InfoSoft NI Ltd (the â€œService Providerâ€) may provide some or all of the following services to business clients from time to time as agreed in accordance with these Terms and Conditions: sales of IT services; development of telematics hardware and solutions; creation of automated business solutions and platforms; software development; website design & development; logo design; graphical design; hosting services; and cloud solution hosting software as a service. The Service Provider has reasonable skill, knowledge and experience in that field. The Agreement shall apply to the provision of services by the Service Provider to its clients.
1.2 Unless the context otherwise requires, each reference in these Terms and Conditions to:
1.2.1 â€œwritingâ€, and any cognate expression, includes a reference to any communication effected by email transmission or similar means;
1.2.2 a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
1.2.3 â€œthese Terms and Conditionsâ€ is a reference to these Terms and Conditions as amended or supplemented at the relevant time;
1.2.4 a Clause or paragraph is a reference to a Clause of these Terms and Conditions or to a Clause of the Agreement, as appropriate; and
1.2.5 a "Party" or the "Parties" refer to the parties to the Agreement as appropriate.
1.3 The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions.
1.4 Words imparting the singular number shall include the plural and vice versa.
1.5 References to any gender shall include the other gender.
1.6 References to persons shall include corporations.
2.1 With effect from the Commencement Date, the Service Provider shall, throughout the Term of the Agreement, provide the Services to the Client.
2.2 The Service Provider shall provide the Services with reasonable skill and care, commensurate with prevailing standards in the software/IT sector in the United Kingdom at the time of delivery and in accordance with any warranty set out in the Technical Specification.
2.3 The Client acknowledges that it has assessed the suitability of the Services or the Software for its requirements. The Service Provider does not warrant that the Software, the Services and/or its documentation will be suitable for such requirements or that any use will be uninterrupted or error free.
2.4 The undertaking in Clause 2.2 shall not apply if the Client makes or causes to be made any modifications to the Software or Services without the Service Providerâ€™s consent or if the Software is used in combination with any software, hardware or materials not supplied by the Service Provider or approved in writing by the Service Provider or the Software or Services are used in an application for which they were not intended or the Software or Services are used otherwise than as permitted by the Agreement. The undertaking at Clause 2.2 shall not apply to the extent any non-conformance is caused by use of the Services contrary to the Service Provider's instructions or the terms of the documentation (where applicable), or modification or alteration of the Services by any party other than the Service Provider or the Service Provider's duly authorised contractors or agents.
2.5 Subject to Clause 2.6, if the Services do not conform with the undertaking at Clause 2.2, Service Provider will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Client with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Client's sole and exclusive remedy for any breach of the undertaking set out in Clause 2.2. Notwithstanding the foregoing, the Service Provider does not warrant that the Client's use of the Services or Software will be uninterrupted or error-free, nor that the Services, Software and/or documentation will meet the Client's requirements.
2.6 If appropriate, the Technical Specification will include the service levels and liquidated damages payable (subject to Clause 16) by the Service Provider in the event of default, which the parties agree shall be the Clientâ€™s sole and exclusive remedy in the event of such default and are reasonable and proportionate.
2.7 The Service Provider shall act in accordance with all reasonable instructions given to it by the Client provided such instructions are compatible with the Technical Specification and are agreed in writing (including any associated increase in Fees) by the Parties.
2.8 The Service Provider shall be responsible for ensuring that it complies with all statutes, regulations, byelaws, standards, codes of conduct and any other rules relevant to the provision of the Services.
2.9 These Terms and Conditions apply to the Agreement (and any agreement between the Service Provider and the Client for the provision of services by the Service Provider) to the exclusion of any other terms that the Client seeks to impose or incorporate or which are implied by trade, custom, practice or course of dealing.
3.1 Subject to payment in full by the Client of all Fees due and the other restrictions set out in this Agreement, the Service Provider hereby grants to the Client, subject to the terms of the end user licence agreement (EULA) applicable to each Authorised User, a non-exclusive, non-transferable right to permit the Authorised Users to use the Software and its ancillary documentation during the Subscription Term of the User Subscriptions for such Authorised Users, solely for the Purpose.
