Terms and Conditions (T&Cs)
Effective as of June 2023
Table of contents
- Terms and Conditions (T&Cs)
- Part A – Introduction
- Part B – Product and Software Upgrade Services Terms
- Part C – Professional Services Terms
- Part D – General Terms and Conditions
- 8. Representations, Warranties, Undertakings and Exclusions
- 9. Customer Obligations
- 10. Intellectual Property Rights
- 11. Fees and Payment
- 12. Confidentiality
- 13. Indemnities
- 14. Limitation of Liability
- 15. Terms and Termination
- 16. Consequences of Termination
- 17. Entire Agreement
- 18. Notices
- 19. Miscellaneous
- 20. Governing Laws and Jurisdiction
- 21. Definitions and Interpretation
- Software Upgrade Services Addendum
Part A – Introduction
- The Agreement comprises the Order and these Ts&Cs (to the extent applicable to the Order in accordance with clause 2 below) (“Agreement”).
- The parties acknowledge that:
- Part B of these Ts&Cs shall apply to Orders which relate to the licensing of Products and provision of Software Upgrade Services;
- Part C of these Ts&Cs shall apply to Orders which relate to the performance of Professional Services; and
- Part D of these Ts&Cs shall apply to all Orders.
- If there is a conflict between any of the terms of these Ts&Cs and any of the terms of the Order, the terms of these Ts&Cs shall prevail unless the parties have expressly agreed in the Order that the relevant terms of these Ts&Cs shall not apply.
- These Ts&Cs shall apply to the exclusion of and shall prevail over any terms and conditions of contract imposed or sought to be imposed by the Customer at any time.
- Each Order shall come into force and effect on the Order Effective Date and shall continue in force and effect during the Licence Term and/or until the Professional Services have been performed (as applicable, and where both apply, whichever is longer), unless terminated earlier in accordance with the terms of this Agreement.
- The Order shall only be deemed to be accepted when InteleXVision issues a written acceptance of the Order, at which point the Agreement shall come into existence.
Part B – Product and Software Upgrade Services Terms
2. Product License
- Subject to the Usage Limitations, the Customer’s payment of the Licence Fees and compliance with the other terms and conditions of this Agreement, and to the relevant End Customer at all times during the Licence Term having in place and complying with an EULA, which can be found here: https://www.intelexvision.com/legal/EULA/, InteleXVision hereby grants to the Customer a non-exclusive, non-transferable, non-sublicensable (save as expressly permitted in this clause 2) right:
- To permit End Customers to use and access the Product during the Licence Term; and/or
- To integrate the Product with End Customer Systems and to permit End Customers to use and access the Product (as integrated with the End Customer Systems), in all cases during the Licence Term.
- The Customer may make a reasonable number of copies of the Product for archival, disaster recovery, and internal testing purposes. The Customer may make a reasonable number of copies of the Documentation for its own internal business purposes to support the Customer's licence to the Product. No other reproduction rights are granted under this Agreement. The Customer shall maintain an up-to-date written record of the number of copies of the Product in its possession and, upon request, shall produce such record to InteleXVision.
- Open source software components are distributed, embedded and/or bundled with the Product. Such open source software is separately licensed by its copyright holder. For details of such open source software and the terms on which it is licensed, please see intelexvision.com/legal/opensource. The Customer shall use any such open source software in accordance with the licence terms in relation to such software.
- Except as expressly authorised in this Agreement, the Customer shall not:
- Rent, lease, sublicense, distribute, transfer, encumber, copy, reproduce, display or timeshare the Product or Documentation or any portion thereof;
- Modify, correct, adapt, translate, enhance or otherwise prepare derivative works or improvements of the Product;
- Remove, obliterate or alter any copyright, proprietary or similar notices in the Product;
- Distribute, export, sell or otherwise transfer, in whole or in part, the Product;
- Allow any third parties to access or use the Product without InteleXVision's prior written consent;
- Except where such restriction is prohibited by law, reverse engineer, de-compile, disassemble, attempt to derive source code (or underlying ideas, algorithms, structure or organisation) of or to the Product;
- Bypass or breach any security device or protection used for or contained in the Product;
- Transfer, temporarily or permanently, any of its rights under this Agreement; or
- Access, develop, supply or market all or any part of the Product in order to build a product or service which replicates, competes with or is substantially similar to the Product or otherwise use the Product as a service bureau or in any similar activity for the benefit of any person.
- The Customer shall ensure that each End Customer signs an EULA in relation to its use of the Product and complies with the terms of such an EULA. The Customer shall be responsible for any acts or omissions of any End Customer (including breach of the EULA and/or acts or omissions causing breach of this Agreement) as if committed by the Customer themselves.
- The Customer shall use its best endeavours to prevent any unauthorised access to, or use of, the Product and shall notify InteleXVision promptly of any such unauthorised access or use.
Promptly following receipt of the Licence Fees, InteleXVision shall make the Product and the Documentation available to the Customer to download.
