1.1 The following definitions and rules of interpretation apply in this agreement:
Applicable Laws: all applicable laws, statutes, regulations, and codes are occasionally in force.
Available Services: the services as set out in Error! Reference source not found.
Business Day: a day other than a Saturday, Sunday, or public holiday in the USA when banks are open for business.
Business Hours: 9.00 am to 5.00 pm on any Business Day.
Business Relationship Manager: means the person appointed to act in such capacity by the Service Provider who may be named in a Statement of Work or such other person as the Service Provider may from time to time nominate.
Commencement Date: means the date of the signing of this agreement.
Commission Date: means any date later than the Commencement Date as may be specified in a Statement of Work being the date when the Service Provider shall provide the Available Services.
Confidential Information: means, about either party, information disclosed to that party by the other party under or in connection with the agreement (whether orally or in writing or any other medium, and whether the information is expressly stated to be confidential or marked as such).
Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing, and appropriate technical and organizational measures: have the same meanings as in the Data Protection Legislation.
Customer: means the party procuring the Available Services from the Service Provider who shall be identified in this agreement.
Customer Management Representative: means the person who may be named in a Statement of Work who shall be responsible for liaising with the Business Relationship Manager by clause 2.6, or such other person whom the Customer may from time to time nominate.
Customer Materials: means all documents, information, items, and materials in any form (whether owned by the Customer or a third party) that the Customer provides to the Service Provider in connection with the Available Services.
Data Protection Legislation: means all applicable data protection and privacy legislation in force from time to time in the USA, including the California Consumer Privacy Act (CCPA); the Privacy Act of 1974.
Deliverables: means any outputs of the Available Services and any other documents, products, and materials provided by the Service Provider to the Customer as may be specified in a Statement of Work and any other papers, products, and materials provided by the Service Provider to the Customer about the Available Services (excluding the Service Provider Materials);
Intellectual Property Rights: means (a) any and all rights in any patents, trademarks, service marks, registered designs, applications (and rights to apply for any of those rights) trade, business and company names, internet domain names and e-mail addresses, unregistered trademarks and service marks, copyrights, database rights, know-how, rights in designs and inventions; (b) rights under licences, consents, orders, statutes or otherwise in relation to a right in paragraph (a); (c) rights of the same or similar effect or nature as or to those in paragraphs (a) and (b) which now or in the future may subsist; and (d) the right to sue for past infringements of any of the foregoing 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, goodwill and the right to sue for passing off, 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.
Periodic Review: means the review undertaken by the Service Provider from time to time during the Term as may be specified in a Statement of Work.
Person or Personnel means the individual(s), some of whom may be professionally qualified with [specify the nature of qualification] and who, for the avoidance of doubt, shall under no circumstances be considered an employee of the Customer whom the Service Provider shall procure in respect of providing the Available Services to the Customer under the terms of the agreement.
Reference Charges: the standard charges for the Available Services or the framework for calculating them as set out in Schedule 1.
Service Provider Materials: means any equipment, materials, systems, inventions, designs, information, know-how, specifications, formulae, data, processes, methods, techniques, and other technology provided by the Service Provider or used by the Service Provider, its agents, subcontractors, or consultants and used directly or indirectly in the supply of the Available Services.
SoW Charges: the sums payable for the Works as set out in a Statement of Work.
Statement of Work: a detailed plan, agreed by clause 3, decided by the parties in writing, describing the services to be provided by the Service Provider and the related matters in a form based upon the template statement of work set out in Error! Reference source not found.
Term: means a period of 5 years from the Commencement Date.
Works: The Available Services provided by the Service Provider under a Statement of Work.
1.2 Unless the context otherwise requires, each reference in this agreement to:
1.2.1” Writing” and any cognate expression refers to any communication effected by electronic or facsimile transmission or similar means.
1.2.2 a statute or a provision of law refers to that statute or provision as amended or re-enacted at the relevant time.
1.2.3 "This agreement" refers to this agreement as amended or supplemented at the relevant time.
