Elliott Blanchard General Terms and Conditions – Ref EB001
These general terms and conditions form the contract between EB and the Client.Together with the Contract Document they form the Agreement between us. You should ensure that the Contract Document is completed and that you have read both it and these terms and conditions.
1 Definitions and interpretation
1.1In this Agreement the following terms shall have the following meanings:
Agreement: means the agreement between EB and the Client for the provision of Works set out in a Contract Document and these General Terms and Conditions;
Authorised Representative: means a Director of a Party who is incorporated or a person fully authorised by the Party to bind it in any agreement;
Business Day: means:(i) in relation to any notice, between the hours of 09:00 to 17:00 during working days in England, not including public or statutory holidays; or (ii) in relation to the supply of works a day, other than a Saturday and Sunday, when banks are open for business in the city of London;
Business User: means any entity or business division associated with the Client permitted to use or benefit from the use of the Software, EB Documents or Services under the terms of this Agreement;
Charges : means EB's charges for the Services, Software and EB Documents as set out in the Contract Document and clause 6, as amended from time to time on agreement of the parties or as otherwise provided under this Agreement;
Client: means the customer set out in the Contract Document.
Client Data means all the data, information, text, drawings, diagrams, images or sound embodied in any electronic or tangible medium, and which are supplied or in respect of which access is granted to EB by the Client (and any Business User) pursuant to an Agreement, or which EB is required to generate under this Agreement (including without limitation, any brand names, designs, logos, marks, the content and structure of any databases and other collections and compilations of data and End User Data, including data relating to customers and/or patients);
Client Materials: means all data, documentation, software, hardware and other materials which the Client or a Business User makes or may make available to EB during the Term;
Client Systems: means telecommunication systems, computer programmes, software, computer and communications networks, hardware, cabling and related equipment and databases owned or operated by the Client;
Commencement Date : means the date of this Agreement as set out in the Contract Document;
Confidential Information : means any information relating to the business, affairs, clients or suppliers of a party, including, but not limited to, any Deliverables, products, data, source code, object code, know how, personnel, clients and suppliers (but shall not include any anonymised End User Data);
Consultancy Services : means the consultancy services (if any) specified in the Contract Document and to be supplied on the basis set out in Clause 14;
Contract Document: mean the contract document prepared by EB detailing the Deliverables, Services and Charges;
Data Controller : has the meaning given in the Data Protection Legislation;
Data Processor : has the meaning given in the Data Protection Legislation;
Data Protection Legislation : means the Data Protection Act 2018 and all other laws relating to the processing of Personal Data applicable to the parties;
Deliverables: means the Software, EB Documentation and/or any other deliverables specified in the Contract Document as defined in this Agreement;
Documentation means information supplied with the EB Software or as part of the Services in printed or machine readable form;
EB : means Elliott Blanchard Limited (Company No 10368725) whose registered office is at 98 Hardy Mill Road, Bolton, BL2 3PH.
EB Documentation : means all ehandbooks, proposals, specifications, reports, user documentation and other documentation (if any) supplied from time to time by EB as required in an Agreement;
EB Software means those elements of the Packages proprietary to EB (and its licensors) and supplied under this Agreement in either unmodified or modified form;
End User means any user of any Software or EB Documentation as licensed to the Client by EB under the terms of this Agreement (including any customer or patient user, Power User and Super User);
End User Data means any and all data (including "personal data" as defined by the Data Protection Act 2018) relating to or provided by any End User of any Software as licensed to the Client by EB under the terms of this Agreement;
Execution means for any Agreement is the signature by both parties of the Contract Document;
General Terms: means these general terms;
Hosting Provider: has the meaning given in Clause 19.2;
IPR : Intellectual Property Rights: means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.;
Licensed Materials means any EB Software and the Documentation and/or EB Documentation specified as such in the Contract document;
Licence means any licence to the Software and/or EB Documentation granted to the Client in this Agreement (as set out in Clause 19 and/or 20);
Packages: means the Software set out in a Contract Document produced to provide general support which are intended to be the subject matter of such Software but not specifically produced (in its entirety) to comply with any specific need of the Client;
Personal Data : has the meaning given in the Data Protection Legislation;
Power User: means the personnel of the Client notified to EB by the Client as a power user and confirmed by EB as such.
RPI: means the United Kingdom retail prices index (all items) as published by the Office for National Statistics (or by any government department or other body upon which duties in connection with such index devolve) or such other index as replaces such index;
Services: means services to be supplied by EB as set out in the Contract Document and this Agreement, including (without limitation and where relevant Consultancy Services, Support Services and Training Services);
Site: means each Client site address set out in the Contract Document or such other address as the Client notifies to EB and EB agrees;
Software : means the software (if any) listed in the Contract Document to be supplied by EB, either proprietary to EB or supplied by a third party and as set out in this Agreement;
Software Support Services : means the support and maintenance services (if any) specified in and to be supplied on the basis set out in Clause 16;
Super User: means the personnel of the Client notified to EB by the Client as a super user and confirmed by EB as such.
