Your attention is drawn in particular to the provisions of condition 6.
1. Basis of contract
1.1 The Agreement shall commence on the date when an Order Form has been signed by both the parties and shall continue, unless terminated earlier in accordance with condition 8 (Termination), until either party gives to the other party written notice to terminate or upon expiration or termination of the SaaS Agreement for any reason.
1.2 These Conditions apply to the Agreement to the exclusion of any other terms that You seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
1.3 Any samples, drawings, descriptive matter, or advertising produced by Arctic Shores and any descriptions or illustrations contained in Arctic Shores’ catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Agreement or have any contractual force.
1.4 You waive any right You might otherwise have to rely on any term endorsed upon, delivered with or contained in any document that is inconsistent with these Conditions.
1.5 No amendment shall be made to the Agreement unless agreed between the parties in writing. Neither party shall have any obligation to provide or pay for any Services until an Order Form has been signed by both parties.
2. Performance of the Services
2.1 Arctic Shores shall use reasonable endeavours to meet any performance date specified in the Order Form (a “Performance Date”) but any such date shall be an estimate only. If no Performance Date is specified in the Order Form, then the Performance Date for completion of the Services shall be 180 days from the date that both parties have entered into the Order Form. Time for performance by Arctic Shores shall not be of the essence of the Agreement.
2.2 You shall notify Arctic Shores within 5 Business Days of submission of any Deliverables if You reasonably believe that Arctic Shores has failed to complete the relevant Services in all material respects by the applicable Performance Date and shall provide documentary evidence which, in Arctic Shores reasonable opinion, confirms that the relevant Services have not been so completed by the Performance Date applicable to them (“Completion Notice”). If:
(a) You do not provide Arctic Shores with a Completion Notice within such 5 Business Day period; or
(b) Arctic Shores in its reasonable opinion considers that the relevant Services have been completed in all material respects by the applicable Performance Date,
the Services will be deemed to be completed on the Performance Date.
2.3 If You do provide a Completion Notice and Arctic Shores confirms in writing to You that it agrees the Services have not been completed in all material respects by the Performance Date, then the Performance Date shall be reasonably extended to allow Arctic Shores to complete the performance of the Services.
2.4 Arctic Shores shall appoint a manager in respect of the Services to be performed as identified in the Order Form who shall have authority to contractually bind Arctic Shores on all matters relating to the relevant Services. Arctic Shores shall use all reasonable endeavours to ensure that the same person acts as Arctic Shores’ manager until completion of the Services, but may replace that person from time to time where reasonably necessary in the interests of Arctic Shores’ business.
2.5 Arctic Shores shall use reasonable endeavours to observe all health and safety and security requirements that apply at any of Your premises and that have been communicated to it in writing, provided that it shall not be liable under the Agreement if, as a result of such observation, it is in breach of any of its obligations under the Agreement.
2.6 Arctic Shores warrants that it shall provide the Services with reasonable care and skill. Except as expressly stated in the Agreement, all warranties implied by statute, common law or otherwise are hereby excluded to the extent permitted by law.
3. Customer obligations
3.1 You shall:
(a) co-operate with Arctic Shores in all matters relating to the Services;
(b) appoint a manager in respect of the Services as identified in the Order Form who shall have authority to contractually bind You on all matters relating to the relevant Services;
(c) provide Arctic Shores and Arctic Shores Personnel with access to Your premises, office accommodation and other facilities reasonably required by Arctic Shores for the purpose of providing the Services;
(d) provide such information to Arctic Shores as Arctic Shores may reasonably request for the purpose of providing the Services and ensure that such information is accurate in all material respects;
(e) comply with all Applicable Law with respect to Your activities under the Agreement; and
(f) obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable Arctic Shores to provide the Services in all cases before the date on which the Services are to start
3.2 If Arctic Shores’ performance of any of its obligations under the Agreement is prevented or delayed by any act or omission of You or failure by You to perform any relevant obligation (Customer Default):
(a) Arctic Shores shall without limiting its other rights or remedies have the right to suspend performance of the Services until You remedy the Customer Default and the Performance Date shall be reasonably extended to allow Arctic Shores to complete the performance of the Services;
(b) Arctic Shores shall not be liable for any Losses, whether arising in tort (including without limitation negligence), in contract or otherwise sustained or incurred by You arising directly or indirectly from Arctic Shores’ failure or delay to perform any of its obligations; and
(c) You shall reimburse Arctic Shores on demand for any Losses whether arising in tort (including without limitation negligence), in contract or otherwise sustained or incurred by Arctic Shores arising directly or indirectly from the Customer Default.
