1. Service Orders 

1.1 We may enter into Service Orders with you from time to time. 

1.2 Upon execution by both you and us, each Service Order constitutes a separate Agreement incorporating these Contractor Terms. 

1.3 You agree to supply us with the Services and Deliverables in accordance with the Service Order. 

1.4 If we accept goods or services requested by us even though we did not enter into a Service Order, and those goods or services are not expressly supplied under the terms of another agreement, our acceptance of those goods or services will be deemed to create a Service Order incorporating these Contractor Terms and any goods and services supplied are deemed to be Deliverables and Services respectively, provided on these Contractor Terms and in consideration for the Fees. 

1.5 The parties may vary the Service Order from time to time in writing. 

2. Term 

The Service Order begins on the date of execution and continues until all Services and Deliverables to be supplied under the Service Order have been provided to and accepted by us or is otherwise terminated in accordance with its terms. 

3. Your general obligations 

3.1 You must: 

(a) provide the Services and Deliverables: (i) diligently, with due care and skill, to a high professional standard and in accordance with industry standards; (ii) personally or, using appropriately qualified Personnel approved by us; (iii) in a timely manner in accordance with any project plan or delivery dates set out in the Service Order or otherwise agreed between you and us; and (iv) in accordance with any specifications set out in the Service Order or otherwise agreed between you and us; 

(b) ensure the Deliverables are fit for their purpose  and comply with their description and any  samples you have provided to us;

(c) regularly update us on your progress in supplying the Services and Deliverables and  immediately notify us if you become aware of any issue that may impact your supply of the  Services or Deliverables (including delay);

(d) provide any of your Personnel engaged in the provision of the Services with a safe and secure  working environment in compliance with all applicable laws and regulations; and

(e) indemnify us, our affiliates and associates, and their and our Personnel and keep them indemnified from and against all Loss arising in connection with a breach of clause 3.1(d), 6.2(a), 8.2 or 8.3, a violation of any law or infringement of another’s rights.

4. Fees and Payments

4.1 We must pay you the Fees in accordance with this clause 4 and the Service Order. 

4.2 If the Service Order fails to specify the Fees applicable to the Services, the Fees will be calculated in  accordance with your rates and charges last agreed by us in writing, provided you have previously provided us with an estimate of the total Fees and the total Fees are no greater than that estimate.

4.3 Unless agreed otherwise in writing, you may issue invoices for the Fees upon completing the supply of the Services and delivery of all Deliverables in accordance with the Service Order. 

4.4 Subject to clause 4.5, we must pay the Fees stated in each of your invoices within 30 days of receipt of the invoice unless we have a bona fide dispute with the amount of the Fees or your entitlement to render the invoice. 

4.5 We may set-off all amounts owed to us by you against any amounts we owe to you. 

4.6 You are responsible for all costs and expenses incurred in providing the Services and Deliverables, except as incorporated into the Fees as specified in the Service Order.

5. Intellectual Property

5.1 Unless expressly stated otherwise in the Service Order: 

(a) you acknowledge and agree that: (i) all Deliverables; (ii) all other documents, software or other work developed by you in connection with providing the Services; and (iii) recordings of your performances, including training in connection with the Services, whether created before or after the date of this Agreement, are our sole property (Materials); 

(b) subject to clause 5.2, you hereby assign to us all present and future worldwide rights, title and interest (including Intellectual Property) you may  otherwise have in or to the Materials and any other Intellectual Property created by you in connection with your supply of the Services; 

(c) you hereby waive, to the maximum extent permitted by law, all moral rights you may have in the Materials and consent to any past, present or future use by us (and our assignees and licensees) of the Materials, including carrying out any acts or making any omissions that may otherwise be considered an infringement of any and all moral rights you may have, presently or in the future in the Materials, such acts including (without limitation): (i) using the Materials without attribution of authorship; (ii) falsely attributing authorship; or (iii) modifying, distorting or using the Materials in any context that we deem fit; 

(d) you must obtain: (i) a written assignment to us, on the same terms as clause 5.1(b), by any of your Personnel who may claim any right, title or interest in or to the Materials; and (ii) a written consent, on the same terms as clause 5.1(c), waiving any and all moral rights that your Personnel may have in connection with the Materials; 

(e) you must do all things reasonably necessary to perfect or give full effect to the assignments and consents in clause 5.1(b), 5.1(c) and 5.1(d), including without limitation, assisting us to secure registration of the Intellectual Property in the Materials and must not apply for or assist any third party to apply for registration of any of those rights; and 

(f) must, on the termination of this Agreement or at our earlier requests, deliver up to us all copies of the Materials.  