3.2 In relation to the Authorised Users, the Client undertakes that:
(a) it shall be responsible for compliance by Authorised Users with the terms of this agreement and the EULA, and that the restrictions on the Client set out within this agreement shall, unless the context requires otherwise, equally apply to any such persons;
(b) the number of Authorised Users shall not exceed the number of User Subscriptions the Client has purchased from time to time;
(c) it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Software and/or its documentation;
(d) each Authorised User shall keep a secure password for his use of the Software and its documentation, and that each Authorised User shall keep his password confidential;
(e) it shall maintain a written, up to date list of current Authorised Users and provide such list to the Service Provider within 10 Business Days of the Service Providerâ€™s written request;
(f) it shall permit the Service Provider to audit the Software in order to establish the name and password of each Authorised User;
(g) if any of the audits referred to in Clause 3.2(f) reveal that the Client has underpaid Subscription Fees to the Service Provider, then without prejudice to any other right to which it may be entitled, the Client shall pay to the Service Provider an amount equal to such underpayment (as calculated by reference to the Subscription Fees for additional Authorised Users) within 5 Business Days of the date of the relevant audit; and
(h) if any of the audits referred to in Clause 3.2(f) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to the Service Providerâ€™s other rights, the Client shall promptly disable such passwords and the Service Provider shall not issue any new passwords to any such individual.
4.1 The Client shall provide all pertinent information to the Service Provider that is necessary for the Service Providerâ€™s provision of the Services.
4.2 In the event that the Service Provider requires the decision, approval, consent or any other communication from the Client in order to continue with the provision of the Services or any part thereof at any time, the Client shall provide the same in a reasonable and timely manner.
4.3 If any consents, licences or other permissions are needed from any third parties such as landlords, planning authorities, local authorities or similar, it shall be the Clientâ€™s responsibility to obtain the same in advance of the provision of the Services (or the relevant part thereof).
4.4 If the nature of the Services requires that the Service Provider has access to the Clientâ€™s home or any other location, access to which is lawfully controlled by the Client, the Client shall ensure that the Service Provider has access to the same at all times required by the Service Provider.
4.5 Any delay in the provision of the Services resulting from the Clientâ€™s failure or delay in complying with any of the provisions of the Agreement shall not be the responsibility or fault of the Service Provider.
5.1 The Service Provider shall invoice the Client for, and the Client shall pay, Fees due in accordance with the provisions of the Agreement.
5.2 All payments required to be made pursuant to the Agreement by either Party shall be made within 30 Business Days of the date of the relevant invoice.
5.3 All payments required to be made pursuant to the Agreement by either Party shall be made in pounds sterling in cleared funds to such bank as the receiving Party may from time to time nominate, without any set-off, withholding or deduction except such amount (if any) of tax as that Party is required to deduct or withhold by law.
5.4 Where any payment pursuant to the Agreement is required to be made on a day that is not a Business Day, it may be made on the next following Business Day.
5.5 Without prejudice to any other right of the Service Provider under the Agreement, any sums which remain unpaid following the expiry of the period set out in sub-Clause 5.2 of the Agreement shall incur interest on a daily basis at 4% above the base rate of The Co-operative Bank PLC from time to time until payment is made in full of any such outstanding sums.
6.1 The Service Provider may suspend and/or disconnect the provision of any or all of the Services immediately and without notice or liability to the Client if;
6.1.1 the Service Provider has reasonable grounds to suspect that the Client is using the Service in contravention of the provisions of the Agreement;
6.1.2 the Client has breached its credit terms;
6.1.3 the Client does not make any payment to the Service Provider when payment is due;
6.1.4 the Service Provider has reasonable grounds to believe that the Client will not and/or is unable and/or unwilling to make payment when due to the Service Provider;
6.1.5 the Service Provider has reasonable grounds to believe that the Client is, has, may be involved in criminal activity or any other activity which in the Service Providerâ€™s reasonable opinion may be materially detrimental to and/or have a materially adverse effect on the Service Providers business and/or reputation;
6.1.6 the Service Provider is obliged to comply with an order, instruction or request of a court government body, regulatory authority or other administrative or legal entity; or
6.1.7 the Clientâ€™s direct debit instruction fails and/or is cancelled.
6.2 During suspension of the Services, the Client will have to pay all charges due and any other reasonable costs and expenses that the Service Provider may occur as a result of suspension and possible subsequent re-activation.
7.1 The Service Provider shall ensure that it has in place at all times suitable and valid insurance that shall include public liability insurance.
7.2 Subject to Clause 7.5, the Service Providerâ€™s total liability for any loss or damage caused as a result of its negligence or breach of the Agreement shall be limited to a value equivalent to the amount of Fees paid by the Client to the Service Provider in the 6 months preceding the date the liability arose.
