1. INTRODUCTION
1.1 These general terms & conditions of business (“GT&Cs”) should be read and construed in conjunction with the accompanied engagement letter (the “Letter”) addressed to the person specified in the Letter (the “Customer”) and where there is any inconsistency between the GT&Cs and the Letter, the Letter will prevail. The Letter and the GT&Cs constitute the exhaustive basis on which Syncode is to provide services for the benefit of the Customer, and together constitute the “Retainer”.
1.2 These GT&Cs are binding and enforceable on the earlier of the date of the Letter and the receipt from the Customer or the Customer’s agent or any persons purporting to be the Customer’s agent of any Instructions on any aspect of the Services (the “Commencement Date”).
1.3 In these GT&Cs, unless the context otherwise requires, the following words and expressions shall have the following meaning:
“Commencement Date” has the meaning given in clause 1.2;
“Consumer” has the meaning given in the Consumer Rights Law, L.133(I)/2013;
“Customer” has the meaning given in clause 1.1;
“Delegate” includes the directors, other officers, partners, representatives, attorneys, agents, delegates, servants, sub-contractors, consultants and employees or any other person appointed by Syncode from time to time whether such person is employed by such body corporate or an associated entity thereof or is self-employed and their respective assigns, heirs, estates, executors, administrators, personal representatives of each of the aforesaid persons who is an individual and their respective successors in title and assigns of each of the aforesaid persons which is a body corporate (and any one of them);
“Excluded Conduct” means fraud, dishonesty, wilful misconduct, reckless disregard of professional obligations on the part of the person who is sought to be made liable and/or any liability which cannot be lawfully limited or excluded;
“Fees” has the meaning given in clause 5.1;
“GT&Cs” has the meaning given in clause 1.1.
“Instructions” means any communication, confirmation, instruction, direction, notice or request given by the Customer or any of its employees, directors and officers or any other authorized person of the Customer, whether given in writing or orally;
“IPRs” means copyright, patents, know-how, trade secrets, trademarks, trade names, design rights, rights in get-up, rights in goodwill, rights in confidential information, rights to sue for passing off, domain names and all similar rights and, in each case: (a) whether registered or not; (b) including any applications to protect or register such rights; (c) including all renewals and extensions of such rights or applications; (d) whether vested, contingent or future; (e) to which the relevant party is or may be entitled, and (f) in whichever part of the world existing;
“Letter” has the meaning given in clause 1.1;
“Syncode” means Syncode Ltd, a private company limited by shares incorporated and registered in Cyprus under registration number HE411653;
“Retainer” has the meaning given in clause 1.1; and
“Services” has the meaning given in clause 2.1.
1.4 A reference to (a) a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time; (b) a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision; (c) an agreement is a reference to these GT&Cs; (d) writing or written includes email and ticketing board systems (for example, Gitlab); (e) any document or agreement means such document or agreement as modified, amended, varied, novated or supplemented (in each case, other than in breach of the provisions of these GT&Cs) from time to time; (f) a company shall include any company, corporation or other body corporate, wherever and however incorporated or established; and (g) a person includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium, partnership or other entity (whether or not having separate legal personality).
1.5 The following definitions and rules of interpretation apply in these GT&Cs:
- any schedules or appendixes form part of the Retainer and any reference to the Retainer includes the schedules or appendixes.
- subject to clause 7 (Benefit Of Services), references to the singular shall include the plural and vice versa and references to the masculine shall include the feminine and/or neuter and vice versa;
- 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;
- clause headings shall not affect the interpretation of these GT&Cs;
- where the Customer comprises more than one person, they shall be jointly and severally liable for their obligations under the Retainer;
- a reference to the “Customer”, or “Syncode“, shall be construed so as to include its successors in title and subject to clause 13 (Assignment), permitted assigns and permitted transferees to, or of, its rights and/or obligations under these GT&Cs; and
- references to these GT&Cs shall include the current version or any other version as amended from time to time in accordance with clause 15 (Application of these GT&Cs and amendments).
