Sunspeed Terms & Conditions for Migration Services

Last Updated: 27.08.2024.

  1. The Contract
    1. These Terms apply to the Contract between Sunspeed and the Customer for the supply of the Services (as defined in clause 25 below). They supersede any previously issued terms of supply. Any other terms, whether implied by custom or practice, or which the Customer may seek to include, are specifically excluded.
    2. Capitalised words used in these Terms (such as ‘Contract’), have a specific meaning. These are as set out in Clause 25 below.
    3. These Terms apply to and form part of the Contract between Sunspeed and the Customer. 
    4. Each Order by the Customer to Sunspeed shall be an offer to purchase Services subject to the Contract including these Terms.
    5. Sunspeed will not be obliged to supply any Services until Sunspeed provides written acceptance of the Order or notifies the Customer that they are ready to perform the Services.
    6. Estimates and provisional proposals provided by Sunspeed are indicative only. They are not an offer to supply Services and are incapable of being accepted by the Customer.
    7. Marketing and other promotional material relating to the Services are illustrative only and do not form part of the Contract.
  2. Price
    1. The price for the Services shall be as set out in the Proposal (the Price) and is exclusive of VAT.
  3. Payment
    1. Sunspeed shall invoice the Customer for the Services as set out in the Proposal, or on completion of the Services.
    2. The Customer shall pay all invoices to the bank account nominated by Sunspeed in full, without deduction or set-off, in cleared funds and (unless otherwise agreed) within 30 days of the date of each invoice.
    3. Time of payment is of the essence. Where sums due under these Terms are not paid in full by the due date Sunspeed may, charge interest on such sums at 8% a year above the base rate of the Bank of England from time to time in force. Such interest shall accrue on a daily basis and apply from the due date for payment until actual payment in full.
    4. If this contract is agreed to be divisible. The work performed in each period during the currency of the contract shall be invoiced separately. Each invoice for work performed in any period shall be payable by the customer in full in accordance with the terms of payment provided herein, without reference to and not withstanding any defect or default in the work performed or to be performed in any period.
  4. The Services
    1. The Services shall be supplied by Sunspeed, or on its behalf by Sunspeed’s appointed sub-contractors:
      1. in the manner described in and at any Location(s) on the date(s) and times specified in the Proposal; and
      2. with reasonable care and skill within the meaning of the Supply of Goods and Services Act 1982, Part II s 13.
    2. Sunspeed shall not be liable for any breach of any term of this Contract, or delay in or failure of performance:
      1. caused by the Customer’s breach of any of its obligations in clause 6.1, in which case Sunspeed may suspend performance of the Services until such time as the Customer fully remedies its breach or default;
      2. resulting from the failure of any third party responsibilities which affect the Services and which are outside of Sunspeed’s control; or 
      3. for any Unforeseen Events.
    3. Without prejudice to clause 4.2, before commencing the Services (or any part of the Services), Sunspeed will perform a dynamic risk assessment at the Location and, in the event that it determines the Location to be unsafe, it will postpone the commencement (or the continuation) of the Services until such time as it determines the Location to be safe, in which case the provisions of clause 5.2 (waiting time) shall apply.
  5. Cancellation, postponement and waiting time
    1. The Customer acknowledges that Sunspeed schedules resources for the Services for performance on the date(s) specified in the Proposal (“Date”), and that it may suffer losses in the event that the Customer cancels or postpones the Services. Accordingly, if the Customer wishes to cancel or postpone the Services, it will give prompt written notice to Sunspeed of that fact (“Notice”), and will pay the following charges to Sunspeed (less any recoverable goods in transit insurance costs):
      1. if Notice is given 10 to 6 Business Days from the Date, 50% of the Price; and
      2. if Notice is given 5 to 1 Business Days from the Date, the full Price, together, in each case, and provided that evidence in support is provided, with reimbursement of all expenses incurred up to and in connection with such cancellation or postponement.
    2. If, as a result of the Customer not meeting its obligations in clause 6.1 (and in particular in relation to the preparation of and access to the Location as set out in clause 6.1.2 and 6.1.3), Sunspeed is unable to commence or continue to provide the Services, any time spent waiting by Sunspeed engineers (or those of its contractors) in excess of 30 minutes will be charged at the rates set out in the Proposal.
