Application and entire agreement
- These Terms and Conditions apply to the provision of the services and Project detailed in our quotation (the "Services" and "Quotation" respectively) by The Sundown Group (made up of Sundown Solutions Ltd, Sundown Services Ltd, Sundown Data, Sundown Dev Ops and Sundown US collectively referred to as “Sundown”) to CUSTOMER in which these term and conditions (the "Terms and Conditions") are attached to.
- You are deemed to have accepted these Terms and Conditions when you accept our Quotation or from the date of any performance of the Services (whichever happens earlier) and these Terms and Conditions and our Quotation (jointly the "Agreement") are the entire agreement between us.
- Defined terms in the Quotation shall apply to the Terms and Conditions and vice versa. In the event the provisions in the Quotation conflict with these Terms and Conditions, the provisions in the Quotation shall take precedence.
- You acknowledge that you have not relied on any statement, promise or representation made or given by or on our behalf. These Terms and Conditions apply to the Agreement to the exclusion of any other terms that you try to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
- A “Business Day” means any day other than a Saturday, Sunday or bank holiday in London, England or Stockholm, Sweden.
- The headings in these Terms and Conditions are for convenience only and do not affect their interpretation.
- Words imparting the singular number shall include the plural and vice-versa.
- We warrant that we will use reasonable care and skill in our performance of the Services which will comply with the Quotation, including any specification in all material respect. We warrant and represent to in all material respects comply with all applicable laws, including applicable data protection laws, and we will make any changes to the Services which are necessary to comply with any applicable law or safety requirement. We will notify you if this is necessary.
- Time is of the essence in the performance of our obligations and we will use our reasonable endeavours to complete the performance of the Services within the time agreed or as set out in the Quotation. Any delays or expected delays shall promptly be communicated to CUSTOMER and the Parties shall discuss methods to mitigate such delay.
- All of these Terms and Conditions apply to the supply of any goods as well as Services unless we specify otherwise.
- You must obtain any reasonable permissions, consents or licenses that are reasonably your responsibility and you must give us reasonable access to any relevant information, materials, properties and any other matters which we need to provide the Services.
- If you do not comply with clause 11 you acknowledge that we may not be able to provide the Services on time and we are not liable for any delay or failure to provide the Services if this is caused solely and directly by your failure to comply with the provisions of this clause (Your obligations).
- We hereby warrant and represent to only use any data and information (together with Confidential Information the "Data") provided by you solely to the extent necessary to perform the Services, to not share or disclose it with any third party and to treat it in accordance with any applicable confidentiality undertakings.
- We shall ensure that Data agreed to be pertaining solely to CUSTOMER shall be migrated from the CUSTOMER to CUSTOMER in accordance with what is set out in the Agreement. Migration shall be made in a secure manner ensuring that no Data (pertaining to CUSTOMER) is lost, erased, modified or disclosed to any third party.
- We shall ensure that Data pertaining to the CUSTOMER that shall not be migrated (but might be accessed by Sundown nevertheless) shall only be accessed to the extent necessary and not processed, used, shared or disclosed to any other party.
- We shall implement appropriate technical and organisational measures to protect the Data which shall as a minimum meet a level of security equivalent to what is accepted standard practice. Fees
- The fees ("Fees") for the Services are set out in the Quotation and are on a capped time and material basis.
- In addition to the Fees, we can recover from you a) reasonable and properly incurred incidental expenses including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, b) the cost of services provided by third parties and required by us for the performance of the Services, and c) the cost of any materials required for the provision of the Services, all the foregoing provided CUSTOMER has given its prior written consent (including by email) after consultation with CUSTOMER.
- The Quotation include all services necessary for the migration Project as agreed at the execution date of the Agreement. Provided you agree to such additional services, you must however pay us for any additional services provided by us that are not specified in the Quotation in accordance with the rate card included in the Quotation. The provisions of this Agreement also apply to these additional services.
- The Fees are exclusive of any applicable VAT and other taxes or levies which are imposed or changed by any competent authority.
Cancellation and amendment
- We can withdraw, cancel or amend a Quotation if it has not been accepted by you, or if the Services have not started, within a period of 7 days from the date of the Quotation (unless the Quotation has been withdrawn).
- Either we or you can cancel an order of any reason prior to your acceptance (or rejection) of the Quotation.
