INTRODUCTION
These Terms and Conditions are entered into by Kudo Network Limited (“Kudo”) and the Kudo Customer (as defined below). If there is any contradiction between: (i) the terms of a signed Statement of Work; and (ii) the Terms and Conditions, the Statement of Work shall be priority application to the extent of the contradiction.
AGREED TERMS
1. DEFINITIONS AND INTERPRETATION
1.1 The following words and phrases shall have the following meanings:
“Agreement” means a Statement of Work together with these Terms and Conditions;
“Business Day” means a period of 8 hours worked between the hours of 9am and 6pm in the country in which the Services are being performed, excluding public holidays in that country.
“Kudo Customer” means the entity receiving the Services.
“Kudo Materials” means any software (including any modifications and/or documentation related to it), code, product, invention, discovery, improvement, document and/or other material contributed, shared created, prepared, made, made available to Kudo Customer and/or or produced by Kudo, its licensors and/or any of its Personnel.
“Confidential Information” means information disclosed by (or on behalf of) one party to the other party in connection with or in anticipation of an Agreement (including the content of an Agreement) that is marked as confidential or, from its nature, content or the circumstances in which it is disclosed, might reasonably be supposed to be confidential but excluding any information : (a) which is publicly known or becomes publicly known other than by a breach of an Agreement; and (b) which, when it was disclosed to the other Party, was already known by that party and such prior knowledge can be demonstrated to the reasonable satisfaction of the disclosing party.
“Content” means all graphical, textual, auditory and/or audio visual content (which may include text, data, information, photos, images, graphics, audio, video or other content) whatsoever which is provided by Kudo Customer to Kudo to allow performance of the Services.
“Customer Materials” means all documents, information and materials (if any) provided by the Kudo Customer relating to the Services, including Content, data, reports and specifications.
“Deliverables” means any content, (including any modifications and/or documentation related to it), improvement, and/or other material, prepared, made, or produced by Kudo, a Kudos’ licensor, and/or any of its/their Personnel, that are provided to the Kudo Customer under an Agreement (as may be more particularly detailed in an Statement of Work).
“DP Laws” means the Data Protection Act 2018, the General Data Protection Regulation, the Electronic Communications Data Protection Directive 2002/58/EC, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and all applicable laws and regulations relating to processing of Personal Data and privacy.
“Expenses” means all atypical expenses associated with the Services, including, without limitation, cost of travel to other Customer’s sites or to the sites of Kudo Customer’s Clients, hotel costs and subsistence of providing services off site), but not including the costs of travel to the usual Customer (or Customer’s Clients) site and subsistence whilst working at the usual Customer’s Clients site.
“Fees” means the non-refundable charges for the Services as set out in an Statement of Work.
“Force Majeure” shall mean any cause preventing either Party from performing any or all of its obligations which is beyond the reasonable control of the Party so prevented and which may include strikes, lock-outs or other industrial disputes, nuclear accident or acts of war or terrorist activity, riot, civil commotion, malicious damage, compliance with any new Applicable Law or change in Applicable Law, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors (but only where such supplier or sub-contractor’s default is itself attributable to force majeure as described herein) and any other acts, events, omissions or accidents.
“Statement of Work” or “SOW” means a statement of work signed by the parties containing project specific terms which references these Terms and Conditions.
“Intellectual Property Rights” means: (i) patents, registered trademarks, registered designs, applications and rights to apply for any of those rights; (ii) service marks, copyrights, topography rights, database rights, moral rights, know-how, rights in designs and inventions; (iii) trade secrets, rights in confidence, business and company names, Internet domain names and email addresses; the goodwill attaching to any of the aforementioned rights; and (iv) any forms of protection of a similar nature and having equivalent or similar effect to any of them which may subsist anywhere in the world.
“Parties” means the parties to this Agreement (and a reference to “a Party” is to either of them);
“Personal Data” shall have the meaning given to it in applicable DP Laws.
“Personnel” means directors, officers, employees, agents and subcontractors.
“Services” means the services stated in the Statement of Work.
