TERMS & CONDITIONS

Interpretation

The following definitions and rules of interpretation apply in these Terms and Conditions.

Agreed terms

Interpretation

1. The definitions and rules of interpretation in this clause apply in this agreement.

Authorised User: such of the Customer’s employee permitted to access and use the Service.

AMR: Autonomous mobile robots.

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Change of Control: the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be interpreted accordingly.

Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in 15.1.

Commencement Date: the date set out in the Contract Details section of the Contract being the commencement date for the Subscription Fees.

Customer: the person or firm who purchases the Goods and/or Services from the Supplier and whose details are set out in the Contract Details.

Customer Data: the data inputted by the Customer or the Supplier on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Goods and/or Services.

Delivery Location: the location for the delivery of the Goods and/or Services as set out in the Contract Details section of the Contract.

Documentation: the document made available to the Customer by the Supplier directly or online from time to time which sets out a description of the Services and the user instructions for the Goods and/or Services.

Effective Date: the date of this agreement.

Firmware: the software embedded in and used by the Hardware.

Goods: the Goods Hardware.

Goods Hardware: the Hardware set out in the Goods section of Schedule 1 of the Contract.

Hardware: the Goods Hardware and /or the Services Hardware as the context may require.

Heightened Cybersecurity Requirements: any laws, regulations, codes, guidance (from regulatory and advisory bodies. Whether mandatory or not), international and national standards, industry schemes and sanctions, which are applicable to the Customer relating to security of network and information systems and security breach and incident reporting requirements, which may include the cybersecurity Directive ((EU) 2016/1148), Commission Implementing Regulation ((EU) 2018/151), the Network and Information systems Regulations 2018 (SI 506/2018), all as amended or updated from time to time.

Initial Subscription Term: the term set out in the Contract Details section of the Contract.

Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.

Renewal Period: the period described in 19.1.

Services: the provision of the Hardware and Software [and Documentation] provided on a subscription basis by the Supplier to the Customer under this agreement either directly or online from time to time, as more particularly described in the Documentation.

Services Hardware: the Hardware set out in the Services section of Schedule 1 of the Contract.

Software: the online software applications provided by the Supplier as part of the Services details of which as set out in Schedule 1 of the Contract and the Firmware.

Subscription: the software subscriptions purchased by the Customer pursuant to 9.1 which entitle Customer to access and use the Services in accordance with this agreement.

Subscription Fees: the subscription fees payable by the Customer to the Supplier as set out in Schedule 1 of the Contract.

Subscription Term: has the meaning given in 19.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).

Support Services: the Supplier’s support services, details of which are set out in clause 4 and Schedule 1.

Supplier’s Support Services Policy: the Supplier’s support services policy as made available either directly or online as may be notified to the Customer from time to time.

Virus: 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.

Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be interpreted accordingly.

Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.
A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
A reference to writing or written excludes fax but not email.
References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.

Provision of Services

1. The Supplier shall, during the Subscription Term, provide the Services on and subject to the terms of this agreement.
2. Subject to clause 3.3 the Supplier hereby grants to the Customer a non-exclusive, non-transferable right and licence, without the right to grant sublicences, to permit the Customer to use the Services during the Subscription Term solely for the Customer’s internal business operations.
3. The Customer purchases the Subscriptions in accordance with 4.1 and 10.1, the restrictions set out in this 2.10 and the other terms and conditions of this agreement.
4. The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
  1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
  2. facilitates illegal activity;
  3. depicts sexually explicit images;
  4. promotes unlawful violence;
  5. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
  6. is otherwise illegal or causes damage or injury to any person or property;

and the Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.

The Customer shall not:
1. except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement:
  1. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software, Firmware, Hardware and/or Documentation (as applicable) in any form or media or by any means; or
  2. attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software or Firmware or Hardware; or
2. access all or any part of the Services in order to build a product or service which competes with the Services; or
3. use the Services to provide services to third parties; or
4. licence, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party, or
5. attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this 2.10; or
6. introduce or permit the introduction of any Virus or Vulnerability into the Supplier’s network and information systems.
The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify the Supplier.
The rights provided under this 2.10 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
1. planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am UK time; and
2. unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Customer at least 6 Normal Business Hours’ notice in advance.

Support Services

1. 1. The Supplier will, as part of the Services and in consideration of the support fees set out in Schedule 1, provide the Customer with the Supplier’s standard customer support services during Normal Business Hours in accordance with the Supplier’s Support Services Policy in effect at the time that the Services are provided. The Supplier may amend the Support Services Policy in its sole and absolute discretion from time to time. The Customer may purchase enhanced support services separately at the Supplier’s then current rates.