4. Charges and payment
4.1 Unless otherwise set out in the Order Form, Arctic Shores may invoice You for the Charges in advance.
4.2 The Charges exclude amounts in respect of UK value added tax (VAT) or other applicable sales tax, which You shall additionally be liable to pay to Arctic Shores at the prevailing rate, subject to the receipt of a valid VAT invoice or other applicable sales tax invoice.
4.3 The Charges exclude the following, which shall be payable by You monthly in arrears, following submission of an appropriate invoice:
(a) the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom Arctic Shores engages in connection with the Services; and
(b) the cost to Arctic Shores of any materials or services procured by Arctic Shores from third parties for the provision of the Services as such items and their cost are approved by You in advance from time to time.
4.4 You shall pay each invoice in full and in cleared funds within 30 days of the date of the invoice. Payment shall be made to the bank account nominated in writing by Arctic Shores. If You fail to make any payment due to Arctic Shores under the Agreement by the due date for payment, then You shall pay interest on the overdue amount at the rate of 4% per annum above The Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. You shall pay the interest together with the overdue amount.
4.5 You shall pay all amounts due under the Agreement in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Arctic Shores may at any time, without limiting any other rights or remedies, set off any amount owing to it by You against any amount payable by Arctic Shores to You.
5. Intellectual Property Rights
5.1 Unless otherwise agreed in writing:
(a) all Intellectual Property Rights arising in the performance of the Services (including the Deliverables) shall be owned by Arctic Shores;
(b) any software code forming part of the Deliverables shall form part of the App and/or the Platform being provided to You pursuant to the SaaS Agreement and its use shall be subject to the terms and conditions of the SaaS Agreement;
(c) Arctic Shores grants You a non-exclusive, non-transferable licence to use any Deliverables (other than those referred to in 5.1(b)) during the term of the SaaS Agreement for the Permitted Purpose.
5.2 You shall not supply the Deliverables to any third party or use the Services or the Deliverables to provide a service to any third party.
5.3 All Arctic Shores’ Materials are Arctic Shores’ exclusive property.
5.4 Subject to conditions 5.5 and 5.6, Arctic Shores shall indemnify You against all Losses awarded against You as a result of or in connection with any claim made by a third party (“Client Third Party Claim”) that the provision of the Services or receipt or use thereof by You infringes the Intellectual Property Rights of a third party.
5.5 Condition 5.4 shall not apply where the Client Third Party Claim in question is attributable to:
(a) any use of the Services Data otherwise than strictly in accordance with the provisions of the Agreement;
(b) Your Materials or Your Branding;
5.6 Condition 5.4 is subject You having complied with the following:
(a) If any Client Third Party Claim is made, or there is any notification of an intention by a third party to make a Client Third Party Claim, You shall:
(i) give written notice of the Client Third Party Claim to Arctic Shores as soon as reasonably practicable;
(ii) not make any admission of liability in relation to the Client Third Party Claim without the prior written consent of Arctic Shores;
(iii) at the request and expense of Arctic Shores, allow Arctic Shores to conduct Your defence of the Client Third Party Claim including settlement; and
(iv) at the expense of Arctic Shores, co-operate and assist to a reasonable extent with Arctic Shores’ defence of the Client Third Party Claim.
5.7 Subject to condition 5.8, You shall indemnify Arctic Shores against all Losses incurred or suffered, however arising, by Arctic Shores as a result of or in connection with any claim made by a third party (“Arctic Shores Third Party Claim”) for:
(a) infringement of Intellectual Property Rights or otherwise, where such an Arctic Shores Third Party Claim arises due to Your use of the Services in breach of the Agreement; and
(b) infringement of a third party’s Intellectual Property Rights arising out of or in connection with the use by Arctic Shores of any of Your Materials or Your Branding in connection with the Services.