  6. Customer responsibilities
    1. The Customer shall:
      1. notify Sunspeed in writing and in advance of the supply of the Services of any health and safety, security or other policies or procedures which it requires Sunspeed to observe in the provision of the Services;
      2. prepare the Location as specified in the Proposal;
      3. make the Location accessible to the Sunspeed personnel as may be necessary for it to perform the Services (which includes the provision of adequate parking and loading bays at and access to the Location) and otherwise comply with its obligations under this Contract;
      4. provide Sunspeed with the Customer Materials in a timely manner and ensure that the same is relevant, accurate and complete;
      5. inform Sunspeed in a timely manner of any matters (including any with health, safety or security implications) which may affect the provision of the Services at the Location;
      6. ensure that all tools, equipment, materials or other items provided to Sunspeed in connection with the provision of the Services are suitable for the performance of the Services, in good condition and in good working order; and
      7. obtain and maintain all necessary licences, permits and consents required to enable Sunspeed to perform the Services and otherwise comply with its obligations under this Contract.
  7. Anti-bribery
    1. For the purposes of this clause 7 the expressions ‘adequate procedures’ and ‘associated with’ shall be construed in accordance with the Bribery Act 2010 and legislation or guidance published under it.
    2. Each party shall comply with applicable Bribery Laws including ensuring that it has in place adequate procedures to prevent bribery and ensure that all of that party’s personnel, all others associated with that party, and all of that party’s sub-contractors involved in performing the Contract so comply.
    3. Without limitation to clause 7.2, neither party shall make or receive any bribe (as defined in the Bribery Act 2010) or other improper payment, or allow any such to be made or received on its behalf, and shall implement and maintain adequate procedures to ensure that such bribes or payments are not made or received directly or indirectly on its behalf.
    4. The Customer shall immediately notify Sunspeed as soon as it becomes aware of a breach by the Customer of any of the requirements in this clause 7.
  8. Anti-slavery
    1. Each party confirms and agrees that:
      1. neither it nor any of its officers, employees, agents or subcontractors has:
        1. committed an offence under the Modern Slavery Act 2015 (an MSA Offence); or
        2. been notified that it is subject to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015; or
        3. is aware of any circumstances within its supply chain that could give rise to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015;
      2. it shall comply with the Modern Slavery Act 2015 and the Modern Slavery Policy; and
      3. it has implemented due diligence procedures to ensure compliance with the Modern Slavery Act 2015 and the Modern Slavery Policy in its business and supply chain, and those of its officers, employees, agents or subcontractors, which will be made available to the other party on request.
    2. If a party becomes aware or has reason to believe that it, or any of its officers, employees, agents or subcontractors have breached or potentially breached any of its obligations under clause 8.1, it shall notify the other party immediately in writing.
  9. Indemnity and insurance
    1. Sunspeed shall have in place contracts of insurance with reputable insurers to cover its obligations under these Terms, including for professional indemnity, public and products liability. Goods in transit insurance is provided at the Customer’s request and expense. On request, Sunspeed shall supply evidence of the maintenance of such insurance and all of its terms from time to time applicable. 
    2. The Customer shall indemnify, and keep indemnified, Sunspeed from and against any losses, damages, liability, costs (including legal fees) and expenses incurred by Sunspeed as a result of or in connection with the Customer’s breach of any of the Customer’s obligations under the Contract.
    3. The Customer shall have in place contracts of insurance with reputable insurers to cover its obligations under these Terms. On request, the Customer shall supply evidence of the maintenance of the insurance and all of its terms from time to time applicable.
  10. Limitation of liability
    1. The extent of Sunspeed’s liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 10.
    2. Subject to clause 10.4, Sunspeed’s total liability in relation to the performance of the Services shall not exceed the Price.
    3. Subject to clause 10.4, Sunspeed shall not be liable for consequential, indirect or special losses, nor for any of the following (whether direct or indirect):
      1. loss of profit;
      2. loss or corruption of data;
      3. loss of use;
      4. loss of production;
      5. harm to reputation or loss of goodwill.
    4. The liability of the parties shall not be limited in any way in respect of the following:
      1. death or personal injury caused by negligence;
      2. fraud or fraudulent misrepresentation; or
      3. any other losses which cannot be excluded or limited by Applicable Law.
    5. Unless otherwise expressly stated in these Terms, all warranties and terms (including the Terms implied by ss 12–16 of the Supply of Goods and Services Act 1982), whether express or implied by statute, common law or otherwise are excluded from the Contract to the extent permitted by law.
  11. Confidentiality and publicity
    1. The parties shall keep confidential any information that is confidential in nature concerning the other party, including any Report and details of its business, affairs, customers, clients, suppliers, plans or strategy (Confidential Information) and shall only use the same as required by the Contract. The provisions of this clause shall not apply to:
      1. any information which was in the public domain at the date of the Contract;
      2. any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract; or
      3. any disclosure required by law or a regulatory authority or otherwise by the provisions of the Contract except that the provisions of clauses 11.1.1 to 11.1.3 shall not apply to information to which clause 13.4 relates.