7.3 The Service Provider shall not be liable for any loss or damage suffered by the Client that results from the Clientâ€™s failure to follow any instructions given by the Service Provider.
7.4 Subject to Clause 7.5, the Service Provider shall not be liable to the Client, whether in contract, tort (including negligence), for breach of statutory duty or otherwise, arising under or in connection with the Agreement for: (a) loss of profits; (b) loss of business or contracts; (c) loss of use or corruption of software, data or information; (d) loss of or damage to goodwill; (e) any indirect, special, exemplary or consequential loss or damage; or (f) where any liability, loss, cost or damage arises from any act of a third party including (without limitation) hacking, malware, ransomware, botnet, social engineering, phishing, pretexting, spear phishing or password revealing.
7.5 Nothing in these Terms and Conditions nor in the Agreement shall limit or exclude the Service Providerâ€™s liability for death or personal injury arising from its negligence.
7.6 The Client shall indemnify the Service Provider against any costs, liability, damages, loss, claims or proceedings arising from loss or damage to any equipment (including that belonging to any third parties appointed by the Service Provider) caused by the Client or its agents or employees.
7.7 Neither Party shall be liable to the other or be deemed to be in breach of the Agreement by reason of any delay in performing, or any failure to perform, any of that Partyâ€™s obligations (for example and without limitation, in relation to server hosting, domain hosting or internet hacking attacks), if the delay or failure is wholly or partly due to any cause beyond that Partyâ€™s reasonable control.
7.8 The provisions of Clause 7 of the Agreement shall continue in force in accordance with their terms notwithstanding the termination or expiry of the Agreement for any reason.
8.1 Each Party undertakes that, except as provided by sub-Clause 8.2 of the Agreement or as authorised in writing by the other Party, it shall, at all times during the continuance of the Agreement and for 5 years after its termination:
8.1.1 keep confidential all Confidential Information;
8.1.2 not disclose any Confidential Information to any other party without the written consent of the Service Provider;
8.1.3 not use any Confidential Information for any purpose other than as contemplated by and subject to the terms of the Agreement;
8.1.4 not make any copies of, record in any way or part with possession of any Confidential Information; and
8.1.5 ensure that none of its directors, officers, employees, agents, sub-contractors or advisers does any act which, if done by that Party, would be a breach of the provisions of sub-Clauses 8.1.1 to 8.1.4 of the Agreement.
8.2 Either Party may:
8.2.1 disclose any Confidential Information to:
188.8.131.52 any sub-contractor or supplier of that Party;
184.108.40.206 any governmental or other authority or regulatory body; and/or
220.127.116.11 any employee or officer of that Party or of any of the aforementioned persons, parties or bodies to such extent only as is necessary for the purposes contemplated by the Agreement (including, but not limited to, the provision of the Services), or as required by law. In each case that Party shall first inform the person, party or body in question that the Confidential Information is confidential and (except where the disclosure is to any such body under sub-Clause 18.104.22.168 or any employee or officer of any such body) obtaining and submitting to the other Party a written confidentiality undertaking from the party in question. Such undertaking should be as nearly as practicable in the terms of Clause 8 of the Agreement, to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made; and
8.2.2 use any Confidential Information for any purpose, or disclose it to any other person, to the extent only that it is at the date of the Agreement, or at any time after that date becomes, public knowledge through no fault of that Party. In making such use or disclosure, that Party must not disclose any part of the Confidential Information that is not public knowledge.
8.3 The provisions of Clause 8 of the Agreement shall continue in force in accordance with their terms, notwithstanding the termination or expiry of the Agreement for any reason.
Any Intellectual Property generated at any time by the Service Provider while engaging in any way with the Client will be owned exclusively by the Service Provider unless the ownership of the Intellectual Property is specifically assigned to any other party in writing.
10.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 10 is in addition to, and does not relieve, remove or replace, a Party's obligations under the Data Protection Legislation (and for the purposes of this Clause 10, Controller, Processor, Personal Data and Data Subject all have the meanings as defined in the Data Protection Legislation).
10.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the controller and the Service Provider is the processor of personal data, where relevant. The Technical Specification sets out the scope, nature and purpose of processing by the Service Provider, the duration of the processing and the types of personal data and categories of Data Subject.
10.3 Without prejudice to the generality of Clause 10.1, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Service Provider for the duration and purposes of the Agreement.
