1. SUPPLY OF PRODUCTS
1.1 XYZ warrants that the Products: (a) shall be free from Product Defects; and (b) (save to the extent notified to Customer in writing on or before delivery and subject to clause 2.2) comply with all applicable regulatory requirements in the United Kingdom relating to their manufacture and use.
1.2 Save in respect of death or personal injury due to a Product Defect or in respect of fraud, Customer’s sole remedy in respect of any Product Defect shall be a right to receive a repaired or replacement Product and/or (to the extent and for such time as a repaired or replacement Product is unavailable) a refund in whole or part of the Fees.
1.3 XYZ shall use reasonable endeavours to deliver the Products specified hereunder on or before the date specified for delivery, and at the address for delivery, as set out in the Order Form. XYZ shall deliver during the Business Hours unless otherwise agreed between the parties. Time of delivery shall not be of the essence of the Contract.
1.4 Risk in the Products shall pass to Customer on completion of delivery. Title in the Products shall remain with XYZ at all times and shall not in any circumstances pass to Customer. Customer shall keep and maintain the Products securely and at ambient operating temperatures, and otherwise shall ensure that the Products are kept in good condition at all times. Customer shall not remove any proprietary trade marks or other notices of XYZ from the Products. Customer shall immediately notify XYZ of any damage or loss to the Products, and shall indemnify XYZ in respect of all such damage or loss.
2. SUPPLY OF SERVICES
2.1 In consideration for payment of the Fees, XYZ shall provide the Services during Business Hours, and otherwise on and subject to these Conditions. Any and all additional services, consultancy or support provided or to be provided by XYZ to Customer shall be subject to further agreement and (if agreed) at additional fees.
2.2 Subject to Customer paying the Fees and otherwise subject to these Conditions, XYZ hereby grants to Customer the right to permit and enable an unlimited number of Authorised Users to use the Services during the Term solely for the Licensed Purpose.
2.3 Customer agrees and acknowledges that all Software-based features and functionality provided by XYZ pursuant to the provision of the Services shall be made available as a cloud-based service; in respect of which Customer shall: (a) have no access to (or right to receive or use copies of) any such Software; (b) have no right to develop, configure or otherwise require modifications to such Software or any underlying or supporting systems or networks operated by XYZ; and (c) be obliged to accept any and all upgrades, bug fixes, security updates, or other developments of modifications to such Software as reasonably required by XYZ (provided that the core features and functionality of the Services are not thereby materially degraded or diminished).
2.4 The rights provided under this clause are granted to Customer only, and shall not be granted to any subsidiary or holding company of Customer or to any other person or entity.
3.1 Customer shall not, in the course of the use of the Services (whether or not such use is authorised by it or carried out by any Authorised User, and whether or not intentionally), access, store, distribute or transmit: (a) any Viruses; or (b) any material that: is unlawful, harmful, infringing or is otherwise illegal or causes damage or injury to any person or property or breaches the Data Protection Legislation. XYZ reserves the right, without liability or prejudice to its other rights to Customer, to disable or terminate Customer’s access to the Services that breaches the provisions of this clause without incurring any liability to Customer by reason thereof.
3.2 Customer shall not: (a) save as otherwise permitted by applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted otherwise under these Conditions or in the normal operation or use of the Software or Services: (i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or any element of the Services (as applicable) in any form or media or by any means; or (ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; (b) access all or any part of the Services in order to build a product or service which competes with the Services; (c) use the Product, Services and/or the Software to provide services to third parties other than to the extent permitted by the Licensed Purpose; (d) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Product, Services and/or the Software available to
any third party except the Authorised Users, or (e) attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided hereunder.
3.3 Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify XYZ.
4. XYZ’s OBLIGATIONS
4.1 XYZ undertakes that the Services will be performed with reasonable skill and care, and in accordance with good industry practice.
