Welcome to Information Technology & Software Design’s (“IT-SD’s” or “the Company’s”) Support and Maintenance Contract General Terms & Conditions (“Terms & Conditions”) agreement.
For the purposes of this agreement, the terms “we,” “us,” and “our” refer to the Company. “You” refers to you, as a customer of the Company’s support services.
These conditions together with the provisions of the Agreement or a Statement of Work (SOW) are the only contractual terms upon which the Company is prepared to deal with its customers in connection with the supply, by us, of user, hardware, software, equipment and network support and maintenance. They shall govern all contracts for the supply of such support to the exclusion of any other contractual terms, including any which a customer attempts to introduce. If you have any questions regarding the terms and conditions please contact us at 858-779-4448 or email us at info@it-sd.com.
1.1. All words and expressions undefined in these conditions will have the meaning given to them in the Agreement or SOW. The following words and expressions used in these conditions will have the following meanings:
1.1.1. “Additional Charge” means a charge payable by the Customer for additional services outside the scope of the Services in accordance with our prevailing rates for such services including without limitation, the supply of spare parts and goods.
1.1.2. “Agreement” means an optionally associated agreement schedule taking the place of the SOW in forming part of the Contract.
1.1.3. “Conditions” means these General Conditions of Support & Maintenance which are incorporated into and form part of the Agreement.
1.1.4. “Contract” means the contract for the provision by us of user support, hardware support, equipment support or network support formed by the Customer signing the Agreement or SOW which contract is governed by these conditions and the provisions of the Agreement or SOW.
1.1.5. “Company” refers to Information Technology & Software Design (IT-SD), including its successors, agents and assigns.
1.1.6. “Customer” refers to you, as a customer of the Company’s support services.
1.1.7. “Equipment” means each item of equipment listed in the Equipment List but excluding, unless otherwise agreed in writing with us, any software, removable media or consumable items used in connection with the Equipment.
1.1.8. “Equipment List” means a list of equipment supported.
1.1.9. “Party” means the Company or the Customer, and “Parties” means both of them.
1.1.10. “Pre-Agreement Defects” means any defects in the Equipment (which as at the Start Date is not brand new and/or not covered by a manufacturer’s warranty) notified to the Customer prior to the Start Date.
1.1.11. “Remote Server Support”, in respect of the Support, means the services provided by us by remotely accessing the Customer’s server or systems.
1.1.12. “Statement of Work (SOW)” means the associated SOW forming part of the Contract in the absence of an Agreement.
1.1.13. “Specification” means the description of the Support appended to the SOW or the Agreement.
1.1.14. “Term” means the duration of the SOW or the Agreement.
1.1.15. “User List” means a list of supported Customer users.
1.1.16. “Working Hours” means our working hours, namely the hours between 8:00 am and 9:00 pm (United States, Pacific Time Zone) everyday excluding Bank, Public and Statutory Holidays in the United States.
2.1. The Contract shall (once the Agreement or SOW has been signed by the Customer) come into effect on the Start Date and subject to these conditions will continue in force for the period set out in the Agreement or SOW.
3.1. In consideration of the payment of the charges in the associated Agreement or SOW, we agree to provide the Support in accordance with the Specification and these conditions.
3.2. Where we have agreed with the Customer in writing to provide support services in respect of software, the terms of this support shall be governed by this Contract, subject to any special conditions set out in the Agreement or SOW.
3.3. Any support services over and above those referred to in condition 3.1, and over and above those conditions 4.2, 5.3 and 9 where these optional services are included in the Contract and specified in the associated Agreement or SOW, shall be:
3.3.1. supplied to the Customer at our sole discretion at our standard charging rates as current from time to time;
3.3.2. invoiced in the manner specified in the Agreement or SOW or, where not specified, in such manner determined by us; and
3.3.3. payable within 30 days of the issue date of our invoice.
3.4. Unless specified otherwise in the associated Agreement or SOW, stated response times are calculated in Working Hours from the time that we receive notification from the Customer of any defect in the Equipment. We will keep a record of the time that we receive such notification and such record will be accepted by the Customer as conclusive proof of the time of such notification.