- If you want to amend any details of the Services, you must tell us in writing as soon as possible. We will use reasonable endeavours to make any required changes and any additional cost will be included in the Fees and invoiced to you.
- If, due to circumstances beyond our control, including those set out in clause 58 below (circumstance beyond a party’s control), We have to make any changes in the Services or how they are provided, we will notify you immediately. We will use reasonable endeavours to keep any such changes to a minimum.
- We will invoice you for payment of the Fees either:
- When we have completed the Services; or
- on the invoice dates set out in the Quotation as accepted by you.
- You must pay the Fees due within 30 days of the date of your receipt of our invoice or otherwise in accordance with any credit terms agreed between us.
- Time for payment shall be of the essence of the Agreement.
- Without limiting any other right or remedy we have for statutory interest, if you do not pay within the period set out above, we will charge you interest at the rate of 6% per annum above the base lending rate of the Bank of England from time on the amount outstanding until payment is received in full.
- All payments due under these Terms and Conditions must be made in full without any deduction or withhol ding except as required by law and neither of us can assert any credit, set-off or counterclaim against the other in order to justify withholding payment of any such amount in whole or in
- If you do not pay within the period set out above, we can suspend any further provision of the Services and cancel any future services which have been ordered by, or otherwise arranged with, you. We shall notify you of any overdue payment. Upon such notification, and
before we suspend the provision of the Services and/or future services you shall be given reasonable time to remedy the breach or otherwise show that there is no payment overdue.
- Receipts for payment will be issued by us only at your request.
- All payments must be made in British Pounds unless otherwise agreed in writing between us.
Sub-Contracting and assignment
- We may not subcontract or delegate in any manner our obligations under this Agreement without CUSTOMER, prior written consent. As applicable, we shall be liable to you for any acts and omissions by our subcontractors engaged for the fulfilment of our obligations under this Agreement as we are for our own acts and omissions. Furthermore, we shall ensure that such subcontractors are bound to confidentiality terms containing protections no less stringent than those contained in this Agreement. If a subcontractor or other third party engaged by us has access to your Data, personal data, or Confidential Information, you shall have the right to receive information pertaining to the identity of such third party.
- No Party may, without the other Parties’ prior written consent, assign, transfer, charge, subcontract, or deal in any other manner with all or any of its rights or obligations under this Agreement to any other party.
- All agreed third parties must be organisations that have achieved current and relevant industry accreditation within their relevant profession and be a member of a recognised governing body within that profession.
- When handing over configurable elements that require documentation or records to the CUSTOMER or to relevant third parties on behalf of the CUSTOMER; the receiving parties must be professionally certified within the designated subject.
- Any Party can terminate the provision of the Services and this Agreement with 15 Business Days’ notice and remedy period, if any of the other Parties:
- Commits a material breach of its obligations under these Terms and Conditions; or
- Fails to pay any amount due under the Agreement on the due date for payment; or
- is or becomes or, in the other Parties' reasonable opinion, is about to become, the subject of a bankruptcy order or take advantage of any other statutory provision for the relief of insolvent debtor; or
- Enters into a voluntary arrangement under Part 1 of the Insolvency Act 1986, or any other scheme or arrangement is made with its creditors; or
- Convenes any meeting of its creditors, enters into voluntary or compulsory liquidation, has a receiver, manager, administrator or administrative receiver appointed in respect of its assets or undertakings or any part of them, any documents are filed with the court for appointment of an administrator in respect of the Party, notice of intention to appoint an administrator is given by the Party or any of the Party's directors or by a qualifying floating charge holder(as defined in para.14 of Schedule B1 of the Insolvency Act 1986), a resolution is passed or petition presented to any court for the Party's winding up or for the granting of an administration order in respect of such Party, or any proceedings are commenced relating to its insolvency or possible insolvency.
- The obligations of the Parties under this Agreement that by their nature would continue beyond expiration, termination or cancellation of this Agreement (including, without limitation, the warranties, obligations, confidentiality requirements and ownership, Data and intellectual property rights) shall survive any such expiration, termination or cancellation. The continuation of use of any service after any contract expiry dates will be taken as a willingness to extend the service provision as per any contractual elements that are in place.