Term: means the term and duration of an Agreement as provided for in Clause 11 ;
Training Services : means the training services (if any) specified in and to be supplied on the basis set out in Clause 17;
Virus means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Works: means the Deliverables and Services;
1.2 Headings of clauses are inserted for convenience only and shall not affect the interpretation or construction of this Agreement. Words imparting the singular shall include the plural and vice versa. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders. References to persons include to an individual, company, corporation, firm or partnership. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.3Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.4References to clauses are to the clauses in these General Terms.
1.5Any reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.6The words and phrases other, including and in particular shall not limit the generality of any preceding words or be construed as being limited to the same class as any preceding words where a wider construction is possible. References to in writing include by e-mail, fax and letter. All references in these General Terms to clauses, paragraphs, Schedules and Appendices are to the clauses and paragraphs of and Schedules and Appendices to an Agreement.
2 Scope of Agreement
2.1On Execution of the Contract Document by both parties, and provided that the Agreement has not terminated, EB agrees to supply the Deliverables and/or Services in accordance with and subject to the terms of the Agreement. These General Terms shall be deemed incorporated as part of the Contract Document to form the Agreement.
2.2Should there be a conflict or inconsistency between any provision in a Contract Document and/or the General Terms, the documents shall take precedence over each other in that order.
3.1EB shall supply the Works with all reasonable skill and care in accordance with these General Terms and the Contract Document.
3.2EB shall use its reasonable endeavours to meet any specific performance dates specified in a Contract Document but time shall not be of the essence unless otherwise agreed between the parties, always provided that if no performance dates are specified, EB shall supply the Works within a reasonable time.
3.3All third party Software is licensed subject to the licence terms of the Software licensor and EB gives no warranty in respect of any third party Software which they supply.
3.4 If either party wishes to make any change to any Works, it shall confirm the same in writing to the other party setting out the nature and extent of the change. EB shall then provide a written proposal to the Client setting out:
(a) the likely time required to implement the change;
(b) any consequential variations to the Charges; and
(c) any other impact of the change on the terms of the contract.
3.5 If the Client wishes EB to proceed with the change to the Works, the parties shall agree to the change in writing including the terms set out in the Contract Document as a supplemental Contract Document (that shall be a hard copy document) which shall form part of this Agreement.
3.6EB shall supply the Works in accordance with the provisions of these General Terms and any express terms set out in the Contract Document from any date specified therein.
3.7EB shall comply with reasonable health and safety rules and regulations and any other reasonable security requirements that apply at the Client’s premises.The Client shall notify EB of any rules under Clause 4.1(d) and EB shall confirm any rules, requirements or regulations it does not consider reasonable together with the reasons why.If any points are considered unreasonable the parties shall work together to resolve such differences.
(a) provide such access to appropriate members of the Client's staff as EB reasonably requires;
(b) provide all Client Materials, End User Data (or data on potential End Users) and other information that EB requests and ensure that these Client Materials, End User Data and information are full and accurate and that all consents necessary for their use by EB have been obtained (including in relation to any consent required for the processing of End User Data as Personal Data to permit the processing of their Personal Data by EB for the purposes of this agreement within the EEA);
(c) in advance of the supply of the Works, prepare the Site (and any personnel) for such supply as instructed by EB;
(d) inform EB of all health and safety rules and regulations and any other reasonable security requirements that apply at its premises or any Site;
(e) comply with any additional Client obligations as are set out in this Agreement particularly the Contract Document and any plan issued in connection with it;
(f) where the Client wishes EB to process its Personal Data in a particular manner or for particular purposes, provide EB with appropriate instructions; and
(g) (where applicable) ensure that it has in place at all times an effective and detailed safeguarding programme to ensure the protection of patients, vulnerable adults and children in its care at all time.
4.2Should EB require access to the Site in order to supply the Works, the Client shall provide EB and its authorised representatives with access to such parts of the Site and such electric power, office space, lighting and heating at the Site and the provision of such normal office services as EB reasonably requires for the purposes of properly supplying the Works.
4.3The Client shall ensure that any Deliverable provided is used in accordance with the terms of this Agreement and that any data captured using the Software, processed using the Software or passed to EB is managed in accordance with the Data Protection Legislation.
4.4 The Client acknowledges and agrees that EB and/or its licensors own all intellectual property rights in the Software, Deliverables and the Services. Except as expressly stated herein, any Agreement does not grant the Client any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Software, Services or any related documentation.
4.5 The Client shall meet any additional requirements set out in the Contract Document.
5 Intellectual Property, Client Data and End User Data
5.1 EB and its licensors retain all right, title and interest in and to all IPR subsisting in the Deliverables and/or arising from the delivery and/or performance of the Works. The Client shall have no right to use such IPR (or grant any sub-license in respect of the same) save as licensed to the Client in accordance with the terms of the Agreement.
5.2 The Client and its licensors retain all right, title and interest in and to all IPR subsisting in the Client Materials. The Client grants to EB for the Term and the duration of any Agreement a non-exclusive, royalty-free licence for EB to use the Client Materials in performing EB's obligations pursuant to the Agreement, including in respect of supply of the Deliverables.
