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;
1.3Any 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.
(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.
3.6EB 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
5.3The 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.
7.5EB 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
8.2 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.
8.4The 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.
11.2 Without
affecting any other right or remedy available to them, this Agreement may be
terminated by either party on written notice to the other party if:
(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
Consequences
of Termination
12.1 Termination
of this Agreement shall not affect any other agreement.
12.2On the expiry or termination of this
Agreement (for whatever reason):
(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.
13.1In the event of any dispute or
difference between the parties arising out of an Agreement, the parties shall
use their reasonable endeavours to seek a resolution to such dispute.
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.
15.3In 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
Software
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.
19.7The 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.
19.14In relation to the Software the Client
shall not:
(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;