- We reserve all copyright and any other intellectual property rights which may subsist in any goods supplied in connection with the provision of the Services. We reserve the right to make any appropriate action to restrain or prevent the infringement of such intellectual property rights.
- Nothing in this Agreement constitutes a transfer of title or ownership to any Party's intellectual property and the Parties will keep any and all intellectual property to any solutions, software, documentation, materials, databases and concepts held by each Party.
- We are not granted any right to use any "CUSTOMER" related trademarks, names, or logotypes including using " CUSTOMER" for marketing or client reference without CUSTOMER's prior written consent (as applicable).
- For the avoidance of doubt, each Party shall retain all ownership to its own material, data and information (including the Data) provided to the other Parties under this Agreement. The receiving Parties may not use, process or handle such material, data and information except as expressly permitted by the disclosing Party. For the avoidance of doubt, Sundown will have access to material, Data and information pertaining to the CUSTOMER that is not within the scope of the Services and no such material, Data and information shall be transferred to Sundown or any other party in any form or method without CUSTOMER explicit prior written consent (as applicable), nor shall any intellectual property rights in such material, Data or information be transferred or assigned to any party under this Agreement.
- ”Confidential Information” means any and all information (whether in written, oral, electronic or in any other form) disclosed or made available to Sundown, CUSTOMER regarding or related to the CUSTOMER or Sundown (as applicable) and their respective businesses; including for the avoidance of doubt (i) all data and information pertaining to CUSTOMER and within the scope of this Agreement that will be migrated from the CUSTOMER, (ii) all data and information that pertains to the CUSTOMER and that shall stay with the CUSTOMER that Sundown may have access to, and (iii) all data and information that pertains to the CUSTOMER that Sundown may have access to.
- Sundown unconditionally undertakes towards CUSTOMER and the CUSTOMER unconditionally undertakes towards Sundown, to keep Confidential Information strictly confidential and not to disclose in whole or in part any Confidential Information to any person. For the avoidance of doubt, this confidentiality undertaking applies to all directors, officers, employees and other representatives of the Parties, and each Party undertakes to procure and is responsible for that all such persons, who receive or have access to Confidential Information, shall adhere to and act in accordance with what is set out herein. Confidential Information always remains the property of the relevant Party, and the Parties, respectively, may only use Confidential Information for the purpose of the Agreement. Sundown, to keep Confidential Information strictly confidential and not to disclose in whole or in part any Confidential
- The obligation to maintain the confidentiality of the Confidential Information does not apply to such part of Confidential Information which (i) at the time of disclosure to the relevant Party is in the public domain; (ii) after the time of disclosure to the relevant Party is made available in the public domain otherwise than through an unauthorized disclosure by the relevant Party or by any other person in breach of an obligation of confidentiality vis-à-vis the relevant Party or in breach of this Agreement; (iii) a Party is required to disclose according to mandatory law, governmental regulation or by order of court of competent jurisdiction, (iv) was lawfully in the relevant Party’s possession prior to disclosure to that Party and not subject to any restrictions as to its use or disclosure (as evidenced by the disclosing Party’s written records or other reasonable evidence), or (v) has been made available to a Party by the disclosing Party on a non-confidential basis.
- In the event that a Party is required to disclose Confidential Information pursuant to mandatory law, governmental regulation or court order, such disclosing Party shall, to the extent legally permissible, immediately inform the other Parties in writing of such request or obligation as soon as it is informed of it and before any Confidential Information is disclosed. If a Party is obliged to make a disclosure, such Party shall only make a disclosure to the extent required and shall use all reasonable efforts to obtain confidential treatment by the receiving party of the Confidential Information so disclosed.
- The Parties acknowledge that strict observance of the confidentiality undertakings in this Agreement is of the utmost importance to the Parties, and that a breach of such obligations may result in irreparable and continuing damage or loss to the CUSTOMER for which monetary damages will not be sufficient, and that a damaged Party is entitled to injunctive and/or other equitable relief in addition to the remedies available under this Agreement and at law.
- The confidentiality obligations under clauses 41 to 45 shall survive for a period of two years after the termination or expiration of this Agreement.
- The Parties' liability under these Terms and Conditions, and in breach of statutory duty, and in tort or misrepresentation or otherwise, shall be limited as set out in this clause.
- The total amount the Parties' liability is limited to is the total amount of Fees payable by CUSTOMER under the Agreement.
