SDR For Hire Terms

18
Alumnilab Ltd t/a Whistle
SDR for Hire: Terms and Conditions (these “Terms and Conditions”)

1 Interpretation

1.1 The definitions and rules of interpretation in this clause apply in this agreement.

1 Agreement: these Terms and Conditions together with the relevant Onboarding Form, each Statement of Work agreed in accordance with these Terms and Conditions, and any document referred to in these Terms and Conditions, the Onboarding Form or a Statement of Work

2 Charges: the sums payable for the SDR Services as set out in a Statement of Work.

3 Confidential Information: all information, whether provided before or after the Effective Date, disclosed by or on behalf of a Party (whether in writing or orally) relating to the business, products, affairs and finances of the relevant Party for the time being confidential to the relevant Party and trade secrets including technical data and know-how relating to the business of the relevant Party or any of its suppliers, clients, customers, agents, distributors, shareholders or management.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         

4 Effective Date: the date on which Whistle accepts the terms of the Onboarding Form in writing.

5 Intellectual Property Rights: patents, utility models, 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 and trade dress, 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.

6 Management Issues: any issue regarding an SDR and the SDR Services requiring action, investigation and/or decisions by Whistle, including performance issues, absence of an SDR for any other reason, and any complaint about, or raised by, an SDR.

7 Onboarding Form: the online form Whistle makes available to the Customer for the Customer to complete, containing specific information relating to the particular services supplied or to be arranged to be supplied by Whistle to the Customer.

8 Party: Whistle or the Customer, and Parties means both of Whistle and the Customer.

9 Representatives means, in relation to a Party, its employees, officers, representatives, contractors, subcontractors and advisers.

10 SDR Hire Period: the period as set out in the relevant Statement of Work.

11 SDR Hire: the supply of one or more SDRs by Whistle to the Customer on the terms of this Agreement and the relevant Statement of Work.

12 SDR Services: the services as further described in the Statement of Work or such other services as may be agreed by the Parties from time to time.

13 SDR/SDRs: sales development representative consultant(s) which Whistle supplies to provide SDR Services under the direction of the Customer, as set out in the relevant Statement of Work. 

14 Standard Package: the package of services, software and hardware provided by Whistle to each SDR as standard in order for each SDR to provide the SDR Services, being standard headset, computer, quiet room, Internet and electricity.

15 Statement of Work: a detailed plan, agreed in accordance with Clause ‎4 describing the SDR Services to be provided by one or more SDRs, the SDR Hire Period and other related matters. 

1.2 The headings in this Agreement are inserted for convenience only and shall not affect its construction.

1.3 A reference to writing or written includes email. 

1.4 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.6 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.

1.7 References to Clauses are to the clauses of these Terms and Conditions.

2 Agreement

2.1 This Agreement 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. These Terms and Conditions apply to all SDR Services.

2.2 Each Party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Agreement.

2.3 The Onboarding Form shall be in the form that Whistle requires from time to time. This Agreement shall be legally formed and the Parties shall be legally bound when Whistle has accepted in writing the Onboarding Form that the Customer has submitted to Whistle. Submission to Whistle by the Customer of the Onboarding Form shall be deemed to be an offer by the Customer to purchase SDR Services (as specified in the Onboarding Form) from Whistle, subject to the provisions of this Agreement and any Statement of Work, and Whistle’s written acceptance of the Onboarding Form shall be considered acceptance of such offer, but the requirements for Whistle to perform any of its obligations under this Agreement shall be conditional upon the agreement of a Statement of Work, and Whistle’s receipt from the Customer of any advance payment of Charges as required under this Agreement.

2.4 If the Customer provides to Whistle a purchase order for the Customer’s receipt of SDR Services other than as set out in Clause ‎2.3, that purchase order (and any terms and conditions attached or referred to in it) shall be purely for the Customer’s administrative purposes and shall not form part of this Agreement.

2.5 In the event of a conflict between these Terms and Conditions, any Statement of Work and the Onboarding Form, then:

(a) the Onboarding Form shall prevail over

(b) a Statement of Work, which shall prevail over

(c) these Terms and Conditions.

