General Terms of Business

  1. These General Terms of Business (“General Terms”) apply to the delivery of services by Somniac Group Ltd to a client pursuant to a document enclosing these General Terms of Business and recording the engagement (“the Proposal”).

Definitions

Somniac Security or we (or derivatives) — Somniac Group Ltd, trading as Somniac Security, with its registered offices at 85 Great Portland Street, First Floor, London. W1W 7LT

Deliverables — means the final version of an item or items of work which are to be delivered by Somniac Security as set out in the Proposal;

Services — the services to be delivered by us under the Proposal;

Services Contract — the contract between us, comprising these General Terms and the Proposal;

You (and derivatives) — the company named as the addressee of the Proposal;

These definitions shall apply wherever these words and phrases are used in the Services Contract.

Our services and responsibilities

  1. The Proposal sets out the Services to be delivered by us and associated matters. These General Terms may be subject to variation in the Proposal.  In the event of a conflict or any inconsistency between the Proposal and these General Terms, the Proposal shall prevail.
  2. Where individuals to be involved in delivering the Services are named in the Proposal, we shall use reasonable endeavours to ensure that they are so involved. We may substitute those identified for others of equal or similar skills but we shall advise you before doing so. We reserve the right to maintain reasonable access to our employees working on any engagement as we may require for our internal business purposes.
  3. We may supply written advice or confirm oral advice in writing or deliver a final written report or make an oral presentation on completion of the Services. Prior to completion of the Services we may supply oral, draft or interim advice or reports or presentations but in such circumstances our written advice or our final written report shall take precedence.  No reliance shall be placed by you on any draft or interim advice or report or any draft or interim presentation.  Where you wish to rely on oral advice or on an oral presentation, you shall inform us and we shall supply documentary confirmation of the advice concerned.
  4. We shall not be under any obligation in any circumstances to update any advice, report or any product of the Services, oral or written, for events occurring after the advice, report or product concerned has been issued in final form.
  5. Any product of the Services released to you in any form or medium shall be supplied by us on the basis that it is for your benefit and information only and that it shall not be copied, referred to or disclosed (save for your own internal purposes) in whole or in part, without our prior written consent. The Services shall be delivered on the basis that you shall not quote our name or reproduce our logo in any form or medium without our prior written consent. You may disclose in whole (but not in part)  any product of the Services to your legal and other professional advisers for the purposes of your seeking advice in relation  to the Services, provided that when doing so you inform them that: (a) disclosure by them (save for their own internal purposes) is not permitted without our prior written consent, and (b) to the fullest extent permitted by law we accept no responsibility or liability to them in connection with the Services.
  6. Any advice, opinion, statement of expectation, forecast or recommendation supplied by us as part of the Services shall not amount to any form of guarantee that we have determined or predicted future events or circumstances.
  7. Either party may communicate with the other party by electronic mail. Each party accepts the inherent risks (including the security risks of interception of or unauthorised access to such communications, the risks of corruption of such communications and the risks of viruses or other harmful devices) and shall perform appropriate virus checks.
  8. not used.

