UMBRA Secure – Terms of Business
We are UMBRA International Group Limited incorporated and registered in England and Wales with company number
1166957 whose registered office is Berkeley Square House, Berkeley Square, London, W1J 6BD (“UIG”);
You are our client for the purposes of these Terms of Business. (“Client”).
The Agreement between UIG and the Client is subject to the terms and conditions set forth:
1.Definitions and Interpretation
In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
|means, any day (other than Saturday or Sunday) on which ordinary banks are open for their full range of normal business in England and Wales;
|means the date on which provision of the Services will commence, as agreed in writing between the Parties;
|means any and all sums due under the Agreement from the Client, as specified as agreed in writing between the Parties;
|means the term of the Agreement as agreed in writing between the Parties.
a. Unless the context otherwise requires, each reference in these Terms and Conditions to:
i. “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
ii. a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
iii. a Clause or paragraph is a reference to a Clause of these Terms and Conditions or to a Clause of the Agreement, as appropriate; and
iv. a “Party” or the “Parties” refer to the parties to the Agreement.
b. The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions.
c. Words imparting the singular number shall include the plural and vice versa.
d. References to any gender shall include the other gender.
e. References to persons shall include corporations.
2. Provision of the Services
With effect from the Commencement Date, UIG shall throughout the Term of the Agreement, provide the Services to the Client with reasonable skill and care, commensurate with prevailing standards within their industry. UIG shall provide all Deliverables with reasonable skill and care. UIG shall act in accordance with all reasonable instructions given to it by the Client, provided such instructions are compatible with the specification of Services and/or the Deliverables as agreed in writing between the Parties. UIG shall use all reasonable endeavours to accommodate any reasonable changes in the Services that may be requested by the Client, subject to the Client’s acceptance of any related changes to the Fees that may be due as a result of such changes which as a default will be charged on a time spent basis upon UIG’s standard hourly rates updated from time to time.
3. Payment and Taxes
UIG shall invoice the Client as agreed in writing between the Parties . All monies received by UIG are non-refundable. UIG shall invoice the Client and the Client shall pay in full the agreed Fees . All invoices will be sent directly to the Client’s confirmed address. nd in any event no later than five (5) Business Days, otherwise UIG reserve the right to enforce late payment fees. All payments required to be made pursuant to the Agreement by either Party shall be made in Pound Sterling, unless agreed otherwise in cleared funds to such bank 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. Where any payment pursuant to the Agreement is required to be made on a day that is not a Business Day, it may be made on the next following Business Day. UIG reserves the right to raise charges under the Late Payment of Commercial Debts (Interest) Act 1998 on invoiced amounts unpaid by the due date, including interest at the rate of 8% per annum above the base rate from time to time of the Bank of England from the due date until the date of payment. ; The Parties will cooperate in good faith to minimise taxes to the extent legally permissible and will provide to the other any tax exemptions or certifications reasonably requested. Client will be responsible for payment of all taxes in connection with this Agreement, including withholding taxes and taxes incurred on transactions between and among UIG, its Affiliates and Third Party subcontractors. Client will reimburse UIG for any deficiency relating to taxes that are Client’s responsibility under this Arrangement Letter. If work for Client requires that personnel perform Services outside the city, state, province, or country in which such personnel are based, Client will reimburse UIG for increased tax and administrative costs incurred by UIG and/its personnel.
UIG reserves the right to enforce cancellation fees for any Agreement that is cancelled with less than 4 weeks’ notice by the client.
Over 4 weeks notice there will be no charge, between 4 and 2 weeks’ notice will be charged at 25% of total Invoice and less than 2 weeks’ notice will be charged at 50% of total invoice. Plus any out of pocket expenses.
Each Party may have access to information (in any form) that relates to the other Party’s past, present, and future research, development, business activities, products, services, and technical knowledge, which is identified by the disclosing Party as confidential or reasonably understood to be confidential (“Confidential Information”). Confidential Information may only be used by the receiving Party in connection with the Services and may not be copied or reproduced without the disclosing Party’s prior written consent except as reasonably needed to perform its obligations under the Agreement. The receiving Party agrees to protect the Confidential Information of the disclosing Party in the same manner that it protects its own similar Confidential Information, but in no event using less than a reasonable standard of care. Access to the Confidential Information will be restricted to UIG and Client personnel (including such personnel employed by their Affiliates) and subcontractors engaged in the performance, management, receipt or use pursuant to the Parties’ rights and obligations under this Agreement, provided such parties are bound by obligations of confidentiality substantially similar to the terms of this Agreement. UIG may retain information relevant to its business purposes so long as its use of such information is in an aggregated, anonymized and de identified manner. Nothing in this Agreement will prohibit or limit either Party’s use of information (i) previously known to it without an obligation not to disclose such information, (ii) independently developed by or for it without use of Confidential Information, (iii) acquired by it from a Third Party which was not, to the receiver’s knowledge, under an obligation not to disclose such information, or (iv) which is or becomes publicly available through no breach of this Agreement.
