CONDITIONS FOR THE SUPPLY OF CLOUDM SOFTWARE OR MIGRATION SERVICES
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Cancellation Charges: an amount equal to i) if the cancellation takes effect within 10 Business Days, but not less than 5 Business Days, of the agreed start date of the Migration Services, a payment equal to fifty per cent of the total Charges; and ii) if cancellation takes effect within 5 Business Days of the agreed services start date, a payment equal to eighty per cent of the total Charges shall be payable by the Customer to CloudM.
Charges: the charges payable by the Customer for the supply of the Services provided by CloudM, as set out in the Order Form.
CloudM: means a trading name of Cloud Technology Solutions Ltd Company No.06738954 whose registered office is at Lowry House, 17 Marble Street, Manchester M2 3AW.
CloudM Manage: means CloudM’s software as a service subscription that enables automation and management of the Customer licence base. Functions include but not limited to user life cycle management, domain management, people finder, monitoring and reporting, email signature management and dynamic groups.
CloudM Migrate: means the software as a licence self-hosted product ‘CloudM Migrate’ which migrates data from one platform to another and is proprietary software to CloudM.
CloudM Migrate EULA: means the terms and conditions that govern the use of the CloudM Migrate Licences found at https://cloudm.co/cloudm-migrate-eula
CloudM Manage Subscription: means the terms and conditions that govern the use of the CloudM Manage subscriptions found at https://cloudm.co/cloudm-manage-eula
Commencement Date: the date authenticated by Docusign or the second manuscript signature on the Order Form; or if not specified in the Order Form the date CloudM makes the Services available to the Customer.
Conditions: these terms and conditions set out in clause 1 (Interpretation) to clause 10 (General) inclusive.
Contract: the contract between the Customer and CloudM for the supply of the Services more particularly set out in the Order Form, these Conditions, CloudM Terms and the Statement of Work.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Customer Materials: all materials, drawings and specifications and data supplied by the Customer to CloudM
Electronic Signature: means a digital electronic signature application such as DocuSign used to initiate and complete the e-signature process on the Contract.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Migration Services: means the migration of customers data from one data system to another data system managed by CloudM, its agents or contractors using CloudM Migrate, requested by the Customer, as may be further specified in a Statement of Work.
Order Form: CloudM’s ordering document that specifies the Service purchased by the Customer under this Contract that is entered into by the Customer and CloudM. By entering into an Order Form, the Customer agrees to be bound by the terms of the Contract.
Personal Data Processing Agreement or PDPA: this is an agreement to explain how CloudM processes Customer data and includes the Standard Contractual Clauses.
Platform: means CloudM Migrate and CloudM Manage combined.
Privacy and Data Protection Requirements: all applicable laws and regulations relating to the processing, protection, or privacy of the Personal Data, including where applicable, the guidance and codes of practice issued by regulatory bodies in any relevant jurisdiction.
Services: means the CloudM Manage, CloudM Migrate, Platform and/or the Migration Services.
Statement of Work: a detailed document, agreed in accordance with Clause 3, describing the Migration Services to be provided by CloudM related matters.
1.2 Interpretation: The following definitions and rules of interpretation apply in this Contract:
A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision includes any subordinate legislation made from time to time under that statute or statutory provision.
Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
A reference to writing or written includes email.
These Conditions apply to the Contract to the exclusion of any other term that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
This Contract is made up of the following and in the event of any conflict or inconsistency among the following documents, the order of precedence shall be as follows: (a) Order Form; (b) these Conditions including the personal data processing agreement (PDPA); (c) CloudM Terms and (d) Statement of Work.
2. Commencement and term
2.1 Each party agrees to sign the Order Form by manuscript signature or Electronic Signature application and that this method of signature is as conclusive of our intention to be bound by this Contract as if signed by each party's manuscript signature.
2.2 The Contract shall commence on the Commencement Date and shall continue as applicable in the following manner:
a) CloudM Migrate shall automatically expire at the earliest of (i) one off use of CloudM Migrate or (ii) within 12 months of the Commencement Date;
b) CloudM Manage shall be for a period of: (i) 12 months from the Commencement Date which shall automatically renew on each anniversary unless the Customer gives CloudM no less than 30 days prior written notice on each anniversary from the Commencement Date or (ii) otherwise specified in the Special Instructions in the Order Form; and
c) Migration Services shall commence and complete on the date set out in the Statement of Work.
3. Supply of Services
3.1 CloudM warrants that the supply of the Services to the Customer from the Commencement Date in accordance with the Contract shall be performed in accordance with applicable then current industry standards and that cloudM owns or otherwise has sufficient rights in the Services to grant to the Customer the rights to use the Services. As Customer’s exclusive remedy and CloudM’s entire liability for a breach of the warranties set forth in this clause 3.1, CloudM shall use commercially reasonable efforts to correct the non-conforming Services at no additional charge to Customer, and in the event CloudM fails to successfully correct the Service within a reasonable time of receipt of written notice from Customer detailing the breach, then Customer shall be entitled to terminate the applicable Service set out on the relevant Order Form and receive an immediate refund of any prepaid, unused Fees for the non-conforming Service.
