About Numtide

1. We are Numtide Ltd, a company registered in England and Wales with company number 10340758. Our registered address is 124 City Road, London, England, EC1V 2NX. In these terms and the Customer Service Details, we are referred to as Numtide.

These terms

1. This document – the Numtide Customer Terms – sets out how Numtide will perform Services for a Customer. Numtide provides Nix Build, Deploy and Support Services. A Customer may procure one or more types of Service from Numtide and the details of the Services Numtide will perform for the Customer are set out in the Customer Service Details document Numtide and the Customer sign.
2. Numtide may make minor changes to these terms and the Customer Service Details where it is reasonably necessary. Numtide may make these changes to reflect changes in applicable laws or for technical reasons for example. These changes will not affect the Services nor have a material effect on the Agreement. Where Numtide needs to make more significant changes to these terms or the Customer Service Details, then Numtide will notify the Customer of the proposed changes in advance and Numtide will need the Customer’s agreement to the changes before they take effect.

Customer Representative

1. The Customer must appoint a manager for the Services: the Customer Representative. The Customer Representative must have the authority to act on behalf of and contractually bind the company or entity identified as the Customer on the Customer Service Details. The Customer Representative warrants and represents they have such authority and the Customer agrees to and accepts that it is bound by these terms and the Customer Service Details and the actions of the Customer Representative.

Interpretation

1. The following definitions apply in the Agreement:

1. The following rules of interpretation apply in the Agreement:
1. a reference to a particular law is a reference to that law 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.
2. 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 preceding those terms.
3. a reference to writing or written includes email.
4. all personal pronouns used in the Agreement shall include a reference to all other genders as required by the context.

Services

1. Numtide shall perform the Services for the Customer from the applicable Start Date as set out in the Customer Service Details and in accordance with the Agreement.
2. Numtide shall perform the Services with reasonable skill and care and in accordance with good industry practice and all applicable laws, statutes, regulations.
3. Numtide shall procure that the Key Personnel lead the performance of the Services. Numtide may at any time appoint a suitably qualified and skilled alternative or substitute for the Key Personnel.
4. Numtide shall appoint the Numtide Representative to manage the Services. The Numtide Representative shall have the authority to act on behalf of and contractually bind Numtide on all matters relating to the Agreement.
5. Numtide shall use reasonable commercial endeavours to perform the Services in accordance with any applicable Timetable. However, the Customer acknowledges any Timetable is an estimate only and the timing of the performance of the Services may be affected by a wide range of factors and time shall not be of the essence for the performance of the Services.
6. Numtide shall when performing any Support Services use reasonable commercial endeavours to meet any service level agreement set out in the Customer Service Details.
7. Numtide or the Key Personnel shall exercise control over the timing and method of work of Numtide Personnel. Numtide shall procure Numtide Personnel use Numtide’s or their own facilities or equipment to perform the Services. Numtide Personnel shall be based primarily at home, but will on the reasonable request of the Customer perform the Services at premises operated by the Customer, subject to the Customer agreeing to pay all associated costs and expenses incurred by the Numtide Personnel.
8. Numtide shall procure that Numtide Personnel observe all reasonable health and safety policies and security requirements adopted by the Customer from time to time and which are notified to Numtide by the Customer in writing.
9. Numtide shall procure that Numtide Personnel take reasonable care of all Customer Materials in their possession and comply with all reasonable Customer instructions in respect of Customer Materials.

Customer's obligations

1. The Customer shall cooperate in good faith with Numtide in all matters relating to the Services and provide Numtide Personnel with prompt access, at no charge, to any Customer premises, equipment, information or other facilities as may reasonably be required by Numtide Personnel for the performance of the Services.
2. The Customer shall obtain and maintain all necessary licences and consents as may be required to allow Numtide to perform the Services and use the Customer Materials in accordance with the Agreement.
3. The Customer shall comply with all laws, statutes, regulations applicable to the receipt of the Services and the Agreement.
4. If Numtide's performance of the Services is negatively impacted by any act or omission of the Customer or its personnel, then Numtide shall not be responsible for the consequences of such act or omission and shall be entitled to recover any additional costs incurred by Numtide by reason of such act or omission.
5. The Customer shall not, without the prior written consent of Numtide, at any time during the term of the Agreement or the subsequent 12 months, employ or engage or seek to employ or engage any of the Numtide Personnel.

