Terms and Conditions

TERM OF AGREEMENT

• The Supplier shall supply to the Customer the Services and the Customer shall pay the Charges.
• This agreement shall be effective from the Commencement Date and shall continue in force until either it is terminated in accordance with the provisions of this agreement or until the end of the Term.

CUSTOMER ASSISTANCE

• The Customer shall co-operate with the Supplier in any manner reasonably required by the Supplier in order to carry out the Services, including, but not limited to, provision of information and data, making available suitably qualified employees and contractors of the Customer, provision of access to the Supplier’s premises and office accommodation and other facilities for the Supplier’s employees and contractors and provision of supplies reasonably required by the Supplier, such as power and computer consumables.
• The Customer shall, at its own expense, prepare its premises and hardware in accordance with the information provided by the Supplier in advance.
• The Customer shall be responsible for informing the Supplier of the requirements of the Data Protection Legislation in respect of any such Personal Data and of all the Customer’s contractual obligations relating to such Personal Data.

CHANGE CONTROL

• The Customer and the Supplier may, by giving written notice to the other of them at any time during the term of this agreement, request a change to the Services.
• Following receipt of such notice, the Supplier shall, at its standard rates then in force, prepare for the Customer a written estimate of any increase or decrease in the Charges.

ACCEPTANCE

• Acceptance of the Service shall be deemed to have occurred on whichever is the earliest of:
• the signing by the Customer of an Acceptance Certificate; or
• the expiry of the Acceptance Time after the completion of the Service
• the use of the Service or deliverables as a result of the Service by the Customer in the course of its business.

GOVERNANCE

• The Customer shall appoint the Customer Representative, who shall have the responsibility and commensurate authority for the overall progress of the Service and to whom all questions regarding this agreement can be referred.
• The Supplier shall appoint the Supplier Representative, who shall have the responsibility and commensurate authority for the overall progress of the Service and to whom all questions regarding this agreement can be referred.
• The Customer Representative shall co-operate with the Supplier Representative and shall attend meetings scheduled by the Supplier Representative to advise and assist the Supplier on all matters relating to the Service.
• The provision of employees, subcontractors and agents of the Supplier to carry out the Service shall be at the discretion of the Supplier.

SUPPLIER’S LIMITS OF LIABILITY

• The Supplier does not accept liability for any breach by the Customer of any relevant legislation and regulations which arises through use of the Services.
• All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this licence or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including, without limitation, the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
• Except as expressly stated in clauses 6.6:
• the Supplier’s liability, whether under this Contract or any collateral contract, for loss of or damage to the Customer´s tangible property caused by the negligence of the Supplier, its officers, employees, contractors or agents, shall not exceed the limit on the Supplier’s insurance from time to time as set out in the Schedule. Save as provided in clause 6.6, the Supplier hereby excludes all liability for negligence;
• the Supplier shall have no liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, which fall within the following categories:
• special damage even though the Supplier was aware of the circumstances in which such special damage could arise;
• loss of profits, anticipated savings, business opportunity or goodwill; and
• loss of data.
• Save as set out in clause 6.3, the total liability of the Supplier, whether in contract, tort or otherwise and whether in connection with this licence or any collateral contract, shall in no circumstances exceed the limit on the Suppliers’ insurance from time to time as set out in the Schedule.
• The Customer acknowledges that no representations were made prior to entering into this agreement. The Customer agrees that, in entering into this agreement, it did not rely on any representations (whether written or oral) of any kind or of any person other that those expressly set out in this agreement. The Customer shall have no remedy in respect of any representation (whether written or oral) made to it on which it relied in entering into this agreement and the Supplier shall have no liability otherwise than pursuant to the express terms of this agreement.
• The exclusions in this clause 6 shall apply to the fullest extent permissible at law, but the Supplier does not exclude liability for death or personal injury caused by the negligence of the Supplier, its officers, employees, contractors or agents for fraud, breach of the obligations implied by section 12 Sale of Goods Act 1979 or section 2 Supply of Goods and Services Act 1982, or any other liability which may not be excluded by law.

SUPPLIER PERSONNEL

• Each party agrees that when its employees, contractors and/or contractors’ employees are working on the premises of the other party, such personnel shall make themselves aware of and comply with the rules and regulations applicable to the conduct of personnel on those premises.
• The Customer shall allow the Supplier’s personnel such access to the Customer’s premises as is reasonably necessary for the Supplier to carry out its obligations to the Customer. The Customer shall provide to the Supplier all permissions necessary to obtain such access.
• During the term of this agreement and for a period of 12 months after its termination neither party shall, without the prior written consent of the other, employ or solicit the employment of, or permit any subsidiary or holding company to employ or solicit the employment of, any person who is employed by the other party in the course of developing, supplying, maintaining or supporting the Licensed Software or any part of it or in the provision of any of the Services.

INDEPENDENT CONTRACTOR

• For the purpose of the Work, the Supplier is an independent contractor and shall not hold itself out as an agent of the Customer except as expressly authorised in writing by the Customer.
• The Supplier may without the prior consent of the Customer, appoint any Sub-Contractor or use any third party to provide any of the Services.

