Terms & Conditions

TERMS AND CONDITIONS OF SALE

PARTIES

AVIUS LIMITED

Incorporated and registered in England and Wales with company number 05781390 whose registered office is at Dean Park House, 8-10 Dean Park Crescent, Bournemouth, BH1 1HL – Supplier

The CUSTOMER – as defined in the Sales Contract – Customer


AGREED TERMS


1. INTERPRETATION

1.1 The definitions and rules of interpretation in this clause apply in this Agreement:

Apple IOS: iOS is Apple’s mobile operating system.

Bouncepad Screen Printing: the process of printing onto the faceplate of each Bouncepad.

Business Requirements Specification: the specification agreed between the Customer and the Supplier which sets out the Customer’s business requirements regarding the System.

Commencement Date: the date on which the Sales Contract is executed.

Completion Date: the date stated in the Sales Contract by which the Supplier is to provide the System Ready for Service.

Confidential Information: information of commercial value, in whatever form or medium, which has been kept confidential by the party (or any of its Affiliates) from whom the information originates and which has not come into the public domain during the term of this Agreement in breach of any obligation of confidence, including information relating to the System or any of its constituent parts, the Source Code relating to the System or any such parts, commercial or technical know-how, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing.

Contract Year: any 12-month period ending on any anniversary of the Commencement Date.

Customer Hardware: all the equipment to be supplied by the Customer as set out in the Sales Contract.

Customer Representative: a person duly authorised by the Customer to act on its behalf for the purposes of this Agreement and identified to the Supplier by written notice from the Customer.

Data Protection Law: all applicable data protection law and regulations in any jurisdiction.

Defect: an error in the Software that causes it to fail to operate substantially in accordance with the relevant Documentation.

Dispute Resolution Procedure: the procedure for dealing with disputes under this Agreement as set out in Clause 36.

Documentation: the operating manuals, user instruction manuals, technical literature and all other related materials in human-readable and or machine-readable forms supplied by the Supplier.

Email Trigger Alerting: email trigger alerts are delivered by email if certain (usually poor) conditions are met upon completion of a survey. This would allow a site to be alerted within seconds of a survey reporting the experience below standard. These alerts will only be delivered once the survey result is uploaded to the Supplier’s Server. If the device is offline then the alert will only be sent once the survey results are uploaded to the Supplier’s Server.

Good Industry Practice: the exercise of that degree of skill, care, prudence, efficiency, foresight and timeliness as would be expected from a leading company within the relevant industry or business sector.

Guided Access: this setting can limit an iPad to a single app. Guided Access will be used to restrict the iPad to the Customer survey app and disable the iPad hardware buttons.

Hardware: the Hardware as defined in the Sales Contract.

Hardware Delivery Date: as defined in the Sales Contract.

Installation Date: this shall be the Hardware Delivery Date.

Intellectual Property Rights: all patents, copyrights, design rights, trademarks, service marks, trade secrets, know-how, database rights and other rights in the nature of intellectual property rights (whether registered or not) and all applications for the same which may now or in the future subsist anywhere in the world, including the right to sue for and recover damages for past infringements.

Licence: the licence granted under Clause 12.

Licensed Software: the Supplier Software as specified in the Sales Contract.

Licensed Users: the employees and agents of the Customer who use the Licensed Software.

Manufacturers’ Warranties: the warranties given by any third-party manufacturer in relation to any item of the Supplier Hardware.

New Release: a new release of all or any part of the Supported Software suitable for use by the Customer in which previously identified faults have been remedied or to which any modification, enhancement, revision or update has been made, or to which a further function or functions have been added.

New Version: a new version of the Licensed Software released by the Supplier after the Acceptance Date which provides additional or improved functionality or performance.

Normal Working Hours: the hours 9:00 to 17:00 GMT Monday to Friday, except English Bank Holidays.

Organisation Setup: the process of setting up the Customer on the Supplier’s reporting Servers.

Personal Data: data subject to protection under Data Protection Law in any jurisdiction.

Price: the aggregate price for the Work (other than Training and any other Support Services) and the Licence, as specified in the Sales Contract.

Project Manager: the Supplier employee appointed in the Sales Contract who has overall responsibility for the Work.

Questions Creation: the process of creating a question to be used on the survey system. I.E. “Are you male or female?” Questions can be compiled together to create a survey file which is loaded onto the survey device.

Ready for Service: installed, tested and having passed or deemed to have passed all Supplier tests.

Report Manager: web based reporting system where the Customer can access their live data and reports.

Report Manager Setup: the process of setting up each site with a user account to access the online reporting system. Each site will be issued with a unique username and password.

Scanner and Bouncepad Upgrade: this is the one off charge to supply an alternate Bouncepad head to accommodate a magnetic swipe scanner. The scanner will be: ‘uDynamo’ device supplied from MagTek.

Sales Contract: the documents executed by both parties containing the variables of the Agreement and acknowledgement that they will be bound by these terms and conditions.

Services: the services to be provided by the Supplier under this Agreement, and any data migration referred to in the Business Requirements Specification.

Service Level Agreement: part of a service contract where a Service is formally defined between a Supplier and Customer.

Site(s): the location(s) at which the System is to be installed as specified in the Sales Contract.

Site Setup: adding the individual Customer Site(s) to the Organisation. Only applicable to new Site(s) and will be billed for the first year only. If a Site has more than one device installed to the same location the Site Setup charge is only charged once.

Software Delivery Date: shall be the Hardware Delivery Date.

Source Code: the source code of the software to which it relates, in the language in which the software was written, together with all related flow charts and technical documentation, all of a level sufficient to enable the Customer’s development personnel to understand, develop and maintain that software.

SQL Server Reporting Services: a server-based report generation software system from Microsoft.

Subscription: an automated email sent to a specified email address.

Supplier Hardware: all the computers and other equipment to be supplied by the Supplier as set out in the Sales Contract.

Supplier Software: the Software as set out in the Sales Contract.

Support Services: those Services as set out in Clause 16.

Support Charges: those charges as set out in the Sales Contract.

