IT IS HEREBY AGREED
(a) Associate: any employee or contractor of Silver Cloud assigned by Silver Cloud to provide the Services for and on behalf of Silver Cloud.
(b) Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
(c) Charges: the charges payable by the Client for the supply of the Services by Silver Cloud, as set out in the Contract Form.
(d) Client Materials: all and any materials, equipment and tools, drawings, specifications and data supplied by the Client to Silver Cloud.
(e) Conditions: these terms and conditions set out in these terms and conditions.
(f) Contract: the contract between the Client and Silver Cloud for the supply of the Services in accordance with the Contract Form, these Conditions and any schedules attached to, or referred to in, the Contract Form.
(g) Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of Control shall be construed accordingly.
(h) Deliverables: all documents, products and materials developed by Silver Cloud or its agents, subcontractors and personnel as part of or in relation to the Services in any form, including without limitation computer programs, data, reports and specifications (including drafts) and the Key Deliverables (if any) set out in the Contract Form.
(i) Intellectual Property Rights: all patents, rights to inventions, copyright and related rights, trade marks, trade business and domain names, rights in goodwill or to sue for passing off, rights in designs, rights in computer software, database 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.
(j) Services: the services, including without limitation any Deliverables, to be provided by Silver Cloud pursuant to this Contract, as described the Contract Form.
(k) Services Start Date: the day on which Silver Cloud is to start provision of the Services, as set out in the Contract Form.
(l) Silver Cloud: Silver Cloud HR Limited, a company registered in England and Wales with company number 07042483 and whose registered office address is at Stourwood House, Wrabness Road, Essex, CO12 5ND.
(m) Silver Cloud IPRs: all Intellectual Property Rights either subsisting in the Deliverables (excluding any Client Materials incorporated in them) or otherwise necessary or desirable to enable a Client to receive and use the Services.
(a) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(b) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(c) A reference to writing or written includes fax and email.
2. COMMENCEMENT AND TERM
This Contract shall commence on the date when it has been signed by both parties and shall continue, unless terminated earlier in accordance with its terms, until the End Date as set out in the Contract Form (as amended by agreement in writing between Silver Cloud and the Client from time to time). If no End Date is specified, the Contract shall continue until terminated in accordance with these Conditions.
3. SUPPLY OF SERVICES
3.1 Silver Cloud shall supply the Services to the Client from the Services Start Date in accordance with this Contract. No other terms and conditions, other than those set out in these Conditions and the Contract Form (including any variations agreed in writing by Silver Cloud and the Client), shall apply to the provision of the Services.
3.2 In supplying the Services, Silver Cloud shall (and shall procure that the Associate shall):
(a) perform the Services with reasonable care and skill;
(b) use reasonable endeavours to provide the Services in accordance with any scope of work agreed between the Client and Silver Cloud;
(c) ensure that the Deliverables, and all goods, materials, standards and techniques used in providing the Services are of satisfactory quality and are fit for purpose; and
(d) observe all reasonable health and safety rules and regulations and security requirements that apply at any of the Client’s premises and have been communicated to Silver Cloud, provided that Silver Cloud shall not be liable under this agreement if, as a result of such observation, it is in breach of any of its obligations under this Contract.
3.3 Silver Cloud shall nominate an Associate to provide the Services on behalf of Silver Cloud. The first Associate shall be the person named in the Contract Form. Silver Cloud may change the Associate at any time in its absolute discretion upon giving notice to the Client.
4. CLIENT’S OBLIGATIONS
4.1 The Client shall:
(a) co-operate with Silver Cloud and the Associate in all matters relating to the Services;
(b) comply with all reasonable and lawful instructions from Silver Cloud or the Associate in relation to the Services;
(c) provide, for Silver Cloud and the Associate, in a timely manner and at no charge, access to the Client’s premises, office accommodation, data and other facilities as required by Silver Cloud; and
(d) provide, in a timely manner, such information as Silver Cloud or the Associate may require, and ensure that it is accurate in all material respects.
4.2 If Silver Cloud’s performance of its obligations under this agreement is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees (including if the Associate’s performance of the Services is prevented or delayed by such actions), Silver Cloud shall:
(a) not be liable for any costs, charges or losses sustained or incurred by the Client that arise directly or indirectly from such prevention or delay;
(b) be entitled to payment of the Charges despite any such prevention or delay; and
(c) be entitled to recover any additional costs, charges or losses Silver Cloud sustains or incurs that arise directly or indirectly from such prevention or delay.