3 Commencement and duration 

3.1 This Agreement shall commence on the Effective Date and shall continue, unless terminated earlier in accordance with Clause ‎15, or until either Party gives to the other Party at least 30 days’ written notice to terminate. Such notice shall be served no earlier than the first anniversary of the commencement of this Agreement and shall expire on the completion of all Statements of Work entered into before the date on which it is served.

3.2 If there are no uncompleted Statements of Work as at the date the notice to terminate is served under Clause ‎3.1, such notice shall terminate this Agreement with immediate effect.

3.3 The Parties shall not enter into any further Statements of Work after the date on which notice to terminate is served under Clause ‎3.1.

3.4 The Customer may procure the SDR Services by agreeing a Statement of Work with Whistle pursuant to Clause ‎4.

3.5 Whistle shall provide the SDR Services from the date specified in the relevant Statement of Work.

4 Statements of Work 

4.1 Each Statement of Work shall be agreed in the following manner:

(a) the Customer shall ask Whistle to provide the SDR Services and provide Whistle with as much information as Whistle reasonably requests, by submitting a draft Statement of Work for the SDR Services through Whistle’s online platform (details of which Whistle shall share with the Customer on request);

(b) following receipt of the draft Statement of Work from the Customer, Whistle shall, as soon as reasonably practicable either: 

(i) inform the Customer that it declines to provide the requested SDR Services; or

(ii) provide the Customer with an updated draft Statement of Work, together with such information relating to individual SDRs for that Statement of Work as Whistle considers reasonable from time to time to demonstrate the suitability of those SDRs to the Customer’s requirements for that Statement of Work;

(iii) the Customer shall be entitled to choose which SDRs it considers appropriate to its needs for that Statement of Work, based on the information provided to it in respect of those SDRs by Whistle and, where appropriate, by the Customer conducting a formal interview with any such SDR; and

(iv) the Customer acknowledges that it is responsible for the suitability of any SDR to the Customer’s requirements, and that Whistle shall have no liability in the event that any SDR so chosen by the Customer is not suitable for the Customer’s requirements;

(c) if Whistle provides the Customer with an updated draft Statement of Work pursuant to Clause ‎4.1‎(b)(ii)‎, Whistle and the Customer shall discuss and agree that draft Statement of Work; and

(d) Whistle shall share the finalised Statement of Work with the Customer for submission, following which the Customer shall submit the Statement of Work as accepted by the Customer to Whistle using such media as Whistle may make available from time to time; following receipt of such submission, the Statement of Work shall come into force once Whistle has accepted it in writing.

4.2 Once a Statement of Work has been agreed in accordance with Clause ‎4.1(d), no amendment shall be made to it unless both Parties have consented to the amendment in writing.

4.3 Each Statement of Work shall be part of this Agreement and shall not form a separate contract to it.

5 SDR Hire 

5.1 Whistle shall supply a number of SDRs to the Customer for the SDR Hire Period to provide the SDR Services in accordance with the terms of this Agreement and the relevant Statement of Work.

6 SDR Services

6.1 The Customer agrees and acknowledges that SDRs shall provide the SDR Services remotely.

6.2 Whistle shall use its reasonable endeavours to procure that all SDRs:

(a) have the necessary skill, expertise and experience to provide the SDR Services;

(b) follow the legal and reasonable instructions of the Customer and do not act outside of these instructions; and 

(c) report directly to the manager set out in the relevant Statement of Work on any matters concerning the affairs of the Customer and at such times as are reasonably required.

6.3 The SDRs shall perform the SDR Services and carry out their obligations and duties in accordance with lawful and reasonable instructions of the Customer. 

6.4 The SDRs shall also comply with the Customer’s policies set out in the applicable Statement of Work, and provided to Whistle prior to the commencement of the SDR Hire Period.

7 SDR’s engagement with Whistle

7.1 The Customer shall provide Whistle with such information and assistance as it may reasonably require to carry out its obligations toward the SDRs.

7.2 All documents, manuals, hardware and software provided for the SDRs’ use by the Customer, and any data or documents (including copies) produced, maintained or stored on the Customer’s computer systems or other electronic equipment (including mobile phones), remain the property of the Customer. 