Support Staff: those officers, employees, agents or subcontractors of the Supplier connected with this Agreement, including those individuals who perform the Supplier’s obligations under this Agreement.

System: the system consisting of the Supplier Hardware, the Supplier Software and the Documentation.

Technical Specification: the specification of the system agreed between the Supplier and the Customer to meet the Business Requirement Specification.

Theme Design: the combination of images and colours on the Hardware to match the Customers brand. This would include a background image, title screen and other branding.

Tools: any tools and know-how developed and methods invented by the Supplier in the course of, or as a result of, carrying out the Work, whether or not developed or invented specifically or used exclusively to carry out the Work.

VAT: value added tax chargeable under the Value Added Tax Act 1994 and any similar additional tax or any other similar turnover, sales or purchase tax or duty levied in any other jurisdiction.

Work: all the works, duties and obligations to be carried out by the Supplier under this Agreement.

Workflow Engine: this evaluates conditions such as response to previous question, time of day, date and chance to determine which
questions to ask each user.

XML (Extensible Markup Language): a simple, very flexible text format which the survey question files are written in.

1.2. A reference to one gender includes a reference to other genders.

1.3. Words in the singular include the plural and in the plural include the singular.

1.4. References to including or includes shall be deemed to have words “without limitation” inserted after them.

1.5. A reference to a particular law is a reference to it as it is in force for the time being taking into account of any amendment, extension, application or re-enactment, and includes any subordinate legislation for the time being in force made under it.

1.6. Except where a contrary intention appears, a reference to a clause, schedule or annex is a reference to a clause of, or schedule or annex to, this Agreement.

1.7. Clause and schedule headings do not affect the interpretation of this Agreement.

1.8. Writing or written includes faxes, but neither e-mail not any other form of electronic communication, except where expressly provided to the contrary.

1.9. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors or permitted assigns.

 

2. SCOPE

2.1. The Supplier grants the Licence and shall supply to the Customer, in accordance with this Agreement:

  1. the Support Services.
  2. the Services specified in the Sales Contract; and
  3. the Supplier Software and the Documentation
  4. the Supplier Hardware

2.2. The Price is specified in the Sales Contract.

2.3. The supply under Clause 2.1 and Price are subject to the terms and conditions set out in this Agreement and the Sales Contract.

 

3. HARDWARE PRODUCTS TO BE PROVIDED

3.1. The Supplier shall supply all items of Supplier Hardware, together with all related Documentation provided by third-party manufacturers of items of Supplier Hardware.

3.2. The Customer shall provide all cabling and other equipment needed for the installation of the Supplier Hardware at the Site(s), including any equipment needed to connect and interface Supplier Hardware with Customer Hardware.

3.3. The Supplier will deliver the Hardware directly to the Site(s) already set up by the Supplier and with the Supplier Software ready loaded. Each Site will be provided with the Documentation explaining how to make updates and activate the Hardware. Each Site will simply be required to connect the device to their Wi-Fi via Settings. The Floor Mounts will be delivered direct from the manufacturer to the site for them to assemble and install. The Customer will secure the mounts to the floor with anchor bolts in the Customers desired location.

 

4. HARDWARE DELIVERY AND DELAYS

4.1. The Supplier shall deliver the items of Supplier Hardware to the Site(s) by the applicable Hardware Delivery Dates.

4.2. If any delivery is delayed at the request of, or because of the acts or omissions of, the Customer the Hardware Delivery Date shall be amended to take account of such delay. If the Supplier can demonstrate that the delay resulted in an increase in cost to the Supplier of carrying out its obligations under this Agreement, the Supplier may at its sole discretion increase the Price by an amount not exceeding any such demonstrable cost. The Supplier may invoice the Customer for any additional monies that become payable in this way within 30 days of demonstrating the increase in costs.

 

5. HARDWARE TESTING

5.1. Before delivering any item of Supplier Hardware to the Site, the Supplier shall carry out reasonable tests to ensure that such item is in operable condition and is capable of meeting the requirements of the Technical Specification once properly installed.

5.2. Following installation of each item of Supplier Hardware, the Supplier shall carry out the Hardware Installation Tests applicable to that item and shall supply the Customer with copies of the test results.

5.3. If any item of the Supplier Hardware fails to pass the applicable Hardware Installation Tests then the Supplier shall have 14 days in which to remedy the deficiency, and the relevant test(s) shall be repeated within a reasonable time.

5.4. If any item of Supplier Hardware fails in some material respect to pass such repeated Hardware Installation Tests then the Customer may, by written notice to the Supplier, choose at its sole discretion to specify (without prejudice to the Customers other rights and remedies) a new date for carrying out further tests on the item of Supplier Hardware on the same terms and conditions as are set out in Clause 5.2. If the item of Supplier Hardware fails such further tests then the Customer may:

  1. request a repeat test under this Clause 5;
  2. accept the item of Supplier Hardware subject to such change of acceptance criteria, amendment of the Business Requirements Specification and/or reduction in the Price as, after taking into account all the relevant circumstances, is reasonable; or
  3. if the Supplier is unable to correct material defects within a period of six months from the start of Pre-Installation Tests under Clause 5.2, to reject the item of Supplier Hardware as not being in conformity with this Agreement, in which case the Customer may terminate this Agreement.

 

6. HARDWARE WARRANTIES

6.1. The warranties given in this Clause 6 are in addition to warranties given in other parts of this Agreement.

6.2. The Supplier warrants that:

  1. the Supplier Hardware will be new (except where otherwise specified in the Sales Contract) and of satisfactory quality and will be suitable for the purpose for which it is intended under the Business Requirements Specification, as specified in detail in the Technical Specification; and
  2. as far as it is able, the Supplier will pass on to the Customer the benefits of any Manufacturers’ Warranties.

 

7. SOFTWARE AND DOCUMENTATION

7.1. The Supplier shall carry out the Work with reasonable diligence and despatch, and with reasonable skill and expertise, to provide the Supplier Software in accordance with the Technical Specification by the Completion Date.

7.2. The Supplier shall provide the Software and any Modified Software to the Customer under the standard licence terms provided by the relevant third parties, and the Customer agrees to be bound by such licence terms.