5. INTELLECTUAL PROPERTY
5.1 Silver Cloud and its licensors shall retain ownership of all Silver Cloud IPRs. The Client and its licensors shall retain ownership of all Intellectual Property Rights in the Client Materials.
5.2 Silver Cloud grants the Client a worldwide, non-exclusive, royalty-free, licence to copy the Silver Cloud IPRs for the purpose of receiving and using the Services and the Deliverables in the Client’s business during the term of the Contract.
5.3 Silver Cloud may terminate the licence granted under clause 5.2 upon giving written notice to the Client if any Charges remain unpaid when due.
5.4 The Client grants Silver Cloud a fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable licence to copy and modify the Client Materials for the term of this Contract for the purpose of providing the Services to the Client in accordance with this Contract.
5.5 The Client shall keep Silver Cloud indemnified in full against any sums awarded by a court against Silver Cloud as a result of or in connection with any claim brought against Silver Cloud for infringement of a third party’s rights (including any Intellectual Property Rights) arising out of, or in connection with, the receipt or use of the Client Materials by Silver Cloud.
6. CHARGES AND PAYMENT
6.1 In consideration for the provision of the Services, the Client shall pay Silver Cloud the Charges in accordance with this clause 6.
6.2 Unless stated otherwise in the Contract Form, the Charges shall be on a time and materials basis.
(a) The Charges payable for the Services shall be calculated in accordance with Silver Cloud’s standard daily fee rates, details of which will be set out in the Contract Form.
(b) Silver Cloud’s daily rates are calculated on the basis of a 7 ½ hour day worked by its Associate on a Monday – Friday. Any time worked on a Saturday will be charged at 1.5 times the standard daily rate. Any time worked on a Sunday or bank-holiday will be charged at 2 times the standard daily rate.
(c) If any Associate works for:
(i) 4 hours or above, Silver Cloud shall charge the full day rate; or
(ii) between 0 and 4 hours, Silver Cloud shall charge a half-day rate.
6.3 All amounts payable by the Client exclude amounts in respect of value added tax (VAT), which the Client shall additionally be liable to pay to Silver Cloud at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.
6.4 Silver Cloud shall submit invoices for the Charges for its time, expenses and materials (plus VAT if applicable) to the Client for the monthly in arrears, on or after the 28th day of the month concerned.
6.5 Without prejudice to the generality of clause 6.4, the Client shall reimburse Silver Cloud for all costs and expenses incurred by Silver Cloud (including purchase costs
and on-going licence fees) in obtaining and operating any software or hardware which is required by Silver Cloud (or its Associate) solely to access, view or modify the Client’s data or IT network in for the purpose of providing the Services.
6.6 All Charges and invoices shall be paid by the Client in Pounds Sterling.
6.7 Any payment on account (as identified in the Contract Form) shall be paid by the Client to Silver Cloud on signing the Contract Form. Silver Cloud shall not be required to commence the provision of the Services until it has received such payment on account in cleared funds.
6.8 Silver Cloud may review and increase its standard daily fee rates as set out in the Contract Form, with effect from 1 November each year. Silver Cloud shall give the Client written notice of any such increase at least 4 weeks before the proposed date of that increase.
6.9 The Client shall pay each invoice due and submitted to it by Silver Cloud, within 30 days of the date of the invoice, to a bank account nominated in writing by Silver Cloud.
6.10 If the Client fails to make any payment due to Silver Cloud under this Contract by the due date for payment, then, without limiting Silver Cloud’s remedies under clause 8 or otherwise:
(a) the Client shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount; and
(b) Silver Cloud may suspend all Services until payment has been made in full.
6.11 All amounts due under this agreement shall be paid by the Client to Silver Cloud in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
7. LIMITATION OF LIABILITY
7.1 Nothing in this Contract shall limit or exclude Silver Cloud’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its personnel, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; and
(c) any other liability which cannot be limited or excluded by applicable law.