5.3The Client represents that it has the right to give EB access to the Client Materials and to permit EB to use such Client Materials in the performance of the Agreement.The Client hereby indemnifies and shall keep indemnified EB against all and any claims, actions, damages, losses, costs and/or expenses (including reasonable legal fees) that it suffers or incurs as a result of any action or claim that the use of the Client Materials infringes the IPR of a third party.
5.4The Client acknowledges and agrees that EB gives no warranties and/or indemnities in respect of the Deliverables or the provision of any Services save as expressly set out in this Agreement.In particular, EB gives no warranty that the Deliverables will not infringe the IPR of a third party.
5.5The Client acknowledges and agrees that EB supplies any Software subject to this Agreement and the respective terms and conditions of the Software licensor and that it is the Client’s sole responsibility to familiarise itself with any such terms and conditions.
5.6The parties acknowledge and agree that in the course of providing the Works, EB may develop experience, expertise, processes, procedures, know-how and methodologies ("Methodologies") and that all such Methodologies shall be owned by EB who shall be entitled, subject to the provisions of Clause 10, to use them for any purposes whatsoever, including in providing deliverables and services to its other clients.
5.7EB acknowledges that the Client Data is the property of the Client, its third party licensors or any End Users of EB Software as licensed to the Client under the terms of the Agreement and the Client, where applicable, hereby reserves all IPRs which may subsist in the Client Data.
5.8The Client grants to EB an unrestricted, worldwide, perpetual, non-exclusive, fully paid-up and royalty-free licence to use, disclose copy and otherwise deal with the Client Data and any End User Data for its own business purposes, including but not limited to monitoring system performance improvements and the production of research and reports (in which the identity of any individual is anonymised).
5.9The Client agrees that where any claim is made against it for breach of any intellectual property right in relation to the EB Software or EB Documentation the Client shall notify EB and follow any instructions EB gives in managing such claim.Save where the claim relates to any change the Client has made to the EB Software or EB Documentation EB shall pay any reasonable legal expenses needed to meet its instructions in managing the claim.
6.2Unless otherwise stated in the Contract Document, the Charges and all other fees and charges arising pursuant to this Agreement are exclusive of Value Added Tax and all other applicable sales taxes, levies and duties. These are payable by the Client in addition to the Charges and any anticipated additional and reasonable expenses (including travel, subsistence and other ancillary fees) relating to the supply of the Services and the Deliverables.
6.3All Charges for Services and initial licence fee Charges shall be paid in full before the provision of any Works. EB shall issue an invoice specifying the payment details.. If the Client fails to make payment of any Charges or other payments by the due date (unless disputed in accordance with Clause 6.4), EB shall be entitled to:
(a) charge the Client interest at the rate of 4% per annum above the base rate of HSBC Bank plc accruing on a daily basis;
(b) claim reimbursement from the Client of all costs and expenses it incurs in attempting to obtain payment; and
(c) suspend supply of all and any Works until it has received payment in full.
6.4In relation to any payment disputed in good faith, interest due under Clause 6.3 above is payable only after the dispute is resolved, on sums found or agreed to be due from the due date until payment.
6.5EB reserves the right by giving notice to the Client at any time before the delivery or performance of the relevant Works to increase the Charges to reflect any increase in cost to EB of such performance due to an act or omission of the Client or a factor beyond the control of EB including due to price increases of manufacturers and/or suppliers.
6.6Save where set out in the Contract Document, EB may increase the Charges no more than once in any twelve (12) month period for this Agreement, always provided that the first such increase shall fall after the first anniversary of the Commencement Date and EB shall give the Client not less than three months’ notice of any such increase.
6.7All amounts due under an Agreement shall be paid in full without any set-off, counterclaim deduction or withholding (other than any deduction or withholding of tax as required by law).
6.8Any initial charge set out in the Contract Document may be invoiced on Execution and periodic charges shall be invoiced at the frequency specified in the Contract Document.The price specified for any Services in a Contract Document shall be part of the Charges and may be invoiced once the Service is provided.
7.1Each of the parties warrants to the other that it has full power and authority to enter into and perform its obligations under this Agreement.
7.2EB warrants to the Client that it shall perform the Services in a timely and professional manner with all due skill and care and in accordance with good industry practice.
7.3At its own expense, each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may reasonably be required by the other party for the purpose of giving full effect to this Agreement, including (but not limited to) the Client obtaining any necessary consents from Business Users or End Users to allow EB to enjoy the full benefit of the licence granted to EB by the Client in relation to Client Data and End User Data further to Clause 5.8 above.
7.4 The Client acknowledges that EB does not manufacture or develop any of the third party Software which may from time to time be included within the Deliverables. The Client further acknowledges that EB gives no warranty, and expressly excludes all warranties, in respect of the third party Software.