7.3. The Supplier shall provide the Software under the terms of this Agreement.

7.4. The Supplier shall develop the Software in accordance with the requirements of the Technical Specification.

7.5. The Supplier shall provide to the Customer from time to time copies of the Documentation containing sufficient up-to-date information for the proper use and maintenance of the System. Such Documentation may be supplied in electronic form.

7.6. The Customer may make such further copies of the Documentation as are reasonably necessary for the use and maintenance of the System and for training the Customer’s personnel in use of the System. The Customer shall ensure that all Supplier’s proprietary notices are reproduced in any such copy.

7.7. The Customer may provide copies of the Documentation to any third party referred to in Clause 19.3 who needs to know the information contained in it, provided that such third party first enters into a confidentiality obligation in accordance with Clause 19.3 (a).

 

8. SERVICES

8.1. On the terms and conditions set out in this Agreement, the Supplier agrees to:

  1. deliver the Supplier Hardware and Supplier Software at the Site(s);
  2. integrate the Supplier Hardware, Customer Hardware and Supplier Software to form the System; and
  3. provide the System Ready for Service by the Completion Date.

 

9. DELIVERY, INSTALLATION AND DELAYS

9.1. The Supplier shall deliver each item of Supplier Hardware and Supplier Software to the Site(s) on or before the applicable Hardware or Software Delivery Date for that item.

9.2. The Supplier shall supply to the Customer, within a reasonable time before any Hardware Delivery Date or Software Delivery Date, such information and assistance as may be necessary to enable to Customer to prepare the Site(s) for the installation of the relevant item of Supplier Hardware or Supplier Software.

9.3. The Customer shall, at its own expense, prepare the Site(s) in accordance with the information provided by the Supplier in advance of each Hardware Delivery Date or Software Delivery Date. The Customer may request reasonable assistance from the Supplier to carry out such preparation.

9.4. The Customer shall complete installation of each item of Supplier Hardware at all the Site(s) by the Installation Date for that item of Supplier Hardware. The Customer is required to use anchor bolts or similar to secure the Bouncepad Stand to the floor at each Site once the desired location is chosen.

9.5. If any delivery is delayed at the request of, or because of the acts or omissions of, the Customer, the Hardware Delivery Date shall be amended to take account of such delay. If the Supplier can demonstrate by documentary evidence that the delay has resulted in an increase in cost to the Supplier of carrying out its obligations under this Agreement, the Supplier may, at its sole discretion, notify the Customer that it wishes to increase the Price by an amount not exceeding any such demonstrable costs. The Supplier may invoice the Customer for any additional monies that become payable in this way within 30 days of demonstrating the increase in costs.

9.6. The Supplier shall provide the System Ready for Service on or before the Completion Date.

9.7. If delivery of any item of Supplier Hardware because of any act or omission of the Supplier or any third party manufacturer or the System is not Ready for Service by the Completion Date, the Supplier shall in all circumstances be liable for any reasonable costs that the Customer can demonstrate it incurred as a direct result of such delay.

 

10. PAYMENT

10.1. The Supplier shall submit invoices in accordance with the Sales Contract. The Customer shall make payment of each invoice by the due date stated in that invoice or within 30 days of receipt of the invoice, whichever is later.

10.2. The Customer shall pay the Support Charges. The Supplier shall invoice the Customer for the Support Charges no later than 30 days after the support is given at the invoicing address specified in the Sales Contract.

10.3. The Price, the Support Charges and all other payments are net of tax. The Customer shall, in addition, pay to the Supplier the amount of any tax, duty or assessment, including any applicable VAT, which the Supplier is obliged to pay and/or collect from the Customer in respect of any supply under the Agreement (other than tax on the Supplier’s income).

10.4. If any sum is not paid on or before the due date under this Agreement, the party in default shall pay the other party interest at the rate specified in 4% above the base rate of Barclays PLC from time to time from the period beginning on the due date and ending with the date on which the sum is paid (and the period shall run after as well as before judgement).

10.5. All invoices issued by the Supplier under or in connection with this Agreement shall be accompanied by a sufficiently detailed breakdown of the matters being invoiced.

10.6. Reasonable out-of-pocket expenses may be charged by the Supplier on production of reasonable evidence of expenditure to the Customer.

10.7. For the duration of this Agreement, and for a period of seven years from termination or expiry of this Agreement, the Supplier shall maintain full and accurate records, in a form to be approved in writing by the Customer, of all charges, prices, costs and expenses associated with and invoiced in respect of the System and the Services.

10.8. At the Customer’s request and its expense, the Supplier shall grant access to the Customer or its auditors records and accounts of the Supplier relevant to this Agreement including its data processing facilities.

10.9. Such access shall be granted no more than once during any Contract Year during Normal Business Hours and will be subject to reasonable prior notice from the Supplier except to the extent that such access is required by the Customer’s regulators outside of these parameters.

10.10. If, on such examination, the Customer determines that any charges, prices, costs or expenses exceed or fall short of the amounts properly chargeable to, or recoverable from, the Customer, an appropriate adjustment shall be effected between the parties promptly.

10.11. If the Supplier visits the Site(s) at the Customer’s request to investigate a failure of the System, which proves in the Supplier’s reasonable opinion not to have been caused by a Defect, the Supplier may charge the Customer for the time spent on such visit on a time-and-materials basis as its standard rates then in force.

 

11. OWNERSHIP

11.1. The Intellectual Property Rights in the System are, and shall remain, the property of the Supplier, and the Supplier reserves the right to grant a licence to use the System to any other party or parties.

11.2. The Licensed Software and the Documentation are proprietary to the Supplier and the Customer acquires no rights in or to the Licensed Software or the Documentation other than those expressly granted by this Agreement.

11.3. The Customer shall do and execute, or arrange for the doing and executing of, each necessary act, document and thing that the Supplier may consider necessary or desirable to perfect the right, title and interest of the Supplier in and to the Intellectual Property Rights in the Software, the Tools and the Software.

