonable steps to ensure that anyone to whom it provides (or makes available) the Confidential Information of the other Party as permitted by this Contract complies with the confidentiality provisions of this Contract as if they were directly obliged to.
- 12.5. Soda shall be entitled to make a public announcement concerning the existence, subject matter or terms of the Contract, the wider transactions contemplated by it, or the relationship between the parties, provided that Soda shall make reasonable attempts to agree the contents of the announcement before making it. Nothing in this clause 12.1 shall be construed as limiting either parties obligations under this clause 12.
- 12.1. Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Contract. Confidential Information shall not include information that:
- 13. Duration and Termination
- 13.1. The Contract shall commence on the Commencement Date. Where the Proposal includes an Initial Term then unless terminated earlier in accordance with this Clause 13, the Contract shall continue for the Initial Term and shall automatically extend for 12 months (“Renewal Term”) at the end of the Initial Term and at the end of each Renewal Term thereafter. Either party may give written notice to the other party, not later than ninety (90) days before the end of the Initial Term or the relevant Renewal Term, to terminate this Contract at the end of the Initial Term or the relevant Renewal Term, as the case may be. Where the Proposal does not contain an Initial Term, the Contract shall continue until Soda completes the relevant supply of the Services or the delivery of the Equipment or Software (as the case may be) upon which the Contract shall terminate automatically, subject to earlier termination in accordance with this Clause 13.
- 13.2. Without affecting any other right or remedy available to it, either party may give notice in writing to the other terminating the Contract:
- 13.2.1 immediately, if the defaulting party suffers an Insolvency Event; or
- 13.2.2. on thirty (30) days’ written notice, if the Customer does not accept any amendments to the Contract pursuant to clause 4.2 or 17.10; or
- 13.2.3. on fourteen (14) days’ notice, if the party has not for a continuous period of one (1) month been able to perform its obligations as a result of a Force Majeure Event; or
- 13.2.4. immediately, if the defaulting party commits a breach of any material term of the Contract and (if such breach is remediable) fails to remedy that breach within a period of thirty (30) Business Days of being notified in writing to do so.
- 13.3. Without affecting any other right or remedy available to it, Soda may give notice in writing to the Customer terminating the whole (or part) of the Contract immediately if:
- 13.3.1. the Customer fails to pay any amount due under the Contract or any other contract between Soda and the Customer on the due date for payment and remains in default not less than ten (10) Business Days after being notified in writing to make such payment;
- 13.3.2. the Customer commits a repeated breach of the Customer’s obligations under the Contract. A repeated breach shall be defined as two or more breaches of the same, or any three breaches of different obligations of the Customer under this Contract within a twelve month period where each of those breaches have been notified in writing by Soda to the Customer; or
- 13.3.3. the Customer commits any act or omission which could or might in the sole opinion of Soda bring Soda into disrepute or damage the reputation of Soda; or
- 13.3.4. the Customer breaches clauses 9, 11.2, 12, 14 or 15 or otherwise challenges the Intellectual Property Rights of Soda.
- 13.4. Without limiting its other rights or remedies, Soda may suspend performance of all or any part all or any part of its obligations under the Contract or any other contract between the Customer and Soda if the Customer becomes subject to any of the events listed in clauses 13.2 or 13.3.1 to 13.3.4 (inclusive) or Soda reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under the Contract or any other contract between Soda and the Customer on the due date for payment. Soda shall have no liability to the Customer for any losses, damages, expenses or costs that the Customer may incur by reason of such suspension.
- 13.5. The Customer may terminate this Contract immediately on written notice to Soda if a Service Level Termination Event occurs and Soda fails to remedy the cause of the Service Level Termination Event within a period of thirty (30) Business Days of being notified in writing to do so.
- 13.6. On termination of the Contract for any reason:
- 13.6.1. save for the licence granted at clause 15.3, all other rights and licences of the Customer under the Contract shall terminate on the date of termination of the Contract;
- 13.6.2. the Customer shall, as soon as reasonably practicable, return or destroy (as directed in writing by Soda) any documents, handbooks or other information provided to it by Soda or data for the purposes of this Contract, including all documents and materials (and any copies) containing, reflecting, incorporating or based on Soda’s Confidential Information.
- 13.6.3. the Customer shall, as soon as reasonably practicable, return all of the equipment and materials owned by Soda or any third party, failing which, Soda may enter the relevant premises and take possession of them. Until these are returned or repossessed, the Customer shall be solely responsible for their safe-keeping;
- 13.6.4. Soda may destroy or otherwise dispose of any of the Customer’s, storage media, software, equipment or other items in its possession unless Soda receives, no later than ten (10) days after the effective date of the termination of this Contract, a written request for their delivery to the Customer. Soda will use reasonable commercial efforts to deliver the same to the Customer within thirty (30) days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination) and provided that Customer meets any charges that Soda may charge for providing such assistance. The Customer shall pay all reasonable expenses incurred by Soda in returning or disposing of them;
- 13.6.5. the Customer shall immediately pay to Soda all of Soda’s outstanding unpaid invoices (together with any accrued interest if such invoices are outside their payment terms) and, in respect of Services supplied but for which no invoice has been submitted, Soda may submit an invoice, which shall be payable immediately on receipt of invoice.
- 13.7. If prior to the expiry of the Initial Term or any Renewal Term set out in clause 13.1, the Customer terminates this Contract for any reason other than as set out in clause 13.2, then in addition to any outstanding amounts payable in respect of clause 13.6.2, the Customer shall be obliged to pay to Soda by way of compensation, the balance of the Charges the Customer would have paid over a period equal to the unexpired residue of the Initial Term or the Renewal Term immediately prior to the date of termination of this Contract less such discount as Soda shall reasonably apply to such balance in its discretion to reflect any savings in overheads. Any such payment shall become due within three (3) Business Days of receipt of invoice.
- 13.8. The Supplier and the Customer confirm that any sums calculable and payable pursuant to clause 13.7 represent a genuine pre-estimate of Soda’s loss
- 13.9. Termination or expiry of this Contract shall not affect 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 Contract which existed at or before the date of termination or expiry and shall not affect the continuation after termination or expiry of any provision expressly stated to survive or implicitly surviving termination (including for the avoidance of doubt, clauses 10, 12, 17.16, 17.17 and 18).
- 14. Data Protection
- 14.1. For the purposes of this Clause 14, “data controller”, “data processor”, “data subject”, “personal data” and “processing” shall have the meanings ascribed to them in the Data Protection Law.
- 14.2. Each party warrants to the other that it will process Personal Data in compliance with the Data Protection Law.
- 14.3. The parties acknowledge that for the purposes of the Data Protection Law, the Customer shall be the data controller and Soda shall be a data processor in respect of personal data transferred to (or otherwise shared) by the Customer with Soda from the point when such data is transferred by the Customer to Soda (“Customer Data”).
- 14.4. The Customer warrants to Soda that it has the legal right to disclose all personal data that it does in fact disclose to Soda under or in connection with the Contract, and that the processing of that personal data by Soda for the purpose of providing all Equipment, Software and Services (as applicable) contemplated by the Contract, fulfilling all of its obligations under the Contract, and complying with all of its legal and regulatory obligations (“Permitted Purpose”) in accordance with these Terms and Conditions will not breach any Data Protection Law.
- 14.5. If, notwithstanding the intentions of the parties set out at clause 14.3, Soda processes personal data as a data controller, it shall comply with the provisions of the Data Protection Law imposed on a data controller.
- 14.6. The Customer shall ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Customer Data to Soda for the duration and purposes of this Contract.
- 14.7. Soda shall, in relation to any Customer Data processed in connection with the Contract:
- 14.7.1. process that personal data only for the Permitted Purpose and otherwise in accordance with the lawful, reasonable and documented instructions of the Customer unless Soda is required by the laws of any member of the European Union or by the laws of the European Union applicable to Orchard to process personal data in which case Soda shall, to the extent permitted by such law, inform the Customer of that legal requirement before processing that personal data;
- 14.7.2. having regard to the state of technological development and the cost of implementing any measures, ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of such personal data, and against accidental loss or destruction of, or damage to such personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
- 14.7.3. ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential;
- 14.7.4. ensure that it will not transfer personal data provided to it by the Customer outside of the European Economic Area (EEA) unless such transfer is undertaken in accordance with applicable Data Protection Law;
- 14.7.5. assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Law with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
- 14.7.6. notify the Customer without undue delay on becoming aware of a personal data breach; and
- 14.7.7. maintain complete and accurate records and information to demonstrate its compliance with clauses 14.2 to 14.7.
- 14.8. In relation to Sub-processors:
- 14.8.1. Customer acknowledges and hereby authorises Soda to engage in connection with the performance of the Contract those Sub-processors set out in Schedule 1 (“Approved Sub-processors”) to this Contract, which includes the identities of those Sub-processors and their country of location;
- 14.8.2. Soda may amend and update the Approved Sub-processors list by providing written notice to the Customer of any proposed new Sub-processor. Customer may notify Soda promptly in writing within ten (10) Business Days after receipt of Soda’s notice if Customer has a reasonable basis for objecting to a new Sub-processor. Soda shall not appoint (or disclose any Customer Data to) that proposed Sub-processor until reasonable steps have been taken to address the objections raised by the Customer and the Customer has been provided with a reasonable written explanation of the steps taken;
- 14.8.3. prior to giving any Sub-processor access to Customer Data, the Soda shall ensure that such Sub-processor has entered into a written agreement with Soda including terms in the contract between Soda and the Sub-processor which are substantially the same as those set out in this clause X and the requirements of article 28(3) of the GDPR; and Soda shall remain fully liable to the Customer for any failure by a Sub-processor to fulfil its obligations in relation to the processing of any Customer Data under the Contract; and
- 14.8.4. to the extent that such sub-processing does not occur in the EEA, or in circumstances or a country that is the subject of a valid adequacy decision by the European Commission (“Restricted Country”), Soda may only authorise a Sub-processor to process the Customer Data in a Restricted Country if, the Standard Contractual Clauses are at all relevant times incorporated into the agreement between on the one hand and on the other hand the Sub-processor, or if requested by the Customer and required by Data Protection Law, procure that the Customer shall enter into (or procure that any relevant third party enters into) a data controller to data processor data transfer agreement, incorporating Standard Contractual Clauses.
- 14.9. The Customer acknowledges that Soda is reliant on Customer as data controller for direction as to the extent to which Soda is entitled to use and process the Customer Data. Consequently, Soda will not be liable for any unauthorised or non-compliant loss, access or other processing of personal Customer Data or any claim brought by a data subject arising from any action or omission by Soda, to the extent that such action or omission resulted directly from the Customer’s instructions or the Customer’s failure to provide instructions. Customer shall indemnify and hold Soda harmless against all Losses that Soda suffers of incurs as a result of the Customer’s instructions or the Customer’s failure to provide instructions (whether as a result of a claim by a data subject or otherwise).
- 15. Intellectual Property Rights
- 15.1. Nothing in these Terms and Conditions shall operate to assign or transfer any Intellectual Property Rights from Soda to the Customer, or from the Customer to Soda. Notwithstanding the foregoing, Soda shall be entitled to use, develop and share knowledge, experience and skills of general application gained through performing the Services.
- 15.2. Where this clause 15.2 is expressly identified as being applicable in the Proposal (but not otherwise), the Customer shall acquire ownership of the Project Deliverables and all Intellectual Property Rights subsisting in the same on payment in cleared funds of every part of the Charges relating to the Services.
- 15.3. Where clause 15.2 is not identified as being applicable in the Proposal, then Soda shall, on payment in cleared funds of every part of the Charges relating to the Services, grant to the Customer a non-exclusive, non-assignable, non-sub-licensable, perpetual, royalty free licence to use the Intellectual Property Rights in any product of the Services (“the Licensed Rights”) for the commercial business purposes identified in the Proposal. The Licensed Rights shall not be used for any other purpose without prior written consent of Soda and the grant of the licence shall not restrict or prevent Soda from using or licensing any of the Licensed rights (or any other Intellectual Property Rights of Soda) for any purpose whatsoever at any time.
- 16. Non-Solicitation of personnel and Employment Liabilities
- 16.1. The Customer must not, without the prior written consent of Soda, either during the Term or within the period of twelve (12) months following the end of the Term, engage, employ or solicit for engagement or employment any Personnel of Soda who has been involved in any way in the negotiation or performance of the Contract.
- 16.2. The Customer agrees that if they breach the provisions of this clause 16.1 by successfully soliciting, interfering with, procuring or enticing away any employee or contractor of Soda, they shall pay Soda promptly upon the written demand of Soda a sum equivalent to 25% of the annual salary or fees paid by Soda to the person so solicited immediately before that person leaves Soda employment or ceases to be engaged by Soda.
- 16.3. The Customer agrees that the amount referred to in clause 16.2 represents a reasonable pre-estimate of the loss and damage which Soda would suffer in the event described in cause 16.2.
- 16.4. The provisions of this clause 16 are without prejudice to the right of Soda to seek interim remedies through the court or otherwise in respect of the non-solicitation.
- 16.5. The parties agree that on the expiry or termination of the Contract, there will be no relevant transfer as defined in the Regulations and as a result no Soda personnel or any other individual shall transfer their employment to the Customer or any future supplier of the Customer.
- 17. General
- 17.1. Subject to the following sentence, the Contract may not be transferred, assigned, subcontracted, licensed, charged or otherwise dealt with or disposed of (whether in whole or in part) by either party without the prior written consent of the other party (such consent not to be unreasonably withheld, conditioned or delayed). Soda may, after having given prior written notice to the Customer assign and transfer all of its rights and obligations under the Contract (i) for the sole purpose of a scheme for a solvent amalgamation of Soda with one or more other companies or the solvent reconstruction of Soda (ii) to any person to which it transfers all or a material part of its business, provided that the assignee undertakes in writing to the Customer to be bound by the obligations of Soda under the Contract.
- 17.2. Any notice given under the Contract must be in writing and must be delivered personally or sent by recorded delivery or by email to the party to whom it is being given at the address, and marked for the attention of the person, specified in the Proposal or to such other address, or marked for the attention of such other person, as the applicable party may from time to time notify to the other party.
- 17.3. A notice delivered or sent in accordance with Clause 17.2 will be deemed to have been given, if delivered personally or by recorded delivery, at the time of delivery or, if sent by email, at the time of transmission and in proving the giving of a notice, it shall be sufficient to show that delivery was made or that the email was properly addressed and transmitted, as the case may be. Email notices do 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.
- 17.4. Soda will not be liable to the Customer for any failure to perform or for any delay in performance under this Contract to the extent such non-performance or delay is caused by a Force Majeure Event, provided that if any period of failure or delay continues for more than sixty (60) days the Customer will be entitled to terminate the Contract by notice in writing to Soda, in which case neither party shall have any liability to the other except that rights and liabilities accrued prior to such termination shall continue to subsist.
- 17.5. No delay in exercising, or failure to exercise, any right, power or remedy provided by law or under this Contract shall be construed as such right, power or remedy.
- 17.6. Nothing in the Contract 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).
- 17.7. This Contract represents the whole agreement and understanding between the parties relating to (as applicable) the Services, the Equipment and replaces all other arrangements, agreements, understandings, statements, representations, warranties, undertakings or promises (whether in writing or not) made between the Parties on the subject (“pre-contractual statements”) including any heads of agreement related to the subject matter hereof.