5.2 Except as expressly agreed in the Service Order, any Intellectual Property you own which is comprised in the  Materials but was developed by you independent from your relationship with us or our clients is not assigned to us but you grant us a perpetual, irrevocable,  worldwide, sublicenseable, royalty-free licence to use and otherwise exploit that Intellectual Property. 

5.3 You must only use any materials supplied to you by us under this Agreement solely for the purpose of complying with your obligations under this Agreement and you acknowledge that you have no proprietary rights in those materials.

6. Warranties

6.1 Each party warrants that: 

(a) it has full power and authority to enter into this Agreement; 

(b) it has not relied on any representation made by the other which has not been expressly stated in  this Agreement.

6.2 You warrant and it is a condition of this Agreement that: 

(a) your provision of the Services and Deliverables in accordance with this Agreement and our exploitation of those Services and Deliverables will not infringe the rights (including Intellectual Property) of any third party; 

(b) you are not aware of any matter (including conflict of interest) that exists or might arise during the term of this Agreement that would prevent or impede your provision of the Services in accordance with this Agreement; and 

(c) you have the necessary skills, knowledge and experience to provide the Services and Deliverables in accordance with this Agreement.

6.3 Except as provided in this clause 6 and subject only to any implied warranties that cannot legally be excluded, we make no other warranties, either express or implied, as to any matter whatsoever.

7. Confidentiality

7.1 You must:
(a) treat Confidential Information as secret and confidential and as our sole property;
(b) not use Confidential Information for any purpose other than the performance of this Agreement;
(c) ensure the Confidential Information is secured with at least the same level of security as you use to protect your own Confidential Information and in any case by no less than reasonable security measures;
(d) only disclose Confidential Information to those of your Personnel and other professional consultants who reasonably require Confidential Information to enable you to perform your obligations or exercise your rights under this Agreement;
(e) ensure that each person to whom Confidential Information has been disclosed complies, and is obliged to comply, with your obligations under this Agreement and, if reasonably required by us, executes a confidentiality deed in the form reasonably required by us; and
(f) immediately notify us if you become aware of any actual or potential breach of this clause 7 or any use or disclosure of Confidential Information by any third party.

7.2 You must not issue any public statement regarding this Agreement or any project being undertaken under this Agreement, without our prior written consent.

7.3 Clauses 7.1 and 7.2 do not apply to Confidential Information that you are required to disclose by any applicable law or legally binding order of any Court, or by a lawful requirement of any government or regulatory department, body, instrumentality, Minister, agency, recognised stock exchange or other authority which has jurisdiction over you. Before such disclosure you must, if legally entitled to do so:
(a) use your best endeavors to give us details of the information to be disclosed and the law or order requiring disclosure; and
(b) notify the entity requiring the information that it is our Confidential Information and request the entity to whom the disclosure is to be made to treat the information as confidential.

7.4 You acknowledge and agree that any use or disclosure of the Confidential Information in breach of this Agreement may cause us irreparable Loss and in addition to our other rights, we may seek urgent equitable relief without payment of any security,  including seeking an injunction and specific performance, if we become aware of any actual or potential breach of this clause 7.

8. Independent Contractors

8.1 The parties are entering into this Agreement as independent contractors and nothing in this Agreement shall imply any relationship of employer and employee, principal and agent, joint venturers, partners or any other relationship.

8.2 You must not represent yourself as having any authorization by us and must not enter into any agreement or otherwise create any liability on our behalf (or purport to do so).

8.3 You must provide your own tools and materials necessary to provide the Services and deliver the Deliverables, unless otherwise agreed in writing by you and us, and are responsible for managing and directing any of your own Personnel and paying all applicable taxes (including any value added tax, payroll and income tax), insurance and superannuation.

8.4 To the full extent permitted by law, you indemnify and must keep us and our Personnel indemnified against any obligation that may be imposed as a result of you or your Personnel being found not to be independent contractors, including taxes, insurance premiums and superannuation contributions.

9. Termination and Suspension
 
9.1 Without limiting our other rights, we may suspend the performance of our obligations under this Agreement if:
(a) you breach any provision of this Agreement and do not remedy that breach (if capable of remedy) or make reasonable compensation in money (if not capable of remedy) within 7 days after receipt of notice requiring it to do so; or
(b) we are otherwise entitled to terminate this Agreement.