3.2 The Customer may request a change to the Migration Services via the change control procedure set out in the relevant Statement of Work, any material change must be agreed in writing between the parties.
3.3 In supplying the Services, CloudM shall:
a) perform the Services with reasonable care and skill to industry standard;
b) comply with all applicable laws, statutes, regulations from time to time in force, provided that CloudM shall not be liable under the Contract if, as a result of such compliance, it is in breach of any of its obligations under the Contract;
c) take reasonable care of all Customer Materials in its possession and make them available for collection by the Customer on reasonable notice and request, always provided that CloudM may destroy the Customer Materials if the Customer fails to collect the Customer Materials within a reasonable period after termination of the Contract; and
d) shall ensure that CloudM employees are competent and trained in a proper manner to carry out the Services.
3.4 If CloudM’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (‘Customer Default’):
a) without limiting or affecting any other right or remedy available to it, CloudM shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the CloudM’s performance of any of its obligations;
b) CloudM shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Customer’s failure or delay to perform any of its obligations; and
c) the Customer shall reimburse CloudM on written demand for any costs or losses sustained or incurred by CloudM arising directly or indirectly from the Customer Default.
4. Customer's obligations
4.1 The Customer undertakes and agrees to:
a) co-operate with CloudM in all reasonable matters relating to the Services;
b) provide, for CloudM, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Customer's, data and other facilities required by CloudM or any of them when reasonably required;
c) provide, in a timely manner, such information as CloudM may require, and ensure that it is accurate, correct and complete in all material respects;
d) comply with CloudM Migrate Terms found at https://cloudm.co/cloudm-migrate-eula and CloudM Manage Terms found at https://cloudm.co/cloudm-manage-eula (as applicable);
e) ensure that all the Customers equipment is in good working order and suitable for the purposes for which it is used in relation to the Services and conforms to all standards and requirements;
f) back up its application, project and data using a Customer back up policy for its systems;
g) comply with all applicable laws statutes, regulations from time to time in force;
h) obtain and maintain any required consents necessary to permit the processing of Customer data under this contract;
i) it shall at all times during the term of the Statement of Work under Migration Services store at least one copy of all software, data and information contained on Customers Systems that meets Customer’s back up of data and recovery requirements; and
j) have all the necessary licences, consents and resources it requires in order to receive the Services and fulfil all of its obligations under this Contract.
4.2 If the Customer breaches any of clause 4.1 CloudM has the right to suspend the Services. CloudM shall give the Customer notice of the breach by requesting that the Customer correct or remedy the breach within 48 hours of the notice of the applicable breach. If the Customer fails to correct the breach, then CloudM has the right to suspend all or part of the Services.
5. Intellectual property
5.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any Customer Materials) shall be owned by CloudM.
5.2 CloudM shall make the Services available to the Customer pursuant to the Order Form during the Term and grants Customer a limited, non-sublicensable, non-exclusive, non-transferable right during the Term to allow the Customer to access and use the Services in accordance with CloudM Terms and or the relevant Statement of Work in relation to Migration Services solely for the Customers business purposes.
5.3 The Customer grants CloudM a fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable licence to copy and modify the Customer Materials for the term of the Contract for the purpose of providing the Services to the Customer in accordance with the Contract.
5.4 The Customer shall indemnify CloudM in full against any sums awarded by a court against CloudM arising of or in connection with any claim brought against CloudM 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 Customer Materials by CloudM.
5.5 CloudM warrants that the receipt and use of the rights granted in 5.2 shall not infringe the rights, including any Intellectual Property Rights, of any third party and CloudM shall, subject to Clause 5.6, indemnify the customer against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all other reasonable professional costs and expenses) suffered or incurred or paid by the Customer arising out of or in connection with any claim brought against the Customer for actual or alleged infringement of a third parties Intellectual Property Rights, to the extent that the infringement or alleged infringement results from copying, arising out of, or in connection with, the receipt and use of the Services.
5.6 CloudM shall not not be in breach of the warranty at clause 5.2 and the Customer shall have no claim under the indemnity at clause 5.5 to the extent the infringement arises from (a) the use of Customer Materials in the development of, or the inclusion of the Customer Materials in, the Services; (b) any modification of the Services other than by or on behalf of CloudM; (c) compliance with the Customer's specifications or instructions.
6. Data Protection
6.1 The terms of the PDPA are incorporated by reference and will apply to the extent that Customer Data includes Personal Data. CloudM will maintain commercially appropriate administrative physical and technical safeguards to protect Personal Data as described in the PDPA including security measures set out at Annex B.
7. Charges and payment
7.1 In consideration for the provision of the Services, the Customer shall pay CloudM the Charges in accordance with the Order Form under the Contract.
