Terms & Conditions

Koios Technology Ltd is registered in England under Company number 08294492 and has its registered office at Sandgate House, 102 Quayside, Newcastle Upon Tyne, NE15 8NY.

In accordance with the notice placed on all invoices, our standard terms of business are provided for consideration by all clients and should be read and fully understood prior to their express acceptance when paying an invoice:

  1. Definitions and Interpretation

1.1            In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:

 

“Acceptance Date”means the date on which the New Software is accepted (or deemed to be accepted) by the Customer pursuant to sub-Clause 6.3;
“Acceptance Tests”means the tests specified in this Agreement and/or such other tests as may be agreed in writing between the Customer and the Developer;
“Additional Services”means any additional services requested by the Customer to be provided by the Developer as set out in Schedule 5;
“Business Day”means, any day (other than Saturday or Sunday) on which ordinary banks are open for their full range of normal business in England;
“Change Request”means a request for a change to the New Software made by the Customer or the Developer;
“Confidential Information”means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to or in connection with this Agreement (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such);
“Customer Group”means, where the Customer is a company or otherwise acting in the course of business, the Customer’s parent company holding a majority interest in the Customer, and such parent company’s majority-owned subsidiaries;
“Development Services”means the software development, procurement, consulting and computer programming services required to produce the New Software;
“Documentation”means the documentation set out in Part 2 of Schedule 1;
“Implementation Plan”means the timing and sequence of events agreed between the Customer and the Developer for the performance of this Agreement, as set out in Schedule 2;
“Intellectual Property Rights”means (a) any and all rights in any patents, trade marks, service marks, registered designs, applications (and rights to apply for any of those rights) trade, business and company names, internet domain names and e-mail addresses, unregistered trade marks and service marks, copyrights, database rights, know-how, rights in designs and inventions;(b) rights under licences, consents, orders, statutes or otherwise in relation to a right in paragraph (a);

(c) rights of the same or similar effect or nature as or to those in paragraphs (a) and (b) which now or in the future may subsist; and

(d) the right to sue for past infringements of any of the foregoing rights;

“Licence”means the licence to use the New Software granted by the Developer to the Customer pursuant to Clause 10;
“Payment Schedule”means the payment schedule set out in Schedule 3;
“Planned Acceptance Date”means the date specified in the Implementation Plan on which the New Software is intended to be accepted by the Customer in accordance with this Agreement;
“Price”means the fixed, all-inclusive price for the provision of the New Software, the Licence and the Documentation;
“Project”means, collectively, the development, delivery and testing of the New Software;
“Rates”means the rates set out in Schedule 3;
“New Software”means the software being developed or customised by the Developer for the Customer, preliminary details of which are set out in the Specification, including any enhancements and modifications made;
“Source Software”means the software, details of which are set out in Schedule 4, being the software owned by the Customer upon which the New Software is to be developed in accordance with this Agreement;
“Specified Equipment”means the computers and/or devices, including operating systems, on which the New Software is to function as specified in Part 3 of Schedule 1;
“Specification”means the specification of the New Software set out in Part 1 of Schedule 1;
“System”means collectively the Specified Equipment and the New Software; and
“Warranty Period”means the period of 7 days after the Acceptance Date.

1.2            Unless the context otherwise requires, each reference in this Agreement to:

1.2.1       “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;

1.2.2       a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;

1.2.3       “this Agreement” is a reference to this Agreement and each of the Schedules as amended or supplemented at the relevant time;

1.2.4       a Schedule is a schedule to this Agreement; and

1.2.5       a Clause or paragraph is a reference to a Clause of this Agreement (other than the Schedules) or a paragraph of the relevant Schedule.

1.2.6       a “Party” or the “Parties” refer to the parties to this Agreement.

1.3            The headings used in this Agreement are for convenience only and shall have no effect upon the interpretation of this Agreement.

1.4            Words imparting the singular number shall include the plural and vice versa.

1.5            References to any gender shall include the other gender.

1.6            References to persons shall include corporations.

  1. The Project

2.1            The Developer shall:

2.1.1       provide the Customer with Development Services for the purpose of creating the New Software as detailed in the Specification;

2.1.2       install and test the New Software on the Specified Equipment;

2.1.3       provide the Documentation; and

2.1.4       carry out any Additional Services as agreed by the Parties.