Your responsibilities

  1. Notwithstanding our duties and responsibilities in relation to the Services, you shall retain responsibility and accountability for: (a) the management, conduct and operation of your business and your affairs; (b) determining your use of, the extent of your reliance on, and any implementation of, our advice or recommendations or any other product of the Services supplied by us; (c) making any decision affecting the Services, any product of the Services, your interests or your affairs; and (d) the delivery, achievement or realisation of any benefits directly or indirectly related to the Services which require implementation by you.
  2. You shall cooperate with us in our rendering of the Services, including without limitation, providing us with reasonable facilities and timely access to appropriate data, information and your personnel. You shall promptly provide us with all necessary information, including but not limited to, complete and accurate information and instructions upon which we can rely, concerning your organization, operations and activities and any decisions made by you in relation to the Services, and when requested by us, you shall promptly provide answers to any questions from us. You shall inform us of any information or developments which may come to your notice and which might have a bearing on the Services.
  3. Where the Services are being performed at your premises or using your computer systems or telephone networks, you shall ensure that all arrangements are made for access, security procedures, virus checks, facilities, licences or consents as may be required (without cost to us). You accept that we may use either your network to access our own network and that you have assessed and accept any associated risks which may arise.
  4. We may receive data, information and material from you or from other sources in the course of delivering the Services. You acknowledge that we shall not independently investigate or verify such data, information and material and that we shall be entitled to rely upon the accuracy and completeness of such information in performing the Services.  To the fullest extent permitted by law, we shall not be liable to you for any loss or damage suffered by you arising from fraud, misrepresentation, withholding of information material to the Services or other default relating to such material information, whether on your part or that of the other information sources, unless such fraud, misrepresentation, withholding or such other default is evident to us without further enquiry.
  5. You acknowledge that when your personnel are to work with us, your failure to assign personnel who have skills commensurate with their role in connection with the Services could adversely affect our ability to perform the Services.
  6. You shall not, directly or indirectly, solicit the employment of any of our directors or employees, as the case may be, involved in performing the Services while the Services are being performed or for a period of 6 months following their completion or following termination of the Services Contract, without our prior written consent. This prohibition shall not prevent you at any time from running recruitment advertising campaigns nor from offering employment to any of our directors or employees, as the case may be, who may respond to any such campaign.

Our charges

  1. We shall render invoices in respect of the Services comprising fees (on the basis set out in the Proposal), expenses, incidental expenses and [VAT] thereon (where appropriate), plus any overseas taxes that might be payable thereon or deductible therefrom (“our Charges”). Details of our Charges and any special payment terms shall be set out in the Proposal.
  2. In return for the delivery of the Services by us, you shall pay our Charges (without any deduction whether by way of set-off, counterclaim or otherwise (unless you have a valid court order requiring an amount equal to such deduction to be paid by us to you)), within 30 days of the date of our invoice. We reserve the right to submit invoices to you monthly, unless otherwise specified in the Proposal.
  3. Without limiting its rights or remedies, we reserve the right to suspend or terminate our Services for your failure to make timely payment. We may charge interest on any outstanding balances from the due date until the date of payment at a rate of 2% per annum over the base rate of Barclays Bank Plc from time to time in force (this rate applying after as well as before any court award or judgement in our favour in respect of outstanding balances).
  4. If the Services Contract is terminated or suspended for any reason, we shall be entitled to payment for expenses incurred to that time together with any contractually committed payments that we are obliged to make to third parties and to payment of our fees on a time and materials basis for work done and incidental expenses, plus VAT thereon (where appropriate). Our fees for work done shall in this event be calculated by reference to our standard daily rates in force at the time of performance of our work.
  5. We reserve the right to charge you additional fees and for extra costs we may incur as a result of any failure by you to comply with your obligations under this Services Contract at our standard daily rates in force at the time that such additional fees and costs are incurred. To the extent that your failure to perform your obligations interferes with our ability to perform the Services, the time for performance (if specified), shall be accordingly adjusted and for fixed fee engagements additional Services provided by us attributable to such failures by you, shall be billed at our standard hourly rates in force at the time of performance of the additional Services.

Change Control

  1. We will inform you of the effect on fees and/or the timing of the Services that will result from changes requested by either party that affect the scope or duration of the Services or nature of the Deliverables. Neither party shall be bound by any change requested until such change has been accepted in writing by both parties in a notice specifying the agreed changes (the “Change Notice”).  If the Services are being performed at a fixed price, the additional Services resulting from such change will be billed as set out in the Change Notice, or in the absence of this, on a time and materials basis at our standard hourly rates in force at the time of performance of the additional Services.  Where you ask us to prepare a Change Notice, we may charge to you the cost of scoping and preparing of the Change Notice.  We will notify you of any such Charges in advance.  In the event that any Change Notice is not agreed, the Services shall continue to be provided as if such Change had not been proposed.