7.5EB shall have no liability for any breach of contract and/or defects, faults or other shortcomings in the Works to the extent that any are caused by:
(a) any delay, act, omission and/or default of the Client and/or any person under its control, including any failure of the Client to comply with its obligations pursuant to this Agreement;
(b) any maintenance and/or amendment or alteration of any Deliverables by the Client and/or any third party that is not specifically authorised by EB;
(c) the use of any software, hardware, services and/or system(s) which, in either case, are not provided by EB and/or are not approved in advance by EB as being compatible with the Deliverables;
(d) any unauthorised and/or improper use, storage and/or operation of any Deliverables.
7.6 EB gives no warranty that the use of the Deliverables will be uninterrupted or free of virus or bugs, but will use its reasonable endeavours to ensure that this is the case, as far as practicable.
7.7 Except as expressly set forth in this Agreement, all warranties, terms and conditions, whether oral or written, express or implied by statute, common law, or otherwise, including, but not limited to, any warranties, terms and conditions of fitness for purpose, description or quality, are hereby excluded to the maximum extent permitted by law.
8 Limitation of Liability
8.1 Nothingin this Agreement shall exclude or restrict either party's liability for death or personal injury resulting from that party's negligence, for fraud, or for fraudulent misrepresentation, or for any other liability which cannot be excluded or limited under applicable law, including breach of the terms implied by section 2 of the Supply Of Goods And Services Act 1982 (title and quiet possession) or for breach under Clause 4.1(b), 10 or 16.
8.2 Subject to Clause 8.1, EB shall not in any circumstances be liable to the Client for any loss of profit, savings and/or revenue, loss of business, loss of data and/or any indirect, special and/or consequential losses arising under or in connection with this Agreement.
8.3 Unless set out to the contrary in the Contract Document, the total aggregate liability of EB under this Agreement whether in contract, tort (including negligence), breach of statutory duty or otherwise shall be limited to 100% of the Charges paid in the six months immediately prior to the event that gave rise to the liability.
8.4The Client agrees that the limitation of liability contained in Clause 8.3 has been subject to commercial negotiation and is reasonable in the circumstances.
8.5 Any advice or recommendation given by EB or its personnel to the Client or its employees, contractors or agents about the storage, application and/or use of the Deliverables which is not confirmed in writing by an authorised officer of EB is followed or acted on entirely at the Client’s own risk.
8.6This Clause 8 shall survive termination of any Agreement.
(a) make any offer of employment or enter into any discussion or negotiations with a view to making any offer of employment to any personnel employed by EB or sub-contractor, consultant or freelancer retained by EB to provide Deliverables or Services to the Client; or
(b) solicit or attempt to solicit services from any personnel employed (or sub-contractors retained to provide Services or Deliverables) by EB on their own account and/or entice or attempt to entice any such personnel away from EB or solicit the provision of Services or Deliverables from them.
9.2Neither party's employees, contractors or sub-contractors shall be considered, by virtue of any clause of any Agreement, an employee or agent of the other party or be entitled to participate in any benefits or privileges provided by the other party to its employees or be deemed an employee of the other party for any purpose including payment of salary, benefits, contributions, levies and taxation.
9.3In performing its obligations pursuant to an Agreement, EB shall operate as, and have the status of, an independent contractor and shall not operate or have the status of agent, employee or representative of the Client.
10.1Except with the prior written consent of the party making any disclosure, each party shall keep and procure to be kept secret any and all Confidential Information belonging to the other party disclosed or obtained as a result of the relationship of the parties or under any Agreement and shall not use nor disclose the same save to its employees, officers, representatives or advisers who need to know such information for the purposes of the proper performance of an Agreement or with the prior written consent of the other party. For the avoidance of doubt, no party shall use the other’s Confidential Information for any other purpose than to perform its obligations under an Agreement.
10.2The obligations of confidentiality in this clause 10 shall not extend to any information which:
(a) is in, or has become part of, the public domain and/or is disclosed to the receiving party by a third party other than as a result of a breach of the obligations of confidentiality under an Agreement; or
(b) was in the lawful possession of the receiving party prior to disclosure under an Agreement or which is independently developed by the receiving party, without dependence on, or reference to, such Confidential Information; or
(c) is required to be disclosed by law or final mandatory order of a court or other competent authority, or to any regulatory authority to which that party is subject, provided always that, the party whose Confidential Information is to be disclosed is promptly notified of such a requirement and afforded a reasonable opportunity to seek relief therefrom, where available.
10.3EB may advertise or publicly announce that the Client is a Client of EB for the relevant Services and/or Software, save where the Client provides a written request for no publicity to EB.
10.4Both parties agree to treat as Confidential Information the details of this Agreement and any and all dealings between the parties under the Agreement. For the avoidance of doubt both parties agree that they shall not make detrimental comments about the other save in that nothing shall prevent either party from providing information on or comments in respect of their own actions, dealings and processes.
11.1This Agreement shall commence on the Commencement Date and, unless otherwise terminated in accordance with the Agreement, shall expire at the end of any term specified in the Contract Document otherwise it shall continue until either party gives no less than 12 months’ notice to terminate following completion or termination of all existing Consultancy Services and/or Training Services.