Quality of Services Hardware

1. Subject to clause 5.2, in the event that the Service Hardware becomes defective the Supplier shall repair or replace the defective Service Hardware during the first 12 months.
2. The Supplier shall not be liable for the Services Hardware if:
  1. damage occurs or a defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Services Hardware or (if there are none) good trade practice regarding the same;
  2. damage occurs or a defect arises in the Services Hardware as a result of the Supplier following any specification supplied by the Customer;
  3. the Customer alters or repairs such Services Hardware without the written consent of the Supplier;
  4. damage occurs or a defect arises as a result of wilful damage, negligence, or abnormal working condition;

in such instance any repair or replacement determined by the Supplier will be done at the Customer’s cost.

Supplier’s obligations

1. 1. The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
  2. The undertaking at 6.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier’s instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Supplier will, at its expense, use reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in 6.1.
  3. The Supplier:
    1. does not warrant that:
      1. the Customer’s use of the Services will be uninterrupted or error-free; or
      2. that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; or
      3. the Hardware, Firmware, Software or the Services will be free from Vulnerabilities or Viruses; or
      4. the Hardware, Firmware, Software, Documentation or Services will comply with any Heightened Cybersecurity Requirements.
    2. is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
  4. This agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.
  5. The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
  6. The Supplier shall follow its archiving procedures for Customer Data as set out in its back-up policy as may be notified to the Customer from time to time, as such document may be amended by the Supplier in its sole discretion from time to time. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy against the Supplier shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier in accordance with the archiving procedure described in its back-up policy. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by the Supplier to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable.

Services: Customer’s obligations

1. The Customer shall:
  1. provide the Supplier with:
    1. all necessary co-operation in relation to this agreement; and
    2. all necessary access to such information as may be required by the Supplier;

in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;

ensure that the Hardware has access to the internet at the levels and quality required to operate;
without affecting its other obligations under this agreement, comply with all applicable laws and regulations with respect to its activities under this agreement;
carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
ensure that the Authorised Users use the Services in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User’s breach of this agreement;
obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and
be, to the extent permitted by law and except as otherwise expressly provided in this agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to the Supplier’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.

The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.

Services: Charges and payment

1. 1. The Customer shall pay the Subscription Fees to the Supplier for the Subscriptions in accordance with this 10 and the fees for the Support Services in accordance with 4.1.
  2. The Customer shall pay the Subscription Fees in accordance with the Contract Details section of the Contract advance in cleared funds to the bank account nominated in writing by the Supplier.
  3. The Supplier shall invoice the Customer in accordance with the Contract Details section of the Contract from Commencement Date and the Customer shall pay each invoice within 30 days after the date of such invoice.
  4. If the Customer fails to make payment due to the Supplier under this agreement by the due date, then, without limiting the Supplier’s remedies under clause 22 (Term and Termination) the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each date at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when the base rate is below 0%. Where a payment is disputed in good faith, interest is only payable after the dispute is resolved, on sums found or agreed to be due, from the due date until payment.
  5. If the Customer disputes any invoice:
    1. the Customer shall notify the Supplier in writing immediately specifying the reasons for disputing the invoice;
    2. the Supplier shall provide all evidence as may be reasonably necessary to verify the disputed invoice;
    3. the Customer shall pay to the Supplier all amounts not disputed by the Customer on the due date; and
    4. the parties shall negotiate in good faith to attempt to resolve the dispute promptly.
  6. The Supplier may at any time, without notice to the other party, set off any liability of the Customer to it against any liability it has to the Customer, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under this agreement. Any exercise by a party of its rights under this 8.6 shall not limit or affect any other rights or remedies available to it under this agreement or otherwise.
  7. All amounts to the Supplier by the Customer under this agreement shall become immediately due and payable on termination of this agreement for any reason.
  8. If the Supplier has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of the Supplier:
    1. the Supplier may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
    2. interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of the Supplier’s bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
  9. All amounts and fees stated or referred to in this agreement:
    1. shall be payable in pounds sterling;
    2. are, subject to 17.7(b), non-cancellable and non-refundable;
    3. are exclusive of value added tax, which shall be added to the Supplier’s invoice(s) at the appropriate rate.
  10. The Supplier shall be entitled to increase the Subscription Fees, the support fees payable pursuant to 4.1 and/or the excess storage fees payable pursuant to Schedule 1 at the start of each Renewal Period upon 30 days’ prior notice to the Customer and Schedule 1 shall be deemed to have been amended accordingly.