“Invoice” mean
1.2 Definitions in Statement of Work apply to terms in these Terms and Conditions and vice
1.3 Clause headings shall not affect the interpretation of the applicable
1.4 The words “include” and “including’ shall not limit the generality of any words preceding
1.5 Each Statement of Work shall form a separate Agreement between Kudo and the Kudo Customer on the terms contained in that Statement of Work and in these Terms and Conditions. Each Agreement shall be separately terminable in accordance with clause 7.
2. PROVIDING THE SERVICES
2.1 Kudo shall (and shall ensure its Personnel): (a) provide the Services to Customer in accordance with the Statement of Work; (b) keep the Kudo Customer reasonably informed regarding the progress and performance of the Services by engaging in a weekly catch up with Kudo Customer Personnel; (c) apply the benefit of its/their knowledge and skill when delivering the Services and (d) provide the Services in compliance with all applicable laws and in a way which will not cause the Kudo Customer to be in breach of applicable laws or result in any third party claims relating to breach of Intellectual Property Rights or other rights.
2.2 The Kudo Customer shall: (a) provide Kudo and their Personnel with such access, complete and accurate information and cooperation as Kudo reasonably requires (b) comply with any obligations set out in the Statement of Work; (c) use the Services in compliance with all applicable laws and in a way which will not cause Kudo to be in breach of applicable laws or result in any third party claims relating to breach of Intellectual Property Rights or other rights.
2.3 Each Agreement is non exclusive. Customer acknowledges that Kudo provides its services to a number of third parties, including services similar to those provided under the Agreement(s) and, perhaps, at the same time as the Agreement(s) is/are effective.
2.4 Either party may request a change in the nature or scope of the Any such request shall be sufficiently detailed to enable the other party to assess the impact of the requested change. No such change shall become binding upon the parties unless and until it is agreed in writing between the parties in a separate SOW.
3. INTELLECTUAL PROPERTY RIGHTS AND LICENSE
3.1 Kudo, shall own all Intellectual Property Rights in the Kudo
3.2 Kudo licenses all such rights in the Deliverables to the Kudo Customer on non-exclusive, non-transferable, royalty-free worldwide basis to such extent as is necessary to enable the Kudo Customer to make reasonable use of the Deliverables and the Services in the manner expressly agreed in the Statement of Work only. Customers will leave in place (and not alter or obscure) all notices and licenses contained in the Deliverables.
3.3 The Kudo Customer (or its licensors) shall retain all Intellectual Property Rights in the Customer Materials.
4. INVOICING AND PAYMENT
4.1 Kudo shall invoice the Kudo Customer for the Fees in the manner agreed in the Statement of
4.2 The Kudo Customer shall pay each invoice within 30 days after the date of receipt of the The Kudo Customer is responsible for paying all applicable bank charges.
4.3 All sums payable under each applicable Agreement are exclusive of VAT which, if applicable, shall be paid in addition. Kudo Customer is responsible for and will pay all taxes and other government charges.
5. WARRANTIES & INDEMNITY
5.1 Each party warrants to the other that it has full power and authority to enter into the applicable Agreement and to perform its respective obligations under it.
5.2 Kudo warrants to Kudo Customer that: (a) the Services shall be performed with reasonable skill and care; (b) the Services shall comply with the Statement of Work in all material respects; (c) it owns (or is an authorized licensee of) all Intellectual Property Rights subsisting in or used in connection with the Kudo Materials and has the right to authorize Kudo Customer to use them in accordance with this Agreement; and (d) it will not infringe or breach any rights of a third party (including Intellectual Property Rights, rights of privacy or confidentiality) in performance of this
5.3 Where performing the Services involves the processing by or on behalf of Kudo of personal data in respect of which Kudo Customer is data controller, Kudo will: (a) only process such personal data for the purposes of performing the Services and in accordance with any written instructions given by Kudo Customer from time to time; and (b) take appropriate technical and organizational measures against (i) unauthorized or unlawful processing of the personal data; and (ii) accidental loss or destruction of, or damage to, the personal data.