4. Product Warranty and Exclusions
- Subject to clauses 2, 4.3, 4.4, and 4.5 below, InteleXVision warrants for a period of 1 year (or such other period as is specified in the Order) following the Delivery Date (the “Product Warranty Period”) that the Product shall perform substantially in accordance with the Documentation when operated in accordance with the Documentation. The Customer shall report any alleged non-conformance of the warranty contained in this clause 4.1 to InteleXVision in writing during the Product Warranty Period. The Customer’s exclusive remedy and InteleXVision’s sole liability with regard to a breach of the warranty contained in this clause 4.1 shall be, at InteleXVision’s option and expense, to either: (a) repair or replace the non-conforming Product; or (b) refund the Customer the Fees paid by the Customer for the non-conforming Product.
- Under no circumstances shall InteleXVision be liable under clause 1 for any failure of the Product to perform substantially in accordance with the Documentation to the extent that such failure is caused by:
- Any changes, modifications, updates or enhancements made to the Product other than by or on behalf of InteleXVision;
- Any use of the Product in combination with any software or hardware not supplied by InteleXVision and/or not supported in the Documentation (including any End Customer System); and/or
- Any open source software distributed, embedded, or bundled with the Product.
- Except as expressly provided in this Agreement, the Product is provided “as is”. InteleXVision does not warrant, represent, undertake or agree that: (a) the use of the Product by the Customer shall meet the Customer’s requirements nor that any recommendations derived from use of the Product shall deliver any particular benefits if implemented; (b) defects in the Product shall be corrected; or (c) the functions of the Product shall operate in the combinations which the Customer selects for use. Under no circumstances shall InteleXVision have any liability for any losses, claims, damages, costs or expenses caused by (i) any actions taken by or on behalf of InteleXVision at the Customer's direction; and/or (ii) the use of the Product in combination with any other software or hardware not supported in the Documentation.
- InteleXVision makes no representation, warranty or other commitment of any kind regarding any open source software distributed, embedded or bundled with the Product. InteleXVision offers no support for such open source software and shall, to the maximum extent permitted by law, have no liability associated with its use.
- InteleXVision does not warrant anything in relation to systems (including End Customer Systems) that do not make up the Product or the connection to those systems.
- Upon the written request of InteleXVision, an authorised representative of the Customer shall certify, in a form reasonably satisfactory to InteleXVision, the scope of the Customer’s use of the Product. The Customer shall submit the report no later than thirty (30) days after the date of InteleXVision’s written request.
- No more than once during each 12-month period, upon written notice and during normal business hours, InteleXVision may audit the records and systems of the Customer to verify that the Customer’s use of the Product is within the scope permitted by this Agreement (including the Usage Limitations). The Customer shall permit the audit no later than thirty (30) days after the date of InteleXVision's notice. If the report or audit reveals use of the Product beyond the scope permitted by this Agreement, the Customer shall promptly pay InteleXVision the additional Licence Fees and/or Software Upgrade Services Fees (as applicable) for the additional use of the Product. Further, if as a result of an audit or review, a deficiency of greater than five percent (5%) is found in the Fees paid, the Customer shall bear the reasonable cost of the audit or review.
6. Support and Upgrade Programme
Where the Customer elects to purchase InteleXVision’s Support and Upgrade Programme, the Customer will be subject to relevant provisions of the InteleXvision’s ‘iSentry Licence Policy’ and the provisions of the ‘iSentry Licence Policy’ are deemed to form a part of these Ts&Cs. The latest version of the Licence Policy may be found at www.intelexvision.com/legal/license-policy.
Part C – Professional Services Terms
7. Professional Services
- InteleXVision warrants that it will perform the Professional Services using reasonable skill and care.
- The Customer shall notify InteleXVision in writing of any breach of the warranty in clause 1 within seven (7) days after receipt of the invoice for the non-conforming Professional Services (“Services Breach Notification Period”), giving reasonable details of any such breach. InteleXVision is not obligated to correct any such breach if the Customer fails to identify the breach in writing within the Services Breach Notification Period.
Part D – General Terms and Conditions
8. Representations, Warranties, Undertakings and Exclusions
- Each party represents, warrants and undertakes that it is duly incorporated and validly existing under the laws of the country in which it is incorporated and is fully qualified and empowered to own its assets and carry on its business.
- Each party represents, warrants and undertakes that it has the requisite power, right and authority to enter into and perform its obligations under this Agreement, and this Agreement, when executed, shall constitute valid, lawful and binding obligations on it, enforceable in accordance with its terms.
- Each party shall perform its obligations under this Agreement in compliance with all applicable laws.
- To the extent permitted by law, save for the express representations, warranties and undertakings expressly set out in this Agreement, InteleXVision disclaims all conditions, warranties, representations, undertakings or other terms which might have effect between the parties with respect to the Product, Software Upgrade Services, Professional Services and/or InteleXVision’s other obligations under this Agreement, or be implied or incorporated into this Agreement, whether by statute, common law, custom or otherwise, including any implied conditions, warranties, undertakings or other terms relating to satisfactory quality, reasonable skill and care, fitness for any particular purpose, ability to achieve a particular result or arising from course of dealing or usage of trade.