2.2            The Developer shall carry out the obligations set out in sub-Clause 2.1 in accordance with the Implementation Plan.

2.3            The Developer shall supply to the Customer the object and source code of the New Software when requested by the Customer.

2.4            The Developer shall license the New Software to the Customer in accordance with Clause 10.

2.5            Where the Customer requires the Developer to provide training, support and maintenance in relation to the New Software, both Parties shall enter into a separate support and maintenance agreement, the terms of which shall be agreed between the Parties.

  1. Personnel

The Developer shall ensure that all of its personnel engaged in the Project:

3.1            have the necessary skills, expertise and diligence to undertake such work and will conform to the professional standards generally observed in the software development industry for similar services; and

3.2            comply with the provisions in this Agreement relating to Confidential Information and Non-Solicitation.

  1. Customer’s Obligations

The Customer shall:

4.1            deliver the Source Software to the Developer in a form suitable for the Developer to carry out the Development Work;

4.2            make available to the Developer, free of charge, such computer facilities (including but not limited to unhindered access to the Specified Equipment), office and secretarial services as are necessary to enable the Developer to carry out its obligations under this Agreement;

4.3            ensure that its employees and other independent contractors co-operate reasonably with the Developer and its employees in carrying out the Project;

4.4            promptly furnish the Developer with such information and documents as it may reasonably request for the proper performance of its obligations under this Agreement; and

4.5            ensure that any and all representatives appointed by it are available as reasonably required by the Developer.

  1. Change Requests

5.1            If either Party identifies a requirement for a change, a Change Request will be sent to the other Party detailing the change requirements.  If sent by the Developer, the Change Request shall state the effect such a change shall have on the New Software, the Implementation Plan and the Price.  If sent by the Customer, the receipt of the Change Request by the Developer will constitute a request to the Developer to state in writing the effect such a change shall have on the New Software, the Implementation Plan and the Price.  The Developer shall use all reasonable endeavours to supply the necessary details within 2 Business Days from receipt of the Change Request or such other period as may be agreed.

5.2            Where a change to the Price is required, the rates used as the basis for the additional cost for the Change Request shall be the Rates as detailed in Schedule 3.  The Parties will then decide whether or not to implement the change.  If the change is implemented, the amended New Software, Implementation Plan or Price shall then become the New Software, Implementation Plan and Price for the purpose of this Agreement.

5.3            The Developer shall not implement any changes unless instructed to do so by the Customer.

  1. Acceptance Tests and Liquidated Damages

6.1            The Acceptance Tests shall be agreed by the Parties in accordance with the Implementation Plan.

6.2            The Developer shall use its reasonable endeavours to ensure that the New Software is ready for acceptance testing by the Planned Acceptance Date.  In any event, the Developer shall give the Customer 2 Business Days’ prior notice in writing of the date when it will be ready to commence the Acceptance Tests.  Unless otherwise agreed, the Acceptance Tests shall take place on the third Business Day after such notice has been given.

6.3            The Customer shall accept the New Software immediately after the New Software has passed the Acceptance Tests.

6.4            If the New Software fails to pass the Acceptance Tests, repeat tests shall be carried out until the earlier of the following occurs:

6.4.1       the New Software passes the Acceptance Tests;

6.4.2       the Acceptance Tests have been repeated 3 times; or

6.4.3       a 30-day period from the Planned Acceptance Date has expired.

6.5            If at any time the Customer shall commence live running of the whole or any part of the New Software (other than in the Acceptance Tests) then the Customer shall be deemed to have accepted the New Software.

6.6      If at any time the Customer modifies any of the software code or database schema or data, then the Customer shall be deemed to have accepted the New Software.

6.7            If the New Software has not been accepted by the Customer on or after the occurrence of the events specified in sub-Clauses 6.4.2 or 6.4.3, then the Customer shall be entitled, without prejudice to any other rights or remedies it may have under this Agreement or at law, to terminate this Agreement immediately by written notice upon the Developer.  Notwithstanding the liquidated damages in sub-Clause 6.7 below, the Customer shall be entitled to damages or compensation for material breach.