11.4. The Customer shall use reasonable endeavours to prevent any infringement of the Supplier’s Intellectual Property Rights in the Licensed Software and shall promptly report to the Supplier any such infringement that comes to its attention. In particular, the Customer shall:

  1. ensure that each Licensed User, before starting to use the Licensed Software, is made aware that the Licensed Software is proprietary to the Supplier and that it may only be used and copied in accordance with this Agreement;
  2. implement suitable disciplinary procedures for employees who make unauthorised use or copies of the Licensed Software; and
  3. not permit third parties to have access to the Licensed Software without the prior written consent of the Supplier, who may require that such third party executes a written confidentiality agreement before being given access to the Licensed Software.

 

12. SOFTWARE LICENCE AND DOCUMENTATION

12.1. The Supplier grants, subject to the terms of this Agreement, the Customer and its Affiliates the non-exclusive, non-transferable right to use the Licensed Software and the Documentation for any purpose related to the Business (Licensed Purposes).

 

13. USE AND ADAPTATION OF LICENSED SOFTWARE

13.1. The Customer may use the Licensed Software with other software.

13.2. The Customer may not make adaptations or variations of the Licensed Software without the prior consent of the Supplier.

13.3 The Customer may not disassemble, decompile, reverse translate or in any other manner decode the Licensed Software, except as permitted by law.

 

14. SUPPORT SERVICES

14.1. The Supplier shall supply the Customer with New Releases in machine-readable form together with related amendments to the Documentation. The Supplier may make such New Releases available for downloading over the internet and will promptly notify the Customer when such downloads are available.

14.2. The Supplier shall notify the Customer promptly in writing of any New Version, specifying the following:

  1. the charge for delivery and installation of the New Version;
  2. the licence fee payable for the New Version;
  3. in what ways the New Version differs from the previous version in terms of functionality, performance and compatibility.

14.3. For the avoidance of doubt, nothing in this Agreement shall oblige the Customer to take any New Version.

14.4. The Supplier shall ensure that support is available by telephone and email during Normal Working Hours and 7 days a week for business critical issues to provide assistance to the Customer in respect of the following:
remedying Defects in the Supported Software; and
providing advice on the use of the Supported Software.

14.5. The Supplier shall use reasonable endeavours to correct Defects notified to it by the Customer in a timely manner appropriate to the seriousness of the circumstances in accordance with the following procedure:

  1. the Customer shall promptly notify the Supplier of all Defects. Where such notification is made orally, the Customer shall provide written confirmation (which may be sent by e-mail) of the notification within two working days;
  2. within two hours of such notification, the Supplier shall acknowledge receipt of the notification and shall determine, in consultation with the Customer, how seriously the Defect affects the Customer’s operations;
  3. if a notified Defect halts or substantially impairs the Customer’s operations which use the Supported Software, the Supplier shall start work on correcting the Defect within four Normal Working hours of receipt of such notification, shall use all reasonable efforts to correct the Defect as soon as possible and shall keep the Customer informed of progress towards the correction of the Defect;
  4. if a notified Defect, while not halting or substantially impairing the Customer’s operations, causes those operations to become significantly slowed or causes substantial inconvenience, the Supplier shall commence work on correcting the Defects within 48 hours of receipt of such notification and shall use all reasonable efforts to correct the Defect as soon as possible; and
  5. in the case of Defects other than those specified in Clause 14.5(c) and Clause 14.5(d), the Supplier shall start work on correcting the Defect as soon as the Supplier’s workload allows and shall use commercially reasonable efforts to correct the Defect.


14.6.
The Supplier shall use reasonable efforts to ensure the accurate migration of any data, but gives no warranties as to the completeness or accuracy of such migration. The Customer shall be responsible for checking the accuracy and completeness of the migrated data and shall promptly give sufficient details to the Supplier of any inaccuracies or omissions in order to permit the Supplier to correct them. If such data includes Personal Data, the Supplier shall return all copies of such Personal Data to the Customer on completion of the data migration process.

 

15. SUPPLIER PERSONNEL: SYSTEM AND SUPPORT SERVICES

15.1. The Supplier undertakes that its employees and contractors, while on the Site(s) or any other premises of the Customer, will comply with all relevant rules and regulations laid down by the Customer from time to time for the behaviour of its own employees and contractors, as notified in writing to the Supplier from time to time. Access to the same via the Customer’s intranet shall be deemed to satisfy such notification requirement. The Supplier shall remove any employee or contractor whom the Customer can demonstrate has failed to comply with such rules, regulations and requirements.

15.2. The Supplier alone shall be responsible for the supervision, direction, control, wages, taxes, national insurance and benefits of the Support Staff. The Supplier assumes full responsibility for their acts and omissions and acknowledges that they are not employees or agents of the Customer.

15.3. During the term of this Agreement and for a period of six months after its termination neither party shall, without the prior written consent of the other, solicit, or permit any Affiliate or Associate to solicit, the employment of any person who is employed by the other party in the course of developing, supplying, maintaining or supporting the Supplier Software or any part of it.

 

16. SUPPORT SERVICES

16.1. The Processing of data into readable format for the Site(s), including access to the reporting dashboard and report manager.

16.2.
Report Manager

  1. Each site will be provided with a user name and password. It will be the responsibility of each site to keep these details secure. If the site needs their password resetting the site is to contact the Supplier via support@avius.com.
  2. There will be a shared link to access the data which is collected. This link will be the same for all Sites.


16.3.
Email Trigger Alert Systems

We will be sending out email alerts via the Email Trigger Alerting system. In addition to these alerts there will be a number of other reports which will be delivered via email to the individual Site(s) and Head Office.

16.4. Servers

The data servers are physically stored in the United Kingdom. The server room is protected by access cards and bio-metric security. Offsite backup servers are in a different location in the United Kingdom.

16.5. Technical Support

Technical support is available via the main contact telephone number 01202 559933, a line manned 9:00 to 17:00 Monday to Friday. Email support is supplied and monitored 7 days a week via support@avius.com for business critical issues. All email requests sent to the support email address will be allocated a case number for that request.