9. Customer Obligations
The Customer shall:
- Provide InteleXVision with all necessary co-operation in relation to this Agreement and access to such information as may be required by InteleXVision in order to provide the Product, Software Upgrade Services and/or Professional Services (as applicable);
- Maintain sufficient licences to any software (from third parties or licensed by InteleXVision separately to this Agreement) operated using or in conjunction with the Product; and
- Carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner.
10. Intellectual Property Rights
- InteleXVision and/or its licensors shall retain ownership of all rights, title and interest, including Intellectual Property Rights, in and to the Product, the Documentation and any Work Product. The Customer acknowledges that, except as expressly stated in the Agreement, the Agreement does not grant the Customer any rights to, or in, the Product, the Documentation and/or any Work Product.
- Where the Order relates to the performance of Professional Services, InteleXVision hereby grants to the Customer a royalty-free, non-exclusive, non-transferable licence to use any Work Product for the sole purpose of receiving the benefit of the Product (including, where applicable, any product purchased under an associated order between InteleXVision and the Customer) and/or the Professional Services in accordance with the terms of this Agreement.
- The Customer hereby grants to InteleXVision a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Product and Documentation any enhancement requests or feedback provided by the Customer, so long as the Customer is not identified in any way as the source of such feedback. For the avoidance of doubt, InteleXVision shall not be obliged to implement any such enhancement request or feedback.
11. Fees and Payment
- The Customer shall pay the Fees to InteleXVision in accordance with this clause 11 and the terms of the Order.
- InteleXVision shall be entitled to invoice the Fees to the Customer in accordance with the invoicing profile contained in the Order. The Customer shall pay each such invoice within thirty (30) days of the date of any such invoice.
- The Customer shall pay all sums due to InteleXVision in cleared funds (in the currency specified in the Order) into the bank account nominated by InteleXVision.
- All sums due to InteleXVision under or in relation to this Agreement are exclusive of any Sales Tax which shall be charged in addition in accordance with the relevant regulations in force at the time of making the relevant taxable supply and shall be paid by the Customer in full at the same time as payment is due under the relevant invoice.
- If the Customer is or may be required under any law or regulation of any governmental entity or authority, domestic or foreign, to withhold or deduct any portion of any payment due to InteleXVision pursuant to this Agreement and InteleXVision is unable to reclaim or recover that deduction through the exercise of reasonable efforts, then the sum payable to InteleXVision shall be increased by the amount necessary to yield to InteleXVision an amount equal to the sum it would have received had no withholdings or deductions been made.
- If the Customer fails to make any payment in accordance with this Agreement, then InteleXVision shall (without prejudice to its other rights and remedies) be entitled to charge interest on the overdue amount at the lesser of the maximum rate allowed by law or a rate of 4% per annum above the base rate of the Bank of England from time to time in force, but at 4% a year for any period when that base rate is below 0%. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
- Save as expressly provided for in this Agreement, any Fees paid in accordance with this clause 11 shall be non-refundable in any circumstances including upon early termination of this Agreement.
- The Customer shall provide accurate, current and complete information on the Customer’s billing address and billing contacts, including email address and phone number, and shall promptly notify InteleXVision if this information changes.
- The Receiving Party shall:
- Only use (including making copies of) Confidential Information in connection with and to the extent necessary for the purposes of this Agreement;
- Not disclose the Confidential Information to any person except with the prior written consent of the Disclosing Party or in accordance with clauses 2 and 12.3; and
- Keep all Confidential Information secret and securely protected against theft or unauthorised access.
- The Receiving Party may disclose Confidential Information to its directors, employees, officers, agents, sub-contractors and professional advisers (“Authorised Persons”) for the purposes of performing its obligations under this Agreement, provided that the Receiving Party informs all Authorised Persons that the Confidential Information is confidential. The Receiving Party shall be responsible for all acts and omissions of Authorised Persons as though they were its own acts or omissions under this Agreement.
- The Receiving Party may disclose any Confidential Information to any regulator, law enforcement agency or other third party if it is required to do so by law, regulation, or similar authority. In those circumstances the Receiving Party shall (to the extent practical and lawful to do so) notify the Disclosing Party in writing as soon as practicable before the disclosure and use all reasonable endeavours to consult with the Disclosing Party with a view to agreeing the timing, manner and extent of the disclosure.
- All Confidential Information shall remain the property of the Disclosing Party and the Disclosing Party reserves all rights in its Confidential Information. Nothing in this Agreement or the disclosures envisaged by this Agreement shall (except as expressly agreed otherwise in this Agreement) operate to transfer, or operate as a grant of any licences or right to use, any Intellectual Property Rights in the Confidential Information.
- Each party acknowledges that damages alone would not be an adequate remedy in the event of a breach by the other party of the provisions of this clause 12. Accordingly, it is agreed that either party shall be entitled, without proof of special damages, to seek an injunction or other interim remedy for any threatened or actual breach of this clause 12 by the other party, without prejudice to any other rights and remedies which that first party may have.