4.2 The undertaking in clause 5.1 shall not apply to the extent of any nonconformance which is caused by use of the Services contrary to XYZ’s instructions, or modification or alteration of the Services by any party other than XYZ or XYZ’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, XYZ shall, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide Customer with an alternative means of accomplishing the desired performance. Notwithstanding the foregoing, XYZ: (a) does not warrant that Customer’s use of the Services will be uninterrupted or error-free; or that the Products and Services and/or the information obtained by Customer through the Services will meet Customer’s requirements; and (b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and Customer acknowledges that the Product and Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
5. CUSTOMER OBLIGATIONS
5.1 Customer shall: (a) provide XYZ with all necessary co-operation in relation to the Contract, and all necessary access to such information as may be required by XYZ, in order to provide the Services, including but not limited to security access information and configuration services; (b) comply with all applicable laws and regulations with respect to its activities under these Conditions; (c) carry out all other Customer responsibilities set out in these Conditions in a timely and efficient manner; and in the event of any delays in Customer’s provision of such assistance as agreed by the parties, XYZ may adjust any agreed timetable or delivery schedule as reasonably necessary; (d) be responsible for all acts, omissions and defaults of such Authorised Users; (e) obtain and shall maintain all necessary licences, consents, and permissions necessary for XYZ, its contractors and agents to perform their obligations under these Conditions, including without limitation the Services; and (f) ensure that its network and systems comply with the relevant specifications provided by XYZ from time to time.
6. FEES AND PAYMENT
6.1 Customer shall pay all Fees invoiced by XYZ in accordance with the payment terms stated in the Order Form. Payment shall be made to the bank account nominated in writing by XYZ. The Fees are stated exclusive of amounts in respect of value added tax or any goods or services tax or other sales tax that may be payable, all of which Customer shall additionally be liable to pay to XYZ at the prevailing rate.
6.2 XYZ shall invoice Customer the corresponding Fees as follows: (a) the first invoice shall be submitted by XYZ on or after delivery of the Products (or the first instalment of Products, if delivered in instalments); and (b) each subsequent invoice shall be submitted by XYZ approximately monthly thereafter.
6.3 All amounts stated or referred to in the Contract as payable by Customer are non-cancellable and non-refundable payments, and Customer shall accordingly pay all such amounts in full and without set-off, deduction or counterclaim. If Customer is required to make any withholding by way of withholding tax it shall gross up the payment to XYZ so that XYZ receives the sum that it would have received had not such withholding been made.
6.4 XYZ shall be entitled to increase the Fees once in each year with effect from the first anniversary of the expiry of the Initial Term and each anniversary thereafter, by a percentage increase of no more than the percentage increase in the UK Retail Price Index (as published by the UK Office for National Statistics from time to time) over the previous 12 month period, to be calculated not more than 90 and at least 30 days prior to the relevant anniversary of the expiry of the Initial Term and to take effect on that anniversary. XYZ shall give Customer written notice of such increase at least 30 days prior to the relevant anniversary.
7. INTELLECTUAL PROPERTY
7.1 XYZ and/or its licensors shall own all other Intellectual Property in and to the Products, Services and the Software, and all other software, materials and works created or developed in the course of the provision of the Services, excluding all Customer Data (collectively “XYZ IPR”). Except as expressly stated herein, these Conditions do not grant Customer any rights to, under or in, any XYZ IPR.
7.2 To the extent that any XYZ IPR does not, by operation of the law, vest automatically in XYZ but is owned by Customer, Customer hereby irrevocably assigns the same to XYZ by way of present and (where possible) future assignment with full title guarantee, together with the right to sue for past infringements thereof. Customer shall do or procure to be done all such things and execute or procure the execution of all such documents which may be necessary or desirable to vest such rights in XYZ absolutely.
8. CONFIDENTIAL INFORMATION
8.1 Each party shall: (a) keep all Confidential Information of the other party confidential, and not without the prior written consent of the other party disclose or permit the disclosure of the same to any third party other than its or their respective personnel on a strictly need to know basis; and (b) use the Confidential Information of the other party only for the proper performance of its duties or exercise of its rights under these Conditions.
8.2 Each party shall keep the contents of this Contract and all negotiations in relation to it confidential, and not disclose the same to any third party.
8.3 The provisions of clause 9.1 shall not apply to any Confidential Information that: (a) the receiving party can reasonably demonstrate was known to the receiving party or in its possession before that information was acquired from the disclosing party; (b) is in or enters the public domain through no default of the receiving party or any person on its behalf, with effect from the date that the relevant Confidential Information enters the public domain; or (c) the receiving party receives from a third party without similar obligations of confidence in circumstances where the third party did not obtain that information as a result of a breach of an obligation of confidence.