  1. Representatives and Progress Meetings

7.1            Each Party shall nominate in writing upon the signing of this Agreement, the person who will act as its representative for the purposes of this Agreement.  Representatives will be responsible for providing any information which may be required by the other Party to perform its obligations under this Agreement.

7.2            The Parties shall procure that their respective representatives will meet at least monthly between the date of this Agreement and the Planned Acceptance Date to discuss and minute the progress of the Project.

  1. Warranties

8.1            The Developer warrants that:

8.1.1       it is entitled to enter into this Agreement and that it is entitled to grant the Licence in accordance with this Agreement;

8.1.2       the New Software shall perform substantially in accordance with the Specification on the Specified Equipment, minor interruptions and errors excluded;

8.1.3       the Documentation will provide users with adequate instructions to enable them effectively to operate and use the New Software; and

8.1.4       the development of the New Software will be carried out in a professional manner conforming to best industry practices.

8.2            The Developer shall not be liable under sub-Clause 8.1.2 if a failure to meet the warranties set out in it is caused by:

8.2.1       software other than the New Software running on the Specified Equipment; or

8.2.2       modifications or customisation made by or on behalf of the Customer to the New Software, without the authorisation of the Developer.

8.3            If the Developer receives a written notice from the Customer identifying a breach of the warranties set out in sub-Clause 8.1, or otherwise becomes aware of its failure to comply with the warranties set out in sub-Clause 8.1, then the Developer shall, at its own expense, promptly remedy such breach or failure.  Notwithstanding the first part of this sub-Clause 8.3, the Developer shall have no liability or obligations under the warranties unless it shall have received written notice of the defect or error within the Warranty Period.

  1. Undertakings

9.1            The Developer shall:

9.1.1       observe and obey all directions and regulations as may from time to time be reasonably given to or imposed on the Developer by or on behalf of the Customer for the purposes of this Agreement;

9.1.2       not either during nor after the end of the engagement under this Agreement create any product all or part of which relies directly or indirectly on any idea, style, production method, gimmick, character or other information relating to the Customer or the Source Software, of which the Developer may become aware as a result of the engagement under this Agreement, regardless of whether such material is confidential or not;

9.1.3       hold the Source Software strictly in accordance with the proprietary rights provisions  of Clause 11 and, on completion of the Project, return to the Customer the Source Software, all related materials and documentation and any Confidential Information belonging to the Customer and all copies of the whole or any part thereof or, if requested by the Customer, shall destroy the same and certify in writing to the Customer that it has been destroyed;

9.1.4       not incur unauthorised expenditure or costs on behalf of the Customer without the Customer’s prior written consent;

9.1.5       ensure that it and its servants, agents and sub-contractors take all reasonable precautions to ensure that no known viruses or other malware for which detection and antidote software is generally available are coded or introduced into the New Software.

9.2            If the Developer wishes to use material (in any medium) owned by third parties as part of the New Software, he shall (having first obtained the Customer’s prior written agreement), obtain from those third parties such written assignments, releases, waivers, permissions and licences as necessary to permit such use and to enable the Customer to exploit any program containing that material in the New Software in all present and future media.  The Developer shall deliver copies of any documentation relevant to third party clearances to the Customer upon request.

  1. Licence

10.1        On payment in full of the Price, the Developer grants to the Customer a non-exclusive, perpetual, non-transferrable right to use the New Software and the Documentation on any processor owned or controlled by the Customer or a member of the Customer Group.

10.2        The Customer may not disclose or make available the New Software to any entity other than members of the Customer Group who have agreed to these licence terms nor permit others to use it except the Customer’s employees and agents who may use it only on the Customer’s behalf within the limits of the application licence and who are deemed to have agreed to such terms.

  1. Proprietary Rights

11.1        The Intellectual Property Rights in the Source Software (including the source and object code) together with any related materials or documentation are and shall remain the property of the Customer. The Developer shall notify the Customer immediately if the Developer becomes aware of any unauthorised use of the whole or any part of the Source Software by any person.