8 Payments

8.1 Whistle shall continue to pay the SDRs’ remuneration and any expenses, and provide any benefits agreed with the SDRs.

8.2 Whistle shall prepare its invoices as per the Statement of Work to cover the payment of such Charges:

(a) as are set out in the Statement of Work to be paid by the Customer on a monthly basis in advance; and

(b) in respect of any time worked beyond the agreed limit in the preceding month (such limit as set out in the applicable Statement of Work) to be paid by the Customer on a monthly in arrears. 

8.3 In consideration of the SDR Services provided by the SDRs during the SDR Hire Period the Customer shall pay Whistle the Charges as set out in the relevant Statement of Work. 

8.4 The Customer shall refund to Whistle all reasonable expenses wholly, exclusively and necessarily incurred by the SDRs during the SDR Hire Period in or in connection with the exercise of the SDR Services. Each SDR shall claim such expenses from Whistle, and Whistle will invoice the Customer for such expenses in the next monthly invoice, together with a transaction fee for Whistle’s processing of such expenses on the Customer’s behalf.

8.5 Any sums due to Whistle under this Agreement shall accrue from day to day and shall be payable into bank account set out on the relevant invoice.

8.6 Whistle shall send the Customer an invoice at the intervals specified in the Statement of Work. If no intervals are so specified, Whistle shall invoice the Customer at the end of each month of the SDR Hire Period, specifying the payment due under this Agreement in relation to the preceding month and the amount of VAT due on the payment. 

8.7 Whistle shall give the Customer 14 days’ notice of any increases in the Charges.

8.8 Invoices shall be payable by the Customer within 15 days of receipt of the invoice. 

8.9 In the event the Customer does not pay the invoice within the time specified in Clause ‎8.6, notwithstanding any rights or remedies available to Whistle, Whistle shall be entitled, at its sole discretion, to suspend the SDR Services under the applicable Statement of Work for which payment is due, until such overdue payment is paid. 

9 Management during the SDR Hire Period

9.1 Whistle shall continue to deal with any Management Issues concerning the SDR(s) during the SDR Hire Period, where relevant following consultation with the Customer.

9.2 The Customer shall provide any information, documentation, and employees and assistance (including giving witness evidence) to Whistle to deal with any Management Issues concerning the SDRs whether under Whistle’s internal procedures or before any court or tribunal. 

9.3 The Customer shall have day-to-day control of the SDRs’ activities but as soon as reasonably practicable shall refer any Management Issues concerning the SDRs that come to its attention to Whistle.

9.4 Both Parties shall inform the other as soon as reasonably practicable of any other significant matter that may arise during the SDR Hire Period relating to the SDRs or their work.

9.5 Whistle shall use reasonable endeavours to procure that the SDRs shall notify Whistle or the Customer if the SDRs identify any actual or potential conflict of interest between the Customer and Whistle during the SDR Hire Period.

9.6 The Customer shall provide direction, control and guidance over the SDRs in their performance of the SDR Services for the Customer during the SDR Hire Period, including providing instructions as the SDR(s) reasonably require in order to perform the SDR Services for the Customer in accordance with the Customer’s business requirements.  

9.7 The Customer acknowledges and agreed that, in the event it does not have staff to carry out effective supervision of the SDR Services performed by the SDRs, the Customer shall bear the risk associated therewith. 

10 Substitutions

10.1 Each SDR shall be entitled to be absent from the provision of the SDR Services for one day per month (Permitted Absence). In the event that any SDR is absent for longer than the Permitted Absence without the Customer’s prior approval (Prolonged Absence), the Customer shall be entitled to request that Whistle provide a suitable substitute SDR within 10 days of the request, or to permanently reduce the number of SDRs under that Statement of Work. 

10.2 For the duration of the Prolonged Absence beyond the Permitted Absence, Whistle will not charge any Charges for that SDR, and Whistle shall:

(a) unless the Parties agree otherwise, credit the next invoice on a pro rata basis for any Charges paid in advance in respect of the duration of the Prolonged Absence; and

(b) amend each subsequent invoice accordingly to account for the reduction in SDRs, until the SDR is replaced (if appropriate).