8.4 The provisions of clauses 9.1 and 9.2 shall not apply to any information which is required to be disclosed by any applicable law or by order of any court of competent jurisdiction or any government body, agency or regulatory body, to the extent of the required disclosure, provided that the receiving party shall use all reasonable endeavours to give the other party as much written notice of the disclosure as it reasonably can to enable the other party to take action protecting such information from disclosure.
8.5 The receiving party shall notify the disclosing party promptly if it becomes aware that any of the Confidential Information falls within the provisions of clauses 9.3 and 9.4.
8.6 Upon expiry or termination of these Conditions (howsoever arising) the receiving party shall promptly return, or (if so requested by the disclosing party) destroy, all Confidential Information of the disclosing party.
9. DATA PROTECTION
9.1 Customer shall, and shall procure that Authorised Users shall, comply with all relevant obligations under the Data Protection Legislation.
9.2 To the extent XYZ acts as a processor on behalf of Customer, XYZ shall: (a) only process Customer Personal Data for the purposes of complying with its obligations under these Conditions; and in accordance with a written notice to Customer (which shall be deemed to be incorporated by reference herein) specifying the subject-matter, duration, nature and purpose of processing, type of personal data and categories of data subject; and otherwise in accordance with Customer’s documented instructions from time to time; (b) to the extent that it believes that any instruction received by it is likely to infringe the Data Protection Legislation, promptly inform Customer; (c) (where necessary) implement appropriate safeguards, in accordance with the Data Protection Legislation, in respect of any processing of Customer Personal Data by or on behalf of XYZ in the United Kingdom in circumstances in which Customer is established in the EEA; and only transfer, or otherwise directly or indirectly disclose, Customer Personal Data to countries (other than the United Kingdom) outside the European Economic Area (EEA) provided it has implemented appropriate safeguards for such transfer in accordance with the Data Protection Legislation; (d) ensure that access to Customer Personal Data is limited to XYZ’s personnel who need access to it to comply with its obligations under these Conditions, and that all such personnel are informed of the confidential nature of Customer Personal Data are and subject to an enforceable obligation of confidence with regards to personal data; (e) provide such information and assistance (at Customer’s cost) in relation to: (i) any request from or on behalf of any data subject to exercise their rights under the Data Protection Legislation; (ii) Customer’s decision to undertake a data protection impact assessment; and (iii) any approval of any data protection supervisory authority to any processing of Customer Personal Data by XYZ, or any request, notice or investigation by such supervisory authority; (f) without undue delay notify Customer in writing of becoming aware of a personal data breach; and (g) make available to Customer all information necessary to demonstrate compliance with the obligations in this clause 10.2 and clause 10.3 and, provided Customer has given XYZ one months’ prior written notice, allow for and contribute to audits, including inspections, once per year, conducted by Customer or another auditor mandated by Customer (subject always to such audits taking place within Business Hours, not disrupting XYZ’s business and being subject to XYZ’s reasonable security measures and its data protection and confidentiality obligations towards third parties).
9.3 XYZ may use any agent, sub-contractor or other third party (“Subprocessor”) for the purpose of carrying out the Services. Customer gives a general written authorisation to XYZ to engage Sub-processors subject to XYZ informing Customer of any intended changes concerning the addition or replacement of any Sub-processors and allowing Customer 30 days to object to such changes.
10.1 Customer shall defend and indemnify XYZ and its respective officers, directors and employees, on demand, from and against all claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the use of the Product and/or Services by Customer and/or by any person under the auspices or control of Customer whether or not Authorised Users and whether or not acting in the course of their employment or engagement, save to the extent that any such claims, actions, proceedings, losses, damages, expenses or costs arise due to any Product Defect.
11. LIMITATION OF LIABILITY
11.1 Except as expressly and specifically provided in these Conditions: (a) Customer assumes sole responsibility for all information, results, and other data (collectively “Results”) supplied by XYZ to Customer or otherwise obtained or delivered (including automated delivery) in the course of the use of the Services by Customer, and XYZ hereby to the fullest extent permissible under applicable law expressly disclaims any and all responsibility and liability to Customer and/or to any affected Authorised Users in respect of such Results, Customer’s conclusions drawn from such Results, reliance upon such Results or any steps, measures or actions taken or omitted to be taken relating to such Results; (b) to the fullest extent permissible under applicable law, XYZ shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to XYZ by Customer in connection with the Services, or any actions taken by XYZ at Customer’s direction; (c) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from these Conditions; and (d) the Product and the Services are provided to Customer on an “as is” basis.