9.2 Either party may terminate this Agreement immediately by written notice to the other if at any time the other party commits a breach of or fails to perform any or all of its obligations under this Agreement and does not remedy that breach or non-performance (if capable of remedy) or make reasonable compensation in money (if not capable of
remedy) within 30 days after receipt of notice requiring it to do so.

9.3 Without limiting the generality of clause 9.2, a party may terminate this Agreement with immediate effect by written notice to the other party if the other party becomes or is likely to become bankrupt or insolvent or if another agreement with the other party has been terminated due to the other party’s breach, such that the benefit derived by the party from this Agreement is materially reduced.

10. Consequences of Termination

10.1 Upon termination of this Agreement you must promptly return to us or destroy (at our election) all Confidential Information, software, data, materials and any other items of our property (including all copies), held by you, your Personnel or otherwise under your control.

10.2 Termination of this Agreement for any reason does not affect the rights and obligations of either party arising prior to termination or any right or remedy that either party may have as a result of any breach of this Agreement.

10.3 Clauses 3.1(e), 4.4-4.6, 6-8 and 9.3-13 survive termination of this Agreement.

11. Limitation of liability

11.1 To the maximum extent permitted by law, we have no liability to you for any Consequential Loss, however caused (including by breach of contract, negligence or
breach of statute), which is suffered or incurred in connection with or relating to this Agreement (including a Service Order) or otherwise arising out of the relationship between you and us, whether or not we were aware or should have been aware of the  possibility of such Consequential Loss.

11.2 To the maximum extent permitted by law, our total aggregate liability to you for any and all Loss (including Consequential Loss to the extent it cannot be excluded under clause 11.1), however caused (including by breach of contract, negligence or breach of statute), which is suffered or incurred by you in connection with or relating to the Service Order or otherwise arising out of our relationship, is limited to the Fees (less any taxes) payable to you under the Service Order but which remain unpaid.

11.3 Any liability we have to you arising in connection with this Agreement shall extend only to (and you shall, in respect of that liability, be entitled to have recourse only to) the assets of the Hyve Services SP. For the avoidance of doubt, you shall in no circumstances have any recourse in respect of any liability arising hereunder or in connection with this Agreement to the general assets of TMI SPC or to the assets of any other segregated portfolio of TMI SPC.

12. General

12.1 Any notice to or by a party under this Agreement must be in writing and signed by the sender or, if a corporate party, an authorized officer of the sender.

12.2 Any notice is effective for the purposes of this Agreement upon delivery to the recipient, or production to the sender of an email receipt confirmation.

12.3 Each obligation of a party will be suspended during the time and to the extent that the party is prevented from or delayed in complying with that obligation by Force Majeure.

12.4 We may novate, assign or sub-contract our rights and obligations under this Agreement. 

12.5 You must not novate, assign or sub-contract your rights or obligations under this Agreement without our prior written consent.

12.6 During and for 24 months after the termination of this Agreement, you must not provide any services either directly or indirectly to any of our clients during the term of this Agreement, prospective clients with whom you had any knowledge or involvement in our discussions, or offer employment or other work to any of our Personnel, or seek to direct any such person away from us to any third party.

12.7 This Agreement is governed by and construed under the law in the Cayman Islands and each party irrevocably, generally and unconditionally:
(a) submits to the exclusive jurisdiction of the courts of the Cayman Islands in relation to both itself and its property; and
(b) consents to the enforcement of any orders of such courts, if necessary, in the courts of the jurisdiction in which such property is located.

12.8 Unless otherwise specified in this Agreement, any amendment to this Agreement has no force or effect, unless effected by an agreement in writing and executed by the parties.

12.9 Excluding clauses 3.1(e), 5.1(c) and 12.13(c) this Agreement confers rights only upon a person expressed to be a party, and not upon any other person.

12.10 This Agreement: (a) expresses and incorporates the entire agreement between the parties in relation to its subject matter, and all the terms of that agreement; and
(b) supersedes and excludes any prior or collateral negotiation, understanding, communication or agreement by or between the parties in relation to that subject matter or any term of that agreement, except as contained in any document which expressly
excludes the operation of this clause 12.10.

12.11 In the event of any inconsistency between these Contractor Terms and the Service Order, the terms of the Service Order take precedence over these Contractor Terms to the extent of the inconsistency only where expressly stated and agreed to do so.