5.4 Kudo Customer warrants that it owns (or is an authorized licensee of) all Intellectual Property Rights subsisting in or used in connection with the Customer Materials and has the right to authorize Kudo to use them in accordance with this Agreement.
5.5 Except as expressly provided in the applicable Agreement, all other conditions, terms and warranties, express or implied by statute or otherwise are excluded to the fullest extent permitted by applicable law. In particular, Kudo gives no warranty or other assurance as to the results Kudo Customer will achieve through the Services.
5.6 (a) Each Party will at all times indemnify and hold harmless the other Party and its officers, agents, employees, directors, and advisors (collectively, the “Indemnified Party”) from and against any and all claims asserted by a third party against the Indemnified Parties for damages, liabilities, costs and expenses (including court expenses and reasonable counsel fees) arising out any breach or alleged breach by the indemnifying Party of any warranty made by the indemnifying Party in this clause 5 (“Claims”). (b) In connection with any Claim, the Indemnified Party will: (i) give the indemnifying Party prompt notice of the Claim (provided, however, that failure to provide such notice shall not relieve the indemnifying Party from its liability or obligation hereunder, except to the extent of any material prejudice as a direct result of such failure); (ii) cooperate with the indemnifying Party (at indemnifying Party’s expense) in connection with the defense and settlement of the Claim; and (iii) permit the indemnifying Party to control the defense and settlement of the Claim, provided that the indemnifying Party may not settle the claim without the Indemnified Party’s prior written consent (which shall not be unreasonably withheld or delayed) in the event such settlement places any liability or obligation on the Indemnifying Party. Further, the Indemnified Party (at its cost) may participate in the defense of the Claim through counsel of its own choosing.
6. LIMITATION OF LIABILITY
6.1 Nothing in an Agreement shall exclude or limit either party’s liability for:
(a) for death or personal injury resulting from the negligence of the other or their servants, agents or employees;
(b) for fraud or fraudulent misrepresentation;
(c) for breach of any implied condition as to title or quiet
6.2 Subject to clause 6.1, neither party shall be liable in contract, tort (including, without limitation, negligence), pre-contract or other representations (other than fraudulent misrepresentation) or otherwise arising out of or in connection with an Agreement for:
(a) any economic losses (including, without limitation, loss of revenues, profits, contracts, data, business, anticipated savings or cost of substitute services);
(b) any loss of goodwill or reputation; or
(c) any special, indirect or consequential losses,
in any case, whether or not such losses were within the contemplation of the parties at the Effective Date, suffered or incurred by either party arising out of or in connection with the provisions of, or any matter under, the applicable Agreement.
6.3 Subject to clauses 6.1 and 6.2, both Parties total aggregate liability in relation to all events or series of connected events occurring under or in connection with an Agreement (and whether the 125% of the fees paid or payable by the Customer in the 12 months period immediately preceding the event giving rise to the claim.
7. TERM AND TERMINATION
7.1 Each Agreement shall commence on the Effective Date stated on the applicable Statement of Work and shall remain in force until the Services have been delivered or that Agreement is terminated earlier pursuant to this Clause 7 or Clause 10.1 (Force Majeure).
7.2 Either party may suspend performance of and/or terminate an Agreement immediately by notice in writing to the other if the other party:
(a) is in material breach of that Agreement and, in the case of a breach capable of remedy, fails to remedy the breach within 15 days of receipt of written notice giving full details of the breach and of the steps required to remedy it; or
(b) passes a resolution for winding up (otherwise than for the purposes of a solvent amalgamation or reconstruction) or a court makes an order to that effect; or
(c) becomes or is declared insolvent or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or
(d) has a liquidator, receiver, administrator, administrative receiver, manager, trustee or similar officer appointed over any of its assets; or
(e) ceases, or threatens to cease, to carry on business; or
7.3 On termination of an Agreement for any reason, Customer shall pay all outstanding fees which have become properly due and payable for Services performed in accordance with that Agreement as at the date of such termination.