3.5. All support services are performed at our discretion. We make no warranties, express or implied, as to whether any given issue can be resolved within a certain timeframe, or resolved at all.
3.6. All support services are based on the assumption that the issues can be reproduced by us. If we are unable to reproduce the issue, the service guidelines unfold limited effect. Some issues occur only on a specific platform or in combination with third-party software, which we may not have at its disposal. This can cause non-reproducibility of the issue and can delay the response.
4.1. This is an optional service component and is not included in all agreements and SOWs. If it is included as a component of the Specification in the accompanying Agreement or SOW, then the following Terms and Conditions under clause 4 apply.
4.2. In consideration of the payment of the maintenance charges and other charges set out in any Equipment List (the “Charges”), we agree to provide preventive and emergency maintenance of the Equipment (the “Support”) in accordance with the Specification and these conditions.
4.3. Payment of the Charges covers the provision by us of labor, replacement and loaned parts and all costs necessary for carrying out the Support.
4.4. Should the Customer purchase any additional equipment then we may extend the Support to such additional items upon payment of an additional charge for those additional products, commensurate to the additional services which we shall have to supply as a result of such additional products being used by the Customer.
4.5. The Customer may only request removal of Equipment from any Equipment List upon at least 90 days’ notice of the expiry of the Initial Period (or any renewal). The Customer shall notify us of this in Writing and Support will no longer be provided in respect of this Equipment from the Expiry of the Initial Term (or any renewal).
4.6. During the Term, we shall at our discretion undertake such modifications, changes or enhancements to the Equipment and/or implement any practice, procedure or measure, which is deemed by us to be necessary and/or to prevent or minimize damage to the Equipment.
4.7. We will before undertaking any such modification, change or enhancement as mentioned in clause 4.6, explain to you, the Customer, if we deem necessary, the need and cost (where applicable) of such modification, change or enhancement. The Customer shall pay any Additional Charge for such modification, change or enhancement.
4.8. We may review and increase or decrease the Charges on each anniversary of the Start Date.
5.1. This is an optional service component and is not included in all agreements or SOWs. If it is included as a component of the Specification in the accompanying Agreement or SOW, then the following Terms and Conditions under clause 5 apply.
5.2. Where Emergency Onsite Maintenance is included in the Agreement or SOW, we shall use our reasonable endeavors to ensure that an engineer arrives at the Customer Location within the appropriate response time set out in the Specification or otherwise agreed.
5.3. In consideration of the payment of the maintenance charges set out in any Equipment List (the “Charges”), we agree to provide preventative and emergency maintenance of the Equipment (the “Support”) in accordance with the Specification and these conditions.
5.4. The Support shall comprise:
5.4.1. using reasonable endeavors to identify, diagnose and attempt to resolve defects in the Equipment;
5.4.2. where hardware cover is purchased and a replacement part will, in our opinion, remedy such a defect and a part of the same or similar specification to the part to be replaced is in our then available stock, the provision and fitting such replacement part; and
5.4.3. whilst we are complying with clause 5.4.1, loaning replacement equipment of the same or similar specification to that which we are attempting to repair provided that such replacement equipment is in our then available stock.
5.5. If under clause 5.4, replacement parts are fitted by us, such replacement parts shall become the property of the Customer at no additional cost and any parts removed under clause 5.4 shall become our property once the parts have been removed.
5.6. Emergency maintenance will only be carried out during Working Hours unless otherwise agreed. If any such maintenance is carried on outside Working Hours, the provision of such maintenance shall be subject to the availability of qualified engineers and the Customer shall pay our then current man-hour rate (as notified to the Customer) provided that any such charges shall be for a minimum of two hours per call per person. The time to be charged will include the necessary travel time to and from the Customer Location.