- Subject to the provisions of this clause 1 and clauses 13.2 to 13.4 (inclusive), InteleXVision shall indemnify the Customer from and against all sums finally awarded by a Court of competent jurisdiction in respect of, and/or any sums pre-approved in writing by InteleXVision paid in settlement of, any IPR Claim, provided that:
- The Customer shall provide InteleXVision prompt notice of any actual or threatened IPR Claim;
- The Customer shall not admit any liability or agree to any settlement or compromise of an IPR Claim without the prior written consent of InteleXVision;
- InteleXVision shall be entitled at any time to assume exclusive conduct of the IPR Claim (which shall include, but not be limited to, the exclusive right to conduct any proceedings or action, negotiate the settlement of the IPR Claim and to conduct all discussions and dispute resolution efforts in connection with the IPR Claim);
- The Customer shall, at InteleXVision’s request, cost and expense, give InteleXVision all reasonable assistance in connection with the conduct of the IPR Claim (including taking such steps as is necessary to enable InteleXVision to assume conduct of the IPR Claim pursuant to clause 1.3); and
- The Customer takes all reasonable steps to mitigate any liabilities which are the subject of the indemnity in this clause 1.
- If any IPR Claim is made, or in InteleXVision’s reasonable opinion is likely to be made, against the Customer, InteleXVision may at its option and expense:
- Obtain for the Customer the right to continue using the Product, Documentation and/or Work Product (as applicable) in the manner permitted under this Agreement;
- Modify or replace the infringing part of the Product, Documentation and/or Work Product (as applicable) so as to avoid the infringement or alleged infringement, but in such a way that does not materially adversely affect the functionality of the Product and/or Work Product (as applicable); and/or
- Terminate this Agreement and refund Fees paid in advance by the Customer in respect of any period following such termination. For the purposes of this clause 2.3, where the Order relates to the licensing of a Product and the Licence Term is perpetual, Licence Fees paid in advance shall be refunded on a Five Year Straight-line Basis.
- Under no circumstances shall InteleXVision be liable to the Customer under clause 1 or 13.2 (or otherwise) to the extent that the infringement (whether actual or threatened) is based on:
- Any changes, modifications, updates or enhancements made to the Product, Documentation and/or Work Product (as applicable) other than by or on behalf of InteleXVision;
- Any use of the Product, Documentation and/or Work Product (as applicable) in combination with any software or hardware not supplied by InteleXVision and/or not supported in the Documentation (including any End Customer Systems); and/or
- Any open source software distributed, embedded, or bundled with the Product.
- The provisions of clauses 1 to 13.3 inclusive state the entire liability of InteleXVision to the Customer in connection with an IPR Claim and shall be the Customer’s sole and exclusive remedy in that regard.
- The Customer shall indemnify, keep indemnified and hold InteleXVision harmless against any and all damages, claims, actions, proceedings, losses and costs (including legal fees) and expenses arising from any third party claims or actions arising out of or in connection with the Customer's use (or misuse) of the Product, Documentation and/or Work Product (as applicable) in breach of (or outside of the scope of the rights granted pursuant to) this Agreement.
14. Limitation of Liability
- Nothing in this Agreement excludes or limits the liability of either party to the other:
- For death or personal injury caused by negligence;
- For fraud or fraudulent misrepresentation by it or its employees;
- Under the indemnities in clause 13;
- In respect of the Customer, for the Customer’s obligation to pay any Fees; or
- For any other liability that cannot be excluded or limited by law.
- Subject to clauses 1, 14.3, 14.4, 14.5 and 14.6, the total aggregate liability of either party (including liability for breach) in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising under or in connection with the performance, non-performance or contemplated performance of this Agreement shall in no event exceed (in each case, as applicable):
- For liability arising out of or in connection with the Product: (i) where the Licence Term is perpetual, 25% of the total aggregate value of the Licence Fees; or (ii) where the Licence Term is not perpetual, in respect of any and all causes of action arising in the relevant Year, 100% of the Licence Fees paid or payable by the Customer to InteleXVision in relation to that Year (or, for causes of action that first arise after expiry or termination of this Agreement, the value of the Licence Fees paid or payable by the Customer to InteleXVision in the final Year), in each case the “Product Cap”;
- For liability arising out of or in connection with the Software Upgrade Services, in respect of any and all causes of action arising in the relevant Year, 100% of the Software Upgrade Services Fees paid or payable by the Customer to InteleXVision in relation to that Year (or, for causes of action which first arise after expiry or termination of this Agreement, the value of the Software Upgrade Services Fees paid or payable by the Customer to InteleXVision in the final Year), the “Software Upgrade Services Cap”; and
- For liability arising out of or in connection with the Professional Services, 100% of the total aggregate value of the Professional Services Fees, the “Professional Services Cap”.
- In relation to any liability of either party not captured by clauses 2.1, 14.2.2 or 14.2.3 (but for this clause 14.3), such liability shall be deemed to fall under (and therefore be limited by):
- The Product Cap (where the Order relates to the licensing of a Product, irrespective of whether the Order also relates to the provision of Software Upgrade Services and/or Professional Services);
- The Support Cap (where the Order relates to the provision of Software Upgrade Services, but not to the licensing of a Product); or
- The Professional Services Cap (where the Order relates only to the provision of Professional Services).
