Terms & Conditions of MacroFin Limited

MacroFin Limited, a company incorporated and registered in England and Wales with company number 11221520 whose registered office is at Ye Olde Hundred, 69 Church Way, North Shields NE29 0AE (MacroFin) provides consultancy services in relation to the integration, implementation and set up of Netsuite to business Customers. These Terms and Conditions shall apply to the provision of all and any services by MacroFin to its Customers.

1. Interpretation

The following definitions and rules of interpretation apply in this agreement.

1.1 Definitions

Agreement: the agreement governing the provision of Services by MacroFin to the Customer, as set out in the Statement of Work and incorporating these Terms and Conditions.

Applicable Laws: all applicable laws, statutes, regulations from time to time in force.

Applicable Data Protection Laws: means:

a) To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data.

b) To the extent the EU GDPR applies, the law of the law of the European Union or any member state of the European Union to which MacroFin is subject, which relates to the protection of personal data.

Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.

Change Order: has the meaning given in clause 5.1.

Charges: the sums payable for the Services, as set out in the Statement of Work and as required pursuant to these Terms and Conditions.

Customer: means the party procuring the Services from MacroFin who shall be identified in the Statement of Work.

Customer Materials: all documents, information, items and materials in any form, whether owned by the Customer or a third party, which are provided by the Customer to MacroFin in connection with the Services, including the items provided pursuant to clause 4.1(d).

Customer Personal Data: any personal data which MacroFin processes in connection with this agreement, in the capacity of a processor on behalf of the Customer, as set out in Appendix 4 to the Statement of Work.

Deliverables: any output of the Services to be provided by MacroFin to the Customer as specified in the Statement of Work.

EU GDPR: means the General Data Protection Regulation ((EU) 2016/679), as it has effect in EU law.

Good Industry Practice: the exercise of that degree of skill, care, prudence, efficiency, foresight and timeliness as would be expected from an Netsuite integration company.

Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how) 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.

Netsuite: the accounting software owned by Oracle and known as Netsuite.

Statement of Work: means the Statement of Work by MacroFin to the Customer incorporating these Terms and Conditions (or variation thereof agreed upon by both Parties) setting out provision of the Services to be provided by MacroFin to the Customer.

Services: the services provided by MacroFin to the Customer, as set out in the Statement of Work.

MacroFin Personal Data: any personal data which MacroFin processes in connection with this agreement, in the capacity of a controller.

UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.

VAT: value added tax or any equivalent tax chargeable in the UK.

1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.

1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.4  A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

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  Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.7 A reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time.

1.8 A reference to writing or written includes email but not fax.

1.9 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.

1.10 A reference to this agreement or to any other agreement or document referred to in this agreement is a reference of this agreement, consisting of the Statement of Work and these Terms and Conditions, or such other agreement or document, in each case as varied from time to time.

1.11 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.

2. Commencement and duration

2.1 This agreement shall commence on the date when the Statement of Work has been accepted by the Customer and shall continue, unless terminated earlier in accordance with clause 12 (Termination), until completion of the Services by MacroFin when it shall terminate automatically without notice.

2.2 MacroFin shall provide the Services to the Customer in accordance with the Statement of Work.

3. MacroFin’s responsibilities

3.1 MacroFin shall use reasonable skill, care and diligence in conformity with Good Industry Practice to provide the Services, and deliver the Deliverables to the Customer, in accordance with a Statement of Work in all material respects.

3.2 MacroFin shall use reasonable endeavours in conformity with Good Industry Practice to meet any performance dates specified in a Statement of Work but any such dates shall be estimates only and time for performance by MacroFin shall not be of the essence of this agreement.