6.1. During the continuance of the Contract, the Customer shall:
6.1.1. provide us with full and safe access to the Equipment, devices and network links in connection with which Support or other services to be provided by us is to be provided;
6.1.2. ensure in the interests of health and safety that our personnel or sub-contractors, upon or prior to entering the Customer’s premises, are made familiar with the Customer’s premises and safety procedures and have access, at all times while on those premises, to a member of the Customer’s staff familiar with the Customer’s premises and safety procedures;
6.1.3. make available to us free of charge all facilities and services reasonably required by us to enable us to provide the Support;
6.1.4. provide on request a suitably qualified or informed representative, agent or employee to accompany our personnel when providing the Services or to render such assistance or to give such advice as will enable our personnel to exercise unrestricted access to the Site and the Equipment and otherwise to perform the Services effectively;
6.1.5. ensure that all operators and managers of the Equipment are properly trained and be responsible for the correct operation and use of the Equipment, devices, software and network links in material accordance with relevant user documentation and shall at all times comply with our and the manufacturer’s reasonable recommendations and advice in respect of environment, media, ancillary equipment and operating procedures for the use of the Equipment, devices, software and network links;
6.1.6. upon our request furnish to us sufficient information which, in our reasonable opinion, will enable the Services to be carried out forthwith and without interruption and be responsible for and bear the cost of any modification to the scope of the Services arising from any discrepancy, error or omission in any drawings, specification or other information supplied or approved by the Customer;
6.1.7. where an Equipment List has been completed, be responsible for promptly reporting to us in writing all defects in the Equipment which become apparent to it;
6.1.8. where an Equipment List has been completed, be responsible for promptly reporting to us in writing all potential changes to the Equipment so we may be able to change services accordingly;
6.1.9. where an Equipment List has been completed, endeavor to ensure that proper environmental conditions are maintained for the Equipment as specified by the manufacturer and industry best practice and shall maintain in good condition the hardware, cables, fittings and electricity supply associated with the systems while ensuring the Equipment is cared for and operated in accordance with manufacturer’s recommendations.
6.2. All such assistance to be provided by the Customer under this Clause 6 or in general shall be at the Customer’s sole cost and expense.
6.3. The Customer has those matters under its control and accordingly the Company shall not be liable to provide Support where any defect has arisen through failure to observe such recommendations or through continued use of the Equipment after the Customer becomes aware of the defect or of a defect in any part of a system of which the Equipment forms a part.
7.1. We shall be under no liability to:
7.1.1. install, relocate or upgrade the Equipment or any part of it, unless specified otherwise in the associated Agreement or SOW.
7.1.2. install, transfer, upgrade or reconfigure software unless this is expressly agreed within the Agreement or SOW.
7.1.3. provide, repair or replace consumable items for the Equipment including, without limitation, ink, batteries, magnetic tape media, disk packs, cartridges, typeheads or drums.
7.1.4. carry out any adjustment or operation to or setting of the Equipment or software which is described in the relevant user’s manual and regarded by the manufacturer of the Equipment or software as a user function, unless this is expressly agreed within the Agreement or SOW.
7.1.5. repair or replace any damaged or defective removable media on the Equipment.
7.1.6. provide Support in respect of any faults, defects, damage or loss arising directly or indirectly from:
7.1.6.1. accidental or malicious damage to, theft of or other misuse of the Equipment or software;
7.1.6.2. the act, error, fault, neglect, misuse, improper operation or omission of the Customer or its servants, agents, contractors or invitees or any person whether or not that person is under the control or direction or authority of the Customer;
7.1.6.3. incorrect power supply, failure or fluctuation of electrical power, air-conditioning, humidity control or any environmental factor, lightning, strikes or transportation of equipment;
7.1.6.4. any breach by the Customer of the terms of the Contract;
7.1.6.5. the use of the Equipment or software other than in accordance with relevant user manuals;
7.1.6.6. operator error or, unless the software is included in the Specification, a failure or error in operational software;
7.1.6.7. any failure by the Customer to copy data or provide restorable backup and/or security copies of data processed or stored on the Equipment;
7.1.6.8. any modifications or adjustments (or any attempts thereat) carried out to the Equipment or any part of it by any person other than us or our sub-contractors; or
7.1.6.9. any circumstances beyond our reasonable control.