10.3 The Customer acknowledges that each SDR shall be entitled to take up to 10 days’ holiday in each calendar year. Whistle shall notify the Customer of any dates on which the SDRs intend to or will take such holiday, and the Customer shall not unreasonably withhold their approval of such holiday. 

10.4 Where Whistle is to provide a substitute under this Agreement (other than pursuant to Clause ‎10.1), Whistle shall have 10 Business Days to provide Client with a suitable substitute of the same or similar skills and experience, and seniority level, as the SDR being substituted. If following the above-mentioned period, Whistle is unable to provide a suitable substitute reasonably acceptable to the Customer, Whistle shall:

(a) unless the Parties agree otherwise, credit the next invoice on a pro rata basis for any Charges paid in advance in respect of the duration of the initial SDR not providing the SDR Services; and

(b) amend the subsequent invoice accordingly to account for the reduction in SDRs.

11 Data protection

11.1 Each Party shall comply with applicable data protection laws in processing the SDRs’ personal data. During the SDR Hire:

(a) The Customer will collect and process information relating to the SDRs in accordance with the Customer’s privacy notice which is annexed to this Agreement. 

(b) The SDRs will comply with the Customer’s data protection policy when handling personal data relating to any employee, worker, contractor, customer, client, supplier or agent of the Customer, provided that such policy is provided to the SDRs prior to or immediately on commencement of the SDR Services. 

(c) Failure of an SDR to comply with any of a policy referred to in ‎11.1(b) shall be referred to Whistle who shall, in serious cases, provide a suitable substitute to that SDR.

12 Confidentiality

12.1 The provisions of this Clause shall not apply to any Confidential Information that:

(a) is or becomes generally available to the public (other than as a result of its disclosure by the receiving Party or its Representatives in breach of this Clause);

(b) was available to the receiving Party on a non-confidential basis before disclosure by the disclosing Party;

(c) was, is or becomes available to the receiving Party on a non-confidential basis from a person who, to the receiving Party’s knowledge, is not bound by a confidentiality Agreement with the disclosing Party or otherwise prohibited from disclosing the information to the receiving Party;

(d) the Parties agree in writing is not confidential or may be disclosed; or

(e) is developed by or for the receiving Party independently of the information disclosed by the disclosing Party. 

12.2 Each Party shall keep the other Party’s Confidential Information secret and confidential and shall not:

(a) use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with this Agreement (Permitted Purpose); or

(b) disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this Clause ‎12.

12.3 A Party may disclose the other Party’s Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that:

(a) it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and

(b) it procures that its Representatives shall, in relation to any Confidential Information disclosed to them, comply with the obligations set out in this Clause as if they were a Party;

and at all times, it is liable for the failure of any Representatives to comply with the obligations set out in this Clause ‎12.

12.4 A Party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other Party as much notice of such disclosure as possible.

12.5 Each Party reserves all rights in its Confidential Information. No rights or obligations in respect of a Party’s Confidential Information other than those expressly stated in this Agreement are granted to the other Party, or to be implied from this Agreement.

12.6 On termination of this Agreement, each Party shall, and Whistle shall procure that the SDRs shall:

(a) destroy or return to the other Party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other Party’s Confidential Information;

(b) erase all the other Party’s Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties (to the extent technically and legally practicable); and

(c) confirm in writing to the other Party that it has complied with the requirements of this Clause, provided that a recipient Party may retain documents and materials containing, reflecting, incorporating or based on the other Party’s Confidential Information to the extent required by law or any applicable governmental or regulatory authority. The provisions of this Clause shall continue to apply to any such documents and materials retained by a recipient Party.

12.7 The provisions of this Clause ‎12 shall continue to apply after termination of this Agreement for a period of two years from termination of this Agreement.