Proprietary rights

1. 1. The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services. Except as expressly stated herein, this agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services (including but not limited to the Software, Firmware and Hardware).
  2. The Supplier confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.

Provision of Goods

1. 1. The Goods are described in the Schedule 1 in the Goods section.
  2. The Supplier will supply the Goods in accordance with these Terms and Conditions.
  3. These Terms and Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
  4. The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Terms and Conditions.
  5. The Supplier reserves the right to amend the Goods if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Customer in any such event.

Delivery of Goods

1. 1. The Supplier shall deliver the Goods to the Delivery Location at any time after the Supplier notifies the Customer that the Goods are ready.
  2. Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location.
  3. Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by force majeure event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
  4. If the Customer fails to accept delivery of the Goods within three Business Days of the Supplier notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a force majeure event or by the Supplier’s failure to comply with its obligations under the Contract in respect of the Goods:
    1. delivery of the Goods shall be deemed to have been completed at 9.00 am on the fourth Business Day following the day on which the Supplier notified the Customer that the Goods were ready; and
    2. the Supplier shall store the Goods until actual delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
  5. If ten Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not accepted actual delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
  6. The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

Quality of Goods Hardware

1. The Supplier warrants that if a defect arises in any relevant Goods within 12 months of the anniversary of its delivery, the Supplier will (or will procure that the manufacturer) repairs or replaces any defective Goods.
2. Other than as set out in clause 12.1 above, the Supplier makes no warranty that on delivery, the Goods shall:
  1. conform with the applicable Goods specification set out in Schedule 1;
  2. be free from material defects in design, material and workmanship; and
  3. be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
  4. be fit for any purpose held out by the Supplier.
3. Other than as set out in clause 12.1 above, in the event that the Goods:
  1. do not conform with their description and /or any applicable Goods specification set out in Schedule 1;
  2. are not free from material defects in design, material and workmanship; and
  3. are not of satisfactory quality (within the meaning of the Sale of Goods Act 1979); or
  4. are not fit for any purpose held out by the Supplier;

then the Customer can give notice in writing to the Supplier within a reasonable time of discovery; the Supplier (and/or manufacturer) must be given a reasonable opportunity of examining such Goods; and the Customer (if asked to do so by the Supplier) returns such Goods to the location specified by the Supplier at the Customer’s cost and the Supplier shall, at its option, repair or replace any defective Goods at the Customer’s cost.

The Supplier shall not be liable for the Goods if:
1. the Customer makes any further use of such Goods after giving a notice in accordance with 12.3;
2. the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice regarding the same;
3. the defect arises as a result of the Supplier following any specification supplied by the Customer;
4. the Customer alters or repairs such Goods without the written consent of the Supplier and/or manufacturer of the relevant Good;
5. the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
6. the Goods differ from the Goods specification set out in Schedule 1 as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
Except as provided in this 12, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the clause 12.3.
These Terms and Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.

Title and risk

1. 1. The risk in the Goods shall pass to the Customer on completion of delivery.
  2. Title to the Goods shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums.
  3. Until title to the Goods has passed to the Customer, the Customer shall:
    1. store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
    2. not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
    3. maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Supplier’s behalf from the date of delivery;
    4. notify the Supplier immediately if it becomes subject to any of the events listed in clause 19.2(c) to clause 19.2(n); and
    5. give the Supplier such information as the Supplier may reasonably require from time to time relating to:
      1. the Goods; and
      2. the ongoing financial position of the Customer.
  4. At any time before title to the Goods passes to the Customer, the Supplier may:
    1. by notice in writing, terminate the Customer’s right to use them in the ordinary course of its business; and
    2. require the Customer to deliver up all Goods in its possession that have not been irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.

Goods: Charges and payment

1. 1. The price for Goods:
    1. shall be the price set out in the Schedule 1 or, if no price is quoted, the price set out in the Supplier’s published price list as at the date of the order; and
    2. shall be exclusive of all costs and charges of packaging, insurance, transport of the Goods, which shall be invoiced to the Customer.
  2. The Supplier reserves the right to increase the price of the Goods, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to the Supplier that is due to:
    1. any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
    2. any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the specification Goods set out in Schedule 1; or
    3. any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Goods.

Confidentiality

Confidential Information means all confidential information (however recorded or preserved) disclosed by a party or its Representatives (as defined below) to the other party and that party’s Representatives whether before or after the date of this agreement in connection with this agreement, including but not limited to:

1. 1. any information that would be regarded as confidential by a reasonable business person relating to:
    1. the business, assets, affairs, customers, clients, suppliers, or plans , intentions, or market opportunities of the disclosing party (or of any member of the group of companies to which the disclosing party belongs); and
    2. the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party (or of any member of the group of companies to which the disclosing party belongs);
  2. any information developed by the parties in the course of carrying out this agreement and the parties agree that:
    1. details of the Services, and the results of any performance tests of the Services, shall constitute Supplier Confidential Information; and
    2. Customer Data shall constitute Customer Confidential Information;
  3. any information detailed in Schedule 1.

Representatives means, in relation to a party, its employees, officers, contractors, subcontractors, representatives and advisers.

The provisions of this clause shall not apply to any Confidential Information that:
1. is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause);
2. was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;
3. was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party’s knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party; or
4. the parties agree in writing is not confidential or may be disclose; or
5. is developed by or for the receiving party independently of the information disclosed by the disclosing party.
Each party shall keep the other party’s Confidential Information secret and confidential and shall not:
1. use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with this agreement (Permitted Purpose); or
2. disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause 15.
A party may disclose the other party’s Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that:
1. it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and
2. at all times, it is responsible for such Representatives’ compliance with the confidentiality obligations set out in this clause.
A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 15.5, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
A party may, provided that it has reasonable grounds to believe that the other party is involved in activity that may constitute a criminal offence under the Bribery Act 2010, disclose Confidential Information to the Serious Fraud Office without first informing the other party of such disclosure.
Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party’s Confidential Information other than those expressly stated in this agreement are granted to the other party, or to be implied from this agreement.
On termination or expiry of this agreement, each party shall:
1. destroy or return to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party’s Confidential Information;
2. erase all the other party’s Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties (to the extent technically and legally practicable); and
3. certify in writing to the other party that it has complied with the requirements of this clause, provided that a recipient party may retain documents and materials containing, reflecting, incorporating or based on the other party’s Confidential Information to the extent required by law or any applicable governmental or regulatory authority.
No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
Except as expressly stated in this agreement, no party makes any express or implied warranty or representation concerning its Confidential Information.
The above provisions of this 18 shall survive for a period of two years from termination or expiry of this agreement.
Notwithstanding the provisions of this clause 15 the Customer hereby consents to the Supplier capturing, using, reproducing, and distributing images, video, and audio recordings in relation to the Services and the Goods provided to the Customer and making media releases, public announcements and public disclosures relating to this Agreement and/or its subject matter, including but not limited to use of such media for promotional or marketing material.

Indemnity

1. 1. The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services, provided that:
    1. the Customer is given prompt notice of any such claim;
    2. the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
    3. the Customer is given sole authority to defend or settle the claim.
  2. The Supplier shall defend the Customer, its officers, directors and employees against any claim that the Customer’s use of the Services in accordance with this agreement infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
    1. the Supplier is given prompt notice of any such claim;
    2. the Customer does not make any admission, or otherwise attempt to compromise or settle the claim and provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier’s expense; and
    3. the Supplier is given sole authority to defend or settle the claim.
  3. In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
  4. In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
    1. a modification of the Services by anyone other than the Supplier; or
    2. the Customer’s use of the Services in a manner contrary to the instructions given to the Customer by the Supplier; or
    3. the Customer’s use of the Services after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
  5. The foregoing and 17.7(b) state the Customer’s sole and exclusive rights and remedies, and the Supplier’s (including the Supplier’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

Limitation of liability

1. 1. Except as expressly and specifically provided in this agreement:
    1. the Customer assumes sole responsibility for results obtained from the use of the Services by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer’s direction;
    2. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and
    3. the Services are provided to the Customer on an “as is” basis.
  2. The Customer assumes sole responsibility for ensuring that no employee, person or device inside premises where Hardware is installed crosses the marked areas where the AMR operate, unless explicitly stated by the Software (including the Documentation).
  3. The Customer assumes responsibility for any damage caused to the Hardware not attributable to normal wear and tear. The Customer acknowledges that additional charges may apply in connection with such damage.
  4. The Customer assumes responsibility for any death or injuries or damage caused where any employees, persons or devices inside premises where Hardware (including the AMR) is installed cross the marked areas where the AMR operate against the explicit stated instructions from the Software (including the Documentation).
  5. The Customer assumes responsibility and undertakes to maintain the requisite insurance set out in clause 18 and the keep the Supplier indemnified in the event of any claim against the Supplier by the Customer or any third party in relation to any events set out in clause 17.4.
  6. Nothing in this agreement excludes the liability of the Supplier:
    1. for death or personal injury caused by the Supplier’s negligence; or
    2. for fraud or fraudulent misrepresentation.
  7. Subject to 17.1 and 17.6:
    1. the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and
    2. the Supplier’s total aggregate liability in contract (including in respect of the indemnity at 16.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total Subscription Fees paid during the 12 months immediately preceding the date on which the claim arose.
  8. Nothing in this agreement excludes the liability of the Customer for any breach, infringement or misappropriation of the Supplier’s Intellectual Property Rights”.