7.1.7. provide Support in respect of any Pre-Agreement Defect.
7.2. We may at the Customer’s option provide any of the services referred to in clause 7.1 or any other services requested by the Customer, at the relevant Additional Charge. We shall inform the Customer of the associated Additional Charge, and the Customer shall accept the Additional Charge in writing before the services are performed.
7.3. We will not be held responsible for any data corruption or loss, howsoever caused. Should any such data loss occur, we will make reasonable efforts to recover secured data only, but not for re-keying of data lost which has not been secured on restorable tape or disk. If third party specialist data recovery services are required, then it is the Customer’s responsibility to cover the cost for this.
7.4. When supplying the Remote Support:
7.4.1. the Customer shall allow us access (whether through VPN access or otherwise) to its server, devices or Equipment in order to provide the services and we shall not be liable for any delay or failure to perform the Remote Support if, for whatever reason, we are unable to access such server, devices or Equipment;
7.4.2. the Customer acknowledges that we shall have access to the relevant user’s computer desktop and other information during the course of the Remote Support and, whilst we will comply with clause 7.4, below, the Customer shall indemnify us in respect of any claims, costs or damages incurred from the provision of the Remote Support in accordance with the terms of the Contract;
7.4.3. the Customer must ensure that it has backed up any and all data which we may come into contact with.
7.4.4. the Customer must ensure that it has encrypted any and all data which we may come into contact with.
7.5. Both we and the Customer shall treat as confidential all information obtained from the other pursuant to or in contemplation of the Contract, and shall not disclose such information to any person (except to its own employees and, in our case, its sub-contractors and then only to those employees or sub-contractors who need to know the same) without the other’s prior written consent. This obligation shall not, however, extend to any information which was rightfully in the possession of the receiving party prior to the commencement of negotiations leading to the Contract, which is already public knowledge or becomes so at a future date otherwise than as the result of a breach of this clause 7.4, or which is trivial or obvious.
7.6. We shall comply with all applicable data protection laws and regulations in respect of any personal data controlled or processed by us in connection with the provision of the Support and any other service provided by us under the Contract.
7.7. When Supplying Software Support:
7.7.1. We retain the right to decide the appropriate course of action for each incident and will follow the necessary troubleshooting steps to diagnose and then resolve the incident.
7.7.2. Depending upon the nature of the incident, we may have to impose a workaround to resolve the incident as opposed to a fix. Any workaround may be temporary prior to a more permanent solution being instigated or permanent if the customer decides not to proceed with a permanent fix. A workaround may be of a technical nature or may involve changing a manual business process performed by the Customer.
7.7.3. We will always aim to return the affected software or operating system to an acceptable operational state, however depending on the nature of the problem this may not be possible or may require changes to the software by the manufacturer.
8.1. When supplying support for Equipment or software, the Customer acknowledges that the Equipment or software may in time reach the point at which a major overhaul is required to ensure its continued maintainability. Such major overhaul (as opposed to continuing maintenance) is not within the scope of Support provided under this Contract. Accordingly if in our reasonable opinion the Equipment or software shall require such an overhaul then we shall notify the Customer in writing and provide a quotation for carrying out such overhaul. If the Customer does not within 28 days authorize the overhaul in writing, we may at any time after the expiration of that 28 days by notice in writing to the Customer vary the Contract by withdrawing the Equipment concerned from the Equipment List, or by withdrawing support for the software from the Specification, or by charging an additional service charge for continued maintenance of that Equipment or software at a rate to be determined by us.
8.2. When supplying support for Equipment the Customer acknowledges that the Equipment or software may in time reach the point at which the Equipment is beyond economic repair. Examples of this would be:
8.2.1. Where spare parts are no longer available from the manufacturer.
8.2.2. Where the product in our opinion has become unserviceable, including the circumstance where it has reached the end of its manufacturer’s stated life. In these circumstances we would notify the customer in writing and provide a quotation to refurbish or replace the product. If the Customer does not within 28 days authorize the overhaul in writing, we may at any time after the expiration of that 28 days, by notice in writing to the Customer, vary the Contract by withdrawing the Equipment concerned from the Equipment List or by charging an additional service charge for continued maintenance of that Equipment at a rate to be determined by us.