Charges and payment

1. In consideration for the provision of the Services, the Customer shall pay Numtide the Charges in accordance with the Customer Service Details. The Customer shall also reimburse any applicable expenses properly incurred by Numtide Personnel in accordance with the Customer Service Details.
2. In the event the Customer procures Support Services on a fixed fee monthly basis, the Customer Service Details shall set out the number of hours of Support Services which may be used each month – the monthly hours allowance. Numtide shall be entitled to charge on its standard hourly rate basis for any Support Services provided in excess of the monthly hours allowance. Numtide shall inform the Customer Representative in writing before any such hourly rate charges are incurred. In the event the Customer uses less than the monthly hours allowance in a particular month, a maximum of 50 % of the monthly hours allowance may be carried forward to the next month, provided that in no event shall the cumulative monthly hours allowance exceed 200% of the base monthly hours allowance, with any time in excess of that amount not being carried forward to subsequent months.
3. All amounts payable by the Customer exclude any amounts due in respect of value added tax (VAT), which the Customer shall pay to Numtide at the prevailing applicable rate. Numtide shall provide the Customer with a valid VAT invoice in respect of any payments which are subject to VAT.
4. Numtide shall submit invoices for the Charges and applicable VAT at the intervals specified on the Customer Service Details. The Customer shall pay each invoice within 30 days of receipt, to the bank account notified in writing by Numtide.
5. If the Customer fails to pay any undisputed amount due under the Agreement then, without limiting Numtide’s remedies, Numtide may suspend all Services until payment has been made.
6. If the Customer fails to pay any amount properly payable by it under the Agreement then Numtide shall be entitled to charge the Customer interest on the overdue amount from the due date up to the actual date of payment, after as well as before judgement. Such interest shall accrue on a daily basis at the maximum rate provided for under the Late Payment of Commercial Debts (Interest) Act 1998.
7. All amounts due under the Agreement from the Customer to Numtide shall be paid in full without any set-off, counterclaim, deduction or withholding.

Data protection

1. For the purposes of paragraphs 28 and 29 of these terms, the terms controller, data subject, personal data, personal data breach, processor and processing shall have the meaning given to them in applicable data protection law. In the event the parties determine that Numtide will process personal data on behalf of the Customer as a processor, then the parties will set out in the Customer Service Details the subject-matter and duration of the processing of Customer personal data, the nature and purpose of the processing, the type of personal data and the categories of data subjects.
2. Each party shall comply with its obligations under applicable data protection laws. In the event Numtide processes personal data on behalf of the Customer as a processor, Numtide will comply with following additional obligations:
1. Numtide shall process Customer personal data only in accordance with the Customer’s written instructions (which must comply with data protection laws).
2. Numtide shall not transfer Customer personal data outside of the territory in which it is collected (or in the case of the European Union, the European Economic Area) without the Customer’s consent.
3. Numtide shall ensure that Numtide Personnel engaged in the processing of Customer personal data under the Agreement are subject to obligations of confidentiality.
4. Numtide shall implement appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Customer personal data and against accidental loss or destruction of, or damage to, Customer personal data, which are appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures.
5. Numtide may engage such other processors (sub-processors) as Numtide consider reasonably appropriate for the processing of Customer personal data in accordance with the terms of the Agreement (including in connection with Build Services, Deploy Services, Support Services and the use of third party data centres) provided that Numtide shall notify Customer of the addition or replacement of such sub-processors and the Customer may, on reasonable grounds, object to a sub-processor by notifying Numtide in writing within 7 days of receipt of notification, giving reasons for the Customer’s objection. Numtide shall require all sub-processors to enter into an agreement compatible with this paragraph 29 and Numtide shall remain responsible and liable for each sub-processor’s acts and omissions.
6. Numtide shall use reasonable commercial efforts to assist the Customer in fulfilling the Customer’s obligations as controller following a written request from the Customer. Numtide may charge the Customer on a time and materials basis in the event that Numtide considers, in its reasonable discretion, that such assistance is onerous, complex, frequent or time consuming.
7. Numtide shall notify the Customer without undue delay on becoming aware of a personal data breach involving the Customer personal data.
8. in the event that the Customer considers that the processing of personal data performed pursuant to the Agreement requires a privacy impact assessment to be undertaken, following a written request from the Customer, Numtide shall use reasonable commercial endeavours to provide relevant information and assistance to the Customer to facilitate such privacy impact assessment. Numtide may charge the Customer for such assistance on a time and materials basis.
9. unless otherwise required by applicable law, following termination or expiry of the Agreement Numtide shall, at the Customer’s option, delete or return all Customer personal data to Customer.
10. upon Customer’s reasonable request and at Customer’s expense, Numtide shall make available all information necessary to demonstrate its compliance with this paragraph 16.