(a) the other party commits a material breach of its obligations under this Agreement which is either incapable of remedy or is capable of remedy and the other party fails to remedy such material breach within thirty (30) days of receipt of a written notice specifying details of the breach and requesting that breach be remedied;
(b) the other party fails to pay any undisputed sum due and payable to the terminating party within twenty-eight (28) days of its due date for payment in accordance with this Agreement; or
(c) the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to discharge its obligations or give effect to the terms of this Agreement; or
(d) In the case of the Client:
(i) the directors make an application for a moratorium under Schedule A1 of the Insolvency Act 1986 ("Act"), convene a meeting of creditors for the purpose of considering a voluntary arrangement under Part I of the Act, approve a scheme of arrangement or enter into negotiations with any creditor with a view to compromising its debts;
(ii) any step is taken by the Client, its directors or any creditor for the appointment of an administrator;
(iii) a receiver, receiver or manager, administrative receiver or an LPA Receiver, is appointed to or over any or all of the assets of the Client;
(iv) a resolution to wind-up is passed or a petition is presented for the winding up of the Client or a winding up order is made unless for the purpose of a solvent amalgamation or reconstruction;
(v) if it is struck off from the Register of Companies, or otherwise ceases to trade or exist;
(vi) if it is deemed to be unable to pay its debts within the meaning of section 123 of the Act save that all references to the ‘court’ in that section shall be replaced with EB.
(e) any analogous or equivalent event to these specified in paragraph (d) above occurs;
(f) or in the case of a Client which is incorporated or has a centre of main interests outside England and Wales any event or circumstances occurs which under the laws of that jurisdiction has an analogous or equivalent effect to any of the events in paragraph (d) above occurs.
11.3 For the purposes of clause 11.2 (a) "material breach" means a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which the terminating party would otherwise derive from a substantial portion of an Agreement over its term. In deciding whether any breach is material, no regard shall be had to whether it occurs by some accident, mishap, mistake or misunderstanding.
12.2On the expiry or termination of this Agreement (for whatever reason):
(a) EB shall be entitled to submit an invoice to the Client for Works properly supplied in accordance with the Agreement up until the date of termination and the Client shall immediately pay such invoice together with all other sums due and owing to EB at that time;
(b) the Client shall immediately cease all use of the Confidential Information and IPR of EB under the terminated contracts;
(c) subject to the Client's compliance with the terms of Clauses 12.2 (a) and (b) , EB shall return to the Client or dispose of (in accordance with the Client's instructions) all Client Materials and Client Confidential Information in EB's possession.
12.3The expiry or termination of an Agreement shall not affect the continuation of any other Agreements and shall be without prejudice to any rights of either party in respect of any Agreements entered into before such expiry or termination.
12.4The termination or expiry of an Agreement shall not affect the rights and remedies of the parties which are applicable at the date of termination or expiry.
12.5The provisions of clauses1, 4, 5, 6, 7.5, 8, 9, 10, 12 and 13 and all other provisions intended by their nature to continue or to come into effect after termination or expiry, shall survive the termination or expiry of an Agreement and shall continue in full force and effect.
12.6The parties agree and acknowledge that following termination of the Agreement EB is entitled to and must maintain certain data and information from the provision of Services.Where the Client requires that EB provide any services after termination the parties shall agree the terms on which such services shall be provided and any such services shall be provided on the terms of this Agreement (with the payment of the agreed additional fees) for the period that those exit services are required. Save where EB agrees to provide services under this clause it shall not be obliged to provide services after termination.
13.2Neither party shall be in breach of any Agreement nor liable for delay in performing, or failure to perform, any of its obligations under any such contract if such delay or failure results from events, circumstances or causes beyond its reasonable control.In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations provided that if the period of delay or non-performance continues for 3 months, the party affected may terminate the Agreement by giving 30 days' written notice to other party.
13.3This Agreement is personal to the Client. The Client may not assign, sub-contract or otherwise transfer the Agreement (or any part of such), to any third party, without the prior written consent of EB, such consent not to be unreasonably withheld. EB may at any time assign, delegate, sub-contract, transfer, charge or otherwise dispose of all or any of its rights and responsibilities under an Agreement, or any part thereof..
13.4If any provision of this Agreement is or becomes invalid, illegal or unenforceable at law, then such provision shall be severed and the remainder of the Agreement shall continue in full force and effect.
13.6Any purported variation or amendment to an Agreement shall be of no effect, unless confirmed in writing and signed by the Authorised Representative of each party.
13.7The waiver by either party of any breach of an Agreement by the other party in a particular instance shall not operate as a waiver of subsequent or other earlier breaches of the same or a different kind. No failure or delay by either party in exercising or enforcing any of its rights under any Agreement shall be deemed to be a waiver of such rights, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
13.8Except as expressly provided in any Agreement, the rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
13.9Nothing in any Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
13.10Any notice or other communication given to a party under or in connection with this Agreement shall be in writing and shall be:
13.10.1delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
13.10.2 sent by e-mail to its e-mail address specified in the Contract Document.