13 Non-solicitation

13.1 The Customer shall not, and shall procure that its management, group companies and other affiliates shall not, during the term of this Agreement and for a period of 12 months following its termination for any reason:

(a) offer employment to, enter into a contract for the services of, or attempt to entice away from Whistle, any individual who is one of Whistle’s employees, agents or subcontractor, where such individual is Whistle’s employee, agent or subcontractor at the time of such offer or attempt or has worked with the Customer in providing the SDR Services under this Agreement at any time; or

(b) procure or facilitate the making of any such offer or attempt by any other person,

other than by means of a national advertising campaign open to all-comers and not specifically targeted at, or with any direct contact to instigate an application from, Whistle’s employees, agents or subcontractor.

13.2 If the Customer commits any breach of Clause ‎13.1, the Customer shall, on demand, pay to Whistle a sum equal to the greater of:

(a) 25% of one year’s salary or fee that is to be payable by the Customer to that SDR following the commencement of that SDRs employment or contract for Services with the Customer; and

(b) 25% of one year’s salary or fee that was payable by Whistle to that SDR in the 12 months prior to the date on which the Customer’s breach first occurred.

14 Intellectual Property Rights and moral rights

14.1 Whistle warrants to the Customer that:

(a) the SDRs have validly assigned to Whistle in writing all Intellectual Property Rights that will be created by the SDR during the course of their providing the SDR Services to the Customer, to the fullest extent permissible by law, and has also agreed in writing to hold on trust for Whistle all the rights referred to in this Clause ‎14 in which the legal title does not pass to Whistle and to perfect a written assignment of such title to the Customer at the request of Whistle;

(b) the SDRs have validly waived in writing all their moral rights arising under Part I of the Copyright, Designs and Patents Act 1988 in respect of all works created in the course of providing the SDR Services under this Agreement;

(c) it will procure that the SDRs shall provide to the Customer in writing full details of each invention, idea, discovery, development, improvement and innovation made by the SDRs in the course of providing the SDR Services to the Customer, whether or not patentable or capable of registration, and whether or not recorded in any medium, promptly after creating it.

14.2 Whistle assigns to the Customer with full title guarantee all Intellectual Property Rights created by the SDRs during the course of providing the SDR Services to the Customer during the SDR Hire Period and all materials embodying such rights to the fullest extent permitted by law, and will at the Customer’s request provide those materials and execute all further documentation necessary to effect and confirm the Customer’s ownership of those rights.

15 Termination of this Agreement

15.1 Without affecting any other right or remedy available to it, either Party may terminate this Agreement (or any Statement of Work) with immediate effect by giving written notice to the other Party if:

(a) the other Party commits a material breach of any term of this Agreement (or that Statement of Work) and (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified to do so;

(b) the other Party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 1986;

(c) the other Party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors;

(d) the other Party applies to court for, or obtains, a moratorium under Part A1 of the IA 1986;

(e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other Party (being a company, limited liability partnership or partnership);

(f) an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other Party (being a company, partnership or limited liability partnership);

(g) the holder of a qualifying floating charge over the assets of that other Party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;

(h) a person becomes entitled to appoint a receiver over all or any of the assets of the other Party or a receiver is appointed over all or any of the assets of the other Party;

(i) a creditor or encumbrancer of the other Party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other Party’s assets and such attachment or process is not discharged within 14 days;

(j) any event occurs, or proceeding is taken, with respect to the other Party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Clause ‎15.1‎(b) to Clause ‎15.1‎(i) (inclusive);

(k) the other Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or

(l) the other Party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this Agreement is in jeopardy.

15.2 For the purposes of Clause ‎15.1(a) material breach includes a breach that is serious in the widest sense of having a serious effect on the benefit which the terminating Party would otherwise derive from:

(a) a substantial portion of this Agreement; or

(b) any of the obligations set out in Clauses ‎8, ‎12, ‎13, ‎18;

over the term of this Agreement. In deciding whether any breach is material no regard shall be had to whether it occurs by some accident, mishap, mistake or misunderstanding.

15.3 On termination of this Agreement, all existing Statements of Work shall then in force at the date of termination shall continue in full force and effect for the remainder of the term of that Statement of Work, unless terminated earlier in accordance with that Statement of Work or otherwise specified by Whistle.  