- The parties acknowledge and agree that:
- The total aggregate liability of either party (including liability for breach) in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise under this Agreement, shall in no event exceed the higher of the Product Cap, Software Upgrade Services Cap or the Professional Services Cap (as applicable);
- Where a single cause of action arises (or series of connected causes of action arise) in connection with two or more of the Product, Software Upgrade Services or Professional Services, the affected party shall only be entitled to recover losses, claims, damages, costs or expenses under one of the Product Cap, Software Upgrade Services Cap or Professional Services Cap (as applicable) and not under multiple caps; and
- For the purposes of calculating liability pursuant to clauses 2.1(ii) and 14.2.2, where a cause of action arises in a Year and continues across subsequent Years and/or continues after the expiry or termination of this Agreement, then the cause of action shall be deemed to have arisen only in the Year in which such cause of action first arose.
- Subject to clause 1, neither party shall be liable whether in tort (including for negligence), breach of statutory duty, contract, misrepresentation (whether innocent or negligent), restitution or otherwise for:
- Any loss of profits, loss of business, loss of savings, depletion of goodwill and/or similar losses, or pure economic loss or any loss or corruption of data or information (regardless of whether these types of loss or damage are direct, indirect or consequential); or
- Any special, indirect or consequential loss or damage whatsoever,
in each case however arising under or in connection with this Agreement and even if the first party was aware of the possibility that such loss or damage might be incurred by the other party.
- Subject to clause 1, InteleXVision shall not be liable whether in tort (including for negligence), breach of statutory duty, contract, misrepresentation (whether innocent or negligent), restitution or otherwise for any interruptions to, and/or errors in, End Customer Systems (including where such interruptions or errors are caused by incompatibility with the Product).
15. Terms and Termination
- Either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
- The other party commits a material breach of any term of this Agreement where such breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so; or
- The other party suffers an Insolvency Event.
- Without limiting clause 1.1, InteleXVision may terminate this Agreement with immediate effect by giving written notice to the Customer if the Customer:
- Fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than fifteen (15) days after being notified in writing to make such payment; and/or
- Breaches clause 4 and/or otherwise uses the Product, Documentation and/or Work Product (as applicable) outside the scope of the rights granted to it under this Agreement.
16. Consequences of Termination
- On expiry or termination of this Agreement for any reason:
- Subject to clause 2, all licences granted under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Product, Documentation and Work Product (as applicable);
- The Customer shall immediately pay all sums and amounts payable to InteleXVision under the terms of this Agreement;
- Each party shall return or destroy, and (in each case) make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other party, including the other party's Confidential Information (except InteleXVision may retain reasonable professional records of the Customer’s use of the Product and shall be entitled to retain the Customer's Confidential Information for the purposes of internal audit, litigation and/or to comply with applicable laws);
- 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 this Agreement which existed at or before the date of termination shall not be affected or prejudiced; and
- Clauses 1, 3, 2.4, 2.5, 2.6, 4.3, 4.4, 4.5, 8, 10, 11, 12, 13, 14, 16, 17, 18, 19 and any other provisions which are necessary for the interpretation or enforcement of this Agreement shall continue in force notwithstanding termination.
- Any licences granted under this Agreement which are stated to be granted on a perpetual basis shall survive the termination of this Agreement for any reason and shall continue in full force and effect, excluding licences to the Product and/or Documentation where InteleXVision has terminated this Agreement pursuant to clause 1 or 15.2.
17. Entire Agreement
- This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all agreements, arrangements, promises, undertakings, proposals, warranties, representations and understandings between them at any time before their respective signature (“Pre-Contractual Statements”), whether written or oral, relating to its subject matter.
- Each party acknowledges that in entering into this Agreement it does not rely on any Pre-Contractual Statement made by or on behalf of the other party (whether made innocently or negligently) in relation to the subject matter of this Agreement, other than those which are set out expressly in this Agreement.
- Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on, and hereby waives all rights and remedies which might otherwise be available to it in relation to, any Pre-Contractual Statement.
- Nothing in this clause 17 shall limit or exclude the liability of either party arising out of any pre-contractual fraudulent misrepresentation or fraudulent concealment.
Where any provision of this Agreement refers to a party notifying, or otherwise providing a notice to, the other party (the associated notice being a “Notice”), any such Notice shall be in writing, properly addressed to the specified recipient at the address set out below (in the case of InteleXVision) or in the Order (in the case of the Customer) and either delivered by hand, sent by first class recorded delivery or transmitted via email:
FAO: Callum Wilson
Address: Admiral’s office, Main Gate Road, The Historic Dockyard, Chatham ME4 4TZ, United Kingdom
- Each party may alter the details that relate to it through providing Notice to the other party in accordance with this clause 18.