9.1. Where Repairs are included in the Agreement or SOW, we shall use all reasonable endeavors to ensure that an engineer arrives at the Customer Location within the appropriate response time set out in the Specification.
9.2. All repairs of Equipment shall be carried out in such a manner as to meet the manufacturer’s available technical specification, wherever possible.
9.3. Repairs shall only be carried out in respect of Equipment that has become unserviceable due to defects recognized by the manufacturer as a fault, or as an alternative, where we deem the Equipment to have such a fault.
9.4. In the case of Services for which an Additional Charge is payable by the Customer for replacement of spare parts, title in such replacement or spare parts shall pass to the Customer only upon full payment of the Additional Charge. Unless otherwise agreed in writing between the Parties, risk of damage to or loss of replacement spare parts shall pass to the Customer as soon as they are delivered to the Customer’s designated premises.
9.5. Where parts of the Equipment have been replaced by or upon the instruction, recommendation or direction of us or otherwise, title in the replaced parts will remain with the Customer upon removal from the Equipment.
9.6. We may from time to time require the Customer to purchase and store at the Site such spare parts as we consider necessary for the provision of effective Services.
9.7. We will not be liable for any failure or delay in providing the Services where such failure or delay is the direct or indirect result of the failure of the Customer to comply with clause 9.6.
9.8. Save as aforesaid, the property of and risk in the Equipment is not affected by the provisions contained in this Agreement.
10.1. The charges set out in the SOW shall be invoiced by us and paid by the Customer 30 days after issuance of an invoice. Net30 terms extended for all clients in good standing. If two unpaid invoices exist, no work will be performed until payment has been received on all invoices.
10.2. If any payment due under this Contract is not made by its due date then we may without prejudice to any other of our rights and remedies do any of the following:
10.2.1. charge interest on the unpaid sum (whether before or after judgement) at the statutory rate of interest payable on late payments from time to time, such interest to accrue on a daily basis from the due date for payment until the date payment is made in full; and/or
10.2.2. suspend any further Service or Support and all other services or other obligations to the Customer under the Agreement (without being liable to Customer for any losses so caused) until such a time as all sums due from the Customer to us (including interest) shall have been paid;
10.2.3. at its sole discretion, apply any monies received from the Customer in relation to the Agreement or any other contract or agreement between the Customer and us, including but not limited to deposits or security payments, towards the payment of the relevant invoice;
10.2.4. exercise a lien over all property of the Customer in its possession for any unpaid sums and interest thereon; and/or
10.2.5. terminate the Contract by notice in writing to the Customer.
10.3. The Customer shall not be entitled to withhold from, set off against or otherwise reduce any payments due to us unless agreed in writing by us.
10.4. We shall be entitled to adjustment of the Fees and Additional Charges (to be mutually agreed in writing) in the event of changes in law or engineering standards applicable to or affecting the Equipment and/or Services after the execution of the Agreement.
10.5. We may recover from the Customer an amount equal to any increase in service or support costs which we incur from any sub-contractors that we engage under the Contract.
10.6. Any charges payable under this Contract are exclusive of any applicable taxes, tariff surcharges or other like amounts assessed by any governmental entity arising as a result of the provision of the Services by IT-SD to the Customer under this Contract and such shall be payable by the Customer to IT-SD in addition to all other charges payable hereunder.