7.2 All amounts payable by the Customer exclude amounts in respect of value added tax (VAT) or any equivalent taxes in the relevant jurisdiction, which the Customer may additionally be liable to pay to CloudM where applicable.
7.3 The Customer shall pay each invoice due and submitted to it by CloudM, within 30 days of the date of the invoice, to a bank account nominated in writing by CloudM in full and cleared funds, unless otherwise agreed between the parties in writing in the Order.
7.4 If the Customer fails to make any payment due to CloudM under the Contract by the due date for payment, then, without limiting CloudM's remedies under clause 9 (Termination):
a) the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%;
b) CloudM may suspend all Services until payment has been made in full; and
c) may recover our reasonable costs, expenses and charges (including legal costs and expenses) in collecting the late payment.
7.5 All amounts due under the Contract from the Customer to CloudM shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
7.6 Any invoice disputes must be submitted prior to the payment due date. If the parties determine that certain billing inaccuracies are attributable to CloudM, CloudM issues a corrected invoice. All undisputed amounts must be paid by the payment due date.
7.7 Any cancellation of the Migration Services are subject to the Cancellation Charges.
8. Limitation of liability
8.1 The restrictions on liability in this clause 8 apply to every liability arising under or in connection with the Contract including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
8.2 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
8.3 Nothing in the Contract limits any liability which cannot legally be limited, including liability for: (a) death or personal injury caused by negligence; (b) fraud or fraudulent misrepresentation; and (c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
8.4 Subject to clause 8.3, CloudM's total liability to the Customer in respect of all breaches of duty occurring within any contract year shall not exceed the cap.
8.5 In clause 8.4:
a) cap. The cap is 115% of the total aggregate Charges in the contract year in which the breaches occurred;
b) contract year. A contract year means a 12-month period from the Commencement Date of the Contract or any anniversary of it.
8.6 Subject to clause 8.3, the types of loss listed in clause this clause 8.6 are wholly excluded by the parties: (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) loss of or damage to goodwill; and (g) indirect or consequential loss.
8.7 Unless the Customer notifies CloudM that it intends to make a claim in respect of an event within the notice period, CloudM shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire 12 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
9.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if the the other party commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 21 days after being notified to do so.
9.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if: (a)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; (b) 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; or (c) the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
9.3 On termination of the Contract for whatever reason:
a) the Customer shall immediately pay to CloudM all of the CloudM's outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted including the remainder of any Term in connection with CloudM Manage, CloudM may submit an invoice, which shall be payable immediately on receipt;
b) Customers rights granted by CloudM shall immediately cease;
c) Customer shall immediately disconnect any associated Services;
d) Upon request each party shall use commercially reasonable efforts to return or destroy all confidential information of the other party;
e) any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect; and
f) termination of the Contract shall not affect any of the 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.
10.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. For the avoidance of doubt, COVID-19 pandemic, and any consequent law or action taken by a government or public authority is not considered as Force Majeure.
10.2 Assignment and other dealings. The Customer 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 the Contract without CloudM's prior written consent. (b) CloudM 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 the Contract.
a) Each party undertakes that it shall not at any time during the Contract, and for a period of four years after termination of the Contract, 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 10.3. For the purposes of this clause 10.3, 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.
b) Each party may disclose the other party's confidential information:
bi) 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 the 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 10.3; and
bii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
c) Neither party shall use any other party's confidential information for any purpose other than to perform its obligations under the Contract.
d) Neither party shall make, or permit any person to make, any public announcement concerning the existence, subject matter or terms of this agreement, the wider transactions contemplated by it, or the relationship between the parties, without the prior written consent of the other parties, except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
10.4 Entire agreement. (a)The 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 acknowledges that in entering into the Contract it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
10.5 Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties.
a) A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
b) A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
10.7 Severance. If any provision or part-provision of the 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 10.7 shall not affect the validity and enforceability of the rest of the Contract.
a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be: (i) delivered by next working day delivery service at its registered office; or (ii) sent by email to the address specified in the Order Form.
b) Any notice or communication shall be deemed to have been received: (i) if sent by other next working day delivery service, at the time recorded by the delivery service; and (ii) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 10.8(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
c) This clause 10.8 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
10.9 Third party rights. The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
10.10 Disclaimer. Except as expressly provided in this Contract at clause 3.2, to the maximum extent permitted by applicable law, CloudM disclaims all warranties relating to the Services of any kind, whether express, implied, statutory or otherwise, including merchantability, fitness for a particular use and non-infringement.
10.11 Governing law and Jurisdiction. The 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 each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
10.12 Customer irrevocably appoints CloudM as its agent to receive on its behalf in England, service of any proceedings under Clause 10.11 above. Such service shall be deemed completed on delivery to such agent along with a confirmation email to the Customer, and shall be valid until such time as CloudM has received prior written notice that such agent has ceased to act as agent. If for any reason such agent ceases to be able to act as agent or no longer has an address in England, Customer shall forthwith appoint a substitute acceptable to CloudM and deliver to CloudM the new agent's name and address and email address within England.