13.11 Any notice or communication shall be deemed to have been received:
13.11.1If delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
13.11.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service;
13.11.3if sent by e-mail, at 9.00 am on the next Business Day after transmission.
13.12This Agreement and the documents referred to in them constitute the entire understanding between the parties and, save as expressly referred to or referenced therein, supersedes, replaces and extinguishes all prior representations, writings, negotiations or understandings oral or written relating to the subject-matter.Each party acknowledges and agrees that in entering into this Agreement it does not rely on any statement, representation, assurance or warranty of any person other than as expressly set out in the Agreement and that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement not in the Agreement.
13.13 This Agreement, where Executed in hard copy may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement. If the Agreement is Executed online and in hard copy the signed hard copy shall take precedence.
13.14 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with an agreement or its subject matter or formation (including non-contractual disputes or claims).
14. Consultancy Services
14.1This Clause 14 will apply where Consultancy is set out in the Contract Document.
14.2In consideration of the Charges set out in the Contract Document, EB shall supply the Consultancy Services set out in the Contract Document in accordance with the terms set out in the Contract Document and these General Terms.
14.3It is the Client’s sole responsibility to ensure the Contract Document accurately reflects its requirements for Consultancy Services and that the details in any proposal are accurately reproduced.
14.4EB shall provide such Deliverables in respect of the Consultancy Services as are set out in a Contract Document, subject to the License provisions.
14.5After Execution of a Contract Document, the Client shall not be entitled to cancel the delivery of the Consultancy Services without the prior written agreement of EB.
14.6If the Client prevents the delivery of any Consultancy Services that it is not entitled to cancel under Clause 14.5 EB may invoice the Consultancy Services as if they were provided in accordance with the timetable set out in the Contract Document.
14.7The Charges for Consultancy Services shall be calculated as set out in and on the basis of the information contained in the Contract Document. If the scope of the Consultancy Services changes from that set out in the Contract Document generally, EB shall notify the Client as soon as reasonably practicable and shall be entitled to increase its charges in respect of any such change of scope.
14.8EB shall invoice for the Consultancy Services as stated in the Contract Document or (where there is no such statement) the General Terms.
15 Data Security
15.1EB and the Client shall each take reasonable precautions (having regard to the nature of their respective obligations under any Agreement) to preserve the integrity of the Client Data and/or the Software and to prevent any corruption or loss thereof.
15.2Unless otherwise agreed, the Client shall be responsible for undertaking back-up of the Client Data and shall ensure that such back-up copies are recorded on media from which the Client Data can be re-loaded in the event of any corruption or loss thereof and kept safe.
15.3In the event that Client Data is corrupted or lost due to the default of EB, EB shall use reasonable endeavours to restore the Client Data using the Client's most recent back up.Such action shall discharge EB's liability to the Client in respect of such corruption or loss.
15.4In relation to the parties rights and obligations under this Agreement, the parties agree that the Client is Data Controller and if any Client Data containing Personal Data is provided to EB it is Data Processor for the personal data placed into the Software when hosted by EB. In the event that EB is a Data Processor the parties shall execute a data processing addendum in the form required by EB to meet the requirements of processing under the Data Protection Legislation.
15.5In respect of Client Data, including any Personal Data, the Client shall ensure that it obtains all consents or other relevant lawful permission needed for EB to process the data and both parties shall comply with the Data Protection Legislation.
16 Software Support Services
16.1This Clause 16 will apply where Software is specified as being provided in the Contract Document.
16.2Support Services shall only be provided for the Software specified as receiving Support Services in, and in accordance with, the Contract Document. Where any Software is not maintained with all updates EB may suspend the provision of the Support Services until the latest updates are installed.The Support Services will only be suspended solely due to the lack of any update where EB is unable to continue the Support Services without any additional cost and as the Support Service pricing is based on continuing provision Charges shall remain due during any period of suspension.
16.3The Support Services shall be:
16.3.1 Telephone and email support between office hours of 9:00am - 5:00pm Monday to Friday.
16.3.2Corrective action for features which do not work.
17. Training Services
17.1This Clause 17 will apply where Training Services are set out in the Contract Document.
17.2In consideration of the Charges set out in the Contract Document, EB shall supply the Training Services set out in the Contract Document in accordance with the terms set out in the Agreement.
17.3It is the Client’s sole responsibility to ensure the Contract Document accurately reflects its requirements for Training Services.
17.4After Execution of a Contract Document, the Client shall not be entitled to cancel the delivery of the Training Services without the prior written agreement of EB.
17.5If the Client prevents the delivery of any Training Services that it is not entitled to cancel under Clause 17.4 EB may invoice the Training Services as if they were provided in accordance with the timetable set out in the Contract Document.
17.6The Charges for Training Services shall be calculated as set out in and on the basis of the information contained in the Contract Document. If the scope of the Training Services changes from that set out in the Contract Document generally, EB shall notify the Client as soon as reasonably practicable and shall be entitled to increase its charges in respect of any such change of scope.