4. Customer’s obligations

4.1 The Customer shall:

(a) co-operate with MacroFin in all matters relating to the Services;

(b) appoint a manager for the Services who shall have the authority to contractually bind the Customer on matters relating to the Services (including by signing Change Orders);

(c) provide, for MacroFin, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Customer’s premises, office accommodation, data and other facilities as and if required by MacroFin;

(d) provide to MacroFin in a timely manner all documents, information, items and materials in any form (whether owned by the Customer or third party) reasonably required by MacroFin in connection with the Services and ensure that they are accurate and complete;

(e) obtain and maintain all necessary licenses for MacroFin to access Netsuite on the Customer’s behalf for the purpose of delivering the Services;

(f) obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable MacroFin to provide the Services, including in relation to the use of all Customer Materials, in all cases before the date on which the Services are to start; and

(g) comply with any additional responsibilities or obligations of the Customer as set out in the relevant Statement of Work.

4.2 If MacroFin’s performance of its obligations under this agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, then, without prejudice to any other right or remedy it may have, then:

(a) MacroFin shall be allowed an extension of time to perform its obligations at least equal to the delay caused by the Customer; and

(b) Macrofin shall invoice the Customer for any additional costs and or expenses incurred by or arising from any delay or omission of the Customer, its agents, subcontractors, consultants or employees at Macrofin’s then daily rates, provided that MacroFin has given the Customer 5 Business Days’ notice of such delay and the costs that may arise from such delay.

4.3 The Customer agrees that MacroFin may use the Customer’s name, logo, and general details of the Services provided by MacroFin and the Deliverables for marketing and publicity purposes. This includes, but is not limited to, promotional materials, case studies, website content, presentations, and social media. If the Customer objects to the use of any specific content for marketing or publicity purposes, they may notify MacroFin in writing, and MacroFin will promptly cease using the specified content.

5. Change control

5.1 Either party may propose changes to the scope or execution of the Services but no proposed changes shall come into effect until a Change Order has been signed by both parties. A Change Order shall be a document setting out the proposed changes and the effect that those changes will have on:

(a) the Services and or the Deliverables;

(b) MacroFin’s existing charges;

(c) the timetable of the Services; and

(d) any of the terms of the Statement of Work or this agreement.

5.2 If MacroFin wishes to make a change to the Services it shall provide a draft Change Order to the Customer.

5.3 If the Customer wishes to make a change to the Services:

(a) it shall notify MacroFin and provide as much detail as MacroFin reasonably requires of the proposed changes, including the timing of the proposed changes; and

(b) MacroFin shall, as soon as reasonably practicable after receiving the information at clause 5.3(a), provide a draft Change Order to the Customer.

5.4 If the parties agree to a Change Order, they shall sign it and that Change Order shall amend this agreement.

5.5 MacroFin may charge for the time it spends on preparing and negotiating Change Orders which implement changes proposed by the Customer pursuant to clause 5.3 on a time and materials basis at MacroFin’s then daily rates from time to time.

5.6 If, after agreeing to a Statement of Work, the Customer declines to implement or undertake a part or element of the Statement of the Work at the required time or in the sequence set out in the Statement of Work then this shall be treated as a Change Order to delete such elements or parts from the Statement of Work and the Customer shall not receive any credit or reduction in fees for the deletion and or removal of such parts or elements, and MacroFin shall not be obliged to implement or undertake such parts or elements of the Statement of the Work at a later date.

6. Charges and payment

6.1 In consideration of the provision of the Services by MacroFin, the Customer shall pay the Charges.

6.2 The Charges exclude the following, which shall be payable by the Customer monthly in arrears, following submission of an appropriate invoice:

(a) the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom MacroFin engages in connection with the Services, provided that such costs are approved in advance by the Customer; and

(b) the cost to MacroFin of any materials or services procured by MacroFin from third parties for the provision of the Services as such items and their cost are set out in the Statement of Work.

6.3 For any Services that are provided after the first anniversary of this agreement, MacroFin may increase the Charges on an annual basis with effect from each anniversary of the date of this agreement in line with the percentage increase in the Consumer Prices Index in the preceding 12-month period, and the first such increase shall take effect on the first anniversary of the date of this agreement and shall be based on the latest available figure for the percentage increase in the Consumer Prices Index.

6.4 MacroFin shall invoice the Customer for the Charges at the intervals specified in the Statement of Work. If no intervals are so specified MacroFin shall invoice the Customer at the end of each month for Services performed during that month.

6.5 If a payment interval is linked to performance of a milestone and such milestone is delayed due to reasons beyond Macrofin’s reasonable control then Macrofin may submit an interim invoice the Customer at the end of each month for Works performed during that month.

6.6 If the Customer should fail to complete any user acceptance testing in accordance with any Statement of Work then, provided that the Customer has not reported any issues within 28 calendar days of the platform being made available by Macrofin for testing, then Macrofin shall submit any final invoice.

6.7 The Customer shall pay each invoice submitted to it by MacroFin based on the payment terms listed in the Statement of Work to a bank account nominated in writing by MacroFin from time to time. If there are no payment terms listed in the SoW, the default terms are within 14 days of receipt of the invoice.

6.8 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay MacroFin any sum due under this agreement on the due date:

(a) the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 6.8(a) will accrue each day at 8% a year above the Bank of England’s base rate from time to time, but at 8% a year for any period when that base rate is below 0%;

(b) MacroFin may suspend all or part of the Services until payment has been made in full.

6.9 All sums payable to MacroFin under this agreement:

(a) are exclusive of VAT, and the Customer shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and

(b) shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

7. Non-solicitation

7.1 Neither party shall, without the prior written consent of the other, at any time from the date of this agreement to the expiry of 12 months after the termination of this agreement, solicit or entice away from the other party, or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of the other party in the provision of the Services.

7.2 Any consent given by a party in accordance with clause 7.1 shall be subject to the other party paying to the party providing such consent a sum equivalent to 35% of the then current annual remuneration of the employee, consultant or subcontractor or, if higher, 35% of the annual remuneration to be paid by the other party to that employee, consultant or subcontractor.

8. Intellectual property rights

8.1 In relation to the Deliverables:

(a) MacroFin shall retain ownership of all Intellectual Property Rights in the Deliverables, excluding the Customer Materials;

(b)

(b) MacroFin grants the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence in perpetuity, to copy and modify the Deliverables (excluding the Customer Materials) for the purpose of receiving and using the Services and the Deliverables in its business; and

(c) the Customer shall not sub-license, assign or otherwise transfer the rights granted in clause 8.1(b).

8.2 MacroFin:

(a) warrants that the receipt and use of the Deliverables by the Customer shall not infringe any rights of third parties to the extent that the infringement results from copying;

(b) shall, subject to clause 11.6, indemnify the Customer against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred or paid by the Customer arising out of or in connection with any claim brought against the Customer for actual or alleged infringement of a third party’s Intellectual Property Rights, arising out of, or in connection with, the receipt, use of the Works and the Deliverables.

(c) shall not be in breach of the warranty at clause 8.2(a), and the Customer shall have no claim under the indemnity at clause 8.2(b) to the extent the infringement arises from:

(i) the use of Customer Materials in the development of, or the inclusion of the Customer Materials in, the Services or any Deliverable;

(ii) any modification of the Services or any Deliverable, other than by or on behalf of MacroFin; and

(iii) compliance with the Customer’s specifications or instructions.

8.3 In relation to the Customer Materials, the Customer:

(a) and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials; and

(b) grants MacroFin a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Customer Materials for the term of this agreement for the purpose of providing the Services to the Customer.

8.4 The Customer:

(a) warrants that the receipt and use of the Customer Materials in the performance of this agreement by MacroFin, its agents, subcontractors or consultants shall not infringe the rights, including any Intellectual Property Rights, of any third party; and

(b) shall indemnify MacroFin in full against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by MacroFin arising out of or in connection with any claim brought against MacroFin, its agents, subcontractors or consultants for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the receipt or use in the performance of this agreement of the Customer Materials.

9. Data protection

9.1 For the purposes of this clause 9, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the UK GDPR.

9.2 Both parties will comply with all applicable requirements of the Applicable Data Protection Laws. This clause 9 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under Applicable Data Protection Laws.

9.3 The parties have determined that for the purposes of Applicable Data Protection Laws, MacroFin shall process any personal data provided by the Customer as required in the performance of the Services as processor on behalf of the Customer

9.4 The Customer consents to, (and shall procure all required consents, from its personnel, representatives and agents, in respect of) all actions taken by MacroFin in connection with the processing of MacroFin Personal Data, provided these are in compliance with the then-current version of MacroFin’s privacy notice available at www.macrofin.co.uk/privacynotice (Privacy Notice). In the event of any inconsistency or conflict between the terms of the Privacy Notice and this agreement, the Privacy Notice will take precedence.

9.5 Without prejudice to clause 9.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Customer Personal Data to MacroFin for the duration and purposes of this agreement.

9.6 Without prejudice to clause 9.2, MacroFin shall, in relation to the Customer Personal data:

(a) process that Customer Personal Data only on the documented instructions of the Customer, and in accordance with the Statement of Work, unless MacroFin is required by Applicable Laws to otherwise process that Customer Personal Data (Purpose). Where MacroFin is relying on Applicable Laws as the basis for processing Customer Personal Data, MacroFin shall notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit MacroFin from so notifying the Customer on important grounds of public interest. MacroFin shall inform the Customer if, in the opinion of MacroFin, the instructions of the Customer infringe Applicable Data Protection Laws;

(b) implement the technical and organisational measures set out in its Privacy policy 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 the Customer has reviewed and confirms 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;

(c) ensure that any personnel engaged and authorised by MacroFin to process Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;

(d) assist the Customer insofar as this is possible (taking into account the nature of the processing and the information available to MacroFin), and at the Customer’s cost and written request, in responding to any request from a data subject and in ensuring the Customer’s compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

(e) notify the Customer without undue delay on becoming aware of a personal data breach involving the Customer Personal Data; and

(f) at the written direction of the Customer, delete or return Customer Personal Data and copies thereof to the Customer on termination of the agreement unless MacroFin is required by Applicable Law to continue to process that Customer Personal Data. For the purposes of this clause 9.6(f), Customer Personal Data shall be considered deleted where it is put beyond further use by MacroFin.

9.7 The Customer provides its prior, general authorisation for MacroFin to:

(a) appoint processors to process the Customer Personal Data, including those detailed in the Statement of Work, provided that MacroFin:

(i) shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on MacroFin in this clause 9;

(ii) shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of MacroFin; and

(iii) shall inform the Customer of any intended changes concerning the addition or replacement of the processors, thereby giving the Customer the opportunity to object to such changes provided that if the Customer objects to the changes and cannot demonstrate, to MacroFin’s reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, the Customer shall indemnify MacroFin for any losses, damages, costs (including legal fees) and expenses suffered by MacroFin in accommodating the objection.

(b) transfer Customer Personal Data outside of the UK as required for the Purpose, provided that MacroFin shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Customer shall promptly comply with any reasonable request of MacroFin, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the Commissioner from time to time (where the UK GDPR applies to the transfer).

9.8 Either party may, at any time on not less than 30 days’ notice, revise this clause 9 (Data protection) by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).

9.9 MacroFin’s liability for losses arising from breaches of this clause 9 is as set out in clause 11.

10. Confidentiality

10.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, Customers, clients or suppliers of the other party, except as permitted by clause 10.2.

10.2 Each party may disclose the other party’s confidential information:

(a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 10; and

(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

10.3 No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.

11. Limitation of liability

11.1 The limits and exclusions in this clause reflect the insurance cover MacroFin has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss.

11.2 References to liability in this clause 11 include every kind of liability arising under or in connection with this agreement including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

11.3 Nothing in this this clause 11 shall limit the Customer’s payment obligations under this agreement.

11.4 Nothing in this agreement limits any liability which cannot legally be limited, including but not limited to liability for:

(a) death or personal injury caused by negligence;

(b) fraud or fraudulent misrepresentation; and

(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).

11.5 Any statements that are made, whether orally or in writing, by MacroFin are not intended to be a comprehensive instruction. Any advice, analysis, conclusions, lessons, or information that is provided by MacroFin is used and followed at the Customer’s own risk. MacroFin shall not accept any liability for any losses suffered by the Customer for following any advice, analysis, conclusions, lessons, or information that is provided by MacroFin.

11.6 Subject to clause 11.4 (liabilities which cannot legally be limited), and clause 11.5, MacroFin’s total liability to the Customer shall be limited to one hundred per cent (100%) of the Charges paid by the Customer as set out in the Statement of Work.

11.7 Subject to clause 11.3 (No limitation on the Customer’s payment obligations), and clause 11.4 (Liabilities which cannot legally be limited), this clause 11.7 specifies the types of losses that are excluded:

(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

(g) indirect or consequential loss.

11.8 MacroFin has given commitments as to compliance of the Services with relevant specifications in clause 3 (MacroFin’s responsibilities). In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this agreement.

11.9 Unless the Customer notifies MacroFin that it intends to make a claim in respect of an event within the notice period, MacroFin shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire 6 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.

12. Termination

12.1 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:

(a) the other party commits a material breach of any other term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;

(b) the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;

(c) 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 is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 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 Insolvency Act 1986;

(d) 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;

(e) the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;

(f) 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 that other party (being a company);

(g) 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 if an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);

(h) 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;

(i) 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;

(j) 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;

(k) 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 12.1(c) to clause 12.1(j) (inclusive);

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

(m) 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.

12.2 Without affecting any other right or remedy available to it, MacroFin may terminate this agreement with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 28 days after being notified in writing to make such payment.

13. Obligations on termination and survival

13.1 Obligations on termination or expiry

On termination or expiry of this agreement:

(a) the Customer shall immediately pay to MacroFin all of MacroFin’s outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, MacroFin may submit an invoice for the balance of any Charges arising under the Statement of Work, which shall be payable immediately on receipt;

(b) MacroFin shall on request return any of the Customer Materials not used up in the provision of the Services.

13.2 Survival

(a) On termination or expiry of this agreement, the following clauses shall continue in force: clause 1 (Interpretation), clause 7 (Non-solicitation), clause 8 (Intellectual property rights), clause 10 (Confidentiality), clause 11 (Limitation of liability), clause 13 (Consequences of termination), clause 17 (Waiver), clause 19 (Severance), clause 25 (Governing law) and clause 26 (Jurisdiction).

(b) Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.

14. Force majeure

14.1 Force Majeure Event means any circumstance not within a party’s reasonable control including, without limitation:

(a) acts of God, flood, drought, earthquake or other natural disaster;

(b) epidemic or pandemic;

(c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;

(d) nuclear, chemical or biological contamination or sonic boom;

(e) any law or any action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;

(f) collapse of buildings, fire, explosion or accident; and

(g) non-performance by suppliers or subcontractors ; and

(h) interruption or failure of utility service.

14.2 Provided it has complied with clause 14.3, if a party is prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of this agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.

14.3 The Affected Party shall:

(a) as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the agreement; and

(b) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.

14.4 If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than 4 weeks, the party not affected by the Force Majeure Event may terminate this agreement by giving written notice to the Affected Party.

15. Assignment and other dealings

15.1 This agreement is personal to the Customer and the Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.

15.2 MacroFin may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under this agreement.

16. Variation

Subject to clause 5 (Change control), no variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

17. Waiver

17.1 A waiver of any right or remedy under this agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

17.2 A failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.

18. Rights and remedies

The rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

19. Severance

19.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.

19.2 If any provision or part-provision of this agreement is deemed deleted under clause 19.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

20. Entire agreement

20.1 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.

20.2 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 or negligent misstatement based on any statement in this agreement.

21. No partnership or agency

21.1 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.

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

22. Third party rights

22.1 This agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.

23. Notices

23.1 Any notice given to a party under or in connection with this agreement shall be in writing and shall be:

(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or

(b) sent by email to the address specified in the Statement of Work.

23.2 Any notice shall be deemed to have been received:

(a) if delivered by hand, at the time the notice is left at the proper address;

(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or

(c) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 23.2(c), 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.

23.3 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.

24. Counterparts

24.1 This agreement 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.

25. Governing law

This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

26. Jurisdiction

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