12.12 Each party must execute any agreement and perform any action necessary to give full effect to this Agreement, whether before or after performance of this Agreement. 

12.13 Any indemnity agreed by any party under this Agreement:
(a) constitutes a liability of that party separate and independent from any other liability of that party under this Agreement or any other agreement;
(b) survives and continues after performance of this Agreement; and
(c) may be directly enforced by the beneficiary of that indemnity regardless of whether the beneficiary is a party to this Agreement. 

12.14 Any failure by any party to exercise any right under this Agreement does not operate as a waiver and the single or partial exercise of any right by that party does not preclude any other or further exercise of that or any other right by that party.

12.15 Any provision of this Agreement that is invalid in any jurisdiction is invalid in that jurisdiction to that extent, without invalidating or affecting the remaining provisions of this Agreement or the validity of that provision in any other jurisdiction.

12.16 This Agreement may be executed in any number of counterparts, all of which taken together are deemed to constitute one and the same Agreement.

13. Definitions and interpretation

13.1 In this Agreement, unless the context requires otherwise: Agreement means the Service Order, or any other document executed by the parties which incorporates these Contractor Terms by reference, each of which form a separate agreement; Confidential Information means the terms of this Agreement and all and any information (whether in
intangible or any other form) provided to you by us or the business and affairs of third parties with whom we work, whether received before or after the date of this Agreement, including details of suppliers, customers, business practices and plans, actual or proposed products and services, technical information, financial models and Intellectual Property provided by or emanating from us to you in connection with this Agreement, including material incorporating or derived from any such material or information, but excludes material or information which:
(a) is at the time of disclosure, or subsequently becomes, material or information in the public domain otherwise than by a breach of a confidentiality obligation by you or a person to whom you have disclosed the information;
(b) was or becomes known by you independently of us, otherwise than by any breach of a confidentiality obligation owed by a third party to us; or
(c) is independently developed by you other than in accordance with this Agreement, without reference to the Confidential Information, as evidenced by written record; Consequential Loss means any indirect, incidental, special, economic or consequential loss, cost or damage, loss of business profits, revenue or opportunities, business interruption, loss of business information (including computer data), loss of business, loss of anticipated savings, loss of goodwill or loss due to delay; Contractor Terms means this document; Deliverables means the goods and other deliverables expressly specified in the Service Order, together with all documents, software or other materials developed or supplied by you to us in the course of providing the Services; Fees means the amounts payable to you by us, as set out in the Service Order or as otherwise agreed between the parties in writing; Force Majeure means a circumstance beyond the
reasonable control of a party and includes labour disputes, fire, floods, explosions, riots, civil disturbances, war, terrorism, unforeseeable weather conditions, natural disasters, direct government action or regulation, or acts of God that renders impossible a party’s ability to perform its obligations under this Agreement; Intellectual Property means:
(a) any commercial information, industrial or intellectual property (whether in material form or not) or rights of a proprietary nature, including without limitation: (i) any copyright, invention, patent, design, trade mark, service mark, domain name, semiconductor, idea, plant breeder’s rights, confidential information, trade secret, know-how, database; or (ii) any rights protected or recognised under any laws anywhere in the world related to the above or any similar laws; and
(b) any thing (whether in material form or not) copied or derived from the above property or rights; Loss means claims, liabilities, losses, costs, expenses and damages (including Consequential Loss and legal costs and disbursements on a solicitor and own client basis) sustained or incurred, whether directly or indirectly or consequentially or in any other way; Personnel means, in respect of a person, any of that person’s officers, employees, contractors and agents; Service Order means any written communication confirming agreement by you to supply goods or services requested by us; and Services means the services to be supplied by you as specified in a Service Order.

13.2 In this Agreement, unless the context requires otherwise:
(a) clause headings are for reference purposes only;
(b) the singular includes the plural and vice versa;
(c) reference to a person includes any other entity recognised by law and vice versa;
(d) where a word or phrase is defined its other grammatical forms have a corresponding meaning;
(e) any reference to a party to this Agreement includes its successors and permitted assigns;
(f) any reference to any agreement includes that agreement as amended at any time;
(g) the use of the word includes or including is not to be taken as limiting the meaning of the words preceding it; and
(h) reference to a statute includes all regulations and amendments to that statute and any statute passed in substitution for that statute or incorporating any of its provisions to the extent that they are incorporated.