Terms and Conditions

Efficio LLC - Terms and Conditions

1    TERMS 

Efficio LLC (“Efficio”) accepts instructions to provide services only on these terms and conditions of business together with the terms set out in our engagement letter (to which these terms are attached, the “Engagement Letter”), which together shall be referred to as the “Terms of Engagement” or the “Agreement”.  The Terms of Engagement shall constitute the entire agreement between Efficio and the client referred to in the Engagement Letter (the “Client”) relating to the services referred to in the Engagement Letter to be provided to the Client by Efficio (the “Services”).  The Client’s signed acceptance of the Engagement Letter or the commencement of performance of the Services at the request of the Client, whichever occurs earlier, shall constitute the Client’s acceptance of the Terms of Engagement.  

2    PROVISION OF SERVICES

2.1    Efficio shall use all reasonable skill and care in providing the Services.  Efficio shall be entitled to rely, without independent verification or investigation, upon any information and materials that (i) may be made available or provided by or via the Client (including all inputs listed in the Agreement as the Client’s responsibility) or any of its affiliates, employees, agents or advisors (“Client Data”) and / or (ii) may be obtained from the public domain or any generally accepted source used by professional consulting firms.

2.2    As part of the Services, Efficio may use and/or agree to provide to the Client access to and use of all or part of Efficio’s online Procurement Engine portal and services (“eFlow”) available through it or via any other means of access provided by Efficio. The Client acknowledges that access to and use of eFlow is subject to the separate eFlow terms and conditions of access and use (https://www.efficioconsulting.com/en-gb/terms-and-conditions/eflow-terms-conditions/). To the extent eFlow is used as part of the Services, the Client’s signed acceptance of the Engagement Letter or the commencement of performance of the Services shall also constitute the Client’s acceptance of the eFlow terms and conditions of access and use. If there is any conflict between the provisions of this Agreement and the eFlow terms and conditions of access and use, save where expressly stated otherwise, the eFlow terms and conditions of access and use shall prevail in respect of eFlow. 

2.3    Nothing in this Agreement shall prevent Efficio from entering into similar agreements with third parties, or from independently developing, using, selling, or licensing documentation, products and/or services which are similar to those provided under this Agreement.

3    CLIENT’S OBLIGATIONS AND ACKNOWLEDGEMENTS

3.1    The Client agrees to:

3.1.1    co-operate with Efficio in all matters relating to the Services and provide access in a timely manner where reasonably required for the performance of the Services to the Client’s premises, office accommodation and Client Data; 

3.1.2    co-operate with Efficio (or procure the relevant co-operation) in all matters relating to the identification and agreement of in-scope expenditure, addressable spend (in relation to which the Services are to be provided), baseline validation, savings measurement methodology and savings sign off (all being terms detailed in the Engagement Letter).  The Client agrees not to unreasonably withhold, delay or condition any approval or sign off process as may be reasonably requested from time to time by Efficio;

3.1.3    inform Efficio of all Health and Safety rules and regulations and any other reasonable security requirements that apply at the Client’s premises;

3.1.4    liaise with Efficio and provide all assistance as Efficio may reasonably request to enable Efficio to continue ongoing development of the Services for the benefit of the Client;

3.1.5    comply with all applicable laws and regulations with respect to its activities under this Agreement;

3.1.6    carry out all other Client responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Client’s provision of such assistance as agreed by the parties, Efficio may adjust any agreed timetable or delivery schedule as reasonably necessary; and

3.1.7    obtain and shall maintain all necessary licenses, consents, and permissions necessary for Efficio, its contractors and agents to perform their obligations under this Agreement.

3.2    The Client acknowledges that Efficio may, in providing the Services, use publicly available information and information contained in reports and other materials provided by third parties, including, without limitation, information provided by or on behalf of the Client and that Efficio does not assume responsibility for and may rely, without independent verification, on the accuracy and completeness of any such information. The Client agrees to furnish or cause to be furnished to Efficio all necessary and appropriate information for use in providing the Services under the Terms of Engagement and hereby warrants that any information relating to the Client that is provided to Efficio by or on behalf of the Client will be true and accurate in all material respects and is not misleading. 

3.3    The Client acknowledges that Efficio may change the composition of the consulting team deployed at the commencement of the Services at any time thereafter as it deems appropriate to complete the Services.

3.4    The Client agrees that any information or advice (including, without limitation, the Deliverables) rendered by Efficio under the Terms of Engagement is for the confidential use of the Client only and the Client will not, and will not permit any third party to, use any Deliverable for any other purpose or disclose or otherwise refer to such Deliverable, advice or information, without the prior written consent of Efficio (such consent not to be unreasonably withheld). 