2. SERVICES
2.1 Syncode will perform the services expressly and specifically set out in the Letter (the “Services”) for the period provided by the Letter with reasonable skill and care. The Customer confirms that the scope of the Services set out in the Letter is appropriate and sufficient for the Customer’s purposes.
2.2 The Services will be performed by such employees or agents as Syncode may choose as appropriate, or as agreed between Syncode and the Customer from time to time.
2.3 Unless Syncode agrees with the Customer a specific location, Syncode will provide the Services in and from such places and locations as Syncode considers appropriate.
2.4 Either Syncode or the Customer may request a change to the scope of the Services or the Letter. A change will be effective only when agreed in writing.
2.5 In performing the Services, Syncode will not carry out any other service except as expressly and specifically stated in the Letter.
2.6 Nothing Syncode says or does should be construed as, and none of the Services are intended to be, nor should be perceived as constituting an attempt to detect or accept responsibility for detecting fraud or other wrongdoing.
3. CUSTOMER REQUIREMENTS
3.1 In order for Syncode to provide the Services, the Customer must ensure that any information, Instructions or documentation given to Syncode by the Customer, or anyone else working with or for the Customer, is given promptly, is accurate and is complete (even if such information, Instructions or documentation has previously been supplied to under any separate or previous retainers) and that any assumptions made by the Customer are appropriate. To the extent the Customer becomes aware that any information provided to Syncode is misleading, inaccurate, incomplete or unreliable, the Customer will notify Syncode immediately.
3.2 Syncode will not verify any information provided by the Customer relating to the Services, although, Syncode reserves the right to verify Instructions or information by whatever means Syncode considers appropriate. Syncode reserves the right to refuse the taking of any actions if Syncode considers that any Instructions would, directly or indirectly, require, concern, engage or involve any unlawful activity or breach any applicable laws.
3.3 Syncode shall not be responsible or incur any liability:
- for failure to comply with any Instructions which are incomplete, ambiguous or contain errors;
- for the non-receipt of any Instruction, written or otherwise;
- for the lack of authority of any person purportedly giving Instructions on behalf of the Customer; or
- by reason of any failure or lack of availability of Syncode’s computer systems or communication systems or in respect of any failure of any product used by it or its suppliers to accurately handle date related data or perform date related functions.
3.4 In performing the Services, Syncode will not be deemed to have information from other services provided by Syncode under any separate or previous retainers.
3.5 Unless instructed otherwise, Syncode shall assume that any Instructions given for or on behalf of the Customer have been authorised by the Customer and that Syncode may act upon them.
4. COMMUNICATION AND INSTRUCTIONS
4.1 Syncode will use reasonable endeavours to provide the Services within the agreed timeframes as these are specified in the Letter and/or agreed between Syncode and the Customer but:
- shall not incur any liability for any loss or damage arising by reason of the length of time taken to so act upon Instructions;
- nothing in the Retainer (including the provision of any estimate or quotation of costs) amounts to a promise or agreement that Syncode shall perform the Services within a fixed time or for a fixed fee; and
- the timing of work to be carried out by Syncode will in any event be dependent on the prompt supply of all information and documentation by the Customer as and when required by Syncode.
4.2 Where Syncode is required to obtain any Instructions from the Customer in connection with the Services, the Customer will respond to Syncode in writing at such time as specified in the request or within two (2) working days as from the time that the Customer receives such request. Where the Customer’s Instructions is not provided within the required timeframe, Syncode cannot accept any responsibility or liability for any loss or damage arising as a result.
4.3 Unless agreed otherwise in writing, the parties agree that they may communicate by email, without encryption, over the internet. Syncode shall not be responsible for any loss or damage arising out of or in connection with unauthorised interception, non-delivery, re-direction, copying or reading of emails, including any attachments, nor shall it be responsible from the effect on any computer system (or any loss or damage arising out of or in connection with any such effect) of any emails, attachments, malware, spyware, viruses or other malicious content which may be transmitted by such means (save to the extent that this is caused by Syncode’s fraud). Syncode does not guarantee that all communications will be secure or free from infection.
4.4 The Customer shall ensure that it has in place appropriate technical and organisational measures to protect data integrity, and agrees to carry out a virus check on any attachments prior to launching any documents whether received on disk or otherwise.
4.5 Notwithstanding any provision of the Retainer to the contrary, Syncode is not obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations or responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to it.
5. FEES AND PAYMENT TERMS
5.1 The Customer will pay Syncode for the Services the fees stated in the Letter (“Fees”) and the Fees shall reflect not only time spent, but also such factors as nature, novelty, complexity, urgency, inherent risk, use of techniques, know-how and research, together with the level of skill and expertise required of the personnel needed to perform and review the Services. These Fees may include any time spent for travelling for the purpose of the Services.
5.2 The Customer will pay for all out of pocket expenses incurred in connection with the Services.
5.3 Syncode will invoice the Customer as specified in the Letter. Unless specifically agreed to the contrary in the Letter, in relation to:
- long term engagements (as determined by Syncode), Syncode will invoice the Customer monthly or quarterly; and
- one-off engagements (as determined by Syncode), Syncode will invoice the Customer upon commencement, midway through, and upon completion, of the Services in amounts equal to 50%, 25% and 25% respectively of the Fees and out of pocket expenses.
5.4 Fees and out of pocket expenses will be stated exclusive of VAT and/or any other relevant taxes and will be subject to the addition of VAT and/or other taxes where appropriate.
5.5 All charges will be specified in Euro and invoices will be paid in Euro unless otherwise agreed. All invoices are payable on receipt. If an invoice remains unpaid 14 days after delivery, Syncode reserves the right to suspend the provision of Services and claim statutory interest.
5.6 Syncode may provide the Customer with a non-legally binding good faith fee estimate. Syncode will inform the Customer if any fee or time estimate needs to be revised.
5.7 If the Customer is required by law to deduct any amount when paying an invoice, the Customer will pay to Syncode an additional amount so as to ensure that Syncode receives a net sum equal to the amount of the invoice.
6. CONFIDENTIALITY AND CONFLICTS OF INTEREST
Confidentiality
6.1 Each party undertakes that it shall not at any time during the Retainer, and for a period of five years after termination of the Retainer, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 6.2.
6.2 Each party may disclose the other party’s confidential information:
- to its employees, officers, representatives 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 these GT&Cs. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 6; and
- as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
6.3 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 these GT&Cs.
6.4 The Customer also acknowledges that it may be necessary for Syncode to share confidential information, with any third party suppliers to whom certain support services may be outsourced from time to time provided they are subject to confidentiality obligations no less onerous than those specified in this clause 6.
Conflicts of interest
6.5 The Customer agrees that Syncode has the right and may provide services to any person, including to any person that is or may be the Customer’s competitor or any other person whose interests conflict or may conflict with the Customer’s interests (including the Customer’s commercial interests), so long as Syncode does not disclose any confidential information except as permitted under this clause 6. Where Syncode identifies situations where a conflict of interests arises in the course of providing services to other clients Syncode will contact the Customer to resolve the matter in good faith. The Customer acknowledges that there may be instances where Syncode cannot identify or be certain that Syncode will identify such conflicts that are either in place at the Commencement Date or may develop in the future. In cases where a conflict is identified, either party is required to contact the other for a mutual resolution.
7. BENEFIT OF SERVICES
The Services will be provided solely for the Customer’s own benefit as Syncode’s client and for the purposes that the Customer has communicated to Syncode. Syncode accepts no responsibility to anyone else. The Services cannot be used or relied upon by any other person or for any other purpose.
8. LIMITATIONS AND EXCLUSIONS OF LIABILITY
8.1 The following provisions shall apply but will not operate to limit or exclude any liability for any Excluded Conduct.
8.2 The extent of Syncode’s liability under or in connection with the Retainer (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 8.
8.3 Subject to clause 8.1, Syncode’s total aggregate liability under or in connection with the Retainer shall be limited to the sum of money that is equal to two times the total Fees actually paid by the Customer to Syncode for the specific part of the Services where liability is proven. This liability cap shall be Syncode’s sole and exclusive liability and entire obligations to the Customer, and the Customer’s sole and exclusive rights and remedies under or in connection with this agreement.
8.4 Subject to clause 8.1, Syncode shall not be liable for consequential, indirect or special losses.
8.5 Subject to clause 8.1, Syncode shall not be liable for any of the following (whether direct or indirect): (a) loss of profit; (b) loss of data; (c) loss of use; (d) loss of production; (e) loss of contract; (f) loss of opportunity; (g) loss of savings, discount or rebate (whether actual or anticipated); (h) harm to reputation or loss of goodwill.
8.6 The Customer shall not take any proceedings against any Delegate in respect of any claim it might have against Syncode or in respect of any act or omission of any kind (including negligent acts or omissions) by that Delegate in relation to the Services or the Retainer and any such claims shall only be brought against Syncode.
8.7 Except as expressly and specifically provided in clause 2.1, all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Retainer.
9. TERMINATION
9.1 Either party may terminate the Retainer with 60 days’ prior written notice.
9.2 Either party may terminate the Retainer immediately by giving written notice to the other if the other (a) materially breaches it and does not remedy the breach within 14 days, (b) is or appears likely to be unable to pay its debts or suffers an insolvency event (c) commits a material breach of the Retainer and such breach is not remediable; or (d) becomes the subject of any prohibitions and restrictions relating to terrorism and international trade and economic sanctions that have been imposed by UN resolutions, EU, Cyprus, the UK or the USA.
9.3 Syncode may terminate the Retainer immediately by giving written notice to the Customer if: (a) the Customer has failed to pay any amount due under the Retainer on the due date and such amount remains unpaid within 14 days after Syncode has given notification that the payment is overdue; (b) any consent, licence or authorisation held by the Customer is revoked or modified such that the Customer is no longer able to comply with its obligations under the Retainer or receive any benefit to which it is entitled; or (c) Syncode determines that a conflict of interest arises and such conflict has not been resolved by good faith negotiations between the parties carried over a period of 7 days.
9.4 On termination of the Retainer (for any reason) the Customer agrees to pay in full Syncode’s invoices representing Fees, out of pocket expenses and other charges incurred in performing the Services up to the date of termination.
9.5 On termination of the Retainer:
- 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 Retainer which existed at or before the date of termination shall not be affected; and
- the following clauses shall continue in force: clauses 1 (Introduction), 2 (Services), 6 (Confidentiality), 7 (Benefit of Services), 8 (Limitations and Exclusions of Liability), 9 (Termination), 10.3 (Intellectual Property Rights), 14.1 (Law and Jurisdiction), 14.2 and 14.3.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 All IPRs in all works and other things developed, designed, generated or created by Syncode in the course of providing the Services including systems, methodologies, software, data, know-how, documents and working papers will vest with the Customer.
10.2 The Customer will retain all IPRs in all reports, written advice, documents, data and all other materials provided by the Customer to Syncode.
10.3 The Customer shall indemnify Syncode from and against any losses, damages, liability, costs and expenses (including reasonable professional fees) incurred by it as a result of any action, demand or claim that performance or receipt of the benefit of the Services infringes the IPRs of any third party.
11. DATA PROTECTION
The Customer shall be responsible for ensuring that all personal data provided to Syncode in connection with the Services or the Retainer has been collected and processed in accordance with applicable data protection law, and that all steps have been taken (including the provision of notices to data subjects and obtaining consent from data subject, where required) to ensure that the processing of the personal data by Syncode in connection with the Services or the Retainer will comply with applicable data protection law. The Customer acknowledges that, in connection with the Services or the Retainer, Syncode may transfer personal data out of the country or territory in which it was provided to Syncode and Syncode will comply with its obligations under applicable data protection law in relation to any such transfer.
12. MATERIALS
12.1 Syncode may retain copies of all documents relevant to the Services, including any documents given to Syncode by the Customer or on behalf of the Customer by a third party.
12.2 Syncode shall not release documents which belong to the Customer unless specifically agreed to do so or where required by law or regulation. Syncode may require a release and hold harmless letter from the Customer as a condition of disclosure.
12.3 Any material in Syncode possession will be destroyed in accordance with Syncode’s internal policies and procedures in effect from time to time.
12.4 If any amount owed to Syncode remains outstanding for more than 14 days after Syncode sent its invoice to the Customer, then until all amounts which the Customer owes to Syncode have been paid, Syncode may in its discretion exercise a lien over, or the right not to release from its possession or control, all or any documents.
12.5 At the completion of the Services, Syncode shall return to the Customer any documents to which the Customer is entitled. Syncode will retain copies of all documents belonging to the Customer: (a) for 1 year from the date of termination of Syncode’s appointment; (b) as may be permitted under applicable data protection law; or (c) otherwise in accordance with the directions of a competent authority or court.
12.6 In this clause 12, “documents” includes anything in which information is recorded, whether on paper, electronically or otherwise and includes working papers.
13. ASSIGNMENT
13.1 The Customer may not assign, subcontract or encumber any right or obligation under the Contract, in whole or in part, without Syncode’s prior written consent.
13.2 Syncode may perform any of its obligations and exercise any of its rights granted under the Retainer through any Delegate provided that it gives the Customer prior written notice of such subcontracting or assignment including the identity of the relevant person, but any act or omission of such person in relation to Syncode’s rights or obligations under the Contract shall be deemed to be an act or omission of Syncode itself.
14. GENERAL
Law and Jurisdiction
14.1 The Retainer 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) are governed by and construed in accordance with the laws of Cyprus.
14.2 The courts of Cyprus shall have exclusive jurisdiction in respect of any dispute, suit, action, arbitration or proceedings which may arise out of or in connection with the Retainer or its subject matter or formation (including non-contractual disputes or claims) (each a “Dispute”) and the parties waive any objection to Disputes in the courts of Cyprus on the grounds of venue or on the basis that the Claims have been brought in an inconvenient forum.
14.3 Syncode shall not be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, Syncode may take concurrent proceedings in any number of jurisdictions.
Notices
14.4 Except where these GT&Cs specifically states that a notice need not be in writing, any notice given under or in connection with these GT&Cs shall be in writing and in Greek or English and shall be delivered by hand, or sent by registered post to the other party at its address set out in the Letter, or such other address as may have been notified by that party for such purposes, or sent by email to the other party’s email address set out in the Letter.
14.5 A party may change its details for service of notices as specified in clause 14.1 by giving notice to the other party, provided that in the case of a change to the party’s postal/courier address for service the new address is an address in Cyprus. Any change notified pursuant to this clause shall take effect at 9.00am on the later of: (a) the date, if any, specified in the notice as the effective date for the change; and (b) five (5) working days after deemed receipt of the notice of change.
14.6 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9am on the first working day following delivery). A correctly addressed notice sent by registered post shall be deemed to have been received two (2) working days after postage. Delivery of a notice sent by email is deemed to have taken place at the time the email is sent, which shall be the time that is recorded in the IT system of the sender as having been sent and for the avoidance of doubt, a notification that the recipient of an email is out of the office, or no longer working at an organisation, or an error message indicating failure to deliver or there has been a failure to deliver because the recipient’s address no longer exists, mailbox is full / storage exceeded or similar, shall not constitute an error message indicating failure to deliver.
Waiver – Rights and Remedies
14.7 No failure or delay by a party to exercise any right or remedy provided under the Retainer or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy provided under the Retainer or by law shall prevent or restrict the further exercise of that or any other right or remedy.
14.8 Except as expressly and specifically provided in the Retainer, the rights and remedies provided under the Retainer are in addition to, and not exclusive of, any rights or remedies provided by law.
14.9 Subject to clause 15 (Application of these GT&Cs and Variations), no variation of the Retainer shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
Counterparts
14.10 The Retainer 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.
Entire Agreement
14.11 The Retainer constitutes the entire agreement between the parties and supersedes and extinguishes all previous discussions, correspondence, negotiations, drafts, agreements, promises, assurances, warranties, representations and understandings between the parties, whether written or oral, relating to its subject matter. No party is liable to any other party for a representation (whether made innocently or negligently) that is not contained in the Retainer.
Force Majeure
14.12 Syncode shall not be in breach of the Retainer nor liable for delay in performing, or failure to perform, any of its obligations under the Retainer if such delay or failure result from events, circumstances or causes beyond its reasonable control, but shall notify the Customer of such occurrence as soon as reasonably practicable. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed.
15. APPLICATION OF THESE GT&CS AND VARIATIONS
15.1 These GT&Cs supersede any earlier terms of business that the parties may have agreed and, unless specifically agreed to the contrary in the Letter, shall apply to the Services and all subsequent services which Syncode provides to the Customer.
15.2 From time to time, it may be necessary for Syncode to amend or supersede these terms by new terms. Where this is the case, Syncode will inform the Customer of the proposed changes and, unless Syncode hears from the Customer to the contrary within 14 days after such notification, the variations or new terms will come into effect from the end of that period.
16. IF THE CUSTOMER IS A CONSUMER
16.1 If the Customer is a consumer, it has a statutory right under the Consumer Rights Law, L.133(I)/2013 to cancel the contract of Retainer within 14 days without giving any reason.
16.2 The right described in clause 16.1 is a statutory right in the event that the contract of Retainer is an off-premises contract or a distance contract as defined by abovementioned law. Syncode grants the Customer an equivalent right, in furtherance to its rights under clause 16.4, if the contract of Retainer is an on-premises contract (that is to say a contract other than a distance contract or an off-premises contract as so defined).
16.3 The cancellation period will expire after 14 days from the making of the contract of Retainer.
16.4 To exercise the right to cancel the Customer must inform Syncode (email: [email protected]) of its decision to cancel this contract by a clear statement (e.g. a letter sent by post or email). The Customer may use the below-mentioned standard cancellation form (which largely reproduces the statutory form), but it is not obligatory.
16.5 To meet the cancellation deadline, it is sufficient for the Customer to send its communication concerning its exercise of the right to cancel before the cancellation period has expired.
16.6 If the Customer cancels the contract of Retainer within 14 days, Syncode will make full reimbursement to the Customer of all sums properly due to it. Syncode will make the reimbursement without undue delay, and not later than 14 days after the day on which Syncode is informed about Customer’s decision to cancel this contract. Syncode will make the reimbursement using the same means of payment as used for the initial transaction, and in any event the Customer will not incur any fees as a result of the reimbursement.
16.7 If the Customer expressly requests Syncode to start work during the cancellation period the Customer shall pay Syncode’s fees and expenses, properly incurred, for the work done before it is informed of the Customer’s decision to cancel the contract.
Standard cancellation form
To Syncode Ltd, (email: [email protected])
I/We (*) hereby give notice that I/we (*) cancel my/our contract for the supply of the following service:
……… services of Syncode Ltd as set out in the Retainer letter dated…
Name of consumer (client)…
Address of consumer (client)…
Signature of consumer (client)…
Date…
(*) Delete as appropriate.
Syncode Ltd, General Terms and Conditions of Business | Effective Date: 23 October 2020