11.2 Nothing in these Conditions excludes or restricts the liability of either party (the “first party”) to the other party for death or personal injury caused by the negligence of the first party, or for fraud or fraudulent misrepresentation of the first party.
11.3 Subject to clauses 12.1 and 12.2, neither party shall be liable to the other party, whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise, for (a) any of the following losses, whether direct or indirect: loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss; or (b) any special, indirect or consequential loss, costs, damages, charges or expenses; in each case however arising under or in connection with these Conditions, provided that this clause shall not apply to limit or exclude any obligation to pay monies when due hereunder.
11.4 Subject to the foregoing provisions of this clause 12, the total and aggregate liability of XYZ to Customer, whether in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising under or in connection with the performance or nonperformance or contemplated performance of the Contract, including all liability under indemnities given by XYZ under these Conditions, shall be limited to the total Fees paid to XYZ in respect of the Product for which the claim relates, during the 12 months immediately preceding the date on which the claim arose.
12. TERM AND TERMINATION
12.1 This Contract shall commence on the Effective Date. This Contract shall continue for the Initial Term and thereafter shall automatically continue for successive monthly periods unless: (a) either party at any time notifies the other party in writing of its intention to terminate, giving at least the Minimum Termination Notice; such notice to take effect no sooner than the expiry of the Initial Term; or (b) otherwise terminated in accordance with the provisions of these Conditions.
12.2 This clause applies in the case of any failure by Customer to pay any amount under these Conditions on or before the due date for payment (a “Payment Default”). In the case of each Payment Default: (a) if the Payment Default has not been remedied in full (including payment of all applicable interest) within 30 days of the due date for payment, XYZ may suspend the Services in whole or in part with immediate effect, upon giving notice in writing to Customer, until such Payment Default has been remedied (including payment of all applicable interest); and (b) if the Payment Default has not been remedied in full (including payment of all applicable interest) within 60 days of the due date for payment, XYZ may terminate these Conditions with immediate effect upon giving written notice to Customer without affecting any other right or remedy available to it.
12.3 Without affecting any other right or remedy available to it, either party may terminate these Conditions with immediate effect by giving written notice to the other party if: (a) other than in respect of any Payment Default (in which respect clause 13.2 shall apply), the other party commits a material breach of any other term of these Conditions which breach is either irremediable or remediable but has not been remedied within 30 days after being notified in writing to do so; (b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or (c) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
12.4 Upon expiry or termination of these Conditions: (a) all licences granted under these Conditions shall immediately terminate and Customer shall immediately cease all use of the Services, and shall immediately and at its own cost return the Products together with all peripherals and packaging to XYZ; (b) each party shall return and make no further use of any equipment, property, documentation and other items (and all copies of them) belonging to the other party; (c) save to the extent otherwise required under applicable law or as otherwise agreed between the parties, XYZ shall delete any and all Customer Data within 90 days of such expiry or termination; and (d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of expiry or termination, including the right to claim damages in respect of any breach of these Conditions which existed at or before the date of termination, shall not be affected or prejudiced.
13.1 Neither party shall be in breach of these Conditions nor liable for delay in performing, or failure to perform, any obligations under these Conditions if such delay or failure result from any event, circumstances or cause beyond its reasonable control which by its nature could not have been foreseen or, if it could have been foreseen, was unavoidable. If the period of delay or non-performance continues for two months, the party not affected may terminate this Contract by giving 7 days’ written notice to the affected party.
13.2 XYZ may subcontract any or all of its rights or obligations under this Contract. No one other than a party to the Contract shall have any right to enforce any of its terms.
13.3 This Contract together with any agreed or permitted variation of it constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Neither party has relied upon any representation of the other party in entering into this Contract (provided nothing in this Contract shall exclude liability for fraud). No variation of this Contract shall be effective unless it is in writing and signed by the parties.
13.4 A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy or prevent or restrict the further exercise of that or any other right or remedy.
13.5 If any provision or part-provision of these Conditions is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of these Conditions.