5.8 Condition 5.7 is subject to the following:
(a) If any Arctic Shores Third Party Claim is made, or there is any notification of an intention by a third party to make an Arctic Shores Third Party Claim, Arctic Shores shall:
(i) give written notice of the Arctic Shores Third Party Claim to You as soon as reasonably practicable;
(ii) not make any admission of liability in relation to the Arctic Shores Third Party Claim without Your prior written consent;
(iii) at Your request and expense, allow You to conduct Arctic Shores defence of the Arctic Shores Third Party Claim including settlement; and
(iv) at Your expense, co-operate and assist to a reasonable extent with Your defence of the Arctic Shores Third Party Claim.
6.1 Neither party excludes or limits liability to the other party for:
(a) fraud or fraudulent misrepresentation;
(b) death or personal injury caused by negligence; or
(c) any matter in respect of which it would be unlawful for the parties to exclude or restrict liability.
6.2 Subject to condition 6.1, Arctic Shores shall not in any circumstances be liable to You whether in contract, tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for:
(a) any loss of profits, anticipated profits, business, reputation or goodwill;
(b) any loss or corruption of data or information;
(c) loss of anticipated savings or wasted expenditure;
(d) any loss or liability under or in relation to any other contract; or
(in each case whether direct or indirect).
(e) any indirect, special, consequential or pure economic loss or damage
6.3 Subject to condition 6.1, Arctic Shores’ total aggregate liability to You in respect of all other Losses arising under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the Charges paid or payable
7.1 Subject to condition 7.2, each party to the Agreement (the Recipient) shall:
(a) use the other party’s (the Disclosing Party‘s) Confidential Information solely for the performance of the Agreement; and
(b) keep the Disclosing Party’s Confidential Information strictly confidential and not, without the Disclosing Party’s prior written consent, disclose it to any other person.
7.2 The Recipient may disclose the Disclosing Party’s Confidential Information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the Recipient’s rights or carrying out its obligations under or in connection with the Agreement and the Recipient shall ensure that such persons comply with this condition 7.2;
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority; and
(c) if such information is public knowledge or already known to the Recipient at the time of disclosure or subsequently becomes public knowledge other than by breach of any duty of confidentiality (contractual or otherwise).
8.1 Without limiting its other rights or remedies, either party may terminate the Agreement with immediate effect by giving written notice to the other party if the other party:
(a) commits a material breach of any term of the Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of being notified in writing to do so;
(b) is declared or becomes insolvent, has a moratorium declared in respect of any of its indebtedness, enters into administration, receivership, administrative receivership or liquidation or threatens to do any of these things, or takes or suffers any similar action in any jurisdiction or any step is taken (including the making of an application, the entering into of a board resolution or the giving of any notice) by it or by any other person in respect of any of these circumstances (an Insolvency Event);
(c) suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
8.2 Without limiting its other rights or remedies, Arctic Shores may:
(a) terminate the Agreement with immediate effect by giving written notice to You if You fail to pay any amount due under the Agreement on the due date for payment and fails to pay all outstanding amounts within 10 Business Days after being given written notice to do so; or
(b) suspend provision of the Services under the Agreement or any other contract between Arctic Shores and You if You become subject to an Insolvency Event or Arctic Shores reasonably believes that You are about to become subject to any of them, or if You fail to pay any amount due under the Agreement on the due date for payment.
8.3 On termination of the Agreement for any reason:
(a) You shall immediately pay to Arctic Shores all Arctic Shores’ outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Arctic Shores may submit an invoice, which You shall pay immediately on receipt;
(b) You shall return all of Arctic Shores Materials and any Deliverables which have not been fully paid for. If You fail to do so, Arctic Shores may enter Your premises and take possession of them. Until they have been returned, You shall be solely responsible for their safe keeping and will not use them for any purpose;
(c) the parties’ rights and remedies that have accrued as at termination shall be unaffected; and
(d) conditions 3.2, 5, 6, 7, 8.3, 9, 10, 11, 12, 13, 14 that expressly or by implication survive termination of the Agreement shall continue in full force and effect.
9. Force majeure
9.1 If a party (an “Affected Party“) is prevented, hindered or delayed in or from performing any of its obligations under the Agreement by a Force Majeure Event, the Affected Party shall not be in breach of contract or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
9.2 A “Force Majeure Event” means any event beyond a party’s reasonable control including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure or interruption of energy sources, other utility service or transport network, acts of God, war, threat of or preparation for war, armed conflict, terrorism, riot, civil commotion, interference by civil or military authorities, sanctions, embargo, export or import restriction, quota or prohibition, breaking off of diplomatic relations, national or international calamity, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosion, collapse of building structures, fire, flood, drought, storm, earthquake, volcanic eruption, loss at sea, epidemic, pandemic or similar events, outbreak of disease, including any measures taken, imposed or recommended by a competent authority in relation to the same, natural disasters or extreme adverse weather conditions, cyber or denial of service attacks, or default of suppliers or subcontractors.
9.3 If the period of delay or non-performance continues for one month, the party not affected may terminate the Agreement by giving five Business Days’ written notice to the Affected Party.
10. Data Protection
10.1 The terms and conditions of the Data Protection Appendix which can be found at https://www.arcticshores.com/terms-dpa-20210104/ will apply to the Agreement and will govern the parties’ respective obligations in accordance with Applicable Law in respect of data protection.
11.1 Any notice given to a party under or in connection with the Agreement shall be in writing and shall be sent by email to:
(a) Arctic Shores: firstname.lastname@example.org
(b) You: Your email address used to sign the Order Form or the email address used to create the account on the Platform.
11.2 Any notice or communication shall be deemed to have been received at 09:00 on the next Business Day after transmission.
11.3 This condition 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
12.1 Each party agrees that in entering into the Agreement 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 Agreement and the Agreement constitutes the entire agreement between the Parties pertaining to the subject matter contained herein and supersedes all prior and contemporaneous oral or written agreements, representations, understandings and the like between the Parties, save in the case of any made fraudulently.
12.2 The Agreement may only be modified, amended, altered or supplemented, in whole or in part, in writing signed by duly authorised representatives of both Parties.
12.3 If any provision of the Agreement is found by any competent authority to be void, invalid or unenforceable, such provision shall be deemed to be deleted from the Agreement and the remaining provisions of the Agreement shall continue in full force and effect.
12.4 In the event of any conflict between any of the provisions of the Agreement and the Order Form, the provisions of the Agreement shall prevail.
12.5 The rights of a party shall not be prejudiced or restricted by any indulgence or forbearance extended to any other party. A waiver to pursue any breach of contract by a party shall not operate as a waiver of the respective right or as a waiver to claim any subsequent breach. Any provision of the Agreement may be waived only by a written statement of the waiving party.
12.6 A person who is not a party to the Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of the Agreement.
12.7 Arctic Shores may assign, transfer, mortgage, charge, declare a trust over, subcontract, delegate or deal in any other manner (“Assign”) with any or all of its rights or obligations under the Agreement without Your consent.
12.8 You shall not Assign any or all of Your rights or obligations under the Agreement without Arctic Shores’ prior written consent
12.9 Each party shall promptly at the other party’s request and expense execute and deliver such documents and perform such acts as may be reasonably required for the purpose of giving full effect to the Agreement and shall use all reasonable endeavours to procure that any necessary third party shall promptly do the same.
12.10 The Agreement shall be governed by, interpreted and construed in accordance with English law. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims.
13. DISPUTE RESOLUTION
13.1 If a dispute arises out of or in connection with the Agreement or the performance, validity or enforceability of it (a “Dispute”) then the parties shall follow the procedure set out in this condition 13:
(a) either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (a “Dispute Notice”), together with relevant supporting documents. On service of the Dispute Notice, a Director of each of the parties shall attempt in good faith to resolve the Dispute;
(b) if a Director of each of the parties are unable to resolve the Dispute within 30 days of it being referred to them, the parties may agree to enter into mediation in good faith to settle such a dispute in accordance with the Centre for Effective Dispute Resolution (“CEDR”) Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator shall be nominated by CEDR. To initiate the mediation, a party must serve notice in writing (an “ADR notice”) to the other party to the Dispute, requesting a mediation. A copy of the ADR notice should be sent to CEDR. The mediation will start not later than 30 days after the date of the ADR notice.