1.2.4 a clause or paragraph is a reference to a clause of this agreement or Statement of Work, as appropriate; and
1.2.5 a "party" or the "Parties" refer to the parties to the agreement.
1.3 The headings used in this agreement are for convenience only and shall not affect the interpretation of this agreement.
1.4 Words imparting the singular number shall include the plural and vice versa.
1.5 References to any gender shall include the other gender.
1.6 References to persons shall include corporations.
- Provision of the Services
2.1 With effect from the Commencement Date, the Service Provider shall provide the services and Deliverables to the Customer throughout the Term of the Agreement.
2.2 The Service Provider shall provide the services and Deliverables with reasonable skill and care, commensurate with prevailing standards in the USA's accounting and compliance-related services sector.
2.3 The Service Provider shall act by all reasonable instructions given to it by the Customer, provided such instructions are compatible with the specification of services provided in a Statement of Work.
2.4 The Service Provider shall ensure that it complies with all statutes, regulations, bye-laws, standards, codes of conduct, and other rules relevant to providing services and Deliverables.
2.5 During the term of the agreement, the Service Provider shall use all reasonable endeavors to accommodate any likely changes in the services that may be requested by the Customer which are not specified in a Statement of Work, subject to the Customer’s acceptance of any related reasonable changes to the fees that may be due because of such changes.
2.6 The Business Relationship Manager shall assume responsibility for liaising with the Customer Management Representative to ensure the proper elements and commitments are in place to provide consistent compliance-related accounting services to the Customer by the Service Provider.
- Statements of Work
3.1 Each Statement of Work shall be agreed upon in the following manner:
(a) the Customer shall request in writing to the Service Provider to provide any or all of the Available Services and provide the Service Provider with as much information as the Service Provider reasonably requests to enable it to do so.
(b) following receipt of the information requested from the Customer, the Service Provider shall, as soon as reasonably practicable either:
(i) inform the Customer that it declines to provide the requested Available Services.
(ii) Write the Customer with a draft Statement of Work.
(c) if the Service Provider provides the Customer with a draft Statement of Work under clause 3.1(b)(ii), the Service Provider and the Customer shall correspond in writing, discuss and agree that draft Statement of Work; (d) both parties shall accept and agree to the terms of the draft Statement of Work in writing when it is approved.
3.2 Unless otherwise agreed, the SoW Charges shall be calculated by the Reference Charges.
3.3 Once a Statement of Work has been agreed in writing by clause 3.1(d), no amendment shall be made to it except by clause 4 (Change control) or clause 25 (variation).
3.4 Each Statement of Work shall be part of this agreement and shall not form a separate contract.
- Change control
4.1 Either party may propose changes to the scope or execution of the Works, but only proposed changes shall come into effect once a relevant Change Order has been agreed in writing by both parties. A Change Order shall be a document setting out the proposed changes and the impact that those changes will have on the following:
(a) the Works.
(b) the SoW Charges.
(c) the timetable for the Works; and
(d) any of the other terms of the relevant Statement of Work.
4.2 If the Service Provider wishes to change the Works, it shall provide a draft Change Order to the Customer.
4.3 If the Customer Wishes to Make a Change to the Works:
(a) it shall notify the Service Provider and provide as much detail as the Service Provider reasonably requires of the proposed changes, including the timing of the proposed change; and
(b) the Service Provider shall provide a draft Change Order to the Customer as soon as reasonably practicable after receiving the information in clause 4.3(a).
4.4 If the parties:
(a) agree to a Change Order, it shall be agreed in writing, and that Change Order shall amend the relevant Statement of Work; or
(b) are unable to agree on a Change Order, either party may require the disagreement to be dealt with by the dispute resolution procedure in clause 28 (multi-tiered dispute resolution procedure).
4.5 The Service Provider may charge for the time it spends preparing and negotiating Change Orders, which implement changes proposed by the Customer under clause 4.3 on a time-spent basis at the Service Provider's monthly rates specified in Schedule 1.
- Intellectual Property Rights
About the Customer Materials:
5.1 the Customer and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials; and
5.2 the Customer grants the Service Provider a fully paid-up, non-exclusive, royalty-free, non-transferable license to copy and modify the Customer Materials for the Term to provide the services to the Customer.
About the Service Provider Materials:
5.3 The Service Provider and its licensors shall retain ownership of all Intellectual Property Rights in the Service Provider Materials.
About the Deliverables, the Service Provider shall:
5.4 upon receipt of all sums due under the agreement, grant the Customer, or shall procure the direct grant to the Customer of a fully paid-up, worldwide, non-exclusive, royalty-free license to copy the Service Provider Materials to receive and use the services and the Deliverables in the Customer’s business during the Term of this agreement.
- Customer Obligations
6.1 The Customer shall use all reasonable endeavors to provide all pertinent information to the Service Provider necessary for the Service providers provision of the services and Deliverables.
6.2 The Customer may occasionally issue reasonable instructions to the Service Provider about the Service Provider's provision of the services. Any such instructions should be compatible with the specification of the services provided in the agreement and should, in the first instance, be provided to the Customer allocated account manager.
6.3 If the Service Provider requires the decision, approval, consent, or any other communication from the Customer to continue providing the services and the Deliverables or any part thereof at any time, the Customer shall give the same reasonably and promptly.
6.4 If any consents, licenses, or other permissions are needed from any third parties, it shall be the Customers responsibility to obtain the same advance of the provision of the services and the Deliverables (or the relevant part thereof). If the Customer fails to obtain any such consent, license, or other permission by clause 6, the Service Provider shall have the right to terminate the agreement immediately.
6.5 Any delay in the provision of the services and Deliverables resulting from the Customers failure or delay in complying with any of the provisions of clause 6 of the agreement shall not be the responsibility or fault of the Service Provider.
- Fees and Payments
7.1 In consideration of the provision of the Works by the Service Provider, the Customer shall pay the SoW Charges.
7.2 The Service Provider shall invoice the Customer at the end of each month for Works performed during that month.
7.3 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Service Provider any sum due under this agreement on the due date:
(a) the Customer shall pay interest on the overdue sum from the due date until payment of the outstanding sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Federal Reserve System’s base rate from time to time but at 4% a year for any period when that base rate is below 0%.
(b) the Service Provider may suspend part or all of the Works until payment has been made in full.
7.4 The Service Provider may increase the Reference Charges and any SoW Charges not calculated by the Reference Charges on an annual basis with effect from each anniversary of the date of this agreement in line with the percentage increase in the Consumer Prices Index (as published by the Federal Reserve System) in the preceding 12-month period. The first such increase shall take effect on the first anniversary of this agreement and shall be the latest available figure for the percentage increase in the Consumer Prices Index.
7.5 The Service Provider shall invoice the Customer for SoW Charges and any other fees due by the provisions of the Customer’s requirements as set out in a Statement of Work and the applicable pricing model set out in Schedule 1.
7.6 Customers shall pay the SoW Charges to the Service Provider by the provisions of Schedule 1 and this clause 7. The fees exclude any applicable VAT and other taxes or levies imposed or charged by any competent authority.
7.7 All payments required under the agreement and any Statement of Work by the Customer shall be made within 7 Business Days of receipt of the relevant invoice unless otherwise agreed by the parties.
7.8 All payments required to be made under the agreement shall be made in dollars in cleared funds to such bank in the USA as the receiving party may from time to time nominate, without any set-off, withholding, or deduction except such amount (if any) of tax as that party is required to deduct or withhold by law.
7.9 Where any payment under the agreement must be made on a day that is not a Business Day, it may be made on the following Business Day.
- Liability, Indemnity, and Insurance
8.1 The Service Provider's Liability under the Agreement. & breach of statutory duty, and in tort or misrepresentation or otherwise, shall be limited as set out in this section.
8.2 Subject to clause 8.3 (which for the avoidance of doubt lists the types of loss which are wholly excluded from the service Providers liability under the agreement), the total amount of the Service Provider’s liability is limited to the total amount of SoW Charges payable by the Customer to the Service Provider during the previous 12-month period payable under the agreement.
8.3 The Service Provider is not liable (whether caused by its employees, agents, or otherwise) in connection with the Service Providers’ provision of the services and Deliverables or the performance of any of its other obligations under the agreement for:
8.3.1 any indirect, special, or consequential loss, damage, costs, or expenses; or
8.3.2 any loss of profits; loss of anticipated profits; loss of sale or business; loss of agreements or contracts; loss of anticipated savings; loss of use or corruption of software, information, or data; loss of reputation or goodwill; business interruption; or other third-party claims; or
8.3.3 any failure to perform any of its obligations if such delay or failure is due to any cause beyond its reasonable control; or
8.3.4 any losses caused directly or indirectly by any failure or the Customers breach of the Customers obligations; or
8.3.5 any losses arising directly or indirectly from the choice of Available Services and how they will meet the Customers requirement or the Customers use of the Deliverables.
8.4 Nothing in this agreement shall limit or exclude the Service Provider's liability for death or personal injury caused by its negligence, fraudulent misrepresentation, or other matters for which it would be unlawful to exclude or limit liability.
8.5 The Service Provider shall ensure that, for the duration of the agreement, it has suitable and valid professional indemnity insurance.
8.6 The Service Provider shall not be liable for any loss or damage suffered by the Customer that results from the Customer's failure to follow any instructions given by the Service Provider.
8.7 The Customer shall indemnify the Service Provider 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 interest, penalties, and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Service Provider arising out of or in connection with:
8.7.1 The Customers breach or negligent performance or non-performance of this agreement.
8.7.2 any claim made against the Service Provider by a third party arising out of or in connection with the provision of the services in cases where the claim is attributable to the acts or omissions of the Customer or its employees.
8.7.3 any claim made against the Service Provider because of the Customer permitting the Service Provider with access to the Personal Data of the Customers (or its customers) but only to the extent that the Service Provider has complied with Data Protection Law and the terms of this agreement when processing such personal data.
8.7.4 any claim made against the Service Provider, or any sums awarded by a court against the Service Provider as a result of or in connection with any claim brought against the Service Provider for infringement of any 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 the Service Provider;
8.7.5 any claim made against the Service Provider by a third party for death, personal injury, or damage to property arising out of or in connection with the services, to the extent that the end, personal injury, or damage to property is attributable to the acts or omissions of the Customer, its employees, agents or subcontractors; and
8.7.6 any claim arising from loss or damage to any equipment belonging to the Service Provider caused by the Customer, its agents, or employees.
8.8 Neither party shall be liable to the other or be deemed to be in breach of the agreement because of any delay in performing, or any failure to perform, any of that party’s obligations if the delay or failure is due to any cause beyond that party's reasonable control.
9.1 The Service Provider warrants that it will use reasonable care and skill in performing the services.
9.2 The Service Provider reserves the right to vary the services in circumstances where such variation is deemed necessary by the Service Provider to comply with any Applicable Laws, and the Service Provider will notify the Customer as soon as reasonably practicable if necessary.
10.1 Each party shall undertake that, except as provided by clause 10.2 or as authorized in writing by the other party, it shall, always during the continuance of the agreement and two years after its termination:
10.1.1 keep confidential all Confidential Information.
10.1.2 Do not disclose any Confidential Information to any other party.
10.1.3 not use any Confidential Information for any purpose other than as contemplated by and subject to the terms of the agreement.
10.1.4 not make any copies of the record in any way or part with possession of any Confidential Information; and
10.1.5 ensures that none of its directors, officers, employees, agents, subcontractors, or advisers does any act which, if done by that party, would breach the provisions of clauses 10.1.1 to 10.1.4 of the agreement.
10.2 Either party may:
10.2.1 disclose any Confidential Information to:
10.2.1.1 Any sub-contractor, subsidiary, or service provider of that party.
10.2.1.2 Any governmental or other authority or regulatory body; or
10.2.1.3 Any employee or officer of that party or any of the persons, parties, or bodies; to such extent only as is necessary for the purposes contemplated by the agreement (including, but not limited to, the provision of the services and Deliverables), or as required by law. In each case, that party shall first inform the person, party, or body in question that the Confidential Information is confidential and (except where the disclosure is to any such body under clause 10.2.1.2 or any employee or officer of any such body) shall ensure that such body is bound by confidentiality and non-use obligations concerning such Confidential Information which are no less onerous than those set out in terms of this clause 10 of the agreement, to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made; and
10.2.2 Use any Confidential Information for any purpose, or disclose it to any other person, to the extent only that it is at the date of the agreement or at any time after that date becomes public knowledge through no fault of that party. In making such use or disclosure, that party must not disclose any part of the Confidential Information that is not public knowledge.
10.3 The provisions of clause 10 of the agreement shall continue in force by their terms, notwithstanding the termination of the contract for any reason.
- Force Majeure
11.1 No party to the agreement shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause beyond that party’s reasonable control. 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, epidemic, pandemic, acts of war, governmental action, or any other event that is beyond the control of the party in question.
11.2 If a party to the agreement cannot perform their obligations hereunder due to force majeure for a continuous period of 14 days, the other party may, at its discretion, terminate the agreement by written notice at the end of that period. In the event of such termination, the parties shall agree upon a fair and reasonable payment for all services provided up to the termination date. Such payment shall consider any prior contractual commitments entered into in reliance on the performance of the agreement.
- Term and Termination
12.1 The agreement shall come into force on the Commencement Date and continue for the Term.
12.2 Either party may terminate the agreement by giving the other no less than a 1-month calendar notice in writing per clause 24.
12.3 Either party may immediately terminate the agreement by giving written notice to the other party if:
12.3.1 any sum owing to that party by the other party under any of the agreement’s provisions is not paid within 7 Business Days of the due date for payment.
12.3.2 the other party commits any other breach of any of the agreement’s provisions and, if the breach is capable of remedy, fails to remedy it within 7 Business Days after being given written notice giving full particulars of the infringement and requiring it to be fixed.
12.3.3 an encumbrancer takes possession, or where the other party is a company, a receiver is appointed, of any of the property or assets of that other party.
12.3.4 the other party makes any voluntary arrangement with its creditors or, being a company, becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
12.3.5 the other party, being an individual or firm, has a bankruptcy order made against it or being a company, goes into liquidation (except for bona fide amalgamation or reconstruction and in such a manner that the company resulting from that place effectively agrees to be bound by or assume the obligations imposed on that other party under the agreement).
12.3.6 anything analogous to any preceding under the law of any jurisdiction occurs about the other party.
12.3.7 the other party ceases, or threatens to cease, to carry on business; or 12.3.8 Control of the other party is acquired by any person or connected persons not having control of that other party on the date of the agreement.
12.4 For clause 12.3.2, a breach shall be considered capable of remedy if the party in breach can comply with the provision in question in all respects.
12.5 The right to terminate the agreement shall not prejudice either party’s other right or remedy regarding the breach concerned (if any) or any other breach.
- Effects of Termination
Upon the termination of the agreement for any reason:
13.1 any sum owing by either party to the other under any of the agreement’s provisions shall become immediately due and payable.
13.2 all clauses which, either expressly or by their nature, relate to the period after the expiry or termination of the agreement shall remain in full force and effect.
13.3 termination shall not affect or prejudice any right to damages or other remedies which the terminating party may have in respect of the event giving rise to the termination or any other right to damages or other remedies which any party may have in respect of any breach of the agreement which existed at or before the date of termination.
13.4 subject as provided in clause 13 of the agreement, and except for any accrued rights, neither party shall be under any further obligation to the other.
13.5 each party shall (except to the extent referred to in clause 10 of the agreement) immediately cease to use, either directly or indirectly, any Confidential Information and immediately return to the other party any documents in its possession or control that contain or record any Confidential Information.
- Data Protection
Processors parties acknowledge that for the Data Protection Legislation, the Customer is the data controller, and the Service Provider is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
14.2 The type(s) of personal data, the scope, nature, and purpose of the processing, and the duration of the processing are set out in Schedule 3.