Ownership

  1. Subject to clauses 23 to 25 below, you shall acquire ownership of the physical materials comprised in the Deliverables in their tangible form upon full and final payment of our Charges or, where different Deliverables are identified and individually priced in the Proposal, the relevant part of our Charges relating to the Deliverable in question. We shall retain ownership of the copyright and all other intellectual property rights in the Deliverables, whether tangible or intangible, and ownership of our working papers.
  2. We shall grant you, upon full and final payment of our Charges, a royalty free, worldwide, non-assignable, perpetual non-exclusive, non-sublicensable licence to use the Deliverables for the purpose of this Services Contract. To the extent that any Somniac Security Information, as defined below, is incorporated into the Deliverables, we shall grant you, upon full and final payment of our Charges, a royalty free, worldwide, non-assignable, perpetual non-exclusive, non-sublicensable licence to use such Somniac Security Information solely as part of the Deliverables.  You shall not disclose, provide access to, sublicense, disassemble, decompile, reverse engineer, modify or transfer any Somniac Security Information to a subsidiary, affiliate or third party without our prior written consent.
  3. To the extent that any third party owned materials are incorporated into the Deliverables, we shall use our reasonable endeavours to procure the grant to you, upon full and final payment of our Charges, of a royalty free, non-exclusive licence to use such third party owned materials solely as part of the Deliverables, solely to the extent necessary to benefit from the licence to use the Deliverables granted in clause 23 above.
  4. You acknowledge that we provide consulting and development services to other clients, and agree that nothing in this Services Contract shall be deemed or construed to prevent us from carrying on such business. In particular you agree that, notwithstanding anything to the contrary in this Services Contract: (a) we shall have the right to retain a copy of each of the Deliverables in the form as provided to you or by way of electronic copy for our records; (b) as part of the provision of our Services, we may utilise Somniac Security proprietary works which have not been created specifically for you, including without limitation software, methodologies, templates, flowcharts, architecture designs, tools, specifications, drawings, sketches, models, samples, records and documentation, as well as works which may incorporate copyrights, trademarks, service marks, ideas, concepts, know-how, techniques, knowledge or data and any derivatives thereof, which have been originated, developed or purchased by us or on our behalf (all of the foregoing collectively “Somniac Security Information”); and (c) Somniac Security Information and our administrative communications, records, files and working papers relating to the Services shall remain our sole and exclusive property.

Acceptance

  1. When we have completed any separate Deliverables, and you and we have each agreed in the Proposal that the Deliverables shall be subject to acceptance testing, you, with our cooperation and assistance, may conduct acceptance tests to verify whether the Deliverable substantially conform to the applicable Specifications as set out in the Proposal. Any such acceptance testing shall be carried out within ten (10) days after we have supplied the relevant Deliverables, or such other period as we may each agree, (the “Acceptance Period”), to test the Deliverable.  If you notify us of any material non-conformities with the Specifications in any of the Deliverable (collectively “Non-conformities”) in writing within the applicable Acceptance Period, we will shall use our reasonable efforts to correct such Non-conformities at our own expense and notify Client when the corrections are complete.  You then shall have the right to test the corrected Deliverable within ten (10) days of receipt.  You and we may agree in the Proposal that certain Non-conformities will be corrected after acceptance of a Deliverable during the post-implementation period.  If you do not notify us of any material Non-conformities within the Acceptance Period or if you use the Deliverables in a production environment or otherwise in connection with your conduct of your business, you shall be deemed to have accepted the Deliverables.   Should we fail to use reasonable efforts to correct a Nonconformity within thirty (30) days, or other agreed time, of receiving written notice of it, you may terminate the Services upon written notice.  Our maximum liability to you for failing to use reasonable efforts to correct such Nonconformity shall be to refund the fees and expense paid by You to Somniac Security for the Deliverable or portion of the Deliverable that is nonconforming.  To the extent that any Deliverables are or have been accepted by you pursuant to the terms of this Agreement at any stage of our performance, such Deliverables shall be deemed accepted by you and we shall be entitled to rely on such approval for purposes of all subsequent stages of our performance hereunder.

Warranties

  1. We warrant that we shall provide the Services using reasonable skill and care, in a timely manner .
  2. Somniac Security has full capacity and authority and has taken all steps and obtained all approvals to enable it to lawfully enter into and to perform each of its obligations under this Agreement.
  3. This Agreement is executed by a duly authorised representative of Somniac Security.
  4. To the extent permitted by law we disclaim all other warranties, either express or implied, including without limitation, warranties or merchantability, non-infringement, interoperability and fitness for a particular purpose.

Limitation on Liability

  1. Our liability in respect of a) death or personal injury; and b) fraud or fraudulent misrepresentation, including statements made by us fraudulently prior to the date of this Services Contract shall not be limited.
  2. Our liability for direct physical damage to Your tangible property in connection with this Services Contract shall be limited to five hundred thousand pounds sterling (£500,000).
  3. Except as provided in sub-clauses 31 and 32 above Our total aggregate liability under this Services Contract to You shall not exceed the sum of monies paid by You in respect of the Services, and where the Services supplied continue for more than one year, Our aggregate liability shall be further limited in each year of the Services Contract to the sum of monies paid by You for the Services supplied in that year.
  4. We shall have no liability to You for:-
    1. loss of profits, revenue, savings, data, programs or electronic records, business, goodwill or contracts and
    2. any type of indirect or consequential loss or damage.
  5. We shall have no liability hereunder unless written notice has been received within six (6) months of the cause of action giving rise to the claim occurring, giving reasonable details of the subject matter of the claim. Notwithstanding the foregoing, no action, regardless of form, arising out of the subject matter of the Services Contract may be brought by either of us more than one year after completion of the Services except that action for non payment may be brought by Us within one year after the expiry or termination of the Services Contract or one year after the date of last payment whichever is the later.
  6. Save as expressly stated in this Services Contract, all conditions, terms and undertakings whether implied, statutory or otherwise in respect of the Services or any part thereof are hereby excluded to the extent permitted at law.
  7. The exclusions and limitations of liability set out in this Services Contract shall exclude and limit all of the Somniac Security’s liability to the Customer in respect of all matters arising out of or in connection with this Services Contract whether in contract, tort (including but not limited to negligence), for breach of statutory duty or otherwise”.

Confidentiality

  1. “Confidential Information” means any and all data and information, in written, oral or other form and whether or not marked as confidential, relating to the business or management of either of us and disclosed or imparted by one of us (“Discloser”) to the other (“Recipient”) , including without limitation, documents, reports, financial or other data, marketing plans, technology, accounting records, software, trade secrets, (including, in the case of Somniac Security, the Somniac Security Information and the confidential information of any subcontractors to Somniac Security) of the Discloser, provided, however, that Confidential Information shall not include any information which: (a) is in the public domain; (b) comes into the public domain through no fault of the Recipient; (c) is received by the Recipient from a third party who was not under an obligation of confidence regarding the information; (d) was already in the possession of the Recipient before it was disclosed by the Discloser and the Recipient can demonstrate that possession by documentary evidence to the Discloser’s reasonable satisfaction; (e) is disclosed with the prior written consent of an authorised representative of the Discloser; (f) must be disclosed as required by law, provided, however, that the Recipient shall first have given notice to the Discloser and shall give the Discloser a reasonable opportunity to object or obtain a protective order requiring that the information and/or documents so disclosed be used only for the purposes for which the order was issued; or (g) was independently developed by the Recipient without the use of Confidential Information and the Recipient can demonstrate that independent development by documentary evidence to the Discloser’s reasonable satisfaction.
  2. The Recipient shall hold the Confidential Information in trust and confidence for and on behalf of the Discloser and shall not, except as expressly authorised in writing by the Discloser, use or copy or disclose to any third party any Confidential Information so received. The Recipient shall take appropriate action by instruction, agreement or otherwise to ensure that its directors, officers, employees, agents and sub-contractors are required to keep confidential all Confidential Information of the Recipient which is disclosed to or comes into the possession of any of them.  Confidential Information shall remain the property of the Discloser (or the Somniac Security subcontractor where applicable).
  3. Notwithstanding clauses 38 and 39, for the purposes of marketing or publicising or selling our services we may wish to disclose that we have performed work (including the Services) for you, in which event we may identify you by your name and we may indicate only the general nature or category of such work (or of the Services) and any details which have properly entered the public domain, unless approved by you.

Entire Agreement

  1. The Services Contract sets out the entire agreement and understanding between us in connection with the Services. Any modifications or variations to the Services Contract must be in writing and signed by an authorised representative of each of us.

Third party rights

  1. Nothing in this Services Contract shall confer, or is intended to confer, on any third party any benefit or the right to enforce any term of this Services Contract under the Contracts (Rights of Third Parties) Act 1999.

Force Majeure

  1. Neither of us shall be in breach of our contractual obligations nor shall either of us incur any liability to the other if we or you are unable to comply with the Services Contract, other than in relation to any obligations to make payment under clause 17 above, as a result of any cause beyond our or your reasonable control (“Event”). In the event of any such occurrence affecting one of us, that one shall be obliged as soon as reasonably practicable to notify the other, who shall have the option of suspending the operation of the Services Contract for the duration of the Event,  or terminating the operation of the Services Contract on notice taking effect immediately on delivery of such notice. In the event of termination or suspension of the Services Contract under this clause, you shall make payment to us in respect of all work undertaken by us up until the date of such suspension or termination together with payment in respect of expenses and any contractually agreed committed payments that we are required to make to a third party .

Waiver, assignment and sub-contractors

  1. Failure by any one of us to exercise or enforce any rights available to us shall not amount to a waiver of any rights available to either of us.
  2. Neither party shall have the right to assign the benefit (or transfer the burden) of the Services Contract to another party without the written consent of the other party. include any company controlling, under common control with, or controlled by Somniac Security.
  3. We shall have the right to appoint sub-contractors to assist us in delivering the Services but we shall advise you before doing so. Where we appoint sub-contractors under this clause, for all purposes in connection with the Services Contract their work shall be deemed to be part of the Services, but for the avoidance of doubt we shall remain responsible for the provision of the Services.

Third parties

  1. If you breach any of your obligations under the Services Contract and there is any claim made or threatened against us by a third party, you shall compensate us and reimburse us for and protect us against any loss, damage, expense or liability incurred by us which results from or arises from or is connected with any such breach and any such claim. If any payment is made by you under this clause you shall not seek recovery of that payment from us at any time.

Termination

  1. Either of us can terminate the Services Contract by giving 30 days’ prior notice in writing to the other at any time. Termination under this clause shall be without prejudice to any rights that may have accrued for either of us before termination  and all sums due to us shall become payable in full when termination takes effect.  In the event that you terminate the Services Contract in accordance with this clause, you shall make payment to us in respect of all work undertaken by us up until the date of such termination together with payment in respect of expenses and agreed committed costs.
  2. During the term of this Services Contract circumstances may change, and we may consider that your interests may be prejudiced and we may not be satisfied that the situation can be managed. In that event we may have to terminate the Services Contract and we shall be entitled to do so on written notice taking effect immediately on delivery but we shall advise you before we take that step.

Data protection

  1. Each of us shall comply with the provisions of the Data Protection Act 2018 (and any subsequent amendment or re-enactment) (“the Act”), which definitions and interpretations shall apply to this clause. Where necessary to enable us to deliver the Services, for such purposes we shall have your authority to process personal data on your behalf in accordance with this clause.  When we do so, we shall take appropriate technical and organisational measures designed to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.

Dispute Resolution

  1. We will both endeavour to settle any matters which are the subject of any dispute between us in connection with the provision of our Services promptly through good faith negotiations between our respective designated representative involved in the day-to-day operational management of the Services. In the event these individuals cannot settle the dispute, either party may elect to escalate the matter to the Somniac Security [representative] named in the Proposal and your equivalent designated representative, and in the event that these individuals cannot settle the dispute the matter shall be escalated to the parties’ CEOs or their designated representative.

Notices

  1. Any notice to you or us delivered under the Services Contract shall be in writing and delivered by pre-paid first class post (or pre-paid overseas equivalent) to or left at our respective addresses appearing in the Proposal (or such other address as may be notified in writing). Notices delivered by post shall be deemed to have arrived: (a) where posted from and to addresses in the [territory], on the second working day following the date of posting; and (b) where posted from or to addresses overseas, on the tenth working day following the date of posting.

Severability

  1. Each clause or term of the Services Contract constitutes a separate and independent provision. If any of the provisions of the Services Contract are judged by any court or authority of competent jurisdiction to be void or unenforceable, the remaining provisions shall continue in full force and effect.

Law and jurisdiction

  1. The Services Contract shall be subject to and governed by English law and all disputes arising from or under the Services Contract shall be subject to the exclusive jurisdiction of the English courts.