17.7EB shall invoice for the Training Services as stated in the Agreement.
18.1This Clause 18 will apply where Software is specified as being provided in the Contract Document.The Software to be provided shall be more fully described in the Contract Document. Unless a Contract Document specifies EB shall host the Software it is the Clients responsibility to install the Software.
18.2The Client shall be entitled to use the Software in accordance with the terms of the licence set out in Clause 19 below or as appended to a Contract Document save where the Contract Document confirms the Software is third party software. In the case of third party software the Client agrees that it shall comply with the terms of any third party licences and shall indemnify and hold EB harmless against any and all losses, damages, costs and expenses (including professionals’ fees) which EB may incur as a result of the Client’s breach of the terms of any of those third party licences.
18.3In the event that any licence fees are payable in respect of any third party Software (whether on a one-off or periodic basis) then the Client shall be liable to pay such fees, (unless payment of those fees has been included by EB, and expressly set out as such, in the agreed Contract Document), and EB shall not be liable for any consequences of any failure of the Client to do so.
18.4The Client acknowledges and agrees that EB supplies the Software "as is" and gives no warranty as to its use.Save as otherwise expressly provided for under this Agreement, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement, including the implied conditions, warranties or other terms as to satisfactory quality and fitness for purpose.
18.5 On delivery of any Software to which this Clause 18 relates, the Client shall be able to access the Software. Within five days of delivery, the Client shall review the relevant Software to confirm that it functions as expected. If the Software fails to function as expected, the Client shall give EB a detailed description of any such non-conformance, in writing, within the five-day review period.
18.6 If the Client does not provide any written comments in the five-day period described above the Software shall be deemed accepted.
18.7The Client expressly acknowledges that the Software is not designed specifically for the Client and the facilities and functions of the Software may not meet the Client’s requirements.Where the Software performs as it was designed in the event it does not perform as the Client expects EB may in its absolute discretion provide enhancements to the Software at the cost of the Client. EB shall not be obliged to make any enhancements to the Software and the Client enters this Agreement on the understanding that the Software is provided "as is".
18.8 The Client shall pay the Charges for Software set out in the Contract Document for the Software and the licence of the Software.
18.9 EB confirms that it has all the rights in relation to the Software that are necessary to grant all the rights it purports to grant under, and in accordance with, any Agreement.
19 Software Licence
19.1 Subject to the Client paying the Charges specified in the Agreement as the licence fee for the Software, EB grants to the Client a non-exclusive, non-sublicensable and non-transferable licence (or in the case of the third party Software, a sub-licence), for the Term to use Licensed Materials in the hosted environment provided by EB subject to the terms of this Agreement. The Client acknowledges that it is licensed to use Licensed Materials under the express terms of the Agreement but not further or otherwise.
19.2The parties acknowledge and agree that EB shall host the Software which will be accessed remotely from servers ascribed to EB and hosted by a third party provider (the "Hosting Provider"). For the avoidance of doubt: (i) the Client shall benefit from the provision of the hosting services provided by the Hosting Provider and all rights, privileges, options and protections of EB, to the extent that EB benefits; and (ii) EB shall be bound to the Client in respect of the services of the Hosting Provider as the Hosting Provider shall be bound to EB and the liability of EB shall be limited as the liability of the Hosting Provider shall be limited.In the event that EB hosts the Software any hosting charges set out in the Contract Document shall become due as part of the Charges.
19.3 The Client may use Licensed Materials only in respect of the Sites (specified in the Contract Document) or such alternative locations as approved by EB in writing from time to time.
19.4 The Client shall use Licensed Materials for processing its own data and for its own internal purposes only.The Client shall not permit any third party to use the Licensed Materials in any way whatsoever nor use the Licensed Materials on behalf of or for the benefit of any third party in any way whatever.
19.5 The Client shall keep exclusive possession of and control over the copies of the Licensed Materials provided to it and shall effect and maintain adequate security measures to safeguard the Licensed Materials from access or use by any unauthorised person.
19.6 The Licence for the Deliverables is limited to their use at the Sites and with concurrent access to the same by the maximum number of specified End Users and/or Business Users ("Users") specified in the Contract Document.Where the maximum number of End Users is not specified in the Contract Document the maximum number shall be five at each Site. The Client acknowledges that an additional licence fee is payable for each additional network and/or additional User above the specified number having access to the Licensed Materials.Where the Users relate to the number of Business Users EB may specify a maximum number of End Users.
19.7The use of the Licensed Materials for End Users may be specified and restricted to provide enhanced use for Super Users as may be specified by EB from time to time.
19.8 The Licensed Materials and all IPRs therein (including IPRs in any modifications carried out by or on behalf of the Client) shall remain the property of EB. The Client shall notify EB immediately if it becomes aware of any unauthorised use of the whole or any part of the Licensed Materials by any person. The Client will permit EB to check the use of the Licensed Materials by the Client at reasonable times and for that purpose EB, its employees and agents shall be entitled to enter any of the Client’s premises.