14.3 Without prejudice to the generality of clause 14.1, the Customer will ensure that it has all necessary, appropriate consents and notices in place to enable the lawful transfer of the Personal Data to the Service Provider for the duration and purposes of this agreement.
14.4 Without prejudice to the generality of clause 14.1, the Service Provider warrants and undertakes that it shall, about any Personal Data processed in connection with the performance by the Provider of its obligations under this agreement:
14.4.1 process Personal Data only on the Customer's written instructions unless the Service Provider is required by the laws of the USA applicable to the Service Provider to process Personal Data (Applicable Laws). Where the Service Provider is relying on Applicable Laws as the basis for processing Personal Data, the Service Provider shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Provider from so telling the Customer;
14.4.2 ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or injury and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymisation 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) OR as otherwise specified actions and set out in Schedule 3;
14.4.3 ensure that all personnel who have access to and process Personal Data are obliged to keep the Personal Data confidential; and
14.4.4 not transfer any Personal Data outside of the USA unless the prior written consent of the Customer has been obtained, and the following conditions are fulfilled:
126.96.36.199 the Customer or the Service Provider has provided appropriate safeguards about the transfer.
188.8.131.52 the Data Subject has enforceable rights and effective legal remedies.
184.108.40.206 the Provider complies with its obligations under the Privacy Act of 1974 by providing an adequate level of protection to any Personal Data that is transferred; and
220.127.116.11 the Provider complies with reasonable instructions notified to it in advance by the Customer concerning the processing of the Personal Data.
14.4.5 assist the Customer, at the Customer's cost, in responding to any request from a Data Subject and ensuring compliance with its obligations under the Data Protection Legislation concerning security, breach notifications, impact assessments, and consultations with supervisory authorities or regulators.
14.4.6 notify the Customer without undue delay on becoming aware of a Personal Data breach.
14.4.7 at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the Personal Data; and
14.4.8 maintain complete and accurate records and information to demonstrate its compliance with this clause 14 (and allow for audits by the Customer or the Customer's designated auditor).
14.5 The Customer consents to the Provider appointing Outbooks Outsourcing Pvt Ltd, India as a third-party processor of Personal Data under this agreement. The Service Provider confirms that it has entered or (as the case may be) will join with the third-party processor into a written agreement substantially on that third party's standard terms of business OR incorporating terms which are considerably like those set out in this clause 14. As between the Customer and the Service Provider, the Service Provider shall remain fully liable for all acts or omissions of any third-party processor appointed by it under this clause 14.
14.6 Either party may, at any time on not less than 30 days’ notice, revise this clause four by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an appropriate certification scheme (which shall apply when replaced by attachment to this agreement).
14.7 The Service Provider's liability for losses arising from breach of clause 14 is as set out in clause 8.7.3.
- No Waiver
15.1 No failure or delay by either party in exercising any of its rights under the agreement shall be deemed to be a waiver of that right, and no waiver by either party of a breach of any provision of the contract shall be a waiver of any subsequent breach of the same or any other provision.
- Further Assurance
16.1 Each party shall execute and do all such further deeds, documents, and things as necessary to carry the agreement’s provisions into full force and effect.
17.1 Subject to any provisions to the contrary, each party shall pay its costs of and incidental to the negotiation, preparation, execution, and carrying into effect of the agreement.
18.1 Neither party shall be entitled to set off any sums in any manner from payments due or sums received in respect of any claim under the agreement or any other agreement at any time.
- Assignment and Subcontracting
19.1 The Service Provider may assign, transfer, subcontract, or deal in any other manner with all or any of its rights under the agreement and can subcontract or delegate any or all its obligations to any third party.
19.2 The Customer shall not, without the Service Provider prior written consent, assign, transfer, subcontract, or deal in any other manner with all or any of its rights or obligations under the agreement.
19.3 Subject to the provisions of clause 14, the Service Provider shall be entitled to perform any of its obligations through any other member of its group or suitably qualified and skilled sub-contractors. Any act or omission of such other member or sub-contractor shall, for the agreement, be deemed an act or omission of the Service Provider.