- 17.8. Without prejudice to Clause 17.7, each party warrants to the other that, in entering into the Contract, it has not relied on and shall have no remedy in respect of any pre-contractual statement. Nothing in Clauses 17.7 or 17.8, or otherwise in the Contract, is intended to limit either party’s liability for fraud or fraudulent misrepresentation.
- 17.9. The Customer acknowledges and confirms that they have had an opportunity to carry out a thorough due diligence exercise in relation to the supply of (as applicable) the Services, the Equipment and the Software including asking questions they consider are relevant and making their own respective enquiries to satisfy themselves as to the accuracy and completeness of any information received including the completeness and accuracy of the Proposal, and has raised all relevant due diligence questions with Soda before the Commencement Date and has entered into the Contract in reliance on its own due diligence
- 17.10. Soda shall be permitted to, and the Customer acknowledges that Soda may, amend the terms of Terms and Conditions or Supplemental Terms forming part of the Contract. Soda shall give the Customer at least thirty (30) days’ notice in writing of any change to the same. Any such revised Terms and Conditions and/or Supplemental Terms shall be effective as the Terms and Conditions from the date of expiry of such notice. The Customer shall be entitled to provide written notice to Soda during this thirty (30) day period, informing Soda that the Customer does not accept the amendments (in which case either party shall be entitled to terminate in accordance with clause 13.2.2). Save for the right for Soda to vary the Terms and Conditions and/or Supplemental Terms on written notice by following the steps set out in the preceding sentences of this clause 17.10, no variation of the Contract shall be effective unless it is in writing and signed by or on behalf of each of the parties.
- 17.11. If at any time any provision of this Contract is or becomes illegal, invalid or unenforceable, that shall not affect or impair the legality, validity or enforceability of any other provision of the Contract. The parties shall use all reasonable endeavours to replace any illegal, invalid or unenforceable provision by a valid provision the effect of which is as close as possible to the intended effect of the invalid or unenforceable provision.
- 17.12. The Customer shall from time to time at its own cost do or procure the doing of all such acts and things, and execute or procure the execution of all such documents in a form reasonably satisfactory to Soda, which Soda may reasonably require for the purpose of giving full effect to the Contract.
- 17.13. No person who is not a party to the Contract, shall have any right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of, or enjoy any benefit under, the Contract.
- 17.14. The Contract may be executed in any number of counterparts and by the parties on separate counterparts, but shall not be effective until each party has executed at least one counterpart. Each counterpart shall constitute an original of the Contract, but all the counterparts shall together constitute one and the same agreement.
- 17.15. This Contract and any disputes or claims arising out of its subject matter or formation (including any non-contractual dispute or claim) shall be governed by and construed in accordance with English law.
- 17.16. Each party irrevocably submits to the exclusive jurisdiction of the courts of England and Wales and waives any objection which it may have now or in the future to the courts of England and Wales being nominated for the purpose of this Clause on the ground of venue or otherwise and agrees not to claim that any such court is not a convenient or appropriate forum.
- 17.17. Each party submits to the non-exclusive jurisdiction of the courts of England and Wales for the purposes of: (i) enforcing any judgment or award made by the courts of England and Wales or (ii) seeking emergency injunctive relief in any territory where the other party has disclosed or threatens or is likely to disclose any Confidential Information in breach of the Contract, in order to prevent, restrain or curtail such disclosure, or to prevent, restrain or curtail the infringement or unauthorised use of any of its Intellectual Property Rights.