11.1. We and the Customer may terminate the Contract immediately by giving written notice to the other if:
11.1.1. a voluntary arrangement is approved;
11.1.2. either Party is in material breach of the Contract and such breach, if capable of remedy, is not remedied within 30 days of written notice of the material breach to the Party in breach; or
11.1.3. the Customer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction) or has an order made or resolution passed for such winding-up or shall otherwise become insolvent or make such proposal, assignment or arrangement for the benefit of its creditors or have a receiver, administrative receiver, administrator or manager appointed over its affairs or have an application made to court for the appointment of a judicial manager or be placed under a judicial management order; or
11.1.4. an encumbrancer takes possession of, or a receiver is appointed over, any of the property or assets of the Customer; or
11.1.5. the Customer ceases, or threatens to cease, to carry on business; or
11.1.6. there is a change in control of the Customer which in our reasonable opinion adversely affects the position, rights or interests of the Customer. (For the purpose of this sub-clause, “control” means the ability to direct the affairs of another whether by virtue of Agreement, ownership of shares, or otherwise howsoever); or
11.1.7. in our reasonable opinion, there occurs a material change in the financial position of the Customer which is likely to affect the Customer’s ability to perform its obligations under the Agreement; or
11.1.8. we reasonably apprehend that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
11.2. Termination howsoever occasioned shall not affect the accrued rights or liabilities of either Party nor shall it affect the coming into or continuance in force of any provision of the Contract which is expressly or by implication intended to come into or continue in force on or after such termination.
11.3. The rights and remedies granted to us pursuant to the Agreement are in addition to, and shall not limit or affect, any other rights or remedies available at law or in equity.
12.1. Subject to the limitations upon its liabilities set out in this clause 12, we warrant to the Customer that:
12.1.1. we will perform the Support with reasonable care and skill; and
12.1.2. the Services and the Materials we provide to the Customer under this Agreement will not infringe or violate any intellectual property rights or other right of any third party.
12.2. The Customer shall give notice to us as soon as it is reasonably able upon becoming aware of a breach of this warranty and subject to the Customer complying with this obligation and providing (where possible) a documented example of the relevant defect or failure, we shall remedy any breach of such warranty by the provision of remedial services free of charge. We shall have no liability or obligation under the said warranty or obligation other than to remedy breaches of the same in accordance with this clause.
12.3. Subject to clauses 12.1 and 12.2, all conditions, warranties, terms and undertakings, express or implied, statutory or otherwise in respect of the provision of the Support or any other services under the Contract are excluded to the fullest extent permitted by law.
12.4. This clause 12 states our only liability to the Customer under or in connection with the Contract.
12.5. Without prejudice to clause 12.7, we will not be liable to the Customer by way of representation (unless fraudulent), common law duty or under any express or implied term of the Contract for any:
12.5.1. indirect, special or consequential loss or damage or loss of profits or business (whether actual or anticipated, or caused by our negligence or that of our employees agents or otherwise) arising in connection with the Support or any other services provided to you in connection with the Contract;
12.5.2. data or information corruption or loss, howsoever caused, it being the Customer’s responsibility to keep adequate back-up copies of data and programs held or used by the Customer or on its behalf;
12.5.2.1. Should any such data loss occur, we will make reasonable efforts to recover secured data only, but not for re-keying of data lost which has not been secured on restorable tape or disk.
12.5.2.2. If third party specialist data recovery services are required, then it is the Customer’s responsibility to cover the cost for this.
12.5.3. loss of use;
12.5.4. loss of production (including loss of hydrocarbons);
12.5.5. loss of contracts;
12.5.6. loss of opportunities;
12.5.7. loss of revenue;
12.5.8. cost of capital;
12.5.9. costs of replacement;
12.5.10. loss of goodwill;
12.5.11. loss of reputation;
12.5.12. loss from any third party contracts;
12.5.13. loss due to business interruption;
12.5.14. loss of interest;
12.5.15. loss of power;
12.5.16. cost of purchased or replacement power;
12.5.17. contractual claims from third parties;
12.5.18. incidental, special or consequential losses or damages arising from or in connection with its performance or non-performance; or
12.5.19. other indirect or consequential loss or damage whatsoever.
12.6. Where not already defined in the Agreement, our entire liability under or in connection with the Contract shall not exceed one and a half times the Charges for the previous 12 months.
12.7. Notwithstanding any other term of these conditions our liability to Customer for death or personal injury resulting from our negligence or that of our employees, agents or subcontractors is not limited save that this clause 12.7 shall not confer a right or remedy on the Customer to which it would not otherwise be entitled.