20.1 Subject to the Customer’s prior written consent, the Service Provider shall be permitted to publicize the relationship with the Customer or use the Customer’s name or other trademarks or service marks in any advertisement or publication but not disclose the terms of the agreement.
- Relationship of the Parties
21.1 Nothing in the agreement shall constitute or be deemed a partnership, joint venture, agency, or other fiduciary relationship between the Parties other than the contract expressly provided.
22.1 Neither party shall, for the Term of the agreement and a defined period of 6 months after its termination or expiry, employ or contract the services of any person who is or was employed or otherwise engaged by the other party at any time about the agreement without the express written consent of that party.
- Third-Party Rights
23.1 No part of the agreement shall confer rights on any third parties, and accordingly, the Contracts (Rights of Third Parties) Act 1999 shall not apply to the deal.
24.1 All notices under the agreement shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorized officer of the party giving the notice.
24.2 Notices shall be deemed to have been duly given:
25.2.1 when delivered, if delivered by courier or another messenger (including registered mail) during regular Business Hours of the recipient; or
25.2.2 when sent, if transmitted by facsimile or e-mail and a successful transmission report or return receipt is generated; or
25.2.3 on the fifth business day following mailing, if mailed by ordinary national mail, postage prepaid; or
25.2.4 Postage prepaid on the tenth business day following mailing if mailed by airmail.
In each case, notices shall be addressed to the most recent address, e-mail address, or facsimile number notified to the other party.
- Entire Agreement
25.1 This agreement contains the agreed-upon position between the Parties concerning its subject matter. It may not be modified except by an instrument in writing signed by the duly authorized representatives of the Parties.
25.2 Each party shall acknowledge that, in agreeing, it does not rely on any representation, warranty, or other provision except as expressly provided in the agreement, and all conditions, warranties, or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
26.1 The agreement may be entered into in any number of counterparts and by the parties to it on separate counterparts, each of which, when so executed and delivered, shall be an original. Still, all the counterparts together shall constitute the same instrument.
27.1 If one or more of the agreement's provisions is found to be unlawful, invalid, or otherwise unenforceable, those provision(s) shall be deemed severed from the remainder of the contract. The rest of the agreement shall be valid and enforceable.
- Dispute Resolution
28.1 The parties shall attempt to resolve any dispute arising out of or relating to the agreement through negotiations between their appointed representatives with the authority to settle such disputes.
28.2 If negotiations under clause 28.1 of the agreement do not resolve the matter within 30 calendar days of receipt of a written invitation to negotiate, the parties will attempt to resolve the dispute in good faith through an agreed Alternative Dispute Resolution (“ADR”) procedure.
28.3 If the ADR procedure under clause 28.2 of the agreement does not resolve the matter within 30 calendar days of initiating that procedure, or if either party will not participate in the ADR procedure, the dispute may be referred to arbitration by either party.
28.4 The seat of the arbitration under clause 28.3 of the agreement shall be the USA. The Federal Arbitration Act will govern the arbitration as agreed between the Parties. If the Parties are unable to decide on the arbitrator(s) or the Rules for Arbitration, either party may, upon giving written notice to the other party, apply to the President or Deputy President for the time being of the Chartered Institute of Arbitrators for the appointment of an arbitrator or arbitrators and for any decision on rules that may be required.
28.5 Nothing in clause 28 of the agreement shall prohibit either party or its affiliates from applying to a court for interim injunctive relief.
28.6 The decision and outcome of the final method of dispute resolution under clause 28 of the agreement shall be final and binding on both parties.
- Law and Jurisdiction
29.1 The agreement (including any non-contractual matters and obligations arising from that place or associated in addition to that) shall be governed by and construed by the laws of the USA.
29.2 Subject to the provisions of clause 29.1 of the agreement, any dispute, controversy, proceedings, or claim between the parties relating to the contract (including any non-contractual matters and obligations arising from that place or associated in addition to that) shall fall within the jurisdiction of the courts of the USA.
This agreement has been entered into on the date stated at the beginning of it.