Insurance

1. 1. During the Subscription Term and for a period of one year afterwards the Customer shall maintain in force the following insurance policies with reputable insurance companies:
    1. public liability insurance with a limit of at least £5 million a claim; and
    2. employers liability insurance (covering interaction with industrial machinery) with a limit of at least £5 million a claim.
  2. The Customer shall ensure that the Supplier interest is noted on each insurance policy or that a generic interest clause has been included.
  3. On taking out and on renewing each policy, the Customer shall promptly send a copy of the receipt for the premium to the Supplier. On the Supplier’s written request, the Manufacturer shall provide the Customer with copies of the insurance policy certificates and details of the cover provided.
  4. If the Customer permits subcontracting, the Customer shall ensure that any sub-contractors also maintain adequate insurance having regard to their obligations under this agreement.
  5. The Customer shall notify the Supplier if any policy is (or will be) cancelled or its terms are (or will be) subject to any material change.

Term and Termination

1. This agreement shall, unless otherwise terminated as provided in this 19, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:
  1. either party notifies the other party of termination, in writing, at least 60 days before the end of the Initial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
  2. otherwise terminated in accordance with the provisions of this agreement;

and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.

Without affecting any other right or remedy available to it, the Supplier may terminate this agreement with immediate effect by giving written notice to the Customer if:
1. the Customer fails to pay any amount due under this agreement on the due date for payment and remains in default not less than [14] days after being notified in writing to make such payment;
2. the Customer commits a material breach of any other term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of [14] days after being notified in writing to do so;
3. the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 1986;
4. the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
5. the Customer applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
6. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of that other party;
7. an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the Customer (being a company, partnership or limited liability partnership);
8. the holder of a qualifying floating charge over the assets of that the Customer (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
9. a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer;
10. a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
11. any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in 19.2(c) to clause 19.2(j) (inclusive);
12. the Customer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
13. the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy; or
14. there is a change of control of the Customer (within the meaning of section 1124 of the Corporation Tax Act 2010).
On termination of this agreement for any reason:
1. all licences granted under this agreement shall immediately terminate and the Customer shall immediately cease all use of the Services;
2. the Customer shall return the Hardware to the Supplier (in accordance with the Supplier’s reasonable instructions);
3. the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession unless the Supplier receives, no later than ten days after the effective date of the termination of this agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. The Supplier shall use reasonable commercial endeavours to export the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Customer Data; and
4. any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.

Force majeure

1. 1. Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for two weeks, the party not affected may terminate this agreement by giving 5 days’ written notice to the affected party.

Conflict

1. 1. If there is an inconsistency between any of the provisions in the main body of this agreement and the Schedules, the provisions in the main body of this agreement shall prevail.

Variation

1. 1. No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

Waiver

1. 1. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
  2. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

Rights and remedies

Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

Severance

1. 1. If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
  2. If any provision or part-provision of this agreement is deemed deleted under 25.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

Entire agreement

1. 1. This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter.
  2. Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
  3. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
  4. Nothing in this clause shall limit or exclude any liability for fraud.

Assignment

1. 1. The Customer shall not, without the prior written consent of the Supplier, assign, novate, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
  2. The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.

No partnership or agency

Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

Third party rights

This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

Counterparts

1. 1. This agreement may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
  2. Transmission of the executed signature page of a counterpart of the Contract by email (in PDF, JPEG or other agreed format) shall take effect as the transmission of an executed “wet-ink” counterpart of this agreement.
  3. No counterpart shall be effective until each party has provided to the other at least one executed counterpart.

Notices

1. Any notice given to a party under or in connection with this agreement shall be in writing and shall be:
  1. delivered 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
  2. sent by email to the following addresses (or an address substituted in writing by the party to be served) to the email addresses set out in the Contract Details section of the Contract.
2. Any notice shall be deemed to have been received:
  1. if delivered by hand, at the time the notice is left at the proper address;
  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

if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.

This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

Governing law

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 interpreted in accordance with the law of England and Wales.

Jurisdiction

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 this agreement or its subject matter or formation (including non-contractual disputes or claims).