10.4 Without prejudice to the generality of Clause 10.1, the Service Provider shall, in relation to any Personal Data processed in connection with the performance by the Service Provider of its obligations under the Agreement:
(a) process that Personal Data only on the written instructions of the Client unless the Service Provider is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Service Provider to process Personal Data (Applicable Laws). Where the Service Provider is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Service Provider shall promptly notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Service Provider from so notifying the Client;
(b) ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential;
(d) not transfer any Personal Data outside of the European Union unless the following conditions are fulfilled: (i) the Client or the Service Provider has provided appropriate safeguards in relation to the transfer; (ii) the Data Subject has enforceable rights and effective legal remedies; (iii) the Service Provider complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and (iv) the Service Provider complies with reasonable instructions notified to it in advance by the Client with respect to such processing of the Personal Data;
(e) assist the Client, at the Client's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify the Client promptly on becoming aware of a Personal Data breach;
(g) save as otherwise restricted or prevented by the nature of the services provided by the Service Provider under the Agreement, at the written direction of the Client, delete or return Personal Data and copies thereof to the Client on expiry or termination of the Agreement unless required by Applicable Law to store the Personal Data; and
(h) maintain complete and accurate records and information to demonstrate its compliance with this Clause 10.
10.5 The Client consents to the Service Provider appointing third-party processors for carrying out processing activities in respect of the Personal Data under the Agreement. The Service Provider confirms that it has entered into, or (as the case may be) will enter into, with such third-party processors a written agreement incorporating terms which are substantially similar to those set out in this Clause.
10.6 All telephone calls with the Client may be recorded and monitored from time to time for lawful business purposes including (without limitation) the verification of instructions.
11.1 No Party to the Agreement shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: server hosting companiesâ€™ actions, domain hosting companiesâ€™ actions, internet based services hosting companiesâ€™ actions, viruses, power failure, internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action, natural disaster, act of God or any other event that is beyond the control of the Party in question (â€œforce majeure eventâ€).
11.2 In the event that a Party to the Agreement cannot perform their obligations hereunder as a result of a force majeure event for a continuous period of 6 months, the other Party may at its discretion terminate the Agreement by written notice at the end of that period. In the event of such termination, the Parties shall agree upon a fair and reasonable payment for all Services provided up to the date of termination.
12.1 The Agreement shall come into force on the agreed Commencement Date and shall continue for the Term.
12.2 The Service Provider shall have the right, subject to the agreement and consent of the other Party and exercisable by giving not less than 10 days written notice to the other at any time prior to the expiry of the Term (or any further period for which the Agreement is extended) to extend the duration of Agreement for a further period of 90 days.
12.3 The Service Provider may terminate the Agreement by giving to the other Party not less than 90 daysâ€™ written notice, to expire on or at any time after the minimum term of the Agreement (which shall be defined in the Agreement).
12.4 The Service Provider may immediately terminate the Agreement by giving written notice to the other Party if:
12.4.1 any sum owing to the Service Provider by the other Party under any of the provisions of the Agreement is not paid within 30 Business Days of the due date for payment;
12.4.2 the other Party commits any other breach of any of the provisions of the Agreement and, if the breach is capable of remedy, fails to remedy it within 10 Business Days after being given written notice giving full particulars of the breach and requiring it to be remedied;
12.4.3 an encumbrancer takes possession, or where the other Party is a company, a receiver is appointed, of any of the property or assets of that other Party;
12.4.4 the other Party makes any voluntary arrangement with its creditors or, being a company, becomes subject to an administration order (within the meaning of the Insolvency (Northern Ireland) Order 1989);
12.4.5 the other Party, being an individual or firm, has a bankruptcy order made against it or, being a company, goes into liquidation (except for the purposes of bona fide amalgamation or re-construction and in such a manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on that other Party under the Agreement);
12.4.6 anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the other Party;
12.4.7 the other Party ceases, or threatens to cease, to carry on business; or
12.4.8 control of the other Party is acquired by any person or connected persons not having control of that other Party on the date of the Agreement. For the purposes of this Clause, â€œcontrolâ€ and â€œconnected personsâ€ shall have the meanings ascribed thereto by Sections 1124 and 1122 respectively of the Corporation Tax Act 2010.
12.5 For the purposes of this Clause, a breach shall be considered capable of remedy if the Party in breach can comply with the provision in question in all respects.
12.6 The rights to terminate the Agreement shall not prejudice any other right or remedy of either Party in respect of the breach concerned (if any) or any other breach.