15.4 The termination of any Statement of Work shall not affect any other Statement of Work or this Agreement.

16 Obligations following termination and survival

16.1 On termination of this Agreement or any Statement of Work the Customer shall immediately pay to Whistle all of Whistle’s outstanding unpaid invoices and interest and, in respect of the SDR Services supplied but for which no invoice has been submitted, Whistle may submit an invoice, which shall be payable immediately on receipt. 

16.2 Any provision of this Agreement (or a Statement of Work) that expressly or by implication is intended to come into or continue in force on or after termination of this Agreement (or that Statement of Work) shall remain in full force and effect.

16.3 Termination of this Agreement (or any Statement of Work) shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement (or that Statement of Work) which existed at or before the date of termination.

17 Liability

17.1 The Customer shall take out and maintain in full force with a reputable insurance company for the SDR Hire Period adequate insurance cover for any loss, injury and damage caused by or to the SDRs during the SDR Hire Period.

17.2 The Customer acknowledges that as the SDR(s) will be working under the direction and instructions of the Customer, Whistle shall not responsible for the way in which the SDRs provide the SDR Services and waives all and any claims that it may have against Whistle arising out of any act or omission of the SDRs in the course of carrying out the SDR Services.

17.3 The Customer shall indemnify Whistle fully and keep Whistle indemnified fully at all times against any loss, injury, damage or costs suffered, sustained or incurred arising out of or in connection with any claim against Whistle by:

(a) any SDR in relation to any loss, injury, damage or costs arising out (i) of  any act or omission by the Customer or its employees or agents, or (ii) as a result of delivering the SDR Services to the Customer; or

(b) a third party, in relation to any loss, injury, damage or costs arising out of any act or omission of an SDRs in the course of carrying out the SDR Services.

17.4 References to liability in this Clause ‎17 include every kind of liability arising under or in connection with this Agreement including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

17.5 Nothing in this Clause ‎17 shall limit the Customer’s payment obligations under this Agreement.

17.6 Nothing in this Agreement limits any liability which cannot legally be limited, including to liability for:

(a) death or personal injury caused by negligence; and

(b) fraud or fraudulent misrepresentation.

17.7 Subject to Clause ‎17.6, Whistle’s total liability to the Customer the total aggregate liability (including interest) of Whistle to the Customer in respect of any cause of action under this Agreement or any relevant Statement of Work whether based on an action or claim in contract, tort (including negligence), breach of statutory duty or otherwise arising out of or in relation to this Agreement, shall be 100% of the total of all Charges paid by the Customer to Whistle under this Agreement (or that Statement of Work) in the 12 month period immediately prior to the date of the claim. 

17.8 Subject to Clause ‎17.5, and Clause ‎17.6, Whistle shall not have any liability, whether based on an action or claim in contract, tort (including negligence), breach of statutory duty or otherwise arising out of or in relation to this Agreement, for any:

(a) loss of profits;

(b) loss of sales or business;

(c) loss of agreements or contracts;

(d) loss of anticipated savings;

(e) loss of use or corruption of software, data or information;

(f) loss of or damage to goodwill; and/or

(g) indirect or consequential loss.

18 Dependencies 

18.1 Whistle’s and  SDRs’ ability to perform the SDR Services in accordance with this Agreement, the relevant Statement of Work and Whistle’s estimate of its Charges for the SDR Services are dependent upon the following dependencies and upon the Customer’s performance of its responsibilities under the relevant Statement of Work and this Agreement. Additional dependencies may be added to individual Statements of Work. Whistle and/or the SDRs will not be responsible for any delays in the performance of the SDR Services to the extent caused by the Customer’s non-compliance with, the following dependencies, and the Customer warrants that:

(a) the Customer will assign a qualified person to oversee the SDR Services. The Customer is responsible for all management decisions relating to the SDR Services, the use or implementation of the output of the SDR Services and for determining whether the SDR Services are appropriate for its purposes; 

(b) the Customer will provide timely and adequate access to project sponsors, project managers, key stakeholders and subject matter resources and any other information necessary for Whistle and the SDRs to perform the SDR Services;