- Any Notice complying with this clause 18 shall be deemed to have been received by the addressee:
- If delivered by hand, on the day of delivery if delivered by 17:30 hours on any Business Day and otherwise at 09.30 hours on the next Business Day;
- If sent by first class recorded delivery, two (2) Business Days after posting; and/or
- If sent by email, at the time and date of transmission if received at or before 17:30 hours on any Business Day and otherwise at 09.30 hours on the next Business Day.
- This clause 18 shall not apply to the service of legal proceedings.
- Force Majeure. InteleXVision shall not 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 results from events, circumstances or causes beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of InteleXVision or any other party), failure of a utility service or transport or telecommunications network or the internet, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of InteleXVision or sub-contractors. In such circumstances InteleXVision 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 three (3) months, either party may terminate this Agreement by giving thirty (30) days' written notice to the other party.
- No Waiver. The failure to exercise, or delay in exercising, a right, power or remedy provided by this Agreement or by law shall not constitute a waiver of that right, power or remedy. If a party waives a right, power or remedy arising as a result of a breach of any provision of this Agreement, this shall not operate as a waiver of any right, power or remedy arising as a result of any subsequent breach of that provision or any other provision of this Agreement.
- Cumulative 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. If any provision, or part of a provision, of this Agreement is found by any court or authority of competent jurisdiction to be illegal, invalid or unenforceable, that provision or part-provision shall be deemed not to form part of this Agreement, and the legality, validity or enforceability of the remainder of the provisions of this Agreement shall not be affected, unless otherwise required by operation of applicable law. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were modified, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
- Assignment. Customer shall not assign, transfer, mortgage, charge, declare a trust over or deal in any other manner with this Agreement, or with any of its rights or obligations under this Agreement, without the prior written consent of InteleXVision. InteleXVision may at any time assign, transfer, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under this Agreement.
- Subcontracting. InteleXVision may sub-contract the performance of any of its obligations under this Agreement without the Customer's prior written consent. InteleXVision shall be responsible for any acts and omissions of its sub-contractors as if they were InteleXVision's acts or omissions.
- Relationship of the Parties. Nothing in this Agreement is intended to, or shall be deemed to, establish or constitute any partnership or joint venture between any of the parties, create a relationship of principal and agent for any purpose between the parties, or authorise either party to make or enter into any commitments for or on behalf of the other party.
- Variation. Without limiting InteleXVision’s ability to charge additional and/or increase Fees pursuant to clauses 2 or 6.3 or as otherwise provided for in any Order, no variation of this Agreement shall be effective unless made in writing and signed by or on behalf of each of the parties or by their duly authorised representatives.
- Third Party Rights. A person who is not a party to this Agreement may not enforce any of its provisions under the Contracts (Rights of Third Parties) Act 1999.
- Interpretation. Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality). Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular. This Agreement shall be binding on, and ensure to the benefit of, the parties to this Agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party's personal representatives, successors and permitted assigns. 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. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
20. Governing Laws and Jurisdiction
- 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.
- The parties irrevocably agree that the courts of England and Wales have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims) save that InteleXVision may bring proceedings for injunctive relief in any alternative jurisdiction at its sole option in the case of breach or anticipated breach by the Customer of their obligations relating to confidentiality and Intellectual Property Rights as set out in this Agreement.
21. Definitions and Interpretation
- The following definitions apply in this Agreement:
“Affiliate” means, in respect of a party, any entity that from time to time, directly or indirectly, Controls, is controlled by, or is under common Control with that party and any other entity agreed in writing by the parties as being an Affiliate in respect of either party.
“Agreement” has the meaning given to it in clause 1.1.
“Authorised Persons” has the meaning given to it in clause 12.2.
“Business Day” means any day which is not a Saturday, Sunday or public holiday in London.
“Confidential Information” means all information in any medium or format (including written, oral, visual or electronic, and whether or not marked or described as "confidential"), together with any copies, which relates to a party (the “Disclosing Party”), to its Affiliates, or to its (or its Affiliates’) employees, officers, customers or suppliers, and which is directly or indirectly disclosed by or on behalf of the Disclosing Party to another party (the “Receiving Party”) under or in connection with this Agreement (or which is learnt or acquired by the Receiving Party in connection with this Agreement), whether before or after the date of this Agreement, and which would reasonably be regarded as confidential, excluding (a) information which is in the public domain other than as a result of a breach of this Agreement or any separate confidentiality undertaking between the parties; (b) information which the Receiving Party received, free of any obligation of confidence, from a third party which was not itself under any obligation of confidence in relation to that information, whether before the date of its disclosure by the Disclosing Party or otherwise; or (c) information which the Receiving Party can show by its written or other records was developed or created independently by the Receiving Party or any member of the Receiving Party's Group. Confidential Information shall include trade secrets, discoveries, knowhow, designs, specifications, drawings, present or future products or services and markets, inventions, prototypes, algorithms, software of any kind or nature, including, but not limited to the Product and Work Product (as applicable), object or machine codes, source codes, computer models and applications, developments, processes, formulae, technology, engineering, architectures, hardware configuration information, diagrams, data, computer programs, business activities and operations, customer lists, reports, studies and other technical and business information.