16.6. Service Level Agreement

Each Service is backed by a Service Level Agreement and regular onsite and offsite backups. The Supplier will endeavour to maintain the Service Level Agreement, working on the following terms and conditions:

  1. Report Server Errors Resolution Time; 24 hours
  2. Online Data Backup: Every 24 hours
  3. Offsite Data Backup: Every 7 days

 

17. SYSTEM: PROJECT MANAGEMENT

17.1. No later than five days after the Commencement Date, the Customer shall notify the Supplier of the name and qualifications of the person appointed as the Customer Representative.

17.2. The Supplier shall appoint the Project manager, who shall have the responsibility and commensurate authority for the overall progress of the Work and to whom all questions regarding this Agreement can be referred. The name and qualifications of the appointed individual shall be notified in writing to the Customer Representative.

17.3. The Customer Representative shall co-operate with the Project Manager and shall attend meetings scheduled by the Project Manager at reasonable intervals not less than once a week to advise and assist the Supplier on all matters relating to the Work.

17.4. The provision of employees, subcontractors and agents of the Supplier to carry out the Work shall be at the discretion of the Supplier.

 

18. SUPPORT SERVICES: CUSTOMER’S OBLIGATIONS

18.1. During the term in which the Support Services are to be provided under Clause 25.2, the Customer shall not, without the Supplier’s prior written approval, allow any person other than a representative of the Supplier to modify, repair or maintain any part of the Software.

18.2. The Customer shall co-operate with the Supplier in any manner reasonably required by the Supplier in order to carry out the Work, including provision of information and data, making available suitably qualified employees and contractors of the Customer and, subject to the Supplier’s compliance with the Customer’s normal security requirements:

  1. provide access to the Customer’s systems for the purpose of carrying out diagnostics and correction of Defects, provided that such access shall be direct or remote, at the Customer’s option, and that, in the latter case, it will be subject to the Supplier’s compliance with any additional requirements for security and encryption techniques or software which may from time to time be specified by the Supplier;
  2. provide such further access for the Support Staff to the Site(s) as is necessary to carry out the Supplier’s obligations under this Agreement. The Customer shall obtain for the Supplier all permissions necessary to obtain such access;
  3. when the Support Staff are working on the Site(s), provide facilities and supplies reasonably required by the Supplier, such as power and computer consumables.

18.3. The Customer shall, at its own expense, provide the equipment necessary at the Site(s) to enable the access referred to in Clause 18.2(a) in accordance with the specifications set out in the Business Requirements Specification, but all other costs and expenses for such access shall be borne by the Supplier.

18.4. The Customer may restrict access to certain areas of its premises or systems on security grounds.

18.5. The Customer shall, no later than 14 days after signing the Sales Contract, appoint and maintain for the duration of the Contract an individual to serve as primary contact with the Supplier for the purpose of the provision of services under this Agreement, and a deputy to that individual, and shall notify the Supplier of the names of those individuals promptly on their appointment.

18.6. The Customer shall comply, as soon as reasonably practicable, with all the Supplier’s reasonable requests for information or assistance.

 

19. CONFIDENTIALITY AND PUBLICITY

19.1. Each party undertakes not to use the other party’s Confidential Information otherwise than in the exercise and performance of its rights and obligations under this Agreement (Permitted Purposes).

19.2. In relation to the Customer’s Confidential Information:

  1. the Supplier shall treat as confidential all Confidential Information of the Customer supplied under this Agreement. The Supplier shall not divulge any such Confidential Information to any person except to its own employees, and then only to those employees who need to know it for the Permitted Purposes. The Supplier shall ensure that its employees are aware of, and comply with, this Clause 19; and
  2. the Supplier may provide any subcontractor authorised under Clause 24 with such of the Customer’s Confidential Information as it needs to know for the Permitted Purposes, provided that such subcontractor has first entered into a written obligation of confidentiality owed to the Supplier in terms similar to Clause 19.2(a) (which the Supplier shall ensure is adhered to).


19.3.
In relation to the Supplier’s Confidential Information:

  1. the Customer shall treat as confidential all Confidential Information of the Supplier contained or embodied in the System or Documentation, or otherwise supplied to the Customer during the performance of this Agreement;
  2. the Customer shall not, without the prior written consent of the Supplier, divulge any part of the Supplier’s Confidential Information to any person other than the Customer’s Representative and other employees of the Customer who need to know it for the Permitted Purposes; and
  3. the Customer undertakes to ensure that the persons mentioned in Clause 19.3(b) are made aware, before the disclosure of any part of the Supplier’s Confidential Information, that the same is confidential and that they owe a duty of confidence to the Customer in terms similar to clause 18.2(a) (which the Customer shall ensure is adhered to).

19.4. The restrictions imposed by this Agreement shall not apply to the disclosure of any Confidential Information which:

  1. is now in, or hereafter comes into, the public domain otherwise than as a result of a breach of this Clause 19
  2. before any negotiations or discussions leading to this Agreement was already known by the receiving Party (or, in the case of the Customer, any of its Affiliates) and was obtained or acquired in circumstances under which the receiving Party was (or, in the case of the Customer, the Customer and its Affiliates were) not bound by any form of confidentiality obligation; or
  3. is required by law or regulation to be disclosed to any person who is authorised by law or regulation to receive the same (after consultation, if practicable, with the disclosing party to limit disclosure to such authorised person to the extent necessary).

19.5. Each party shall notify the other party if any of its staff connected with the provision or receipt of the Services becomes aware of any unauthorised disclosure of any Confidential Information and shall offer reasonable assistance to the other party, at that other party’s reasonable cost, in connection with any enforcement proceedings which that other party may elect to bring against any person.

 

20. DATA PROTECTION

20.1. The following definitions apply:

  1. the terms “data controller”, “data processor”, “data subject” and “processing” bear the respective meanings given them in the Data Protection Act 1998, and “data protection principles” means the eight data protection principles set out in Schedule 1 to that Act.
  2. data includes Personal Data
  3. Customer Personal Data means any Personal Data provided by or on behalf of the Customer.


20.2.
The Supplier shall:

  1. only carry out processing of any Customer Personal Data on the Customer’s instructions;
  2. implement appropriate technical and organisational measures to protect any Customer Personal Data against unauthorised or unlawful processing and accidental loss or damage; and
  3. only transfer Customer Personal Data to countries outside the European Economic Area that ensure an adequate level of protection for the rights of the data subject.