12.8. We shall not be liable to the Customer or be deemed to be in breach of the Agreement by reason of any delay in performing, or any failure to perform, any of our obligations in relation to the Services under the Contract if the delay or failure was due to force majeure. For the purposes of this clause, force majeure shall mean any unforeseen event beyond the reasonable control of us such as, but not limited to any act of God, act of government or any authorities, hostilities between nations, war, riot, civil commotions, civil war, insurrection, blockades, import or export regulations or embargoes, rainstorms, national emergency, earthquake, fires, explosion, flooding, hurricane or other exceptional weather conditions or natural disaster, acts of terrorism, accidents, sabotages, strikes, shortages in material or supply, infectious diseases, epidemics, as well as travel restrictions or travel warnings due to any such events. If any delay in performing, or any failure to perform the Agreement is caused by the delay of a subcontractor of ours, and is beyond the control and without the fault or gross negligence of us, we shall incur no liability for such delay. If such delay or failure continues for at least one (1) month, the other party may terminate this Agreement immediately with written notice. In such event, the Customer shall pay us a reasonable sum in relation to Services already rendered and costs and expenses incurred prior to termination.
12.9. Notwithstanding any other provision of this Agreement, our total cumulative liability for any act or omission, whether in contract, tort (including negligence or strict liability) or any other legal or equitable theory during the Term of this Agreement shall not exceed in the aggregate, 10% of the Fee payable under this Agreement during the preceding one (1) year.
12.10. We may recover from the Customer an amount equal to any charges which we incur as a result of the late return, non-return, or incorrect return of an advanced exchange unit from a Customer.
12.11. This Clause 12 shall apply to the benefit of our personnel, our affiliates and our sub-contractors.
13.1. We and the Customer acknowledge and agree that the Services performed by us, its employees, agents or sub-contractors shall be as an independent contractor and that nothing in this Agreement shall be deemed to constitute a partnership, joint venture, agency relationship or otherwise between us and the Customer.
14.1. For the purposes of this Clause 14, “Material” shall mean the materials, in whatever form, used by us to provide the Services and the products, systems, programs or processes, in whatever form, produced by us pursuant to this Agreement.
14.2. In respect of the Material specifically created for the Customer as part of the Services, we assign the full title guarantee to the Customer and any all of the copyright, other intellectual property rights and any other data or material used or subsisting in the Material whether finished or unfinished.
14.3. All intellectual property rights in all materials not specifically created for the Customer as part of the Services (whether in hard copy or electronic form) which we create or supply to the Customer in the course of performing the Services under this Agreement will, as between the Parties, be owned by us.
14.4. If any third party intellectual property rights are used in the Material, we shall ensure that it has secured all necessary consents and approvals to use such third party intellectual property rights for us and the Customer.
14.5. The Customer acknowledges that any discoveries, inventions, patents, designs or other rights arising directly or indirectly out of or in the performance of this Agreement are the property of us.
14.6. The Customer’s obligations under this Clause 14 shall survive the termination of this Agreement.
14.7. The Customer is responsible for the security of its proprietary and other classified information. The Customer undertakes to indemnify us against all claims brought by any party for loss or damage to such information howsoever caused.
14.8. Other than as specifically provided for in this Agreement, nothing in this Agreement assigns, transfers or grants a license to a Party over or in relation to pre-existing intellectual property rights owned by the other Party, us or a third party.
14.9. Each Party agrees not to, and shall ensure that its employees, agents and advisors do not, disclose to third parties, any confidential or proprietary information arising or disclosed pursuant to this Agreement (including information not generally known to the public, such as without limitation technical, development, marketing, sales, operating, performance, cost, know-how, business and process information or computer programming techniques), except:
14.9.1. with the prior written permission of the Party to whom such information belongs;
14.9.2. as required by applicable law or regulation or pursuant to a court order or direction of any government authority or regulatory body or stock exchange; or
14.9.3. where the information is already known to, or obtained by independent means, or independently developed, by the recipient, or is already in the public domain through no fault of the recipient.