3.5    The Client acknowledges that it is not relying on the advice of Efficio for tax, legal or accounting matters and that it will seek and will rely on the advice of its own professionals and advisors for all such matters.

3.6    As part our engagement, Efficio may be commissioned to provide Services to the Client’s associated entities and business units (“Group Entities”).  Where Efficio provides Services to a Group Entity, the Client shall procure compliance by that Group Entity with all obligations under the Agreement as if the Group Entity was the principal client and original signatory to the Engagement Letter.

4    EFFICIO’S PROPERTY AND CONFIDENTIALITY

4.1    All materials, methodologies, concepts, ideas, know-how, procedures, management tools, software, and other intellectual property that Efficio has created prior to this Agreement with the Client or may thereafter create or acquire (“Efficio IP”) shall, at all times, be and remain the exclusive property of Efficio.  Before using any intellectual property created or acquired while performing services for any third party other than the Client, Efficio shall first remove any information or materials that were furnished to Efficio by the Client and which may constitute the Client’s intellectual property. The Client acknowledges that Efficio may retain and reuse certain data contained in or derived from the Deliverables subject always to Efficio’s obligation to anonymize all such data prior to reuse (“Anonymized Data”).  Efficio may use Anonymized Data in the future development of its sourcing templates, strategies, and systems, all of which shall, at all times, be and remain the exclusive property of Efficio.  Except as provided in paragraph 5 below, the Client shall not have or acquire any title or interest in or to any Efficio IP.

4.2    The Client shall keep in strict confidence all Efficio IP and any other confidential information and materials of Efficio which have been disclosed to the Client by Efficio, its affiliates, employees, agents or advisors or any other confidential information relating to Efficio’s business which the Client may obtain.  The Client shall restrict disclosure of such confidential material to such of its affiliates, employees, agents, or advisors as need to know the same on a reasonable “need to know” basis and the Client shall ensure that such affiliates, employees, agents, or advisors are subject to obligations of confidentiality corresponding to those which bind the Client.

5    LICENSE IN RELATION TO EFFICIO IP AND USE OF THE SERVICES AND DELIVERABLES

5.1    Subject always to payment of Efficio’s fees and expenses in connection with the provision of the Services, the Client shall have an irrevocable, perpetual, non-exclusive, royalty-free right and license to use the Deliverables and Efficio IP that is contained or incorporated in the Deliverables.  Except with the prior written authority of Efficio, the Client may not use, reproduce, or display any Efficio IP or prepare any works derived from the Efficio IP or the Deliverables for the benefit of any person or entity other than the Client.  The Services and the Deliverables are personal to the Client and intended to be used solely and exclusively for the Client’s business use.

5.2    The Deliverables and Services and any recommendations made by Efficio to the Client shall not be used or relied upon by any third party.  Save as with the prior written authorization of Efficio, the Client may not publish, disclose, or refer to any Deliverables or any recommendations that Efficio may make.

6    CLIENT’S CONFIDENTIAL INFORMATION

6.1    In connection with the provision of the Services, Efficio may be provided or granted access to information and materials of the Client that may be considered to be confidential or proprietary (“Client’s Confidential Information”).  Efficio shall not disclose or make available any of the Client’s Confidential Information to any other person or make use of any of the Client’s Confidential Information for any purpose save where:

6.1.1    the Client has provided prior written authorization; or 

6.1.2    where Efficio discloses and makes available the Client’s Confidential Information on a confidential and restricted basis to its employees and sub-contractors on a reasonable “need to know” basis in connection with the Services.

6.2    Efficio may use the Client’s Confidential Information for any proper purpose related to the Services.

6.3    The Client Data shall, at all times, be and remain the exclusive property of the Client.  Except as provided in this Agreement, Efficio shall not have or acquire any title or interest in or to any Client Data.

6.4    The provisions of paragraphs 4.2 and 6.1 to 6.3 above shall not apply to any information or materials that: 

6.4.1    are already lawfully known to or in the possession of the receiving party at the time such information or materials are first disclosed or made available to the receiving party by the disclosing party;

6.4.2    are thereafter lawfully obtained by the receiving party from a person other than the disclosing party;

6.4.3    are in the public domain or generally known in the relevant trade, industry, or business at the time such information or materials are first disclosed or made available to the receiving party or thereafter come into the public domain or become generally known in the relevant trade, industry, or business other than by reason of an improper disclosure or use of the same by the receiving party; or

6.4.4    are lawfully obtained by the receiving party independent of the Services.  In addition, the receiving party may disclose and make available the other party’s confidential information to the extent required by any order of any court of competent jurisdiction or of any competent judicial, governmental or regulatory body provided that the receiving party shall, to the extent permissible by law, use all reasonable efforts to give the disclosing party prior notice of the full circumstances of the disclosure and the information that will be disclosed and consulting with the disclosing party as to possible steps to avoid or limit the disclosure required.