- We are not liable (whether caused by our employees, agents or otherwise) in connection with our provision of the Services or the performance of any of our other obligations under these Terms and Conditions or the Quotation for:
- Any indirect, special or consequential loss, damage, cost, or expenses or;
- Any loss of profits; loss of anticipated profits; loss of business; loss of reputation or goodwill; business interruption; or, other third party claims; or
- Any failure to perform any of our obligations if such delay or failure is due to any cause beyond our reasonable control; or
- Any losses caused directly or indirectly by any failure or your breach in relation to your obligations; or
- Any losses arising directly or indirectly from the choice of Services and how they will meet your requirements or your use of the Services or any goods supplied in connection with the Services.
- You are not liable for any indirect, special, or consequential loss, damage, cost, or expenses.
- Nothing in this Agreement shall however limit or exclude our liability for breaches of our confidentiality obligations or data protection legislation, unauthorised use of your intellectual property rights, to death or personal injury caused by our negligence, or for any fraud or fraudulent misrepresentation, or for any other matters for which it would be unlawful to exclude or limit liability.
Return and destruction of Confidential Information
- Upon request by a Party, the other Parties shall, at their own cost, return or destroy, in the sole discretion of the requesting Party, all Confidential Information regarding the requesting Party. A Party may however retain Confidential Information if required by applicable law or regulation or in accordance with bona fide internal compliance policies.
Inspection of Records
- At any time during the term of this Agreement and for a period of six (6) months following the termination or expiration of the term of this Agreement, CUSTOMER shall have the right to conduct an inspection of Sundown's activities under this Agreement to determine whether Sundown is or has been in compliance with the requirements thereof.
- Each Party shall comply with its respective obligations under applicable data protection legislation (including the General Data Protection Regulation (EU) 2016/679) in relation to the processing of personal data. The Parties do not anticipate that one of the Parties shall process any personal data (as a processor) on behalf of the other Parties (as a controller) under this Agreement. In the event that the scope of services under this Agreement changes so that one of the Parties is acting as a processor then the Parties agree to take measures such as executing data processing agreement as required under applicable data protection legislation.
- We agree that we will:
- comply with all applicable laws and regulations relating to anti-bribery and anti-corruption (the “Applicable ABAC Laws”);
- not take any action or engage in any activity which would result in you or any member of your group being in breach of any Applicable ABAC Laws; and
- promptly report to you (i) any request or demand for any undue financial or other advantage of any kind received by us; and (ii) any breach or potential breach of the Applicable ABAC Laws by us or any persons associated with us, in connection with the performance of the Services and this Agreement.
Circumstances beyond a party’s control
- Neither of us is liable for any failure or delay in performing our obligations where such failure or delay results from any cause that is beyond the reasonable control of that party. Such causes include, but are not limited to: power failure, internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governme ntal action or any other event that is beyond the control of the party in question. If the delay continues for a period of 90 days, any Party may terminate or cancel the services to be carried out under these Terms and Conditions. For the avoidance of doubt, the global COVID-19 pandemic shall for the purposes of this Agreement be considered an event of force majeure only to the extent governmental decrees, guidelines, decisions or other measures by public authorities in relation to the COVID19 pandemic prevents a Party from fulfilling its obligations under the Agreement.
- All notices under these Terms and Conditions must be in writing and signed by, or on behalf of, the party giving notice (or a duly authorised officer of that party).
- Notices shall be deemed to have been duly given:
- When delivered, if delivered by courier or other messenger (including registered mail) during the normal business hours of the recipient.
- When sent, if transmitted by email and a successful transmission report or return receipt is generated.
- On the fifth Business Day following mailing, if mailed by national ordinary mail; or
- On the tenth Business Day following mailing, if mailed by airmail.
- All notices under these Terms and Conditions must be addressed to the most recent address, email address notified to the other party.
- No delay, act or omission by a party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy does not stop further exercise of any other right, or remedy.
- If one or more of these Terms and Conditions is found to be unlawful, invalid, or otherwise unenforceable, that / these provisions will be deemed severed from the remainder of these Terms and Conditions (which will remain valid and enforceable).
Law and jurisdiction
- These Terms and Conditions are governed by and interpreted according to English law. All disputes arising under these Terms and Conditions are subject to the exclusive jurisdiction of the English courts.