(c) the Customer will provide qualified and experienced resources (Customer Resources) to support the SDR Hire. The ongoing support and/or replacement of the Customer Resources will be the responsibility of the Customer. The Customer Resources must be stable and available during normal working hours and outside of normal working hours as may be necessary to allow Whistle and the SDRs to meet the relevant project plan for the SDR Services. The Customer shall promptly make any changes to the Customer Resources necessary to be compatible with Whistle’s reasonable requirements. Whistle and the SDRs will not be responsible for any delays in the performance of the SDR Services to the extent caused by changes to the Customer Resources requested or otherwise made by Customer;

(d) the Customer will provide timely and adequate access to systems, relevant applications, data, documentation and other information necessary for Whistle and the SDRs to perform the SDR Services;

(e) the Customer will provide timely and adequate access to any facilities, equipment, tools, supplies, telephone lines and service, office support and other sorts of equipment, facilities, or related items needed by Whistle and the SDRs to perform the SDR Services; 

(f) the Customer shall comply with all legal and regulatory requirements applicable to the conduct of its business;

(g) the Customer shall provide the development, testing, integration, deployment and other environments to be used by Whistle and the SDRs in performing the SDR Services; 

(h) the Customer will provide such hardware, Software, and any third-party software as the Customer requires to be used by Whistle and the SDRs in performing the SDR Services in excess of the Standard Package;

(i) the Customer has previously obtained or will promptly obtain all necessary consents from the Customer’s licensors and third-party service providers in connection with the SDR Services; 

(j) the Customer is responsible for the performance of the hardware, software, any third-party software, databases and communications networks (including access for internal and external users) other than the Standard Package;

(k) all hardware, software, and any third-party software provided by the Customer will perform in accordance with their respective specifications. Neither Whistle nor the SDRs are responsible for faults in hardware, software, or any third-party software, including faults that delay or increase the cost of the SDR Services. Faults may include product bugs, failure of a product to perform advertised functionality, or failure of a product to properly integrate with other products; and

(l) the Customer will provide the SDRs with clear and lawful instructions as to the SDR Services the SDRs will provide under the relevant Statement of Work.

18.2 Neither Whistle nor the SDRs are responsible for any delay in providing the SDR Services or additional cost as a result of external dependencies to the SDR Services including government actions, availability of third-party services or goods, timing of third-party software or hardware releases, or failure of such releases and other externalities.  

19 Notices

19.1 Any notice given under this Agreement shall be in writing and signed by or on behalf of the Party giving it and shall be served by delivering it personally, or sending it by pre-paid recorded delivery to the relevant Party at its registered office for the time being or by sending it by email to the address specified below. Any such notice shall be deemed to have been received:  

(a) if delivered personally, at the time of delivery; 

(b) in the case of pre-paid recorded delivery or registered post, 48 hours from the date of posting; and

(c) in the case of email, at the time of transmission or, if this time falls outside business hours in the place of receipt, when business hours resume. 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.

19.2 A notice by email shall be sent to the addresses set out in the Onboarding Form.

19.3 In proving such service it shall be sufficient to prove that the envelope containing such notice was addressed to the address of the relevant Party and delivered either to that address or into the custody of the postal authorities as a pre-paid recorded delivery or that the notice was transmitted by email to the email address of the relevant Party.

19.4 This Clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

20 Miscellaneous 

20.1 No variation of this Agreement shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).

20.2 This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.

20.3 Whistle may assign, transfer or subcontract any rights or obligations under this Agreement, including in the event of a corporate restructure, or a sale of its business or a substantial part thereof. Except as set out above, neither Party shall assign, transfer, mortgage, charge, subcontract, delegate or declare a trust or otherwise deal in any other manner with any of its rights and obligations under this Agreement. 

20.4 Neither Party shall be in breach of this Agreement or otherwise liable for any failure or delay in the performance of its obligations (excluding any obligations to may any payments under this Agreement) if such delay or failure results from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for four weeks, the Party not affected may terminate this Agreement by giving 15 days’ written notice to the affected Party.

20.5 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties, constitute any Party the agent of another Party, or authorise any Party to make or enter into any commitments for or on behalf of any other Party.

20.6 Each Party confirms it is acting on its own behalf and not for the benefit of any other person.

20.7 A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement. 

20.8 A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

20.9 A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

20.10 This 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.

20.11 Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

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