11.2        The Intellectual Property Rights in the New Software (including the source and object code) and the Documentation shall be and remain vested in the Developer apart from any elements which do not form part of the generic functionality of the New Software and which implement visual features or layouts created at the specific request of the Customer.  All Intellectual Property Rights in such distinctive customer features (including the source and object code) shall be and remain vested in the Customer.

11.3        The Developer will indemnify the Customer on demand against all costs, claims, demands, expenses and liabilities of whatsoever nature arising out of or in connection with any claim that the use or possession of the New Software infringes the Intellectual Property Rights of any third party subject to the following conditions:

11.3.1   The Customer shall promptly notify the Developer in writing of any allegations of infringement of which it is aware and shall not make any admissions without the Developer’s prior written consent;

11.3.2   The Customer, at the Developer’s request and expense, shall allow the Developer to conduct and/or settle all negotiations and litigation resulting from any such claim subject to the Developer taking over such conduct within 5 Business Days after being notified of the claim and provided that the Developer diligently pursues the settlement of any such claim; and

11.3.3   The Customer shall, at the request of the Developer, afford all reasonable assistance with such negotiations or litigation, and shall be reimbursed by the Developer on demand for all expenses incurred in doing so.

11.4        If the Customer’s use or possession of the New Software or any part of the New Software in accordance with this Agreement, is held by a court of competent jurisdiction to constitute an infringement of a third party’s Intellectual Property Rights, then the Developer shall promptly and at its own expense:

11.4.1   procure for the Customer the right to continue using and possessing the New Software or the infringing part; or

11.4.2   modify or replace the New Software (or part thereof) without detracting from the overall performance of the New Software, so as to avoid the infringement.

11.5        If the remedies set out in sub-Clause 11.4 above are not in the Developer’s opinion reasonably available, then the Customer shall return the New Software which is the subject of the intellectual property claim and the Developer shall refund to the Customer the corresponding portion of the Price, as normally depreciated, whereupon this Agreement shall immediately terminate.

  1. Charges and Expenses

12.1        In consideration of the Developer carrying out the Project, the Customer shall pay to the Developer the Price which shall be invoiced to the Customer in the specified proportions set out in Schedule 3 and subject to the terms set out in Clause 13.

12.2        In consideration of any Additional Services, the Customer shall pay to the Developer the amounts invoiced by the Developer to the Customer based on the Rates set out in Part 2 of Schedule 3.

12.3        The Customer shall also pay or procure the payment to the Developer of all reasonable travelling and other out-of-pocket expenses incurred in the course of the Project subject to a maximum amount of £<<insert sum>> per day excluding all travel costs.

  1. Terms of Payment

13.1        Payment of sums due by the Customer to the Developer shall be made within 7 days of the receipt of an invoice from the Developer, or the payment date specified on the invoice or payment schedule; whichever is sooner.  All payments under this Agreement shall be made in Pounds Sterling (GBP).

13.2        No work will commence on any project until receipt of cleared funds reach the Developer’s bank account in respect of the initial stage payment.

13.3        With effect from the beginning of each year commencing on the Acceptance Date, the Developer may increase the Rates in effect during the previous year by no more than 3.75% provided that not less than 10 Business Days’ prior written notice has been given to the Customer by the Developer.

13.4        All payments under this Agreement are exclusive of VAT, which shall be payable by the Customer at the rate and in the same manner for the time being prescribed by law against submission of a valid tax invoice.

  1. Liability and Insurance

14.1        The Developer shall, during the term of this Agreement, maintain employer’s liability, third party liability, product liability and professional negligence insurance cover in respect of its liabilities arising out of or connected with this Agreement, such cover to be to a minimum value of £2,000,000 and with an insurance company of repute.  The Developer shall on request supply copies of the relevant certificates of insurance to the Customer as evidence that such policies remain in force.  The Developer undertakes to use reasonable commercial efforts to pursue claims under such insurance policies.

14.2        The Developer shall indemnify the Customer for personal injury or death caused by the negligence of its employees in connection with the performance of their duties under this Agreement or by defects in any product supplied pursuant to this Agreement.

14.3        The Developer will indemnify the Customer for direct damage to tangible property caused by the negligence of its employees in connection with the performance of their duties under this Agreement or by defects in any product supplied pursuant to this Agreement.  The Developer’s total liability under this Clause shall be limited to £5,000 for any one event or series of connected events.

14.4        Save in respect of claims for death or personal injury arising from the Developer’s negligence, in no event will the Developer be liable for any damages resulting from loss of data or use, lost profits, loss of anticipated savings, nor for any damages that are an indirect or secondary consequence of any act or omission of the Developer whether such damages were reasonably foreseeable or actually foreseen.

14.5        Except as provided above in the case of personal injury, death and damage to tangible property, the Developer’s maximum liability to the Customer under this Agreement or otherwise for any cause whatsoever (whether in the form of the additional cost of remedial services or otherwise) will be for direct costs and damages only and will be limited to the greater of:

14.5.1   the sum for which the Developer carries comprehensive insurance cover pursuant to sub-Clause 14.1 above; or

14.5.2   a sum equivalent to the price paid to the Developer for the products or services that are the subject of the Customer’s claim, plus damages limited to 10% of the same amount for any additional costs directly, reasonably and necessarily incurred by the Customer in obtaining alternative products and/or services.

14.6        Nothing in this Clause 14 shall affect or limit the liquidated damages provisions in sub-Clause 6.7.

14.7        The Parties acknowledge and agree that the limitations contained in this Clause 14 are reasonable in the light of all the circumstances.

14.8        The Customer’s statutory rights as a consumer (where the Licensee is a consumer and not acting in the course of business) are not affected.  All liability that is not expressly assumed in this Agreement is excluded.  These limitations will apply regardless of the form of action, whether under statute, in contract or tort including negligence or any other form of action.  For the purposes of this clause, “the Developer” includes its employees, sub-contractors and suppliers who shall all have the benefit of the limits and exclusions of liability set out above in terms of the Contracts (Rights of Third Parties) Act 1999.  Nothing in this Agreement shall exclude or limit liability for fraudulent misrepresentation.

  1. Data Protection

The Parties undertake to comply with the provisions of the Data Protection Act 1998 and any related legislation insofar as the same relates to the provisions and obligations of this Agreement.

  1. Confidentiality

16.1        Each Party undertakes that, except as provided by sub-Clause 16.2 or as authorised in  writing by the other Party, it shall, at all times during the continuance of this Agreement and for 2 years after its termination:

16.1.1   keep confidential all Confidential Information;

16.1.2   not disclose any Confidential Information to any other party;

16.1.3   not use any Confidential Information for any purpose other than as contemplated by and subject to the terms of this Agreement;

16.1.4   not make any copies of, record in any way or part with possession of any Confidential Information; and

16.1.5   ensure that none of its directors, officers, employees, agents, sub-contractors or advisers does any act which, if done by that Party, would be a breach of the provisions of sub-Clauses 16.1.1 to 16.1.4 above.

16.2        Either Party may:

16.2.1   disclose any Confidential Information to:

16.2.1.1      any sub-contractor or supplier of that Party;

16.2.1.2      any governmental or other authority or regulatory body; or

16.2.1.3      any employee or officer of that Party or of any of the aforementioned persons, parties or bodies;

to such extent only as is necessary for the purposes contemplated by this Agreement (including, but not limited to, the provision of the Services), or as required by law.  In each case that Party shall first inform the person, party or body in question that the Confidential Information is confidential and (except where the disclosure is to any such body under sub-Clause 16.2.1.2 or any employee or officer of any such body) obtaining and submitting to the other Party a written confidentiality undertaking from the party in question. Such undertaking should be as nearly as practicable in the terms of this Clause 16, to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made; and

16.2.2   use any Confidential Information for any purpose, or disclose it to any other person, to the extent only that it is at the date of this Agreement, or at any time after that date becomes, public knowledge through no fault of that Party. In making such use or disclosure, that Party must not disclose any part of the Confidential Information which is not public knowledge.

16.3        The provisions of this Clause 16 shall continue in force in accordance with their terms, notwithstanding the termination of this Agreement for any reason.

  1. Force Majeure

17.1        No Party to this Agreement shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party.  Such causes include, but are not limited to: power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.