6. Data Protection
UIG has complied and will continue to comply with its obligations as a data processor arising from the Data Protection and Privacy laws in force from time to time to the extent that those obligations are relevant to this Agreement. Further, UIG and Client have each implemented and shall maintain an information security program including reasonable administrative, technical and physical measures designed to secure and protect confidentiality, integrity and availability of all Confidential Information which in such Party’s possession against unauthorized, unlawful or accidental access, disclosure, transfer, destruction, loss or alteration. The term Confidential Information will not, however, include any information that identifies or directly relates to natural persons (“Personal Data”). Each Party will exercise commercially reasonable efforts not to disclose any Personal Data to the other Party and to restrict the other Party’s access to its Personal Data, but if a Party is given access to the other Party’s Personal Data, the receiving Party will protect such Personal Data using a reasonable standard of care. If UIG requires access to Client’s Personal Data in connection with the Services for a particular project, the Parties will agree in an Arrangement Letter on the procedures and obligations of each Party with respect to the access, use and protection of such Personal Data and where needed, implement additional security controls and processes for the transmission, exchange, storage, processing or other use of Personal Data as described in such procedures. The manner in which UIG shall treat Personal Data provided by the Client to UIG under this Agreement shall be governed by Exhibit A of this Agreement.
All Services and Deliverables will be deemed accepted if the Client does not reject the Services and Deliverables by providing written notice within ten (10) business days after delivery specifically identifying the manner in which the Services and Deliverables fail to materially comply with their applicable specifications. Deliverables will be those items created for the Client by UIG which are specified in writing between the Parties.
8. Intellectual Property
All data, information, text, graphics, photos, designs, trademarks, logos or other artwork and materials provided to UIG by the Client under this Agreement (“Client IP”) are and shall remain the sole and exclusive property of the Client or its Third Party licensors and the Client shall obtain any relevant consents and licenses necessary for UIG to use Client IP to perform Services and provide Deliverables under this Agreement. The Client hereby grants to UIG, during the term of this Agreement, a nonexclusive, fully paid, nontransferable, limited license to use and permit UIG’s subcontractors to use the Client IP, solely for the purposes of providing the Services under this Agreement. All other rights in the Deliverables remain in and/or are assigned to UIG. Rights in all intellectual property of UIG existing prior to the Services, used in the Services, developed separately, or licensed to UIG by Third Parties and used in the Services, and any enhancements or modifications to the same, are the sole and exclusive property of UIG (“UIG IP”). Subject to obligations of confidentiality in Section 2, each Party will be free to use the concepts, techniques and know how retained in the unaided memories of those involved in the performance or receipt of the Services. In no event will UIG be precluded from independently developing for itself, or for others, anything, whether in tangible or nontangible form, which is competitive with or similar to the Deliverables provided and to the extent that they do not contain Client Confidential Information. Within ten (10) business days of termination of this Agreement for any reason, UIG will return any Client property in UIG’s possession to the Client (subject to retaining copies of any information required for its internal record keeping requirements). Third Party intellectual property, such as the licensing of Third Party assets or Third Party components, may require additional terms of usage, which will be addressed in the Agreement where applicable.
UIG warrants that its Services will be performed in a good and workmanlike manner. In addition, each Party warrants that upon its execution, this Agreement will not materially violate any term or condition that such Party has with any Third Party and that the Officer(s) executing this Agreement are authorized to bind such Party to the terms and conditions hereof. THE PRECEDING ARE THE ONLY EXPRESS WARRANTIES CONCERNING THE SERVICES, ANY DELIVERABLES OR MATERIALS, OR THIS AGREEMENT, AND ARE MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, CONDITIONS AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, INFORMATIONAL CONTENT, SYSTEMS INTEGRATION, NONINFRINGMENT, INTERFERENCE WITH ENJOYMENT OR OTHERWISE.
The Client (the “Indemnifying Party”) will indemnify, save, and defend UIG, its parents, subsidiaries, Affiliates, successors and their directors, officers, employees, agents, and representatives (collectively the “Indemnified Parties”), from and against any and all Third Party Claims, costs, expenses, demands, damages, lawsuits, fines, penalties and liabilities (including, without limitation, interest, penalties, attorney’s fess and court costs). The Indemnified Party must promptly notify the Indemnifying Party in writing of any claim or demand made which falls under the provisions of this Section and provide the Indemnifying Party reasonable cooperation and full authority to defend or settle the claim or suit provided that such settlement does not impose any obligation (monetary or otherwise) on the Indemnified Party without its consent.