- 18. Definitions and interpretation
- 18.1. In these Terms and Conditions, the following definitions apply:
|Affiliate||means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;|
|Approved Sub- processors||has the meaning given at clause 14.8.1;|
|Business Day||means any day other than a Saturday or Sunday or a public or bank holiday in England;|
means the following amounts (as applicable):
|Commencement Date||means the date set out in the Proposal or, where no date is stated there, the earlier of the date that Soda executes the acknowledgement copy of the signed order form or begins supplying the relevant Equipment, Software or Services (as applicable) to the Customer;|
|Confidential Information||means any technical or commercial know-how, specifications, inventions, processes or initiatives, trade secrets other information which are of a confidential nature and have been disclosed by one party to the other (including the details of any Contract or Proposal and/or these Terms and Conditions) received or obtained by a party that is proprietary or confidential of the other party and (i) is clearly labelled as such; (ii) is otherwise clearly identified as such; or (iii) from its nature and/or the circumstances of its disclosure it is reasonable to infer that it is such;|
|Contract||means the Customer’s signed order form for Equipment, Software or Services (as applicable) and the contract that is formed following Soda’s acceptance of it under clause 1.2 which is subject to these Terms and Conditions and (if applicable) any Supplemental Terms and which incorporates the terms of the Proposal;|
|Control||means the legal power to control (directly or indirectly) the management of an entity (and “Controlled” should be construed accordingly);|
|Customer||means the person, who purchases Equipment, Software or Services (as applicable) from Soda;|
|Customer Data||has the meaning given at clause 14.3;|
|Customer Responsibilities||any acts or activities identified in the Proposal as being responsibilities of the Customer together with such other acts which need to be performed by the Customer or other third parties engaged or directed by the Customer under the Contract in order for Soda to be able to provide the Services, Equipment or Software (as applicable);|
|Data Protection Law||means (i) unless and until the General Data Protection Regulation (EU) 2016/679 (“GDPR”) is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998;|
|Equipment||means the equipment agreed in the Contract to be purchased by the Customer from Soda (including without limitation any part or parts of it) as may be set out in the Proposal;|
|Force Majeure Event||means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);|
|Initial Term||means the initial term of the Contract as expressly set out in the Proposal;|
|Intellectual Property Rights||Means patents, rights to inventions, copyright and related rights, trademarks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, 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 including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world;|
means that a person:
|Mandatory Policies||means Soda’s mandatory policies and procedures as shall be notified by Soda to the Customer in writing from time to time;|
|Losses||means all losses, liabilities, costs (including reasonable legal costs), fees, expenses, actions, procedures, claims, demands and damages (including the amount of damages awarded by a court of competent jurisdiction or any penalties and fines levied by a Relevant Authority);|
|Normal Working Hours||means 08:30 to 17:30 GMT/BST Monday to Friday but excluding bank or statutory holidays;|
|Permitted Purpose||has the meaning given at clause 14.4;|
|Personnel||means any employee, agent, consultant and/or sub-contractor of the party concerned;|
|Project Deliverables||means any product developed by Soda in relation to the Software Development Services in a tangible form, including computer software and any other documents or materials but excluding any rights in any Third Party Software and excluding any Intellectual Property Rights created by Soda before (or independently of) the Contract;|
|Project Plan||means the plan describing the Equipment, Software or Services (as applicable) and setting out the estimated timetable, responsibilities and any applicable Project Milestones for the provision of the same by Soda;|
|Project Milestone||means date by which a part of the Equipment, Software or Services (as applicable) are estimated to be completed, as set out in the Project Plan;|
|Proposal||means the document(s) provided in writing by Soda to the Customer which sets out the description or specification of the applicable Equipment, Software or Services (as applicable) that will be provided by Soda to the Customer and may include a Project Plan;|
|Regulations||means the Transfer of Undertakings (Protection of Employment) Regulations 2006 (as amended, re-enacted or extended from time to time);|
|Relevant Authority||means any governmental, regulatory or other competent authority that regulates and/or supervises any of Soda, the Customer and/or either of their activities (including activities of Customer using the Services);|
|Renewal Term||means any additional term of this Contract following a renewal under the provisions of clause 13;|