Intellectual property

1. The Customer Materials shall remain the property of the Customer or its licensors. The Customer hereby grants to Numtide a non-exclusive, sub-licensable to Numtide Personnel, licence to use the Customer Materials solely to the extent reasonably necessary for Numtide to perform or procure the performance of the Services.
2. Numtide assigns to the Customer all existing and future Intellectual Property Rights in the Deliverables. Numtide agrees to promptly execute all additional documents which in the Customer’s reasonable opinion may be necessary to give effect to this paragraph 31. No payment other than the Charges will be due in consideration of this assignment, although the Customer shall be responsible for any costs and expenses associated with any additional documents to be executed to give effect to this paragraph 31.
3. All Numtide Intellectual Property Rights is and shall remain the property of Numtide or its licensors. Numtide hereby grants to Customer a nonexclusive, non-transferable, perpetual, worldwide licence to use the Numtide Intellectual Property solely to the extent reasonably necessary for Customer to receive and use the Services and Deliverables in the Customer’s business.
4. Third Party Code is the property of its respective owners or licensors. Numtide shall inform the Customer of any need for the Customer to acquire a licence for such Third Party Code and provide reasonable cooperation and assistance to the Customer in obtaining any such licence.
5. Subject to paragraph 35, Numtide shall indemnify the Customer against any sums awarded by a court or agreed by way of settlement arising out of or in connection with any claim brought against the Customer for infringement of a third party's Intellectual Property Rights arising out of or in connection with the receipt or use of the Numtide Intellectual Property Rights or Deliverables by the Customer.
6. The indemnity in clause 34 shall only apply if:
1. the claim does not arise as a result of (i) any modification of the Numtide Intellectual Property Rights or Deliverables, (ii) use of the Numtide Intellectual Property Rights or Deliverables in combination with any product, service or Intellectual Property Right not owned or licenced to the Customer by Numtide, or (iii) use of the Numtide Intellectual Property Rights or Deliverables contrary to the terms of the Agreement;
2. the Customer promptly notifies Numtide on becoming aware of any claim or potential claim;
3. the Customer makes no admission of liability or otherwise comprise or agree to any settlement of a claim or potential claim; and
4. the Customer gives conduct of the response to the claim to Numtide and provides Numtide with all reasonable assistance in connection with the response to the claim.
7. Numtide may at any time replace any part of the Numtide Intellectual Property Rights or Deliverables where it considers such part infringes the rights of any third party or where a claim of such infringement has been made, provided that such replacement code does not materially reduce the functionality of the Numtide Intellectual Property Rights or Deliverables.
8. The Customer shall comply with the terms and conditions of any licensing agreements for Third Party Code.
9. The Customer shall indemnify Numtide and Numtide Personnel against any sums awarded by a court or agreed by way of settlement arising out of or in connection with any claim brought against the Numtide or Numtide Personnel for infringement of a third party's Intellectual Property Rights arising out of or in connection with the receipt or use of the Customer Materials.

Confidentiality

1. Confidential Information means any and all confidential information or data, in whatever form or storage medium, whether tangible or intangible, and whether disclosed directly or indirectly before or after the effective date of the Agreement by or on behalf of the disclosing party (Disclosing Party) to the receiving party (Receiving Party) in writing, orally, through visual means, or by the Receiving Party's evaluation, observation, analysis, inspection or other study of such information, data or knowledge, which is owned or controlled by the Disclosing Party. Confidential Information shall include the Customer Materials, Deliverables, Charges, Numtide Intellectual Property Rights, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to Disclosing Party; (ii) was known to Receiving Party prior to its disclosure by Disclosing Party without breach of any obligation owed to Disclosing Party; (iii) was independently developed by Receiving Party without breach of any obligation owed to Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to Disclosing Party.
2. Each party undertakes that it will not at any time use, divulge or communicate to any person, except to its professional representatives or advisers or as may be required by law, or any legal or regulatory authority, any Confidential Information concerning the other party (or of any member of the group of companies to which the other party belongs) and each of the parties shall use all reasonable endeavours to prevent the publication or disclosure of any Confidential Information.
3. Unless otherwise specified as a special term in the Customer Service Details, the Customer permits its name to be added to Numtide’s customer list, and for Numtide to refer to the Customer as a customer and user of Numtide’s services in its marketing and public relations materials, including, the use of the Customer’s logo (whether or not a registered trade mark) and name.