7.2 Subject to clause 7.1, Silver Cloud shall not be liable to the Client, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement for:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) any loss suffered by the Client to the extent such loss is caused directly or indirectly as a result of any fault or error of any HR software system supplied by a third party, as a result of any such system being incorrectly installed or implemented by any third party, or as a result of the Client failing to comply with any operating instructions given by the system supplier or Silver Cloud to the Client;
(g) any loss suffered by the Client to the extent such loss is caused directly or indirectly as a result of the Client failing to follow the advice and recommendations of Silver Cloud (or its Associate);
(h) loss of or damage to goodwill; and
(i) any indirect or consequential loss.
7.3 Subject to clause 7.1, Silver Cloud’s total liability to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this Contract shall be limited to £1,000,000.
7.4 The conditions implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this agreement.
8.1 Either the Client or Silver Cloud HR may terminate this agreement upon giving 4 weeks’ written notice to the other at any time.
8.2 Without affecting any other right or remedy available to it (under this contract or otherwise), either party to this Contract may terminate it with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of this Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with
its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) an administrator, liquidator, administrative receiver or receiver is appointed over all or part of the other party’s assets; or
(d) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
8.3 Without affecting any other right or remedy available to it (under this contract or otherwise), Silver Cloud may terminate the Contract with immediate effect by giving written notice to the Client if:
(a) the Client fails to pay any amount due under this Contract on the due date for payment and remains in default not less than 5 Business Days after being notified in writing to make such payment; or
(b) there is a change of Control of the Client; or
(c) the Client’s financial position deteriorates to such an extent that, in Silver Cloud’s opinion, the Client’s capability to adequately fulfil its obligations under this Contract has been placed in jeopardy.
8.4 On termination of this Contract for whatever reason:
(a) the Client shall immediately pay to Silver Cloud all of Silver Cloud’s outstanding unpaid invoices and interest and, in respect of Services supplied and expenses incurred but for which no invoice has been submitted, Silver Cloud may submit an invoice, which shall be payable immediately on receipt;
(b) termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract which existed at or before the date of termination; and
(c) any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
9. MARKETING AND PUBLICITY
The Client licences Silver Cloud to use the Client’s corporate name, trading name, brand name, logo or trademark on Silver Cloud’s website or in any marketing or publicity materials for the purpose of identifying the fact that Silver Cloud provides, or has provided, services to the Client. If requested, Silver Cloud will provide a copy of any such text or material to the
Client for its approval in advance of it being used (such approval not to be unreasonably withheld or delayed).
10.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group to which the other party belongs, except as permitted by clause 10.2. For the purposes of this clause, group means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party (as those terms are defined in s1159 Companies Act 2006).
10.2 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under this Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 10; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
10.3 No party shall use any other party’s confidential information for any purpose other than to perform its obligations under this Contract.
11.1 The Client shall not, without the prior written consent of Silver Cloud, at any time from the commencement of the Contract to the expiry of 12 months after the End Date or termination of the Contract (whichever is sooner), solicit or entice away from Silver Cloud, or employ or engage or attempt to employ or engage any:
(a) Associate; or
(b) any other person who is, or has been, engaged as an employee, consultant, associate or sub-contractor of Silver Cloud during the term of the Contract.
11.2 For the purposes of clause 11.1, the Client shall be deemed to have enticed away a person where the Client entices the person to leave the employment or engagement of Silver Cloud, whether or not the Client wishes to employ or engage that person.
12.1 Force majeure. Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
12.2 Assignment and other dealings.
(a) The Client shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Contract without Silver Cloud’s prior written consent.
(b) Silver Cloud may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under this Contract.
12.3 Entire agreement.
(a) This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Contract.
12.4 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
12.5 Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:
(a) waive that or any other right or remedy; or
(b) prevent or restrict the further exercise of that or any other right or remedy.
12.6 Severance. If any provision or part-provision of this Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Contract.
(a) Any notice or other communication given to a party under or in connection with this Contract shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or email.
(b) A notice or other communication shall be deemed to have been received:
(i) if delivered personally, when left at the address referred to in clause 12.7(a);
(ii) if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting;
(iii) if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed;
(iv) or, if sent by fax or email, one hour after transmission (unless such time would be outside of the hours of 9am – 5pm on a Business Day in the place of receipt, in which case, the communication shall be deemed to have been delivered at 9am on the next Business Day).
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
12.8 Third party rights. No one other than a party to this agreement shall have any right to enforce any of its terms.
12.9 Governing law. This Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with the law of England and Wales.
12.10 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.