13.2 If the Dispute is not resolved within 60 days after service of the ADR notice, or either party fails to participate or to continue to participate in the mediation before the expiration of the said period of 60 days, the Dispute shall be finally resolved by the courts of England in accordance with clause 12.10.
13.3 Neither party may commence any court proceedings in relation to any Dispute arising out of the Agreement until it has attempted to settle the dispute in accordance with the provisions of this clause 13 and either the mediation has terminated or the other party has failed to participate in the mediation, provided that the right to issue proceedings is not prejudiced by a delay.
14.1 The definitions set out in Schedule 1 and rules of interpretation set out in this condition 14 apply in the Agreement.
14.2 Condition, schedule and paragraph headings shall not affect the interpretation of the Agreement.
14.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).
14.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
14.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
14.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
14.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of the Agreement.
14.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of the Agreement under that statute or statutory provision.
14.9 A reference to writing or written includes e-mail.
14.10 References to conditions and schedules are to the conditions and schedules of the Agreement; references to paragraphs are to paragraphs of the relevant schedule to the Agreement.
14.11 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 generality of the related general word.
SCHEDULE 1: DEFINITIONS
In the Agreement, unless the context otherwise requires, the following words and phrases shall have the following meanings:
|Agreement||the agreement between Arctic Shores and You for the supply of Services which incorporates these Conditions and the Order Form;|
|Applicable Law||in any jurisdiction in which the Services are to be performed under the Agreement any and all applicable laws, regulations and industry standards or guidance (including without limitation any applicable British Standard) and any applicable and binding judgment of a relevant court of law;|
|Arctic Shores||Arctic Shores Limited (registered in England and Wales with company number 08589048);|
|Arctic Shores’ Materials||all materials, drawings, specifications code, programs and/or data supplied or made available by Arctic Shores to You;|
|Arctic Shores Personnel||the personnel including subcontractors engaged by Arctic Shores in the performance of the Agreement;|
|Business Day||a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;|
|Charges||the charges for the supply of the Services as set out in the Order Form;|
|Commencement Date||has the meaning given in condition 1.1;|
|Conditions||the terms and conditions set out in this document as amended from time to time in accordance with condition 12.2;|
|Confidential Information||any and all know-how, documentation and information, whether commercial, financial, technical, operational or otherwise, relating to the business, affairs, customers, suppliers, employees, affiliates, products and/or methods of Arctic Shores or You and disclosed to or otherwise obtained by the other party in connection with the Agreement;|
|Deliverables||all documents, products, code and materials developed by Arctic Shores or Arctic Shores Personnel as part of or in relation to the Services in any form or media, including drawings, maps, plans, diagrams, designs, pictures, computer programs, data, specifications and reports (including drafts);|
|Force Majeure Event||has the meaning given in condition 9;|
|Intellectual Property Rights||patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, 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;|
|Losses||means all damages, losses, liabilities, claims, actions, costs, expenses (including reasonable fees and disbursements for legal or professional services), proceedings, judgments, consensual settlements, penalties, fines, demands, interest and charges whether arising under statute, contract or at common law;|
|Order Form||the Order Form submitted by You to Arctic Shores in accordance with condition these terms and conditions and which references these terms and conditions;|
|Permitted Purpose||has the meaning given to it in the SaaS Agreement;|
|Platform||has the meaning given to it in the SaaS Agreement;|
|SaaS Agreement||means the SaaS agreement entered into by You and Arctic Shores on or around the date of the Agreement in relation to either of the two self-service management portals made available at https://datahub.arcticshores.com or https://www.una-arcticshores.com;|
|Services||the professional services specified on the Order Form (which are in addition to those provided pursuant to the SaaS Agreement) and which are described in more detail in the document attached to the Order Form at the date of the Agreement|
|You(r)||the person or firm identified as the customer in the Order Form;|
|Your Branding||any corporate, business or trading name, logo, colour scheme or other material (including any associated trademarks) reflecting Your business identity and generally used in Your business materials, which are specified by You; and|
|Your Materials||any materials or data supplied by You to Arctic Shores for the purposes of the Agreement (including, but not limited to, any materials which incorporate Your Branding).|