17.2        In the event that a Party to this Agreement cannot perform their obligations hereunder as a result of force majeure for a continuous period of 2 weeks, the other Party may at its discretion terminate this Agreement by written notice at the end of that period.  In the event of such termination, the Parties shall agree upon a fair and reasonable payment for all work on the Project completed up to the date of termination.  Such payment shall take into account any prior contractual commitments entered into in reliance on the performance of this Agreement.

  1. Term and Termination

18.1        This Agreement shall come into force on <<insert Commencement Date>> and shall continue until the completion of the Project, subject to the provisions of this Clause 18 and other relevant Clauses of this Agreement.

18.2        Either Party may immediately terminate this Agreement by giving written notice to the other Party if:

18.2.1   any sum owing to that Party by the other Party under any of the provisions of this Agreement is not paid within 10  Business Days of the due date for payment;

18.2.2   the other Party commits any other breach of any of the provisions of this Agreement and, if the breach is capable of remedy, fails to remedy it within 5 Business Days after being given written notice giving full particulars of the breach and requiring it to be remedied;

18.2.3   an encumbrancer takes possession, or where the other Party is a company, a receiver is appointed, of any of the property or assets of that other Party;

18.2.4   the other Party makes any voluntary arrangement with its creditors or, being a company, becomes subject to an administration order (within the meaning of the Insolvency Act 1986);

18.2.5   the other Party, being an individual or firm, has a bankruptcy order made against it or, being a company, goes into liquidation (except for the purposes of bona fide amalgamation or re-construction and in such a manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on that other Party under this Agreement);

18.2.6   anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the other Party;

18.2.7   that other Party ceases, or threatens to cease, to carry on business; or

18.2.8   control of that other Party is acquired by any person or connected persons not having control of that other Party on the date of this Agreement.  For the purposes of this Clause 18, “control” and “connected persons” shall have the meanings ascribed thereto by Sections 1124 and 1122 respectively of the Corporation Tax Act 2010.

18.3        For the purposes of sub-Clause 18.3.2, a breach shall be considered capable of remedy if the Party in breach can comply with the provision in question in all respects.

18.4        The rights to terminate this Agreement given by this Clause 18 shall not prejudice any other right or remedy of either Party in respect of the breach concerned (if any) or any other breach.

  1. Effects of Termination

Upon the termination of this Agreement for any reason:

19.1        any sum owing by either Party to the other under any of the provisions of this Agreement shall become immediately due and payable;

19.2        the Developer shall immediately return to the Customer the Source Software, all related materials and documentation and any Confidential Information belonging to the Customer and all copies of the whole or any part thereof or, if requested by the Customer, shall destroy the same and certify in writing to the Customer that it has been destroyed.

19.3        all Clauses which, either expressly or by their nature, relate to the period after the expiry or termination of this Agreement shall remain In full force and effect;

19.4        termination shall not affect or prejudice any right to damages or other remedy which the terminating Party may have in respect of the event giving rise to the termination or any other right to damages or other remedy which any Party may have in respect of any breach of this Agreement which existed at or before the date of termination;

19.5        subject as provided in this Clause 19 and except in respect of any accrued rights neither Party shall be under any further obligation to the other; and

19.6        each Party shall (except to the extent referred to in Clause 16  immediately cease to use, either directly or indirectly, any Confidential Information, and shall immediately return to the other Party any documents in its possession or control which contain or record any Confidential Information.

  1. No Waiver

No failure or delay by either Party in exercising any of its rights under this Agreement shall be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of this Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.

  1. Further Assurance

Each Party shall execute and do all such further deeds, documents and things as may be necessary to carry the provisions of this Agreement into full force and effect.

  1. Costs

Subject to any provisions to the contrary each Party to this Agreement shall pay its own costs of and incidental to the negotiation, preparation, execution and carrying into effect of this Agreement.

  1. Set-Off

Either Party shall be entitled to set-off any sums in any manner from payments due or sums received in respect of any claim under this Agreement or any other agreement at any time.

  1. Assignment and Sub-Contracting

24.1        Subject to sub-Clause 24.2This Agreement is personal to the Parties.  Neither Party may assign, mortgage, charge (otherwise than by floating charge) or sub-licence or otherwise delegate any of its rights hereunder, or sub-contractor otherwise delegate any of its obligations hereunder without the written consent of the other Party, such consent not to be unreasonably withheld.