20.3. The Supplier shall promptly and fully notify the Customer in writing of any notices in connection with the processing of any Customer Personal Data, including subject access requests, and provide such information and assistance as the Customer may reasonably require.

20.4. The Supplier is a registered data controller and all data is stored securely in accordance with the Data Protection Act 1998. The Supplier is a member of the British Computer Society (BCS – The Chartered Institute for IT), and will ensure the upkeep and safe storage/removal of confidential data. All data is the sole property of the Customer and will not be shared with any other party.

 

21. WARRANTIES

21.1. The Supplier warrants and represents that:

  1. the Supplier Software and Documentation are proprietary to the Supplier and that it has the right to license all Intellectual Property Rights in and to the Supplier Software and Documentation to the Customer and to provide the Support Services to the Customer;
  2. none of the New Releases, New Versions and Documentation supplied by the Supplier under this Agreement infringes the Intellectual Property Rights of any third party;
  3. the System will perform in accordance with the Technical Specifications;
  4. it will perform the Support Services in a timely, reliable and professional manner, in conformity with Good Industry Practice by a sufficient number of competent Support Staff with appropriate skills, qualifications and experience, and has and will at all times have the ability and capacity to meet such requirements;
  5. it is in compliance with, and will perform the Support Services in compliance with, all applicable law and regulations; and
  6. the Customer will receive good and valid title to all deliverables in connection with the Support Services, free and clear of all encumbrances and liens of any kind.

21.2. The sole remedies for breach of the warranties in Clause 21.1(a) are set out in Clause 22.

21.3. The sole remedy for breach of the warranty under Clause 6.2 and Clause 21.1(c) shall be correction of Defects by the Supplier within a reasonable time from notification by the Customer of the Defect that constitutes such breach.

21.4. The warranties set out in Clause 21.1 are in lieu of all other express or implied warranties or conditions, including implied warranties or conditions of satisfactory quality and fitness for a particular purpose, in relation to this Agreement. Without limitation, the Supplier specifically denies any implied or express representation that the System will be fit:

  1. to operate in conjunction with any hardware items or software products other than with those hardware items and software products that are identified in the Documentation as being compatible with the System; or
  2. to operate uninterrupted or error-free.


21.5.
The Supplier does not warrant or guarantee that it will be able to rectify all Defects, nor that any Defects which does not materially affect the Customer’s operations using the Supported Software will be corrected before the issue of the next New Release.

21.6. Any unauthorised modifications, use or improper installation of the System by or on behalf of the Customer shall render all the Supplier’s warranties and obligations under this Agreement null and void.

21.7. The Supplier shall not be obliged to rectify any particular Defect if attempts to rectify such Defect other than normal recovery or diagnostic procedures have been made by the Customer’s personnel or third parties without the permission of the Supplier.

21.8 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.

 

22. INTELLECTUAL PROPERTY RIGHTS INDEMNITY

22.1. The Supplier shall indemnify the Customer against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Customer arising out of or in connection with any claim made against the Customer for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with use of the Supplier Software, any New Release, New Version or Documentation, or receipt of the benefit of the Service, provided that, if any third party makes a claim, against the Customer which may reasonably be considered likely to give rise to a liability under this indemnity (Claim), the Customer :

  1. as soon as reasonably practicable, gives written notice of the Claim to the Supplier, specifying the nature of the Claim in reasonable detail;
  2. does not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the Supplier (such consent not to be unreasonably conditioned, withheld or delayed);
  3. gives the Supplier and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Customer, so as to enable the Supplier and its professional advisers to examine them and to take copies (at the Supplier’s expense) for the purpose of assessing the Claim; and
  4. subject to the Supplier providing security to the Customer and Customer’s reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, takes such action as the Supplier may reasonably request to avoid, dispute, compromise or defend the Claim.


22.2.
The Supplier shall not in any circumstances have any liability for any claim of infringement of Intellectual Property Rights:

  1. caused or contributed to by the Customer’s use of the Supplier Standard Software in combination with software not supplied or approved in writing by the Supplier (other than the operating system of any Computer Hardware, provided that the supplier was notified in writing of the identity of this operating system before this Agreement was entered into);
  2. based on use of any versions of the Supplier Software other than the latest version supplied by the Supplier, if such claim could have been avoided by the use of such supplied version; or
  3. where the claim for infringement arises in respect of a feature of the System which was specified by the Customer in the Business Requirements Specification.

22.3. If use of the System or receipt of the benefit of the Support Services becomes, or, in the opinion of qualified legal counsel, is likely to become, the subject of any such claim, the Supplier may:

  1. replace all or part of the System with functionally equivalent Software or Documentation without any charge to the Customer
  2. modify the System as necessary to avoid such claim, provided that the System (as amended) functions in substantially the same way as the System, the New Releases or the New Versions (as the case may be) before modification;
  3. procure for the Customer a licence from the relevant claimant to continue using the System, the New Release or the New Versions (as the case may be).

22.4. If:

  1. the System is determined in a court of laws to be infringing;
  2. the Supplier is advised by a barrister of at least ten years’ call that use or possession by the Customer or any of its Affiliates of the Licensed Software and/or the Documentation in accordance with this agreement is likely to constitute infringement of a third party’s rights; or
  3. an injunction or similar order is granted which prevents or restricts the use or possession by the Customer or any of its Affiliates of the Software and/or the Documentation in accordance with this Agreement,

and the Supplier is unable, after best efforts, to procure for the Customer the right to continue using the System, or to provide the Customer with functionally equivalent non-infringing software, this Agreement and the Licence will be terminated.

22.5. If a payment due from the Supplier under this Clause is subject to tax (whether by way of direct assessment or withholding at its source), the Customer shall be entitled to receive from the Supplier such amounts as shall ensure that the net receipt, after tax, to the Customer in respect of the payment is the same as it would have been were the payment not subject to tax.

22.6. Nothing in this Clause shall restrict or limit the Customer’s general obligation at law to mitigate a loss it may suffer or incur as a result of an event that may give rise to a claim under this indemnity.

 

23. LIMITATION OF LIABILITY

23.1. Neither party excludes or limits liability to the other party for:

  1. fraud or fraudulent misrepresentation;
  2. death or personal injury caused by negligence;
  3. a breach of any obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
  4. any matter for which it would be unlawful for the parties to exclude liability.

23.2. The Supplier shall not in any circumstances be liable whether in contract tort (including for negligence and breach of statutory duty howsoever arising) misrepresentation (whether innocent or negligent), restitution or otherwise, for:

  1. any loss (whether direct or indirect) of profits, business, business opportunities, revenue, turnover, reputation or goodwill;
  2. any loss or corruption (whether direct or indirect) of data or information;
  3. loss (whether direct or indirect) of anticipated savings or wasted expenditure (including management time); or
  4. any loss or liability (whether direct or indirect) under or in relation to any other contract.

23.3. The Supplier’s total aggregate liability in contract, tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement or any collateral contract shall:

  1. in respect of any cause of action related to the provision of the Support Services be limited to the total charges paid for the Support Services by the Customer to the Supplier during the 12-month period immediately before the date on which the cause of action first arose or, if the cause of action arose during any period before 12 months had elapsed from the Commencement Date, during that shorter period; and
  2. in respect of any other cause of action related to this Agreement (including any cause of action related to the Supplier Software), be limited to the amount of the Price.

23.4. Any dates quoted for delivery of the Work or the Support Services are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Work or the Support Services that is caused by an event, circumstance or cause within the scope of Clause 35 or the Customer’s failure to provide the Supplier with adequate delivery instructions.

 

24. ASSIGNMENT AND SUBCONTRACTING

24.1. Subject to Clause 24.3, this Agreement is personal to the parties and neither party shall assign, transfer, mortgage, charge, subcontract, declare a trust of or deal in any other manner with any or all of its rights and obligations under this Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).

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

24.3. Either party may assign, transfer or subcontract any or all of its rights and obligations under this Agreement to a member of its Group for so long as that company remains a member of the assignor’s Group. The assignor shall procure that such company assigns any rights assigned to it in accordance with this Clause 24.3 back to the assignor or another member of the assignor’s Group immediately before it ceases to be a member of the assignor’s Group.

24.4. A party assigning any or all of its rights under this Agreement may disclosed to a proposed assignee any information in its possession that relates to this Agreement or its subject matter, the negotiations relating to it and the other party which is reasonably necessary to disclose pursuant to Clause 24.3 shall be made until notice of the identity of the proposed assignee has been given to the other party.

 

25. DURATION

25.1. This Agreement shall, subject to Clause 25.2, commence on the Commencement Date and shall continue, unless terminated earlier in accordance with Clause 26, until the Work has been completed.

25.2. The Support Services shall commence on the Support Commencement Date and shall continue until the Support Services are terminated in accordance with Clause 26.4(b), unless terminated earlier in accordance with any of the other provisions of Clause 26.

 

26. TERMINATION

26.1. Without prejudice to any rights that have accrued under this Agreement or any of its rights or remedies, either party may at any time terminate this Agreement and/or the Support Services with immediate effect by giving written notice to the other party if:

  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 14 days after being notified in writing to make such payment;
  2. the other party commits a material breach of any term of this Agreement (other than failure to pay any amounts due under this Agreement) and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
  3. the other party repeatedly breaches any of the terms to this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
  4. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
  5. the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
  6. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
  7. an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party;
  8. a floating charge holder over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
  9. a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
  10. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
  11. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject to any of the events mentioned in Clause 26.1(d) to Clause 26.1(j) (inclusive);
  12. the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
  13. any warranty given in Clause 21 is found to be untrue or misleading.

26.2. The parties acknowledge and agree that any breach of Clause 10 shall constitute a material breach of a term for the purposes of this Clause.

26.3. Either party may terminate this Agreement in accordance with Clause 34.

26.4. The Customer may terminate:

  1. this Agreement immediately by written notice to the Supplier if there is any change of Control of the Supplier
  2. the Support Services at or after the expiry of one year from the Support Commencement Date by giving at least 30 days’ prior written notice.

26.5. The Customer may terminate the Licence at any time by giving six months written notice to the Supplier and by complying with Clause 26.6.

26.6. On termination of the Licence, the Customer shall either return to the Supplier or, at the Supplier’s option, destroy all material copies of the Licensed Software and Documentation, and shall ensure that any copies of the Licensed Software on hard discs or other storage means associated with any computer equipment owned or controlled by the Customer are permanently deleted.

26.7. This Agreement shall automatically terminate on expiry of the Licence, but expiry or any termination of this Agreement (however caused) shall have no effect on the Licence.

26.8. Other than as set out in this Agreement, neither party shall have any further obligation to the other under this Agreement after its termination.

26.9. Any provision of this Agreement which expressly or by implication is intended to come into or continue in force on or after termination of this Agreement, shall remain in full force and effect.

26.10. Termination of this Agreement, for any reason, shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at termination.

26.11. Notwithstanding its obligations in Clause 25, if a party is required by any law, regulation, or government or regulatory body to retain any documents or materials containing the other party’s Confidential Information, it shall notify the other party in writing of such retention, giving details of the documents and/or materials that it must retain.

26.12. On termination of this Agreement for any reason, each party shall as soon as reasonably practicable:

  1. return, destroy or permanently erase (as directed in writing by the other party) any documents, handbooks, CD-ROMs or DVDs or other information or data provided to it by the other party containing, reflecting, incorporating or based on Confidential Information belonging to the other party. If required by the other party, it shall provide written evidence (in the form of a letter signed by 2 Directors) no later than 21 days after termination of this Agreement that these have been destroyed and that it has not retained any copies of them (except for one copy that it may use for audit purposes only and subject to the confidentiality obligations in Clause 18), provided that the Customer may retain copies of any Supplier Confidential Information incorporated into the Supplier Software or to the extent necessary to allow it to make full use of the Services and any Supplier Software;
  2. permanently delete any proprietary software belonging to the other party and not the subject of a current licence granted by the other party from its IT network and hard disks or other storage means associated with any computer equipment owned or controlled by the other party. Each party shall provide written confirmation (in the form of a letter signed by 2 Directors) no later than 21 days after termination of this Agreement that this software has been deleted;
  3. subject to clause 26.13(b), return all of the other party’s equipment and materials, failing which, the other party may enter the relevant premises and take possession of them, provided, regarding the Customer’s rights under this Clause 26.12(c), that the Customer has (if appropriate) paid the Supplier in full for such equipment and materials. Until these are returned or repossessed, the party in possession shall be solely responsible for their safe-keeping.