Limitation of liability

1. Nothing in these terms shall limit the Customer's payment obligations under the Agreement.
2. Nothing in the Agreement limits any liability which cannot legally be limited, including liability for death or personal injury caused by negligence or fraud or fraudulent misrepresentation.
3. Subject to paragraphs 42 and 43 and other than for losses arising from breaches of paragraph 34 (Intellectual Property Rights indemnity) Numtide shall not be liable to the Customer whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation (negligence or otherwise), restitution or otherwise for (a) any loss (whether direct or indirect) of profits, business, business opportunities, revenue, turnover, reputation or goodwill; (b) any loss (whether direct or indirect) or corruption of data or information, (c) any (whether direct or indirect) (i) pure economic loss, (ii) loss of anticipated savings and/or (iii) wasted expenditure (including management time); or (d) for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under an Agreement.
4. Subject to paragraph 43 and other than for losses arising from breaches of paragraph 34 (Intellectual Property Rights indemnity), Numtide’s maximum total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement shall be limited to 125% of the total Charges paid or payable under the Agreement in respect of which the liability arose during the 12 months immediately preceding the date on which the claim arose.

Termination

1. Either party may terminate an Agreement for convenience on 30 days prior written notice to the other party and the Agreement will automatically expire on the completion of the Services.
2. Without affecting any other right or remedy available to it, either party to the Agreement may terminate it with immediate effect by giving written notice to the other party if the other party commits a material breach of any term of the Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so.
3. Either party shall be entitled forthwith to terminate the Agreement by written notice to the other if:
1. an encumbrancer takes possession or a receiver is appointed over any of the property or assets of that other party;
2. that other party makes any voluntary arrangement with its creditors or becomes subject to an administration order;
3. that other party goes into liquidation (except for the purposes of amalgamation or reconstruction and in such manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on that other party under the Agreement);
4. anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to that other party; or
5. that other party ceases, or threatens to cease, to carry on business.
4. On termination of the Agreement for whatever reason the Customer shall immediately pay to Numtide all of Numtide's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Numtide may submit an invoice, which shall be payable immediately on receipt.
5. On termination or expiry of the Agreement for whatever reason any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Agreement shall remain in full force and effect.

General provisions

1. Neither party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control.
2. Both of the parties’ act on their own behalf and are responsible for their individual rights and obligations under these terms. Nothing in these terms should be regarded to establish any partnership or joint venture between the parties, or to constitute one party acting as an agent of the other. The Agreement constitutes a contract for the provision of services and nothing in the Agreement shall render any Numtide Personnel as an employee or worker of the Customer.
3. The Agreement entered under these terms is between the Customer and Numtide. No one else will have any rights under or in connection with it.
4. Numtide may assign its rights and obligations under the Agreement to a third party. The Customer may only do so if Numtide has authorised such assignment in advance in writing.
5. If a provision of the Agreement is held invalid or unenforceable by a court, the Agreement will remain in place with the relevant provision deemed amended to achieve its intended effect.
6. If a party to the Agreement does not enforce its rights under the Agreement such party should not be regarded as having waived them. Such a party reserves the right to enforce them later and may do so at their convenience.
7. If Numtide needs to notify the Customer or serve a notice on the Customer, Numtide will do so by writing to the address or email address of the Customer Representative. If the Customer needs to notify Numtide in writing or serve a notice on Numtide, the Customer will do so by writing to the address or email address of the Numtide Representative. Any such notice shall be deemed to have been received if delivered by hand, at the time the notice is left at the proper address; if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second working day after posting; or if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume.
8. The Customer Service Details incorporating these terms may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
9. These terms and the Agreement concluded under them shall be governed by the laws of England and Wales. Each party agrees that the courts of England shall have the exclusive jurisdiction to settle any dispute or claim arising from or in connection with the Agreement.