13.6 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office and shall be delivered personally or sent by pre-paid first class post or commercial courier or email. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the party’s registered office; if sent by pre-paid first class post, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by email, on the day of transmission or (if not a Business Day) the next Business Day. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
13.7 Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
13.8 The Contract, and any dispute or claim arising out of or in connection with it (including non-contractual disputes or claims), shall be governed by the law of England and Wales. Each party irrevocably agrees that the courts of England shall have non-exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).
13.9 Customer hereby acknowledges and agrees that, for the purpose of the Radio Equipment Directive 2014/53/EU, the Products are (a) supplied for evaluation purposes; (b) customised to the specific requirements of Customer; (c) to be used by Users in their professional capacity and under the supervision of authorised technicians of XYZ only; and (d) only to be used at Customer’s development premises
14. DEFINITIONS AND INTERPRETATION
14.1 Any phrase in these Conditions introduced by the term “include”, “including”, “in particular” or similar expression will be construed as illustrative and will not limit the sense of the words preceding that term.
14.2 Headings used in these Conditions are for reference only and shall not affect its construction or interpretation. In these Conditions a reference to: (a) “person” includes any individual, firm, company, corporation, body corporate, government, state or agency of trust or foundation, or any association, partnership or unincorporated body of two or more of the foregoing (whether or not having separate legal personality and wherever incorporated or established); and (b) “written” or “in writing” includes emails and faxes, but excludes all other content or messages sent by mobile phone or via any instant messaging or similar platform.
|“Authorised Users”||those employees and/or individual contractors of Customer who are authorised to access and use the Products and Services, limited to such number as specified in the Order Form;|
|“Business Day”||a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business;|
|“Business Hours”||9am to 6pm local UK time each Business Day;|
|“Contract”||the contract between XYZ and Customer for the supply of the Products and Services in accordance with the Order Form and these Conditions;|
|“Customer Data”||(a) any data or information provided by Customer to XYZ in connection with the use of the Services, and (b) any data or information which is uploaded by any Authorised Users to the System in the course of use of the Services, in either case which may include Customer Personal data;|
|“Customer Personal Data”||means personal data provided by or on behalf of Customer to XYZ, or obtained by XYZ through Customer’s and the Authorised Users’ use of the Services;|
|“Data Protection Legislation”||the General Data Protection Regulation 2016 (Regulation (EU) 2016/679) (“GDPR”) and the Data Protection Act 2018 and any laws that replace or amend any of these, including the foregoing as amended by the UK Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019; together with the equivalent legislation of any other applicable jurisdiction and all other applicable law, in any relevant jurisdiction relating to privacy and data protection. All references to “controller”, “processor”, “personal data”, “personal data breach”, “data subject”, “special categories of data”, and “process” (and its alternate terms) shall refer to those terms as defined in the GDPR;|
|“Fees”||fees payable by Customer as set out in the Order Form;|
|“Intellectual Property”||all inventions (whether patentable or not), patents, rights in designs, copyright, database rights, trade marks (both registered and unregistered) together with all applications for, rights to claim priority from, rights to the grant of and extensions of the same, and all other intellectual and industrial property throughout the world, in each case for the full term of the relevant right;|
|“Licensed Purpose”||the use of the Services by Customer for its own business purposes (and not for resale or resupply to any third party);|
|“Minimum Termination Notice”||the minimum period of written notice to be given by a party as set out in the Order Form in order to terminate for convenience pursuant to clause 13.1(a);|
|“Product Defect”||any defect in the Product (excluding all software, electronics and firmware contained in or used in conjunction with the Product) due to the negligent design, manufacture or assembly of the Product or due to the negligent use of defective materials in such manufacture;|
|“Order Form”||the order form in XYZ’s standard format, as supplied in conjunction with these Conditions;|
|“Products”||the products (or any part of them) as set out in the Order Form;|
|“Services”||the services provided by XYZ to Customer under these Conditions in combination with the Product and as described in the Order Form;|
|“Software”||the online software applications and programs owned by or licensed to XYZ which (in whole or part) provide the underlying functionality and features of the Services;|
|“Term”||the term of the Contract as defined in clause 13.1 of these Conditions;|
|“Virus”||any extraneous thing or device (including any malicious code, worm, trojan horses or virus) which is intended to designed to disable, damage, erase, disrupt, prevent, impair or otherwise adversely affect the normal operation of or access to any computer programme, software, database or contents thereof, hardware or equipment, network or telecommunications service, or otherwise adversely to affect the use of the Services.|