26.13. On termination of this Agreement for any reason, the Supplier shall:

  1. promptly refund such portion of the Price or Support Charges (as the case may be) as relates to the period after expiry or termination on a pro-rata basis;
  2. as soon as reasonably practicable, vacate the Customer’s premises leaving them clean and tidy and removing any goods, materials or equipment belonging to it. Any goods, materials or equipment that have not been removed after 21 days after termination of this Agreement may be disposed of by the Customer as it thinks fit.

26.14. On termination of this Agreement for any reason, the Customer shall immediately pay any outstanding unpaid invoices and interest due to the Supplier. The Supplier shall submit invoices for any Services that it has supplied, but for which no invoice has been submitted, and the Customer shall pay these invoices immediately on receipt.

 

27. WAIVER

27.1. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

 

28. REMEDIES

28.1. Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

 

29. ENTIRE AGREEMENT

29.1. This Agreement and any documents referred to in it constitutes the whole Agreement between the parties and supersedes any previous arrangement, understanding or Agreement between them relating to the subject matter of this Agreement.

29.2. Each party acknowledges that, in entering into this Agreement and the documents referred to in it or annexed to it, it does not rely on any statement, representation, assurance or warranty (Representation) of any person (whether a party to this Agreement or not) other than as expressly set out in this Agreement or those documents.

29.3. Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract as expressly provided in this Agreement.

 

30. VARIATION

30.1. No variation of this Agreement shall be effective unless it is in writing and agreed by the parties (or their authorised representatives).


31. SEVERANCES

31.1. If any court or competent authority finds that any provision of this Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforce-ability of the other provisions of this Agreement shall not be affected.

31.2. If any invalid, unenforceable or illegal provision of this Agreement would be valid, enforceable and legal if some part of it were deleted, the parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extend possible, achieves the parties’ original commercial intention.

 

32. THIRD-PARTY RIGHTS

32.1. No person other than a party to this Agreement shall have any rights to enforce any term of this Agreement.

 

33. NO PARTNERSHIP OR AGENCY

33.1. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, not authorise any party to make or enter into any commitments for or on behalf of any other party, except as expressly authorised by the Customer or the Supplier (as the case may be).

 

34. FORCE MAJEURE

34.1. Neither party shall in any circumstances be in breach of this Agreement not liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control, and in such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for 180 days or more, the party not affected may terminate this Agreement by giving 30 days’ written notice to the other party.

34.2. If termination occurs under Clause 34.1, all sums paid to the Supplier by the Customer under this Agreement shall be refunded to the Customer, except that the Supplier shall be entitled to payment on a quantum meruit basis for all work done before termination, provided that the Supplier takes all reasonable steps to mitigate the amount due.

 

35. NOTICES

35.1. Any notice or other communication required to be given under this Agreement, shall be in writing and shall be delivered personally, or sent by pre-paid first class post or recorded delivery or by commercial courier, to each party required to receive the notice or communication to the address as set out in the Sales Contract or as otherwise specified by the relevant party by notice in writing to each other party.

35.2. Any notice shall be deemed to have been duly received:

  1. if delivered personally, when left at the address and for the contact referred to in this Clause
  2. if sent by pre-paid first-class post or recorded delivery, at 9.00am on the second Business Day after posting; or
  3. if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.

35.3. A notice required to be given under this Agreement shall not be validly given if sent by email.

35.4. The provisions of this Clause shall not apply to the service of any proceedings or other documents in any legal action.

 

36. DISPUTE RESOLUTION

36.1. Any dispute which may arise between the parties concerning this Agreement shall be determined as provided in Clause 36.

36.2. For the purpose of Clause 36, a dispute shall be deemed to have arisen when one party serves on the other a notice in writing stating the nature of the dispute.

36.3. Unless this Agreement has already been terminated by the date of the notice of dispute, the Supplier shall, in every case, continue with the Work with all due diligence regardless of the nature of the dispute and the Customer shall continue to make payments in accordance with the Sales Contract.

36.4. After service of the notice of dispute, the following procedure shall be followed by the parties (all periods specified in Clause 36.4 shall be extendable by mutual agreement):

  1. within two days, the Project Manager and the Customer Representative shall meet to attempt to settle the dispute;
  2. if the Project Manager and the Customer Representative are unable to reach a settlement within seven days from the date of service of the notice, the managing directors of each of the parties shall meet within the following seven days to attempt to settle the dispute; and
  3. if no settlement results from the meeting specified in Clause 36.4(b) for the following 28 days the parties shall attempt to settle the dispute by mediation by an independent mediator, with costs to be shared equally between the parties.

36.5. If no settlement is reached under Clause 36.4:

  1. if the dispute is of a technical nature concerning the interpretation of the Business Requirements Specification or Technical Specification or any similar or related matter, then such dispute shall be referred for arbitration. The arbitrator’s decision shall (in the absence of clerical or manifest error) be final and binding on the parties and his fees for so acting shall be borne by the parties in equal shares unless he determines that the conduct of either party is such that such party should bear all of such fees;
  2. in the case of a dispute over purely legal issues, or where disposition of the legal issues would dispose of all other issues ion dispute, the matter shall be brought before the English High Court in the most expeditious manner possible, and the parties agree to co-operate in the speedy conduct of such legal proceedings; and
  3. in any other case, the dispute shall be determined by the English High Court and the parties submit to the exclusive jurisdiction of such court for such purposes.

 

37. GOVERNING LAW AND JURISDICTION

37.1. 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 England and Wales.

37.2. The parties irrevocably agree that the courts of England and Wales 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).

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