Except for each Party’s obligation of indemnification set forth above, the sole liability of either Party to the other (whether in contract, tort, negligence, strict liability in tort, by statute or otherwise) for any and all claims in any manner related to this Agreement, will be payment of direct damages, not to exceed (in the aggregate) an amount equal to the total fees received by UIG under this Agreement (if the term of the Agreement is 24 months or longer, the liability is capped and limited to the Fees received during the twelve month period immediately preceding the event giving rise to such claim). In no event will either Party be liable for any: (A) consequential, incidental, indirect, special or punitive damage, loss or expenses or business interruption, lost business, lost profits or lost savings, or (B) loss or claim arising out of or in connection with the Client’s implementation of any conclusions or recommendations made by UIG based on, resulting from, arising out of, or otherwise related to this Agreement. For the avoidance of doubt, UIG does not exclude liability for death or personal injury arising solely from its own negligence or for any other head of loss which UIG is not permitted to exclude under the law of England and Wales.
12. Compliance with Laws.
Each Party will retain responsibility for compliance with all laws and regulations applicable to their respective businesses. Each Party will comply with all applicable export control and economic sanction programmes relating to its respective business, facilities, and provision of services to Third Parties. UIG shall not be required by the terms of the Agreement to be directly or indirectly involved in the provision of goods, software, services and/or technical data that may be prohibited by applicable export control or economic sanctions programmes if performed by UIG. Prior to providing UIG any goods, software or technical data subject to export controls, the Client will provide written notice to UIG specifying the nature of the controls and any relevant export control classification numbers.
13. Force Majeure.
An “Event of Force Majeure” shall mean any of the following circumstances which are beyond the reasonable control of a party that directly prevent performance under this Agreement, being war, civil commotion, armed conflict, riot, pandemic, government action, act of terrorism, fire, flood, storms (or any kind), earthquakes or act of God (including any labour dispute, labour shortages, strikes or lock-outs), power failure, internet failure or any other event that is beyond the reasonable control of the Party in question. Subject to this Clause, neither Party shall be liable for any delays or failures of performance attributable to an Event of Force Majeure, provided that the affected Party: (a) uses every reasonably necessary step to resume performance; and (b) promptly notifies the other Party of the failure or delay and its efforts to resume performance. The unaffected Party shall be relieved of any corresponding or related obligations to an equivalent extent. If any UIG delay or failure attributable to an Event of Force Majeure continues for a continuous period of 90 days in a 120-day , the Client may terminate this Agreement upon written notice. Where the impact of an Event of Force Majeure could have been mitigated by a Party taking reasonable precautions prior to the Event of Force Majeure, Clause 10 shall not relieve it of liability.
In addition to any termination rights of the Parties in the Agreement, either terminate this Agreement for convenience (“Terminated for Convenience”) with the written consent of the other Party with such consent not to be unreasonably withheld. UIG may terminate this Agreement with immediate effect if it has reasonable cause to believe that the Client is not operating in a manner conducive to UIG’s legal obligations and ethical code (“Terminated for Cause”). In the event this Agreement is Terminated for Convenience, the Client will pay UIG for all Services rendered and expenses incurred prior to the date of termination with immediate effect and any out of pocket demobilization costs. If the Agreement is Terminated for Cause, UIG is entitled to and the Client shall pay in full all Fees and Expenses as due and payable under this Agreement. For the avoidance of doubt, no refund is payable by UIG if the Agreement is terminated. All provisions of this Agreement which are by their nature intended to survive the expiration or termination of this Agreement will survive such expiration or termination.
The Parties will make good faith efforts to first resolve internally any dispute in connection with this Agreement. The Party raising any dispute shall first serve written notification to the other Party. Within thirty (30) days of the service of such notice one director or other senior representative of each Party with authority to settle the dispute shall meet to seek to resolve the dispute. If within thirty (30) days of service of the notice no meeting has taken place or the dispute has not been resolved, either Party shall be entitled to refer the dispute to the courts in accordance with this clause. In the event the Client in good faith disputes any invoice or portion thereof, the Parties will work together to expeditiously resolve such dispute within 45 days from the date of the invoice. In the event that the Client withholds an amount equal to or greater than two (2) months Fees under any Agreement (in total), then UIG will be permitted to suspend performance until such time as the matter in dispute is resolved. This Agreement shall be governed by and construed in accordance with the laws of England and Wales, without regard to its conflict of laws provisions and each Party irrevocably submits to the jurisdiction of the courts of England and Wales in respect of any disputes in connection with this Agreement. 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.