    2. This clause shall remain in force for a period of 5 years from the date of the Contract.
    3. To the extent any Confidential Information is Protected Data, such Confidential Information may be disclosed or used only to the extent such disclosure or use is in compliance with and does not conflict with any of the provisions of clause 11.1.
    4. Sunspeed may, with the prior consent of the Customer (not be unreasonably withheld or delayed) include the Customer’s name and logo and may make reference to it in any press release, provided that any use of the Customer’s trade mark(s) and proprietary notices are properly attributed and comply with any brand guidelines provided by the Customer. 
    5. Sunspeed may include a brief description of the Services in its promotional materials, and make reference to the Customer in case studies and other marketing materials, and, at Sunspeed’s request, Customer will provide a reference for Sunspeed potential customers.
  12. Processing of personal data
    1. The parties agree that the Customer is a Controller and that Sunspeed is a Processor for the purposes of processing Protected Data pursuant to the Contract. The Customer shall at all times comply with all Data Protection Laws in connection with the processing of Protected Data. The Customer shall ensure all instructions given by it to Sunspeed in respect of Protected Data (including the terms of the Contract) shall at all times be in accordance with Data Protection Laws. 
    2. Sunspeed shall process Protected Data in compliance with the obligations placed on it under Data Protection Laws and the terms of the Contract.
    3. Sunspeed shall only process the Protected Data in accordance with the Contract, except to the extent that alternative processing instructions are agreed between the parties in writing, or otherwise required by Applicable Law.
    4. Taking into account the state of technical development and the nature of processing, Sunspeed shall implement and maintain appropriate technical and organisational measures to protect the Protected Data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure or access.
    5. The Customer authorises the appointment of any Sub-Processors listed in the Proposal.
    6. Sunspeed shall:
      1. not permit any processing of Protected Data by any agent, subcontractor or other third party (except its or its Sub-Processors’ own employees in the course of their employment that are subject to an enforceable obligation of confidence with regards to the Protected Data) without the written authorisation of the Customer; and
      2. prior to the relevant Sub-Processor carrying out any processing activities in respect of the Protected Data, appoint each Sub-Processor under a written contract containing materially the same obligations as under this clause 12.
    7. Sunspeed shall not process and/or transfer, or otherwise directly or indirectly disclose, any Protected Data in or to countries outside the United Kingdom without the prior written authorisation of the Customer.
    8. Sunspeed shall, in accordance with Data Protection Laws, make available to the Customer such information that is in its possession or control as is necessary to demonstrate Sunspeed’s compliance with the obligations placed on it under this clause 12, and allow for audits by the Customer (or another auditor mandated by the Customer) for this purpose.
    9. At the end of the provision of the Services relating to the processing of Protected Data, at the Customer’s cost and the Customer’s option, Sunspeed shall either return all of the Protected Data to the Customer or securely dispose of the Protected Data (and thereafter promptly delete all existing copies of it) except to the extent that any Applicable Law requires Sunspeed to store such Protected Data. This clause 12 shall survive termination or expiry of the Contract.
  13. Unforeseen Events
    1. Neither party shall have any liability under or be deemed to be in breach of the Contract for any delays or failures in performance of the Contract which result from Unforeseen Events. The party subject to an Unforeseen Event shall promptly notify the other party in writing when it causes a delay or failure in performance and when it ceases to do so. If the Unforeseen Event continues for a continuous period of more than 14 days, the party not affected may terminate the Contract by written notice to the other party.
  14. Termination
    1. Either party may terminate the Contract at any time by giving notice in writing to the other party if the other party:
      1. commits a material breach of Contract and such breach is not remediable; or
      2. Customer commits a material breach of the Contract which is capable of being remedied and such breach is not remedied within 14 days of receiving written notice of such breach.
    2. Either party may terminate the Contract at any time by giving notice in writing to the other if the other party:
      1. stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;
      2. is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986; 
      3. becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;
      4. has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;
      5. has a resolution passed for its winding up;
  15. Variations
    1. No variation of these Terms or to the Contract shall be binding unless expressly agreed in writing.
  16. Entire agreement
    1. The parties agree that the Contract constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.
    2. Each party acknowledges that it has not entered into the Contract in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Contract. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Contract.
    3. Nothing in these Terms purports to limit or exclude any liability for fraud.
  17. No partnership or agency
    1. The parties are independent persons and are not partners, principal and agent or employer and employee and the Contract does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. None of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party’s behalf.
  18. Severance
    1. If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Contract shall not be affected.
  19. Waiver
    1. No failure, delay or omission by Sunspeed in exercising any right, power or remedy provided by law or under the Contract shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
  20. Conflicts within contract
    1. If there is any conflict or inconsistency between any provision of these Terms and the Proposal, the Proposal shall take precedence to the extent of the conflict.
  21. Third-party rights
    1. A person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract.
  22. Dispute resolution
    1. Any dispute arising between the parties out of or in connection with the Contract shall be dealt with in accordance with the provisions of this clause 22.
    2. The dispute resolution process may be initiated at any time by either party serving a notice in writing on the other party that a dispute has arisen. The notice shall include reasonable information as to the nature of the dispute.
    3. The parties shall use all reasonable endeavours to reach a negotiated resolution through the following procedure:
      1. Within 15 Business Days of service of the notice, the project managers of each of the parties shall  discuss the dispute and attempt to resolve it.
      2. If the dispute has not been resolved within 15 Business Days of the first meeting of the project managers, then the matter shall be referred to the relevant director (or persons of equivalent seniority) of each of the parties. The relevant directors shall discuss within 15 Business Days to discuss the dispute and attempt to resolve it.
  23. Governing law
    1. The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
  24. Jurisdiction
    1. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation.
  25. Definitions and interpretation
    1. In these Terms the following definitions apply:
      Applicable Law means all applicable laws, legislation, statutory instruments, regulations and governmental guidance having binding force whether local or national in any relevant jurisdiction;
      Bribery Laws means the Bribery Act 2010 and all Applicable Laws in connection with bribery or anti-corruption;
      Business Day means a day other than a Saturday, Sunday or bank or public holiday when banks generally are open for non-automated business in England;
      Customer means the named party in the Proposal which has agreed to purchase the Services from Sunspeed;
      Confidential Information has the meaning given in clause 11.1; 
      Contract means the agreement between Sunspeed and the Customer for the supply and purchase of the Services incorporating these Terms and the Proposal;
      Controller shall have the meaning given to it in applicable Data Protection Laws from time to time;
      Customer Materials means any documentation, description, instructions, manuals, literature, technical details or other related information and/or materials provided by the Customer to Sunspeed and which are necessary for the provision of the Services;
      Data Protection Laws means, as binding on either party or the Services:the GDPR;
      – the Data Protection Act 2018;
      – any laws which implement any such laws; and
      – any laws that replace, extend, re-enact, consolidate or amend any of the foregoing;
      Data Subject shall have the meaning given to it in applicable Data Protection Laws from time to time;
      GDPR means the General Data Protection Regulation, Regulation (EU) 2016/679;
      Location means the address or addresses for performance of the Services as set out in the Proposal;
      MSA Offence has the meaning given in clause 8.1.1;
      Order means the purchase order for the Services  issued by the Customer;
      Personal Data shall have the meaning given to it in applicable Data Protection Laws from time to time;
      Price has the meaning set out in clause 2.1;
      Proposal means the final proposal issued by Sunspeed to the Customer which sets out the Services, the Price, the Location, the statement of work and any other special terms applicable to the Contract, as may be varied by agreement in writing between the parties from time to time, and which, for the avoidance of doubt, excludes any provisional proposals;
      processing has the meaning given to it in applicable Data Protection Laws from time to time (and related expressions, including process, processing, processed, and processes shall be construed accordingly);
      Processor shall have the meaning given to it in applicable Data Protection Laws from time to time;
      Protected Data means Personal Data received from or on behalf of the Customer in connection with the performance of Sunspeed’s obligations under the Contract;
      Report means any written Report or other documentary deliverable to be provided by Sunspeed to the Customer as part of the Services;
      Services means the IT, consultancy and related services set out in the Proposal and to be provided by Sunspeed for the Customer;
      Sub-Processor means any agent, sub-contractor or other third party (excluding its employees) engaged by Sunspeed for carrying out any processing activities on behalf of the Customer in respect of the Protected Data;
      Sunspeed means Sunspeed Solutions Ltd, a company incorporated and registered in England with company number 15863402, whose registered address is at Unit 2, West Point, Western Rd, Bracknell, RG12 1HJ.
      Terms means Sunspeed’s terms  of supply set out in this document; and
      Unforeseen Events means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under the Contract including an act of God, fire, flood, lightning, earthquake or other natural disaster, pandemic, war, riot or civil unrest, interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service, strike or other industrial action;
    2. In these Terms, unless the context requires otherwise:
      1. any clause or heading in these Terms is included for convenience only and shall have no effect on the interpretation of the Terms;
      2. a reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns;
      3. a reference to a ‘company’ includes any company, corporation or other body corporate, wherever and however incorporated or established;
      4. words in the singular include the plural and vice versa;
      5. a reference to ‘writing’ or ‘written’ includes email and any method of reproducing words in a legible and non-transitory form; and
      6. a reference to legislation is a reference to that legislation as in force at the date of the Contract