|Restricted Country||Has the meaning given at clause 14.8.4;|
|Services||means the services that Soda agrees to supply to the Customer under a Contract (which may include Software Development Services) as may be set out in the Proposal;|
|“Service Credit”||means the service credits that the Customer is entitled to in the event that Soda fails to provide a Solution within the relevant Service Level response time, as further specified in the Service Level Agreement|
|“Service Levels”||means the service levels to which the Services are to be provided when the Customer has asked Soda to provide Support Services, as set out in the Service Level Agreement;|
|“Service Level Agreement”||the Supplemental Terms supplied to the Customer by Soda which apply to the provision of Support Services;|
|“Service Level Termination Event”||means any event, which meets or exceeds the thresholds specified in the Service Level Agreement as being an event entitling the Customer to terminate this Contract|
|Soda||means Soda IT Support Limited, a company registered in England and Wales, whose company number is 13508623 and registered office address is: Phoenix House, The Old Church, Elland Road, Morley, England, LS27 7TB;|
|Software||means software that Soda agrees to supply to the Customer under a Contract (which may comprise Third Party Software) as may be set out in the Proposal;|
|Software Development Services||means any services Soda agrees to supply to the Customer in a Contract in connection with the development and/or configuration of any Software as may be set out in the Proposal;|
|Standard Contractual Clauses||the standard contractual clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of protection as set out in Commission Decision C(2010) 593, as updated and amended;|
|Sub-processor||means any person (including any third party but excluding an employee of Soda or any of its sub-contractors) appointed by or on behalf of Soda to process personal data on behalf of the Customer in connection with this Contract;|
|Supplemental Terms||means any supplemental terms supplied to the Customer by Soda in respect of certain Services which supplement and (unless expressly stated otherwise) incorporate these Terms and Conditions;|
|Supplier Default||has the meaning given in clause 10.4;|
|Support Services||has the meaning given in clause 3.1;|
|Term||means the term of the Contract as set out in clause 13.1;|
|Terms and Conditions||means this document, including the Schedule;|
|Third Party Software||means that software the rights in which are owned by one or more third parties that Soda agrees to supply to the Customer under a Contract as may be set out in the Proposal;|
|Third Party Software Licence||means the Third Party Software Vendor’s standard licensing terms for the Third Party Software from time to time; and|
|Third Party Software Vendor||means a third party that has granted to Soda the right to distribute the Third Party Software and resell licences for the Third Party Software.|
- 18.2. In the Terms and Conditions, unless the context otherwise requires:
- 18.2.1. terms defined in any Proposal or Supplemental Terms unless stated otherwise shall have the same meanings ascribed to them in these Terms and Conditions;
- 18.2.2. references to Clauses and Schedules are to clauses of, and schedules to, these Terms and Conditions;
- 18.2.3. references to the singular include the plural and vice versa and references to one gender include all genders;
- 18.2.4. references to a “person” include any company, partnership or unincorporated association (whether or not having separate legal personality) and references to a “company” include any company, corporation or other body corporate (wherever and however incorporated or established);
- 18.2.5. references to a statute or statutory provision include (i) that statute or statutory provision as modified, re-enacted or consolidated from time to time (whether before or after the date of this Contract) (ii) any past statute or statutory provision (as modified, re-enacted or consolidated from time to time) which that statute or statutory provision has directly or indirectly replaced; and (iii) any subordinate legislation made from time to time under that statute or statutory provision;
- 18.2.6. subject to clause 17.3, which specifies that service of any proceedings or other documents in any legal action may not be served by email, a reference to “writing” or written includes emails (but not faxes) and each party warrants that it has the ability to open Adobe PDF files;
- 18.2.7. the words “include(s)” and “including” are to be construed as if followed by the words “without limitation”; and
- 18.2.8. references to a “month” are to a calendar month.
- 18.3. The Schedule forms part of the Terms and Conditions and shall have the same force and effect as if set out in the body of these Terms and Conditions and any reference to these Terms and Conditions shall include the Schedule.
- 18.4. The headings in Terms and Conditions are included for convenience only and shall be ignored in interpreting the Contract.
- 18.2. In the Terms and Conditions, unless the context otherwise requires:
1. Processing by Soda
1.1 Subject matter of processing
1.2. Nature and purpose of processing
1.3. Duration of processing
2. Types of personal data
3. Categories of data subject
4. Approved Sub-processors