7.4 Any termination of an Agreement shall be without prejudice to any other rights or remedies either party may be entitled to under that Agreement or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision in that Agreement which is expressly or by implication intended to come into force on or continue after such termination.
8. CONFIDENTIALITY
8.1 The recipient of any Confidential Information will not disclose that Confidential Information, except to employees and/or professional advisors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The recipient will ensure that those people and entities: (a) use such Confidential Information only to exercise rights and fulfill obligations under the applicable Agreement, and (b) keep such Confidential Information confidential. The recipient may also disclose Confidential Information when required by law after giving reasonable notice to the disclosure, such notice to be sufficient to give the disclosure the opportunity to seek confidential treatment, a protective order or similar remedies or relief prior to disclosure.
8.2 Neither party can advertise or publicly announce, communicate or circulate the existence of an Agreement or any association with the other party without the prior written consent of the other party (such consent not to be unreasonably withheld, delayed or conditioned).
9. NON SOLICITATION
Neither Party shall not (without the prior written consent of the other Party) employ, offer to employ, engage, or otherwise solicit any Personnel of the other Party until expiry of a period of six calendar months from the date of expiry of the applicable Agreement.
10. MISCELLANEOUS
10.1 Neither party shall be in breach of an Agreement nor liable for delay in performing, or failure to perform, any of its obligations under that Agreement if such delay or failure results from a Force Majeure event.
10.2 Kudo shall not assign, sub contract or otherwise transfer its rights or delegate its obligations under an Agreement, in whole or in part, without the prior written consent of the Kudo Customer. Any purported assignment in violation of this clause 10.2 will be void.
10.3 The Agreement(s) constitute(s) the entire agreement between the parties and supersedes and extinguishes all previous drafts, agreements, arrangements and understandings between them, whether written or oral, relating to its subject Each party acknowledges that in entering into an Agreement it has not relied upon any oral or written statements, collateral or other warranties, assurances, representations or undertakings which were made by or on behalf of the other party in relation to the subject-matter of this Agreement at any time before its signature (together “Pre-Contractual Statements”), other than those which are set out in this Agreement. Each party waives all rights and remedies which might otherwise be available to it in relation to such Pre-Contractual Statements.
10.4 If a provision of an Agreement is held to be illegal or unenforceable, in whole or in part, under an enactment or rule of law, it shall to that extent be deemed not to form part of that Agreement and the enforceability of the remainder of the Agreement shall not be affected.
10.5 Each party agrees that it shall have no remedies in respect of any representation or warranty (whether made innocently or negligently) that is not set out in an Agreement.
10.6 No failure or delay by a party to exercise any right or remedy provided under an Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
10.7 Nothing in an Agreement is intended to, or shall be deemed to, establish any employment relationship, partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorize any party to make or enter into any commitments for or on behalf of any other party except as expressly provided herein. Kudo at all times is acting as an independent contractor in relation to its provision of the Services.
10.8 Nothing in an Agreement shall confer on any third party any benefits under the provisions of the Contracts (Rights of Third Parties) Act 1999.
10.9 All notices must be in English, in writing, addressed to the other party’s primary contact and sent to their then current postal address or email address or other address as either party has notified the other in accordance with this clause. All notices shall be deemed to have been given on receipt as verified by written or automated receipt or electronic log (as applicable).
10.10 The parties shall: (i) comply with all applicable laws, statutes and regulations relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (Relevant Requirements); (ii) not engage in any activity, practice or conduct which would constitute an offense under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK; (iii) promptly report to the other party any request or demand for any undue financial or other advantage of any kind received by it in connection with the performance of this Agreement.
10.11 To the extent that the nature of the Services requires a party to process Personal Data, each party shall process all Personal Data in accordance with DP Laws.
10.12 Each Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales and with the sole exception of any application for injunctive relief, the parties submit to the exclusive jurisdiction of the English Courts. Any translation of the English language, English law and court Agreement (the “Original Agreement”) is provided for convenience only and Customer agrees that in the event of a conflict between the translated version and the Original Agreement, the Original Agreement prevails.