15.1. Neither we nor the Customer will use, copy, adapt, alter or part with possession of any information of the other which is disclosed or otherwise comes into its possession under or in relation to this Agreement and which is of a confidential nature. This obligation will not apply to information which the recipient can prove was in its possession at the date it was received or obtained or which the recipient obtains from some other person with good legal title to it or which is in or comes into the public domain otherwise than through the default or negligence of the recipient or which is independently developed by or for the recipient.
16.1. Any notice which may be given by us or the Customer under this Agreement shall be deemed to have been duly delivered if delivered by hand, first class post or electronic mail to the address of the other Party as specified in this Agreement or any other address notified in writing to the other Party. Subject to any applicable local law provisions to the contrary, any such communication shall be deemed to have been made to the other Party, if delivered by:
16.1.1. first class post, 3 days from the date of posting;
16.1.2. hand, on the date of such delivery; and
16.1.3. electronic mail, when the Party sending such communication receives confirmation of such delivery by electronic mail.
17.1. The Contract shall be governed by the laws of the State of California, and the Customer agrees to submit any dispute arising in connection with it to the non-exclusive jurisdiction of the state courts.
17.2. The Parties will use their best efforts to negotiate in good faith and settle any dispute that may arise out of or relate to this Agreement or any breach of it. If any such dispute cannot be settled amicably through ordinary negotiations between representatives of the Parties, the dispute shall be referred to the management of each Party who will meet in good faith in order to try and resolve the dispute.
17.3. All negotiations connected with the dispute will be conducted in complete confidence and the Parties undertake not to divulge details of such negotiations except to their professional advisers who will also be subject to such confidentiality and such negotiations shall be without prejudice to the rights of the Parties in any future proceedings.
18.1. The terms of the Contract constitute the entire agreement between the Parties relating to the subject matter hereof unless any representation or warranty made about this Agreement was made fraudulently and, save as may be expressly referred to or referenced herein, supersedes all prior proposals, arrangements, representations, writings, negotiations or understandings with respect hereto, whether oral or written.
18.2. The Contract shall be binding upon and endure to the benefit of the parties and their legal successors but all or any part of its rights under this Agreement shall never be assignable or transferable by the Customer without the prior written consent of the Company. The Company may license or sub-contract all or any part of its obligations under the Contract freely without the consent of the Customer.
18.3. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights.
18.4. No waiver by either Party of any breach of the Agreement by the other Party shall be considered as a waiver of any subsequent breach of the same or any other provision. If either Party delays, neglects or chooses not to enforce its right under the Agreement, it shall not affect its right to do so at a later date.
18.5. If any provision of the Agreement or these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part such provision shall be construed, limited or if necessary, severed to the extent necessary to eliminate such invalidity or un-enforceability and the validity of the other provisions of the Agreement and these Conditions and the remainder of the provision in question shall not be affected but shall remain in full force and effect.
18.6. No terms shall survive the expiry or termination of the Agreement unless expressly provided.
18.7. This Agreement may not be amended for any other reason without the prior written agreement of both Parties.
18.8. Any reference in these Conditions to any provision of a statute and any regulations made in pursuance thereof as from time to time modified or re- enacted, whether before, on or after the date of the Agreement, so far as such modification or re-enactment applies or is capable of applying to any transaction entered into prior to completion of the Agreement (so far as liability thereunder may exist or can arise) shall be construed as a reference to that provision or regulation as amended, re-enacted or extended at the relevant time and shall include also any past statutory provision or regulation (as from time to time modified or re-enacted) which such provision or regulation has directly or indirectly replaced.
18.9. The headings used in these Conditions are for convenience only, shall be ignored in construing these Conditions and are not intended to affect the interpretation of this Agreement.
18.10. Unless the context requires otherwise, the singular shall include the plural and vice versa. References to any statute in these conditions shall include any amendment, variation or replacement to the same. The words “written” and “in writing” include any means of visible reproduction.