7    CHARGES AND PAYMENT

7.1    The charges payable for the Services shall be set out in the Engagement Letter.

7.2    Details of charges payable by the Client should the Client elect to terminate by giving notice are also set out in the Engagement Letter.

7.3    All charges quoted to the Client shall be exclusive of taxes applicable to the delivery of the Services or the Deliverables (except for taxes imposed on Efficio’s income), which Efficio shall add to its invoices at the appropriate rate.

7.4    Efficio shall invoice the Client in accordance with the payment provisions of the Engagement Letter.  The Client shall pay each invoice submitted to it by Efficio, in full and in cleared funds, within 30 days of receipt, and:

7.4.1    Efficio reserves the right to perform the Services by installments and to render a separate invoice in respect of each such installment; and

7.4.2    if Efficio exercises its right to perform the Services in accordance with sub-paragraph 7.4.1, then any delay in the provision of such Services, or a failure to perform any further installment or installments, shall not entitle the Client to terminate the Terms of Engagement or reject the performance of any installment or to withhold payment in respect of any installment previously delivered.

7.5    Where Efficio has commenced performance of the Services at the request of the Client (without the Client having signed Engagement Letter) then Efficio reserves the right to invoice for all services performed during the term of the Agreement (plus all reasonably incurred expenses) using the fee calculation methodology contained in the unsigned Engagement Letter or by reference to the market value of the benefit received (and which Efficio reasonably believes will be received) by the Client as a result of Efficio’s performance of the Services. All Services performed prior to the signature of the Engagement Letter shall be subject to the terms of the Agreement.

7.6    This paragraph 7.6 may be effective in circumstances where Efficio has a bonus fee as part payment for the provision of the Services and where the bonus fee structure has been calculated by reference to agreed “addressable spend” and/or “in-scope” categories of Client expenditure.  Where the Client elects to remove any part of the agreed “addressable spend” or all or part of any category of expenditure from the scope of the Services at any time after Gate 1 (as defined in the Engagement Letter) then Efficio may make such adjustment to the contingent fee structure as is equitable in light of the Client’s reduction of the level of required Services.

7.7    Unless otherwise agreed in writing by Efficio, all Services shall be deemed completed upon sign off of the last category of expenditure (as described in the Engagement Letter).
7.8    Without prejudice to any other right or remedy that Efficio may have, if the Client fails to pay Efficio on the due date, Efficio may:

7.8.1    charge interest on such sum from the due date for payment at a rate equal to the lesser of either (a) two percent (2%) above the prime rate as reported by the Federal Reserve Bank of New York, located in New York, New York, from time to time, accruing on a daily basis, and being compounded quarterly until payment is made, whether before or after any judgment, or (b) the maximum rate permitted by applicable law; and

7.8.2    suspend all services until payment has been made in full.

7.9    All sums payable to Efficio under this Agreement shall become due immediately on its termination, despite any other provisions in the Engagement Letter.  This paragraph 7.9 is without prejudice to any right to claim for compensation under the law, or any such right under this Agreement.

7.10    Efficio reserves the right to increase the charges on January 1st every calendar year ("Adjustment Date"), to have effect from the day following the Adjustment Date for the respective calendar year by an amount equal to the percentage rate of increase for the immediately preceding 12-month period in the Consumer Price Index, All Urban Consumers, United States, All Items (1982 - 1984 = 100) (“CPI Value”), as published by the Bureau of Labor Statistics of the United States Department of Labor at the Adjustment Date (“Inflation Adjustment”). For the avoidance of doubt: (a) the charges set out in the Engagement Letter are subject to the first Inflation Adjustment, the adjusted charges based on the first Inflation Adjustment are subject to the second Inflation Adjustment and so on; (b) if a relevant CPI Value would ever be negative, Efficio is entitled to continue charging (i) the charges set out in the Engagement Letter or (ii) a higher amount based on a previous Inflation Adjustment, as applicable. Efficio will issue a respective adjustment notice as soon as reasonably practicable and in advance of the next invoice charging the adjusted amount and the Engagement Letter shall be deemed to have been amended accordingly.