Upon the termination of the Agreement for any reason:
13.1 any sum owing to the Service Provider under any of the provisions of the Agreement shall become immediately due and payable; 13.2 all Clauses which, either expressly or by their nature, relate to the period after the expiry or termination of the Agreement shall remain in full force and effect;
13.3 termination shall not affect or prejudice any right to damages or other remedy which the Service Provider may have in respect of the event giving rise to the termination or any other right to damages or other remedy which any Party may have in respect of any breach of the Agreement which existed at or before the date of termination;
13.4 subject to Clause 13.2 of the Agreement and except in respect of any accrued rights neither Party shall be under any further obligation to the other; and
13.5 each Party shall (except to the extent expressly referred to in the Agreement) immediately cease to use, either directly or indirectly, any Confidential Information belonging to the other Party, and shall immediately return to the other Party any documents in its possession or control which contain or record any such Confidential Information within 60 days.
13.6 Due to the nature of the Services provided, there may be underlying third party charges for example (without limitation) in relation to SIM cards, airtime, internet access, third party licensing, hosting or other third party charges that can only be procured for a contract term period (usually 24 months). Such charges will be payable by the Client upon termination of the Agreement or in the event that the Client breaches any of the provisions set out in this Agreement.
No failure or delay by either Party in exercising any of its rights under the Agreement shall be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of the Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
Each Party shall execute and do all such further deeds, documents and things as may be necessary to carry the provisions of the Agreement into full force and effect.
Neither Party shall be entitled to set-off any sums in any manner from payments due or sums received in respect of any claim under the Agreement or any other agreement at any time.
17.1 Subject to sub-Clause 17.2, the Agreement shall be personal to the Parties. Neither Party may assign, mortgage, charge (otherwise than by floating charge) or sub-licence or otherwise delegate any of its rights thereunder, or sub-contract or otherwise delegate any of its obligations thereunder without the written consent of the other Party, such consent not to be unreasonably withheld.
17.2 The Service Provider shall be entitled to perform any of the obligations undertaken by it through any other member of its group or through suitably qualified and skilled sub-contractors. Any act or omission of such other member or sub-contractor shall, for the purposes of the Agreement, be deemed to be an act or omission of the Service Provider.
18.1 Time shall be of the essence for all obligations of the client under the Agreement.For the avoidance of doubt, time shall not be the essence for any obligation of the Service Provider.
Nothing in the Agreement shall constitute or be deemed to constitute a partnership, joint venture, agency or other fiduciary relationship between the Parties other than the contractual relationship expressly provided for in the Agreement.
20.1 No part of the Agreement shall confer rights on any third parties and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to the Agreement.
20.2 Subject to Clause 17 of the Agreement, the Agreement shall continue and be binding on the transferee, successors and assigns of either Party as required.
21.1 All notices under the Agreement shall be in writing and may be sent by email, by registered post or registered delivery. In each case, notices shall be delivered to the most recent address or e-mail address notified or used by the recipient Party.
21.2 Notices shall be deemed to have been duly given:
21.2.1 when sent by registered post or delivery, at the time signed for by or on behalf of a duly authorised representative of the Party receiving the notice delivered by courier or other messenger during normal business hours of the recipient; and
21.2.2 when sent by e-mail, at the time that a successful transmission report or return receipt is generated.
22.1 The Agreement contains the entire agreement between the Parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorised representatives of the Parties.
22.2 Each Party shall acknowledge that, in entering into the Agreement, it does not rely on any representation, warranty or other provision except as expressly provided in the Agreement, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
The Agreement may be entered into in any number of counterparts and by the Parties to it on separate counterparts each of which when so executed and delivered shall be an original, but all the counterparts together shall constitute one and the same instrument.
In the event that one or more of the provisions of the Agreement and/or of these Terms and Conditions is found to be unlawful, invalid or otherwise unenforceable, that / those provision(s) shall be deemed severed from the remainder of the Agreement and/or these Terms and Conditions. The remainder of the Agreement and/or these Terms and Conditions shall be valid and enforceable.
Any dispute, controversy, proceedings or claim between the Parties relating to this Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be referred, if not settled amicably, to a person as agreed by the Parties. If no agreement is reached, the matter will then be referred to an arbitrator nominated by the President for the time being of the Law Society of Northern Ireland.
26.1 The Agreement and these Terms and Conditions (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of Northern Ireland
26.2 Subject to the provisions of Clause 25 of the Agreement, any dispute, controversy, proceedings or claim between the Parties relating to the Agreement or these Terms and Conditions (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be subject to the exclusive jurisdiction of the courts of Northern Ireland.