19.9 If Licensed Materials cannot be used on and in conjunction with the Client Systems because it is temporarily inoperable for any reason then EB, on being requested to do so, shall temporarily extend the license to permit use with any other equipment which satisfies EB’s standard criteria until the Client System is operating again provided that such equipment is at all times under the direct control of the Client and is used only in conjunction with the same version of operating system software as that used on the Client System. The use of Licensed Materials on and in conjunction with such temporary equipment shall be at the sole risk and responsibility of the Client who shall indemnify EB against any loss or damage sustained or incurred by EB as a result. In particular EB shall not (unless otherwise agreed in writing by EB) have any liability under clause in connection with such use.
19.10 Save to the extent and in the circumstances expressly permitted by law, the Client shall not alter, modify, adapt or translate the whole or any part of the Licensed Materials in any way whatever nor permit the whole or any part of the Software to be combined with or become incorporated in any other computer programs nor decompile, disassemble or reverse engineer the same nor attempt to do any of such things.
19.11If a Client fails to pay any amount due under the Agreement within 30 days of the due date for payment, EB shall be entitled to suspend access to the Software used by a Client via the Hosted Provider, until such time as any due amounts have been paid.
19.12 The Client shall ensure that each End User has a user name used only by that individual who keeps a secure password for their use of the Software, that such password is changed no less frequently than twice in one calendar year and that each authorised user keeps his password confidential.
19.13 EB may audit the Software regarding the name and password for each User. Such audit may be conducted no more than once per quarter and shall be exercised with reasonable prior notice, in a manner so as to not substantially interfere with Client's normal conduct of business, and if such audit reveals that passwords have been provided to individuals who are not authorised users, and without prejudice to EB's other rights, the Client shall promptly disable such passwords and shall not issue any new passwords to such individuals.
(a)store, distribute or transmit any Virus, or any material through the hosting services that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; or promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities;
(b) attempt to copy, duplicate, modify, create derivative works from or distribute all or any portion of the Software except to the extent expressly set out in this agreement or as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties;
(c)attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties;
(d)access all or any part of the Software or hosting services in order to build a product or service which competes with the Software and/or the Services
(e)use the Software or hosting services to provide services to third parties;
And shall use reasonable endeavours to prevent any unauthorised access to, or use of, the Software and notify EB promptly of any such unauthorised access or use.
19.15 Each party shall indemnify the other and hold it harmless against any and all losses, damages, costs and expenses (including professional fees) which it may incur as a result of that party’s breach of the terms of any third party hosting or licencing agreement applicable to it.
19.16 The Client agrees and acknowledges that the usage and performance of the Software will be impacted by a high number of users or a high volume of usage and EB shall have no responsibility for any issues caused by a high level of usage of any Software. Where EB are hosting the Software via the Hosting Provider the level of usage permitted is subject to restrictions that EB shall notify to the Client either in the Contract Document or where the level of usage is high. High usage is use which is above that expected from similar users at the time the Agreement is entered. If the level of usage the Client requires is increased EB may increase the Charges to reflect the additional hosting capacity required.
20 EB Documentation Licence
20.1 Subject to the Client paying the Charges specified in the Agreement as the fee for EB Documentation, EB grants to the Client a non-exclusive, non-sublicensable and non-transferable licence, for the Term to use EB Documentation solely for its own internal purposes subject to the terms of this Agreement. The Client acknowledges that it is licensed to use Licensed Materials under the express terms of the Agreement but not further or otherwise.
20.2 The Client may use Licensed Materials only in respect of of the Sites or such alternative locations as approved by EB in writing from time to time.
20.3 The Client shall use Licensed Materials for its own internal purposes only. The Client shall not permit any third party to use the Licensed Materials in any way whatsoever nor use the Licensed Materials on behalf of or for the benefit of any third party in any way whatever. It shall not adapt the Licensed Materials in any way or incorporate them into any other documents, materials, software or use in any other manner than the intended use.
20.4 The Client shall keep exclusive possession of and control over the copies of the Licensed Materials provided to it and shall effect and maintain adequate security measures to safeguard the Licensed Materials from access or use by any unauthorised person.
20.5 The Licensed Materials and all IPRs therein (including IPRs in any modifications carried out by or on behalf of the Client) shall remain the property of EB. The Client shall notify EB immediately if it becomes aware of any unauthorised use of the whole or any part of the Licensed Materials by any person.The Client will permit EB to check the use of the Licensed Materials by the Client at reasonable times and for that purpose EB, its employees and agents shall be entitled to enter any of the Client’s premises.
20.6 The Licence for the EB Documents is limited to their use at the Sites and with concurrent access to the same by the maximum number of specified End Users and/or Business Users ("Users") specified in the Contract Document.Where the maximum number of End Users is not specified in the Contract Document the maximum number shall be five at each Site.
20.7 In relation to the Deliverables the Client shall not attempt to copy, duplicate, modify, create derivative works from or distribute all or any portion of the Deliverable except to the extent expressly set out in this agreement or as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties;