Terms and Conditions
The parties agree:
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 payable by the Customer for the supply of the Services by Tambo, as set out in the Contract Details and Schedule 2.
Contract: the contract between the Customer and Tambo for the supply of the Services in accordance with the Contract Details, these General Conditions and any applicable Schedules.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Customer Materials: all materials, equipment and tools, drawings, specifications and data supplied by the Customer to Tambo.
Deliverables: the documents, products and materials developed by Tambo or its agents, subcontractors and personnel as part of or in relation to the Services set out against the relevant Service in Schedule 1.
Effective Date: the day on which the Contract is effective from, as set out in the Contract Details.
General Conditions: these terms and conditions set out in clause 1 (Interpretation) to clause 11 (General) (inclusive).
Intellectual Property Rights: patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Services: the services and any Deliverables, to be provided by Tambo pursuant to the Contract, as described in the Contract Details.
Tambo IPRs: all Intellectual Property Rights subsisting in the Deliverables excluding any Customer Materials incorporated in them.
Third Party Materials means the materials used in the provision of the Services to which third party licence terms apply.
A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
A reference to writing or written includes email but not fax.
COMMENCEMENT & TERM
The Contract shall commence on the Effective Date and, subject to clause 10, shall continue for a minimum of 12 months with a 6 month break clause, after which point either party may give to the other not less than three months’ written notice to terminate. After the initial period of 12 months, the Contract will continue in effect until such time as either a new contract is signed, or either party gives to the other not less than three month's written notice to terminate.
Tambo shall perform the Services from the Effective Date substantially in accordance with the Service descriptions set out in the Contract (except in trivial and/or immaterial respects that do not adversely affect its functionality or use).
In supplying the Services, Tambo shall:
- use reasonable endeavours to perform the Services in accordance with the service description set out in Schedule 1;
- Ensure that the Deliverables, and all goods, materials, standards and techniques used in providing the Services are of satisfactory quality;
- comply with all applicable laws, statutes, regulations from time to time in force; and
- take reasonable care of all Customer Materials in its possession and make them available for collection by the Customer on reasonable notice and request, always provided that Tambo may destroy the Customer Materials if the Customer fails to collect the Customer Materials within a reasonable period after termination of the Contract.
- perform the Services with reasonable care and skill;
- Tambo shall have no liability for delay or losses incurred under and/or in connection with the Contract to the extent any such liability is caused by:
- use of any Deliverables contrary to Tambo’s instructions, minimum requirements or modification or alteration of any Deliverables by any person other than Tambo or Tambo’s duly authorised contractors or agents;
- any act or omission of the Customer in breach of the Contract; or
- the unavailability or delay or changes of Third Party Materials or any incorrect, inaccurate or faulty Third Party Materials; or
- any acts, omissions or delays caused by a third party relating to the provision of the Services including but not limited to changes to APIs, data changes.
- Tambo does not warrant, represent or undertake that the information obtained by the Customer through the Services will meet the Customer's requirements.
- Tambo shall have no liability for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
- Time shall not be of the essence in relation to the Services.
THIRD PARTY PROVIDERS
- The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. Tambo makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party.
- Tambo shall have no liability for the acts or omissions of any third parties in relation to the Services and makes no representation or guarantee on behalf of any third party or in relation to their services.
In this clause 5 and where used elsewhere in the Contract: “Customer Data” means all data inputted by the Customer, or Tambo on the Customer's behalf for the purpose of receiving the Services or facilitating the Customer’s use of the Services.
The Customer shall:
- co-operate with Tambo in all matters relating to the Services;
- provide, for Tambo, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Customer’s data as reasonably required by Tambo;
- be fully responsible for all acts and omission s of the Customer’s agents, subcontractors, consultants and employees;
- provide, in a timely manner, such information as Tambo may reasonably require, and ensure that it is accurate and complete in all material respects;
- obtain and maintain all necessary licences, consents, and permissions necessary for Tambo, its contractors and agents to perform their obligations under the Contract, including without limitation the Services;
- ensure that its network and systems comply with the relevant specifications provided by Tambo from time to time;
- use the latest end-point security and versions of anti-virus definitions and software available from an industry accepted anti-virus software provider in respect of its computer systems, technology and network infrastructure;
- be, to the extent permitted by law and except as otherwise expressly provided in the Contract, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Tambo’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet;
- comply with all applicable laws, statutes, regulations and binding codes of practice from time to time in force; and
- notify Tambo if there is a change of Control of the Customer’s data source.
- The Customer shall not submit any Customer Data or any material to Tambo which contains any virus or vulnerability (including without limitation worms, Trojan horses, viruses and other similar things or devices) is unlawful, harmful, threatening, defamatory, obscene, infringing, discriminatory, harassing, or offensive (including without limitation racially or ethnically offensive), illegal or causes damage or injury to any person or property.
- Tambo reserves the right, without liability to the Customer, to disable the Customer’s (and all Authorised Users’) access to the Software if any breach of this clause occurs.
- If Tambo’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, or third parties, Tambo shall:
- not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay;
- be entitled to payment of the Charges despite any such prevention or delay.
- The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
The parties shall comply with all applicable data protection laws and enter into all required agreements required by those data protection laws, including entering into the data processing agreement set out in Schedule 3.
Tambo and its licensors shall retain ownership of all Tambo IPRs and the Deliverables. The Customer and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials.
Tambo grants the Customer, or shall take reasonable steps to procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free, licence to use, copy and modify the Deliverables for the purpose of receiving and using the Services and the Deliverables in the Customer’s business during the term of the Contract.
The Customer shall not sub-license, assign or otherwise transfer the rights granted in clause 7.2.
The Customer grants Tambo a fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable licence to copy and modify the Customer Materials for the term of the Contract for the purpose of providing the Services to the Customer in accordance with the Contract.
The Customer shall indemnify Tambo in full against any sums awarded by a court against Tambo arising out of or in connection with any claim brought against Tambo for infringement of a third party’s rights (including any Intellectual Property Rights) arising out of, or in connection with, the receipt or use of the Customer Data or Customer Materials by Tambo.
CHARGES AND PAYMENT
In consideration for the provision of the Services, the Customer shall pay Tambo the Charges in accordance with Schedule 2.
Tambo reserves the right to pass on travel expenses to the customer for any travel outside of London and any overnight stays. For the avoidance of doubt, all contracted fees exclude travel expenses.
LIMITATION OF LIABILITY
Except as expressly and specifically provided in the Contract:
- the Customer assumes sole responsibility for results obtained from the use of the Services and the Deliverables by the Customer, and for conclusions drawn from such use. Tambo shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Tambo by the Customer in connection with the Services, or any actions taken by Tambo at the Customer's direction;
- all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Contract; and
- the Services and the Deliverables are provided to the Customer on an "as is" basis.
Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for
- death or personal injury caused by negligence;
- fraud or fraudulent misrepresentation.
Subject to clause 9.1 and clause 9.2:
- Tambo shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Contract; anD
- Tambo’s total aggregate liability in contract, tort (including for negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to 50% of the total charges paid and/or payable in respect of the relevant Services under the Contract during the 12 months immediately preceding the date on which the claim arose.
- Unless the Customer notifies Tambo that it intends to make a claim in respect of an event within the notice period, Tambo shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire 6 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
- The Customer shall indemnify Tambo 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 professional costs and expenses) suffered or incurred by Tambo arising out of in connection with:
- any breach of clause 5 (Customer Obligations); or
- claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services and/or the Deliverables.
FORECASTING: Any forecasts produced by Tambo will be based upon the available information at the time, and are not a commitment or contract. Forecasts may be amended at any time based on new information.
No responsibility will be assumed by Tambo in relation to any implications arising from inaccurate or amended forecasts.
Without affecting any other right or remedy available to it, either party to the Contract may terminate it with immediate effect by giving written notice to the other party if:
- the other party commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
- the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
- the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
- the other party’s financial position deteriorates to such an extent that in the terminating party’s reasonable opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
Without affecting any other right or remedy available to it, Tambo may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
On termination of the Contract for whatever reason:
- the Customer shall immediately pay to Tambo all of Tambo’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Tambo may submit an invoice, which shall be payable immediately on receipt;
- any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect; and
- termination or expiry of the Contract shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
Force majeure. Tambo shall have no liability to the Customer under the Contract if it is prevented from or delayed in performing its obligations under the Contract, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Tambo or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, epidemic, pandemic, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers, sub-contractors or third parties, provided that the Customer is notified of such an event and its expected duration.
Assignment and other dealings.
- Tambo may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this agreement.
- The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement, without the prior written consent of Tambo.
Each party undertakes that it shall not at any time during the Contract, and for a period of two years after termination or expiry of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group to which the other party belongs, except as permitted by clause 11.3. For the purposes of this clause 11.3, group means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.
Each party may disclose the other party’s confidential information:
Neither party shall use any other party’s confidential information for any purpose other than to perform its obligations under the Contract, provided that, subject to the Customer’s prior approval, Tambo may use the Customer’s name, logo and details relating to the performance of the Contract on Tambo’s website and other promotional material for marketing purposes.
to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 11.3; and
as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
Right of First Refusal. The Customer shall grant to Tambo a right of first refusal in relation to the provision of any services or substantially similar services to those routinely provided by Tambo which Tambo has not previously provided to the Customer. In such circumstances, before approaching any third parties, the Customer shall first approach Tambo with a request for providing such services and Tambo shall be granted a period of 15 days to respond, during which the Customer may not approach any third parties. If Tambo does not respond or the Customer rejects Tambo’s proposal, it shall be free to approach third parties. Tambo shall have the right, but not the obligation, to enter into an agreement with the Customer for the supply of such services.
The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
Each party acknowledges that in entering into the Contract it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
- A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
- A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 11.7 shall not affect the validity and enforceability of the rest of the Contract.
- Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
- delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); oR
- sent by email to the address specified in the Contract Details.
Any notice shall be deemed to have been received:
- if delivered by hand, at the time the notice is left at the proper address;
- if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
- if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 184.108.40.206, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
- This clause 11.8 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
Third party rights. The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with the law of England and Wales.
Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.