7.11    Where any dispute arises between Efficio and the Client over the level of negotiated, recognized, anticipated or achievable savings (“Savings”) or the level of billable consultant man days on which Efficio’s charges are to be calculated, the matter shall be referred to an Expert, as defined and appointed in accordance with this paragraph (except that the Client may not invoke this determination procedure where the Agreement has been terminated by notice by either party in accordance with the provisions of the Engagement Letter (triggering a termination fee calculated by reference to the number of consultant man-days expended by Efficio)):

7.11.1    within seven days of either party serving a resolution notice requiring the appointment of an Expert to resolve a dispute, the parties shall use their respective best efforts to agree on the appointment of an independent Expert and agree with the Expert the terms of their appointment;

7.11.2    if the parties are unable to agree on an Expert or the terms of their appointment within seven days of either party serving details of a suggested Expert on the other, either party shall then be entitled to request that the American Arbitration Association (“AAA”) nominate a qualified solicitor and mediator with international experience in procurement.  The parties then agree to appoint that nominee as Expert.  AAA, or the Expert, may then provide directions as to the terms of the appointment;

7.11.3    the Expert is required to prepare a written decision and give notice of the decision to the parties within a maximum of two months of the matter being referred to the Expert;

7.11.4    if the Expert dies or becomes unwilling or incapable of acting or does not deliver the decision within the time required by this paragraph 7.11.4, then:

7.11.4.1    either party may apply to the AAA to discharge the Expert and to appoint a replacement Expert with the required expertise; and

7.11.4.2    this paragraph 7.11 shall apply to the new Expert as if they were the first Expert appointed.

7.11.5    The parties are entitled to make submissions to the Expert including oral submissions and will provide (or procure that others provide) the Expert with such assistance and documents as the Expert reasonably requires for the purpose of reaching a decision.

7.11.6    Each party shall with reasonable promptness supply each other with all information and give each other access to all documentation and personnel and/or things as the other party may reasonably require to make a submission under this paragraph 7.11.6 (for the avoidance of doubt nothing in this paragraph will constitute any waiver of legal privilege nor oblige a party to disclose privileged information).

7.11.7    The Expert shall act as an Expert and not as an arbitrator, the Expert shall determine the amount of Savings recognized in accordance with methodologies contained in the Engagement Letter and/or the level of relevant consultant man days which are billable by Efficio.  The Expert’s written decision on the matters referred to them shall be final and binding on the parties in the absence of manifest error or fraud.

7.11.8    The Expert may direct that any legal costs and expenses incurred by a party in respect of the determination shall be paid by another party to the determination on the general principle that costs should follow the event, except where it appears to the Expert that, in the circumstances, this is not appropriate in relation to the whole or part of such costs.  The Expert’s fees and any costs properly incurred by them in arriving at their determination (including any fees and costs of any advisers appointed by the Expert) shall be borne by the parties equally or in such other proportions as the Expert shall direct.

7.11.9    All matters concerning the process and result of the determination by the Expert shall be kept confidential among the parties and the Expert.

7.11.10    Each party shall act reasonably and co-operate to give effect to the provisions of this paragraph 7.11 including acting promptly and in good faith at all times in relation to the appointment of the Expert and the agreement of the Expert’s terms of appointment and otherwise do nothing to hinder or prevent the Expert from reaching their determination.  Each party agrees not to unreasonably withhold any consent which may be required at any time in relation to the Expert determination process contemplated by this paragraph 7.11.

8    DISCLAIMER

8.1    EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, EFFICIO MAKES NO, AND EXPRESSLY DISCLAIMS ANY, WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE, WARRANTIES OF TITLE OR WARRANTIES OF ANY MATERIALS, PRODUCTS, DELIVERABLES OR SERVICES.  EFFICIO DOES NOT GUARANTEE THAT ANY RECOMMENDATIONS MAY BE IMPLEMENTED AT THE COST OR WITH THE RESULTS THAT EFFICIO MAY ESTIMATE OR PROJECT OR THAT ANY WORK, PRODUCT OR DELIVERABLE WILL BE ERROR FREE.

9    LIMITATION OF LIABILITY

9.1    This paragraph 9 sets out the entire financial liability of Efficio (including any liability for the acts or omissions of its employees, agents, and sub-contractors) arising out of or in connection with this Agreement including without limitation in respect of (i) any breach of this Agreement; (ii) any use made by the Client of the Services, the Efficio IP, the Deliverables or any part of them; and (iii) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.

9.2    Nothing in this paragraph limits or excludes the liability of Efficio for death or personal injury resulting from negligence; for fraud or fraudulent misrepresentation by Efficio; or for any other liability that cannot be excluded or limited by applicable law.

9.3    SUBJECT TO 9.2, EFFICIO SHALL NOT BE LIABLE, WHETHER IN TORT (INCLUDING NEGLIGENCE, OR BREACH OF STATUTORY DUTY), CONTRACT, MISREPRESENTATION OR OTHERWISE FOR LOSS OF PROFIT; LOSS OF BUSINESS; DEPLETION OF GOODWILL AND/OR SIMILAR LOSSES; LOSS OF ANTICIPATED SAVINGS; LOSS OF USE OR INTERRUPTION OF BUSINESS; LOSS OR CORRUPTION OF DATA OR INFORMATION; OR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR PURE ECONOMIC LOSS, COSTS, DAMAGES, CHARGES, OR EXPENSES.

9.4    EFFICIO’S TOTAL 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 THIS AGREEMENT, INCLUDING INSOFAR AS IT RELATES TO THE OBLIGATIONS SET OUT IN PARAGRAPH 17 OR APPLICABLE DATA PROTECTION LAWS, SHALL BE LIMITED TO THE FEES PAID (EXCLUDING PAYMENTS FOR TAXES AND EXPENSES BY THE CLIENT TO EFFICIO FOR THE SERVICES) DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE.

10    INDEMNIFICATION

10.1    To the fullest extent permitted by applicable law, the Client shall indemnify and hold harmless Efficio and its assignees, subcontractors, members, shareholders, directors, officers, managers, partners, employees, agents and consultants (collectively, “Efficio Indemnitees”), from and against all (A) claims and causes of action, pending or threatened, of any kind, (whether based on contract, tort or otherwise) by third parties, including any affiliate of the Client (“Client Indemnified Claims”), related to or arising out of (1) the use or reliance on, any Deliverable or any portion, abstract or summary thereof by any person or entity that obtains access to it, directly or indirectly, from, through or at the request of the Client, (2) any bodily injury to, or death of, any personnel of Efficio or any subcontractor of Efficio, or any physical damage to tangible property of Efficio or any of its personnel or subcontractors, to the extent that such injury or damage results from the negligent or intentional (if wrongful) act or omission of the Client, (3) the Client’s failure to provide timely, accurate and complete information and resources as necessary for Efficio to perform the Services in accordance herewith, (4) the infringement by any Client Data upon any copyright, trademark, trade secret or patent of a third party, and (B) liabilities, losses,  costs, expenses (including, without limitation, reasonable outside attorneys’) and damages (collectively, “Losses”) suffered or incurred by any of the Efficio Indemnitees in connection with any Client Indemnified Claims.

10.2    To the fullest extent permitted by applicable law, Efficio shall indemnify, defend and hold harmless the Client and its assignees, subcontractors, members, shareholders, directors, officers, managers, partners, employees, (collectively, “Client Indemnitees”), from and against all (A) claims and causes of action, pending or threatened, of any kind, (whether based on contract, tort or otherwise) by third parties, including any affiliate of Efficio (“Efficio Indemnified Claims” and, together with Client Indemnified Claims, “Claims”) related to or arising out of (1) any bodily injury to, or death of, any personnel of the Client, or any physical damage to tangible property of the Client or any of its personnel, to the extent that such injury or damage results from the negligent or intentional (if wrongful) act or omission of Efficio, or (2) the infringement by any Deliverable upon any copyright, trademark, trade secret or patent of a third party, and (B) Losses suffered or incurred by any of the Client Indemnitees in connection with any such Efficio Indemnified Claims.  Notwithstanding the foregoing, Efficio shall have no indemnification obligation under clause (2) of the preceding sentence to the extent that the alleged infringement arises out of or results from (w) Client Data, materials or other content provided by, from, through or at the request of, the Client, (x) the Client’s use of the Deliverables, other than as contemplated herein or in the relevant Engagement Letter, (y) any modification or alteration to, or of, the Deliverables, or (z) Efficio’s compliance with Client’s designs, specifications, requests or instructions in the creation of the Deliverables.

10.3    Each indemnitee shall give prompt notice of its receipt of any threat, indication or other notice of any Claim, investigation or demand that might give rise to any Losses required to be indemnified hereunder.  The indemnifying party shall have the right to conduct defense of such action at its sole expense. Each indemnifying party shall reimburse the respective indemnitees for such Losses as they are incurred by such indemnitees.

11    STATUS OF EFFICIO

11.1    Efficio will be acting solely as an independent contractor in performing the Services and neither Efficio nor any of its employees, associated consultants or sub-contractors shall be deemed to be employees of the Client for any purpose.

11.2    The Terms of Engagement constitute a contract for services with the Client and the Client acknowledges that Efficio (and all of its employees, associated consultants or sub-contractors) provides procurement consultancy services and at no time provides staff augmentation or provision of manpower.

11.3    Nothing in the Terms of Engagement is intended to, or shall operate to, create a partnership between the parties or to authorize either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

12    SUSPENSION AND TERMINATION

12.1    Subject to paragraph 12.3, this Agreement shall terminate automatically on completion of the project or assignment as set out in the Engagement Letter.

12.2    Without prejudice to any other rights or remedies which the parties may have, either party may, at any time and for any reason, suspend the performance of the Services and/or terminate Efficio’s engagement to perform the Services, in whole or in part, by giving not less than 30 days written notice to the other party or immediately on giving notice to the other if:

12.2.1    the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 15 days after being notified in writing to make such payment;

12.2.2    the other party commits a material breach of any of the Terms of Engagement and (if such breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; 

12.2.3    the other party (a) files for bankruptcy, (b) becomes or is declared insolvent, or is the subject of any bona fide proceedings related to its liquidation, administration, provisional liquidation, insolvency, or the appointment of a receiver or similar officer for it, (c) passes a resolution for its voluntary liquidation, (d) has a receiver or manager appointed over all or substantially all of its assets, (e) makes an assignment for the benefit of all or substantially all of its creditors, (f) enters into an agreement or arrangement for the composition, extension, or readjustment of substantially all of its obligations or any class of such obligations, (g) fails or become incapable of paying its debts as they become due or is otherwise in default under material contracts and fails to promptly cure such defaults, or (h) experiences an event analogous to any of the foregoing in any jurisdiction in which any of its assets are situated; 

12.2.4    (in relation only to Efficio’s rights of suspension and/or termination), the Client has failed to provide to Efficio a purchase order in accordance with the Engagement Letter or within 15 days of request in writing by Efficio.

12.3    Upon termination of this Agreement for any reason:

12.3.1    the Client shall immediately pay to Efficio (i) all of Efficio’s outstanding unpaid invoices, (ii) the bonus fee payable upon early termination as set out in the Engagement Letter and (iii) interest and, in respect of Services supplied but for which no invoice has been submitted, Efficio may submit an invoice, which shall be payable immediately on receipt;

12.3.2    each party shall return and make no further use of any equipment, property, documentation and other items (and all copies of them) belonging to the other party;

12.3.3    Efficio may destroy or otherwise dispose of any of the Client Data in its possession unless Efficio receives, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to the Client of the then most recent back-up of the Client Data. Efficio shall use reasonable commercial efforts to deliver the back-up to the Client within 30 days of its receipt of such a written request, provided that the Client has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Client shall pay all reasonable expenses incurred by Efficio in returning or disposing of Client Data; and

12.3.4    the accrued rights of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.

13    PUBLICITY

Save with the prior written consent of Efficio, the Client shall not publicly disclose (in any press release, prospectus, offer document or otherwise) that Efficio is performing the Services, the nature of the Services or any Deliverables.

14    EMPLOYEES OF EFFICIO

14.1    During the provision of Services by Efficio and for a period of one year after the termination of the Agreement for any reason, the Client shall not directly or indirectly:

14.1.1    enter into an agreement or arrangement for the provision of services (including as an officer, employee, partner, consultant, sub-contractor, agent or otherwise) with any current or former employee of Efficio or any consultant or sub-contractor engaged by Efficio (“Efficio Personnel”) who, at the time of entering into such agreement or arrangement with the Client, is providing or has at any time in the past year provided any Services to the Client under the Terms of Engagement; or

14.1.2    solicit, induce, persuade, or attempt to solicit, induce, or persuade any Efficio Personnel who is providing or has provided the Services to the Client under the Terms of Engagement to terminate his or her employment or consultancy agreement with Efficio.

14.2    Should the Client breach any provision of paragraph 14.1 above, the Client agrees to pay to Efficio on demand an introduction fee equivalent to 25% of the annualized payments made to the relevant Efficio Personnel prior to the breach calculated at 35 hours per week over 52 weeks.

15    FORCE MAJEURE

Efficio shall have no liability to the Client under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes, failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, pandemics, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.

16    COMPLIANCE WITH LAWS AND POLICIES

16.1    In performing its obligations under the Agreement, both parties shall comply with (i) all applicable laws, statutes, and regulations from time to time in force; and (ii) Efficio’s policies (as amended from time to time), or have and maintain throughout the term of this agreement its own policies and procedures, to ensure its compliance with: (a) modern slavery and human trafficking; (b) corporate and social responsibility; (c) anti-bribery and anti-corruption; (d) ethics; and (e) data protection and privacy.

16.2    Without prejudice to the generality of paragraph 16.1, neither party will engage in any activity, practice or conduct which would constitute an offense under the Foreign Corrupt Practices Act (FCPA) or the Trafficking Victims Protection Act of 2000, as amended (TVPA).

16.3    Either party may terminate this Agreement with immediate effect by giving written notice to the other if that other commits a breach of paragraph 16.1.

17    DATA PROTECTION

17.1    In this paragraph 17:
(a) “Applicable Data Protection Laws" means (i) to the extent the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (United Kingdom General Data Protection Regulation), as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018 as modified by Schedule 1 to the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 (“2019 Regulations”) ("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 (including but not limited to The Privacy and Electronic Communications (EC Directive) Regulations 2003), as amended from time to time; (ii) to the extent the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data ("EU GDPR") applies, the law of the European Union or any member of the European Union to which Efficio is subject, which relates to the protection of personal data, as amended from time to time; (iii) to the extent the California Consumer Privacy Act of 2018 (“CCPA”) or the California Privacy Rights Act of 2020 (“CPRA”) applies, the laws of the State of California which relate to the protection of personal information, as amended from time to time; (iv) to the extent the Massachusetts Data Security Regulation applies, the laws of the Commonwealth of Massachusetts which relate to the protection of personal data, as amended from time to time; or (v) to the extent another US State’s data privacy laws apply, the laws of such State which relate to the protection of personal data, as amended from time to time; 
(b) "Applicable Laws" means (i) to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom; (ii) to the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which Efficio is subject; (iii) to the extent the CCPA or CPRA applies, the law of the State of California; (iv) to the extent the Massachusetts Data Security Regulation applies, the law of the Commonwealth of Massachusetts, or (v) to the extent another US State’s data privacy laws apply, the laws of such State;
(c) “Business”, “Business Purpose”, “Consumer”, “Controller”, “Processor”, "Data Subject", “Personal Data”, “Personal Information”, "Personal Data Breach", “Processing” (or their equivalents), and “Service Provider” have the meanings as defined in the Applicable Data Protection Laws; and
(d) "Client Personal Data" means Client Data containing Personal Data or Personal Information. 

17.2    Both parties will comply with all applicable requirements of Applicable Data Protection Laws. This paragraph 17 is in addition to, and does not relieve, remove, or replace, a party's obligations under the Applicable Data Protection Laws.  

17.3    The parties acknowledge and agree that the primary purpose of the Services is not the Processing of Personal Data or Personal Information and the primary content of the Client Data is not Personal Data or Personal Information. To the extent that Client Personal Data of EU or UK Data Subjects is concerned, the Client will be considered the Controller of the same with rights to determine the purposes for which the Client Personal Data is analysed, reviewed, disclosed, or processed during the provision of the Services and Efficio the Processor.  To the extent that Client Personal Data of California Consumers is concerned, the Client shall be considered the Business, and Efficio a Service Provider.  Efficio shall Process the Client Personal Data on behalf of the Client in accordance with this Agreement.   Efficio shall use Client Personal Data of California Consumers only for the purpose of performing the Services under this Agreement, and shall not sell such Client Personal Data or share it for cross-contextual behavioral advertising.  Specifically, the Business Purpose of Efficio’s Processing of Client Data of California Consumers is to reduce Client’s procurement costs, and such Client Data is primarily business contact information of Client employees or consultants or vendors or potential vendors.  Nothing in the Terms of Engagement will restrict or limit in any way the Client’s rights or obligations as owner and/or Controller of the Client Personal Data for such purposes. 

17.4    By entering into this Agreement, the Client consents to (and shall procure all required consents in respect of) all actions taken by Efficio in connection with the Processing of Client Personal Data.  Client agrees that it will not share any Personal Information about Client customers with Efficio. 

17.5    Without prejudice to the generality of paragraph 17.2, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Client Personal Data to Efficio for the duration and purposes of this Agreement.

17.6    Without prejudice to the generality of paragraph 17.2, Efficio shall, in relation to any Client Personal Data Processed in connection with and for the purpose of the performance of Efficio's obligations under this Agreement:

17.6.1    Process that Client Personal Data only on the written instructions of the Client (this Agreement included) unless Efficio is required by Applicable Laws to otherwise process the Client Personal Data; where Efficio is relying on Applicable Laws as the basis for processing Client Personal Data, Efficio shall notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Efficio from so notifying the Client on important grounds of public interest. Efficio shall inform the Client if, in the opinion of Efficio, the instructions of the Client infringe Applicable Data Protection Laws;

17.6.2    ensure that it has in place appropriate technical and organizational measures to protect against unauthorized or unlawful Processing of Client Personal Data and against accidental loss or destruction of, or damage to, Client Personal Data, which the Client has reviewed and confirms are appropriate to the harm that might result from the unauthorized 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;

17.6.3    ensure that all personnel who have access to and/or process Client Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality; 

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

17.6.5    notify the Client without undue delay on becoming aware of a personal data breach involving Client Personal Data;

17.6.6    notify the Client in the event Efficio determines that Efficio can no longer meet its obligations under California law; 

17.6.7    at the written direction of the Client, delete or return Client Personal Data and copies thereof to the Client on termination of the Agreement unless Efficio is required by Applicable Laws to store that Client Personal Data; for the purposes of this paragraph 17.6.6, Client Personal Data shall be considered deleted where it is put beyond further use by the Efficio; and

17.6.8    maintain complete and accurate records and information to demonstrate its compliance with this paragraph 17 and allow for audits by the Client or the Client’s designated auditor for this purpose, on reasonable written notice.

17.7    The Client hereby provides its prior, general authorization for Efficio to: 

17.7.1    appoint third party Processors to Process Client Personal Data of EU and UK Data Subjects and subcontractors to Process Client Personal Data of California Consumers under this Agreement for the purposes of assisting with the provision of the Services, provided that (a) Efficio shall ensure that the terms on which it appoints such Processors and subcontractors comply with Applicable Data Protection Laws and are consistent with the obligations imposed on Efficio under this paragraph; (b) Efficio remains responsible for the acts and omission of any such processor as if they were acts and omissions of Efficio; (c) informs the Client of any intended changes concerning the addition or replacement of such processors, thereby giving the Client the opportunity to object to such changes provided that if the Client objects to the changes and cannot demonstrate, to Efficio's reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Laws, the Client shall indemnify Efficio for any losses, damages, costs (including legal fees) and expenses suffered by Efficio in accommodating the objection and

17.7.2    if applicable, transfer any Client Personal Data of UK and EU Data Subjects as required for purposes of this Agreement outside of the UK or EU to a country without adequate protection for personal data, provided that the Efficio shall ensure that all such transfers are affected in accordance with Applicable Data Protection Laws. For these purposes, the Client shall promptly comply with any reasonable request of Efficio, including any request to enter into standard contractual clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the UK Information Commissioner from time to time (where the UK GDPR applies to the transfer).

17.8    If applicable, either party may, at any time on not less than 30 days’ notice, revise this clause by replacing it (in whole or part) with any applicable standard clauses approved by the EU Commission or the UK Information Commissioner's Office or forming part of an applicable certification scheme or code of conduct, which shall apply when replaced by attachment to this Agreement, but only in respect of such matters which are within the scope of such amended terms.

18    WAIVER

18.1    A waiver of any right of this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.

18.2    Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.

19    SEVERANCE

19.1    If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable, or illegal, the other provisions will remain in force.

19.2    If any invalid, enforceable or illegal provision would be valid, enforceable, or legal if some part of it were deleted, that provision will apply with whatever modification is necessary to make it valid, enforceable and legal.

19.3    The parties agree, in the circumstances referred to in paragraph 19.1 and if paragraph 19.2 does not apply, to attempt to substitute for any invalid, unenforceable or illegal provision a valid, enforceable and legal provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision.

20    STATUS OF PRE-CONTRACTUAL STATEMENTS

Each of the parties acknowledges in entering into the Terms of Engagement that it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to the Terms of Engagement or not) relating to the subject matter of this Agreement, other than as expressly set out in the Terms of Engagement. The Terms of Engagement shall prevail over any inconsistent terms or conditions contained, or referred to, in the Client’s correspondence, request for proposal, prior proposal, purchase order or other document of the Client.

21    ASSIGNMENT

21.1    The Client shall not, without the prior written consent of Efficio, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights (including the license to use Efficio IP) or obligations under this Agreement.

21.2    Efficio may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

22    NO THIRD PARTY BENEFICIARIES

This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns).

23    VARIATION

No variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorized representatives).

24    GOVERNING LAW AND JURISDICTION

24.1    This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, the law of State of New York.

24.2    The parties irrevocably agree that the applicable Federal or State Courts located in the City of New York shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).