Each Party is an independent contractor and does not have any authority to bind or commit the other. Nothing in this Agreement will be deemed or construed to create a joint venture, partnership, fiduciary or agency relationship between such Parties for any purpose. Neither Party will solicit, offer work to, employ, or contract with, directly or indirectly, any of the other Party’s Personnel during their participation in the Services or during the twelve (12) months after the conclusion of such Services. “Personnel” means any individual or company a Party employs or has employed as a partner, employee or independent contractor and with which a Party comes into direct contact in the course of the Services. However, this section will not apply to Personnel who independently respond to indirect solicitations (such as general newspaper advertisements, employment agency referrals and internet postings) not targeting such Personnel. If UIG subcontracts any Services under this Agreement, it is understood that UIG is responsible for its subcontractors performance. In this Agreement, “Affiliate” of a Party means another entity that, directly or indirectly, through one or more intermediaries, is controlled by or under common control of that Party, and “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of the Party, whether through share ownership, holding of voting power, contract or otherwise. UIG shall be entitled to perform any of the obligations undertaken by it through any other member of its group or through suitably qualified and skilled sub-contractors.
Neither Party shall, for the Term of the Agreement and for a defined period (which shall be defined in the Agreement) 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 in relation to the Agreement without the express written consent of that Party. Neither Party shall, for the Term of the Agreement and for a defined period (which shall be defined in the Agreement) after its termination or expiry, solicit or entice away from the other Party any customer or client where any such solicitation or enticement would cause damage to the business of that Party without the express written consent of that Party.
18. Entire Understanding
This Agreement sets forth the entire understanding between the Parties and supersedes all prior agreements, conditions, warranties, representations, arrangements and communications, whether oral or written, and whether with or by UIG, any of its Affiliates, or any of their employees, officers, directors, agents or shareholders. Each Party acknowledges that it is entering into this Agreement solely on the basis of the agreements and representations contained herein, and that it has not relied upon representations, warranties, promises, or inducements of any kind, whether oral or written, and from any source. Each Party acknowledges that it is a sophisticated business entity and that in entering into this Agreement it has had the opportunity to consult with counsel of its choosing. If a court of competent jurisdiction finds any term of this Agreement to be invalid, illegal or otherwise unenforceable, such term or provision will not affect the other terms of this Agreement. Such term will be deemed modified to the extent necessary, in the court’s opinion, to render such term enforceable while preserving to the fullest extent permissible the intent and agreements of the Parties set forth in this Agreement. No waiver of any provision of this Agreement will be affected unless it is in writing and signed by the Party against which it is sought to be enforced. The delay or failure by either Party to exercise or enforce any of its rights under this Agreement is not a waver of that Party’s right to later enforce those rights, nor will any single or partial exercise of any such right preclude any other or further exercise of these rights or any other right. To the extent it may be applicable, the Parties expressly agree to exclude the application of the UN Convention on the Contracts for the International Sale of Goods (1980) to this Agreement. This Agreement may be executed electronically and in multiple counterparts, each of which will be considered an original and all of which when taken together will constitute one agreement binding on the Parties, even if both Parties are not signatories to the original or the same counterpart. This Agreement (including the Services, Deliverables, time lines, and Fees) may not be modified or amended except by the mutual written agreement of the authorized representatives of the Parties (“Change Order”). Any purchase order issued by the Client will be for its administrative purposes only and none of its terms and conditions will be of any force or effect against UIG. Nothing in this Agreement is intended or will be construed to confer on any Party (other than the Client, UIG and the Parties entitled to indemnification) any rights, benefits or remedies of any kind, and no other party will be deemed to be a Third Party beneficiary.
Neither Party may assign this Agreement without the prior written consent of the other, which consent will not be unreasonably withheld or delayed, except that, upon notice to the other Party, the rights and obligations of either Party may be assigned without consent to a Party’s UK Affiliate or subsidiary; provided that the assigner remains responsible for the obligations of the assignee.
Any notice or other communication provided under this Agreement will be in writing and will be effective either when delivered personally to the other Party, or five (5) days following deposit into the postal mail service (certified mail, return receipt requested), or upon overnight delivery service (with confirmation of delivery), addressed to such Party at the address set forth herein. A copy of such notice will also be delivered to the Client’s Legal Department.
Neither Party will be liable for any delays or failures to perform due to causes beyond that Party’s control. Without limiting the foregoing, to the extent the Client fails to perform one or more responsibilities described in this Agreement, UIG shall be excused from failure to perform any affected obligations under this Agreement. Each Party will notify the other Party as promptly as practicable after such Party becomes aware of the occurrence of any such condition. If there is any delay, then the periods for completion of the Parties’ obligations will be automatically extended by the period of such delay.
Please contact us if you have any questions about the UMBRA Select Terms and Conditions.
We can be contacted at:
Berkeley Square House,