24.2        Each Party shall be entitled to perform any of the obligations undertaken by it through any other member of its group or through suitably qualified and skilled sub-contractors with the prior written consent of the other Party, such consent not to be unreasonably withheld.  Any act or omission of such other member or sub-contractor shall, for the purposes of this Agreement, be deemed to be an act or omission of the Party in question.

  1. Time

The Parties agree that all times and dates referred to in this Agreement shall be of the essence of this Agreement.

  1. Relationship of the Parties

Nothing in this Agreement shall constitute or be deemed to constitute a partnership, joint venture, agency or other fiduciary relationship between the Parties other than the contractual relationship expressly provided for in this Agreement.

  1. Non-Solicitation

27.1        Neither Party shall, for the term of this Agreement and for a period of 1 year after its termination or expiry, employ or contract the services of any person who is or was employed or otherwise engaged by the other Party at any time in relation to this Agreement without the express written consent of that Party.

27.2        Neither Party shall, for the term of this Agreement and for a period of 1 year after its termination or expiry, solicit or entice away from the other Party any customer or client where any such solicitation or enticement would cause damage to the business of that Party without the express written consent of that Party.

  1. Third Party Rights

28.1        Subject to sub-Clause 14.8, no part of this Agreement is intended to confer rights on any third parties and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement.

28.2        This Agreement shall continue and be binding on the transferee, successors and assigns of either Party as required.

  1. Notices

29.1        All notices under this Agreement shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.

29.2        Notices shall be deemed to have been duly given:

29.2.1   when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or

29.2.2   when sent, if transmitted by facsimile or e-mail and a successful transmission report or return receipt is generated; or

29.2.3   on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or

29.2.4   on the tenth business day following mailing, if mailed by airmail, postage prepaid.

In each case notices shall be addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.

  1. Entire Agreement

30.1        This Agreement contains the entire agreement between the Parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorised representatives of the Parties.

30.2        Each Party acknowledges that, in entering into this Agreement, it does not rely on any representation, warranty or other provision except as expressly provided in this Agreement, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.

  1. Counterparts

This Agreement may be entered into in any number of counterparts and by the Parties to it on separate counterparts each of which when so executed and delivered shall be an original, but all the counterparts together shall constitute one and the same instrument.

  1. Severance

In the event that one or more of the provisions of this Agreement is found to be unlawful, invalid or otherwise unenforceable, that / those provision(s) shall be deemed severed from the remainder of this Agreement.  The remainder of this Agreement shall be valid and enforceable.

  1. Dispute Resolution

33.1        The Parties shall attempt to resolve any dispute arising out of or relating to this Agreement through negotiations between their appointed representatives who have the authority to settle such disputes.

33.2        If negotiations under sub-Clause 33.1 do not resolve the matter within 5 business days of receipt of a written invitation to negotiate, the parties will attempt to resolve the dispute in good faith through an agreed Alternative Dispute Resolution (“ADR”) procedure.

33.3        If the ADR procedure under sub-Clause 33.2 does not resolve the matter within 5 business days of the initiation of that procedure, or if either Party will not participate in the ADR procedure, the dispute may be referred to arbitration by either Party.

33.4        The seat of the arbitration under sub-Clause 33.3 shall be England and Wales.  The arbitration shall be governed by the Arbitration Act 1996 and Rules for Arbitration as agreed between the Parties.  In the event that the Parties are unable to agree on the arbitrator(s) or the Rules for Arbitration, either Party may, upon giving written notice to the other Party, apply to the President or Deputy President for the time being of the Chartered Institute of Arbitrators for the appointment of an arbitrator or arbitrators and for any decision on rules that may be required.

33.5        Nothing in this Clause 33 shall prohibit either Party or its affiliates from applying to a court for interim injunctive relief.

33.6        The Parties hereby agree that the decision and outcome of the final method of dispute resolution under this Clause 33 shall notbe final and binding on both Parties.

  1. Law and Jurisdiction

34.1        This Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.

34.2        Subject to the provisions of Clause 33, any dispute, controversy, proceedings or claim between the Parties relating to this Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.

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