“Control” means (a) the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to (i) cast, or control the casting of, more than one-half of the maximum number of votes that might be cast at a general meeting of that party; (ii) appoint or remove all, or the majority, of the directors or other equivalent officers of that party; or (iii) give directions with respect to the operating and financial policies of the relevant party with which the directors or other equivalent officers of that party are obliged to comply; or (b) the holding beneficially of more than 50 per cent of the issued share capital of the relevant party (excluding any part of that issued share capital that carries no right to participate, or no right to participate beyond a specified amount, in a distribution of either profits or capital).
“Customer” means the party identified as the Customer on the Order.
“Delivery Date” means the date on which InteleXVision makes the Product and Documentation available for download in accordance with clause 3.1.
“Documentation” means the documentation, as updated from time to time (and including any Enhancements and Modifications thereto), provided by InteleXVision to the Customer in connection with the Product, including the specification in relation to the Product and any user manuals or other documentation provided under this Agreement.
“End Customer” means an end customer who has an EULA in place with InteleXVision and to whom the Customer provides the Product (either on its own or integrated with End Customer Systems).
“End Customer System” means any End Customer, Customer and/or third party system, software, hardware, computer equipment (including mainframes, personal computers, servers, and server stations), all associated or interconnected network equipment, routers, semi-conductor chips, embedded software, and communication lines (excluding the Product).
“Enhancements and Modifications” means any enhancements and/or modifications to the Product and/or Documentation carried out during the course of the Agreement, including any enhancements and/or modifications arising out of or in connection with Software Upgrade Services and/or any Customer feedback, regardless in all cases of who carries out such enhancements and modifications.
“EULA” means an end user licence agreement in the form contained here: www.intelexvision.com/legal/eula, entered into by an End Customer, governing the terms on which the End Customer can access and use the Product.
“Fees” means the Licence Fees, Software Upgrade Services Fees and/or Professional Services Fees as set out in the Order, and any other fees payable under or in connection with this Agreement by the Customer to InteleXVision for the provision of the Product and/or performance of the Software Upgrade Services or Professional Services.
“Five Year Straight-line Basis” means, in relation to the deemed value of the Licence Fees for the purpose of any refund, that the Licence Fees shall be considered to depreciate evenly on a day-by-day basis over a five year period commencing on the Delivery Date, such that the deemed value of the Licence Fees as at the fifth anniversary of the Delivery Date shall be zero.
“Insolvency Event” means, in respect of each party: (a) that party becomes unable to pay its debts (within the meaning of section 123(1)(e) or (2) of the Insolvency Act 1986), admits its inability to pay its debts or becomes insolvent; (b) a petition is presented, an order made or a resolution passed for the liquidation (otherwise than for the purposes of a solvent amalgamation or reconstruction), administration, bankruptcy or dissolution of that party; (c) an administrative or other receiver, manager, trustee, liquidator, administrator or similar person or officer is appointed to that party and/or over all or any part of the assets of that party; (d) that party enters into or proposes any composition or arrangement concerning its debts with its creditors (or any class of its creditors) generally; (e) that party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986; or (f) anything equivalent to any of the events or circumstances listed in limbs (a) to (e) (inclusive) occurs in any applicable jurisdiction.
“Intellectual Property Rights” means (a) patents, inventions, designs, copyright and related rights, database rights, knowhow and Confidential Information, trade marks (whether registered or unregistered) and related goodwill, trade names (whether registered or unregistered), and rights to apply for registration; (b) all other rights of a similar nature or having an equivalent effect anywhere in the world which currently exist or are recognised in the future; and (c) all applications, extensions and renewals in relation to any such rights.
“IPR Claim” means any claim or action against the Customer by any third party that the use of the Product, Documentation and/or Work Product (as applicable) by the Customer, in accordance with the terms of this Agreement, infringes the copyright of that third party.
“Licence Fees” means the fees payable in connection with the licensing of the Product, as set out in the Order.
“Licence Term” means the licence term set out in the Order.
“Notice” has the meaning given to it in clause 18.1.
“Order” means an order for the licensing of the Product, provision of Software Upgrade Services and/or performance of Professional Services, setting out details of (as applicable and amongst other things) the Product and Product Capabilities, the Professional Services and the Fees.
“Order Effective Date” means the date identified as such in the Order.
“Pre-Contractual Statement” has the meaning given to it in clause 17.1.
“Product” means the product and associated Product Capabilities described in the Order and as further detailed in the Documentation (including any Enhancements and Modifications to such product).
“Product Cap” has the meaning given to it in clause 14.2.1;
“Product Capabilities” means the optional, modular capabilities of the Product.
“Professional Services” means the professional services detailed in the Order.
“Product Warranty Period” has the meaning given to it in clause 4.1.
“Professional Services Cap” has the meaning given to it in clause 14.2.3;
“Professional Services Fees” means the fees payable in connection with the performance of Professional Services, as set out in the Order.
“Sales Tax” means any applicable national, federal, state and local sales, use, value added, excise and other similar taxes, fees and surcharges that are legally or by custom borne by a purchaser of goods or services.
“Services Breach Notification Period” has the meaning given to it in clause 7.1.
“Software Upgrade Services” has the meaning given to it in the Software Upgrade Services Addendum.
“Software Upgrade Services Fees” means the fees payable in connection with the performance of the Software Upgrade Services, as set out in the Order.
“Software Upgrade Services Fees Increase Notice” has the meaning given to it in clause 6.3.
“Software Upgrade Services Addendum” means the Software Upgrade Services Addendum attached hereto.
“Software Upgrade Services Cap” has the meaning given to it in clause 14.2.2;
“Ts&Cs” means these terms and conditions including (where the Customer elects to purchase Software Upgrade Services) the Software Upgrade Services Addendum.
“Usage Limitations” means any limitations on the Customer’s use of the Product, as set out in the Order.
“Work Product” means any software, materials, deliverables or other output which have been developed by or on behalf of InteleXVision pursuant to any Professional Services.
“Year” means: (a) in relation to the first Year, the period commencing on the Order Effective Date and ending on the first anniversary of the Delivery Date (or, in relation to Software Upgrade Services, if different, the date on which the Software Upgrade Services are stated to commence in the Order), and (b) in relation to each Year thereafter, each consecutive period of twelve (12) months thereafter.
Software Upgrade Services Addendum
- This Software Upgrade Services Addendum only applies where the Customer elects to purchase the Software Upgrade Services (as defined below). It applies during the Initial Software Upgrade Services Term and each Software Upgrade Services Renewal Period (as applicable).
- Subject to payment of the relevant Software Upgrade Services Fees, InteleXVision shall perform the support and upgrade services in relation to the Product in accordance with the provisions of this Schedule (“Software Upgrade Services”) and the terms of this Agreement.
- A full description of the Software Uprgade services can be found at: https://www.intelexvision.com/legal/license-policy/
- In this Schedule, the following terms shall have the meanings given to them below:
Means any failure of the Product to perform substantially in accordance with the Documentation when operated in accordance with the Documentation.
Means the permanent correction of a Defect and includes the provision to the Customer of any amendments to the Documentation that are required as a result of such correction.
Means the helpdesk provided by InteleXVision, which can be reached at support@Intelexvision.com
Means any amendment, change, patch, bug fix, upgrade, modification, enhancement, replacement or addition made to the Product by or on behalf of InteleXVision under this Agreement, including any Fix or Workaround but excluding any New Version.
Means a new version of the Product that contains significant new features and/or functionality and does not mean bug fixes, patches, maintenance releases or modifications of a minor nature for the Product. A New Version is identified by a different sub-heading number (e.g. 5.4 and 5.5 are separate versions).
Means notification of a Defect to InteleXVision by the Customer in accordance with this Software Upgrade Services Addendum.
Means a workaround or temporary correction of a Defect which permits the Customer to use the Product without any material degradation in functionality or performance.
- Before making a Support Request, the Customer shall use reasonable endeavours to determine whether a problem relating to the use of the Product is being caused by a Defect or by an external problem.
- In making such determination, the Customer shall, where applicable, consider whether the problem relating to the Product is being caused by a failure of, or defect in, any hardware, systems or software other than the Product.
- MAKING SUPPORT REQUESTS
- All Support Requests must be reported by the Customer via the Helpdesk. If required by InteleXVision, the Customer shall provide the following information (where available) to InteleXVision when making the initial Support Request:
- Company name;
- Name and telephone number of the individual making the Support Request (or other relevant Customer contact);
- Details of the Product (including version number); and
- Details and symptoms of the relevant Defect, including details of error messages or other system messages.
- All Support Requests must be reported by the Customer via the Helpdesk. If required by InteleXVision, the Customer shall provide the following information (where available) to InteleXVision when making the initial Support Request:
- RESOLVING SUPPORT REQUESTS
- If the Customer makes a Support Request, InteleXVision shall:
- Log the Support Request and issue a unique incident ID reference to the Customer, together with an estimate of the time by which a Workaround and (if known) a Fix for the Defect will be provided;
- Respond to, and provide a Workaround and a Fix for, the Defect;
- Keep the Customer updated on the progress of the rectification of the Defect;
- Notify the Customer promptly after a Workaround and a Fix for the Defect has been implemented or otherwise made available by InteleXVision; and
- If requested, provide the Customer with details of the Workaround and Fix provided by InteleXVision.
- If the Customer makes a Support Request, InteleXVision shall:
- Maintenance Releases
- InteleXVision shall provide the Customer with all Maintenance Releases generally made available to its other Customers.
- New Versions
- InteleXVision shall provide to the Customer any New Version which it offers to any of its other Customers. New Versions shall be available for download by the Customer.
- InteleXVision shall notify the Customer when a New Version becomes available and provide to the Customer any information relating to the New Version reasonably requested by the Customer. The Customer shall promptly download each New Version made available to it by InteleXVision so that it is operating on the most up-to-date version of the Product.