TERMINATION

• Each party shall have the right, without prejudice to its other rights or remedies, to terminate this agreement immediately by notice to the other if the other:
  • is in material or persistent breach of any of its or its obligations under this agreement and either that breach is incapable of remedy, or that other party has failed to remedy that breach within 30 days after receiving written notice requiring it to do so; or
  • is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction.
• The Supplier shall have the right, without prejudice to its other rights or remedies, to terminate this agreement immediately by notice to the Customer if the Customer:
• undergoes a change of control save where such change of control does not result in control passing to a company that was not previously a subsidiary or holding company of the Customer or a subsidiary or holding company of such a company; or
• sells all of its assets or is merged or re-organised in circumstances where it is not the surviving entity; or
• disputes the ownership or validity of the Supplier’s Intellectual Property Rights.

CONSEQUENCES OF TERMINATION

• On expiry or termination of this agreement:
• each party shall immediately return to the other all property and materials containing confidential information belonging to the other; and
• all amounts due from the Customer under this agreement shall be paid immediately by the Customer
• all rights granted to the Customer under this agreement shall cease;
• Any termination of this agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either party, nor shall it affect the coming into force or the continuance in force of any provision of this agreement which is expressly, or by implication, intended to come into force or continue in force on or after that termination.
• The provisions of clauses 6,7.3, 11 and 14 shall survive any termination

CONFIDENTIALITY

• Each party shall, during the term of this agreement and thereafter, keep confidential all, and shall not use for its own purposes nor without the prior written consent of the other disclose to any third party any, information of a confidential nature (including, without limitation, trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party or any of its Affiliates, unless such information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this licence, or subsequently comes lawfully into the possession of such party from a third party.
• The foregoing obligations as to confidentiality shall remain in full force and effect notwithstanding any termination of this agreement.

AMENDMENT

• No amendment, waiver or variation of this agreement or any part of it shall be binding on the parties unless set out in writing, expressed to amend this agreement or the relevant part of it and signed by the Authorised Representative for each of the parties.
• Each party warrants that it has full capacity and authority, and all necessary licences, permits and consents to enter into and perform this agreement and that those signing this agreement are duly authorised to bind the party for whom they sign.

FORCE MAJEURE

• Subject to due compliance with clause 10.2 neither party shall be liable for any delay in meeting, or failure to meet, its obligations under this agreement due to any cause outside its reasonable control including (without limitation) acts of God, war, riot, malicious acts of damage, fire, acts of any government authority, failure of the public electricity supply, strike, lock-out or labour dispute or apprehension thereof (whether or not the settlement of the matter is at the discretion of the party in question).
• In the event of either party being so delayed or prevented from performing its obligations, such party shall:
• give notice in writing of such delay or prevention to the other party as soon as reasonably possible, stating the commencement date and extent of such delay or prevention, the cause thereof and its estimated duration;
• use all reasonable endeavours to mitigate the effects of such delay or prevention on the performance of its obligations under this agreement; and
• resume performance of its obligations as soon as reasonably possible after the removal of the cause of the delay or prevention.
• In the event that such delay or prevention continues for more than 30 days, the party whose performance is not delayed or prevented may terminate this agreement on 30 days´ written notice to the other party, in which case the provisions of clause 5 of this Section shall apply.

SEVERANCE

• If any provision of this agreement (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
• If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

THIRD PARTY RIGHTS

• No term of this agreement is intended to confer a benefit on, or to be enforceable by, any person who is not a party to this agreement.

ENTIRE AGREEMENT

• The parties agree that the documents listed in the sections, schedules and annexes to this agreement constitute the complete and exclusive statement of the agreement between them with respect to the subject matter of this agreement, which supersedes all proposals or representations, oral or written, and all other communications between them relating to it.

GOVERNING LAW AND JURISDICTION

• This agreement and any disputes or claims arising out of or in connection with its subject matter are governed by and construed in accordance with the law of England. The parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter.

INTELLECTUAL PROPERTY RIGHTS
Each Party hereby:

• agrees and acknowledges that the Intellectual Property Rights of each Party as at the Commencement Date are owned and will remain in the ownership of that Party (or its relevant licensor) and that nothing in this Agreement will operate to transfer or vest any such rights in the other Party or in any member of the other Party’s Group;
• grants to each other, to the extent only required to permit each Party to fulfil its obligations under this Agreement, a non-exclusive, royalty-free licence to use its software (and such other items, processes and developments) over which it has Intellectual Property Rights; and
• agrees that any licences or rights created pursuant to the provisions of this Clause 18 (Intellectual Property Rights) will automatically terminate upon expiry or termination (however effected) of this Agreement.

PR

• Except as may be required by law or by any competent authority, no publicity, announcement or marketing material concerning this Agreement or its subject matter may be undertaken, made or distributed by either Party without the consent of the other, such consent not to be unreasonably withheld or delayed.