1.1 In this Agreement, except to the extent expressly provided otherwise:
"Charges" means:
"Effective Date" means: the date of execution of this Agreement and Statement of Work;
"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (which may include failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, epidemics, pandemics, explosions, fires, floods, riots, terrorist attacks and wars);
"Schedule" means any schedule attached to the main body of this Agreement;
"Services" means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under this Agreement;
"Software" means the software identified in Paragraph 1 of Schedule 1 (Software Particulars);
"Support Services" means support in relation to the use of the Software and the identification and resolution of errors in the Software, but shall not include the provision of training services whether in relation to the Software or otherwise; and
"Term" means the term of this Agreement, commencing in accordance with Clause 3.1 and ending in accordance with Clause 3.2.
2.1 This Agreement shall come into force upon the Effective Date.
2.2 This Agreement shall continue in force for the duration of the support as stated in the Statement of Work, subject to termination in accordance with Clause 11 or any other provision of this Agreement.
3.1 The Provider shall provide the Support Services to the Customer during the Term.
3.2 The Provider shall provide the Support Services in accordance with the standards of skill and care reasonably expected from a leading service provider in the Provider's industry.
3.3 The Provider shall provide the Support Services in accordance with the Statement of Work.
3.4 The Provider may suspend the provision of the Support Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 30 days' written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.
4.1 Save to the extent that the parties have agreed otherwise in writing, the Customer must provide to the Provider, or procure for the Provider, such:
4.2 The Customer must provide to the Provider, or procure for the Provider, such access to the Customer's computer hardware, software, networks and systems as may be reasonably required by the Provider to enable the Provider to perform its obligations under this Agreement.
5.1 The Customer shall pay the Charges to the Provider in accordance with this Agreement.
5.2 If the Charges are based in whole or part upon the time spent by the Provider performing the Services, the Provider must obtain the Customer's written consent before performing Services that result in any estimate of time-based Charges given to the Customer being exceeded or any budget for time-based Charges agreed by the parties being exceeded; and unless the Customer agrees otherwise in writing, the Customer shall not be liable to pay to the Provider any Charges in respect of Services performed in breach of this Clause 5.2.
5.3 All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, stated [inclusive of any applicable value added taxes] OR [exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to the Provider].
5.4 The Provider may elect to vary any element of the Charges by giving to the Customer not less than 30 days' written notice of the variation expiring on any anniversary of the date of execution of this Agreement, providing that no such variation shall constitute a percentage increase in the relevant element of the Charges that exceeds 2% over the percentage increase, since the date of the most recent variation of the relevant element of the Charges under this Clause 5.4 (or, if no such variation has occurred, since the date of execution of this Agreement), in the Retail Prices Index (all items) published by the UK Office for National Statistics.
6.1 The Provider shall issue invoices for the Charges to the Customer according to the Payment Schedule set out in the Statement of Work.
6.2 The Customer must pay the Charges to the Provider on receipt of an invoice issued in accordance with this Clause 6.
6.3 The Customer must pay the Charges by debit card, credit card, direct debit or bank transfer (using such payment details as are notified by the Provider to the Customer from time to time).
6.4 If the Customer does not pay any amount properly due to the Provider under this Agreement, the Provider may charge the Customer interest on the overdue amount at the rate of 2% per annum above the Bank of England base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month). The Provider acknowledges and agrees that it shall have no right to claim interest or statutory compensation under the Late Payment of Commercial Debts (Interest) Act 1998, and that its contractual rights under this Clause 6.4 constitute a substantial remedy within the meaning of that Act.
7.1 The Provider warrants to the Customer that:
7.2 The Customer warrants to the Provider that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.
7.3 All of the parties' warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.
9.1 Nothing in this Agreement will:
8.2 The limitations and exclusions of liability set out in this Clause 8 and elsewhere in this Agreement:
8.3 The Provider shall not be liable to the Customer in respect of any loss of profits or anticipated savings.
8.4 The Provider shall not be liable to the Customer in respect of any loss of revenue or income.
8.5 The Provider shall not be liable to the Customer in respect of any loss of use or production.
8.6 The Provider shall not be liable to the Customer in respect of any loss of business, contracts or opportunities.
8.7 The Provider shall not be liable to the Customer in respect of any loss or corruption of any data, database or software.
8.8 The Provider shall not be in respect of any special, indirect or consequential loss or damage.
9.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
9.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement, must:
9.3 A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
10.1 Either party may terminate this Agreement by giving to the other party at least 30 days' written notice of termination.
10.2 Either party may terminate this Agreement immediately by giving written notice of termination to the other party if the other party commits a material breach of this Agreement.
10.3 Subject to applicable law, either party may terminate this Agreement immediately by giving written notice of termination to the other party if:
11.1 Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have effect, save that the following provisions of this Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 6.2, 6.3, 8, 11, 14 and 15.
11.2 Except to the extent expressly provided otherwise in this Agreement, the termination of this Agreement shall not affect the accrued rights of either party.
11.3 Within 30 days following the termination of this Agreement for any reason:
12.1 Any notice from one party to the other party under this Agreement must be given by one of the following methods (using the relevant contact details set out in Clause 12.2):
13.1 Subject to any express restrictions elsewhere in this Agreement, the Provider may subcontract any of its obligations under this Agreement.
13.2 The Provider shall remain responsible to the Customer for the performance of any subcontracted obligations.
14.1 No breach of any provision of this Agreement shall be waived except with the express written consent of the party not in breach.
14.2 If any provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
14.3 This Agreement may not be varied except by an official document provided by the Provider and agreed upon by both parties or deemed approved by the Provider through system actions and notifications.
14.4 Neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under this Agreement.
14.5 This Agreement is made for the benefit of the parties and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.
14.6 Subject to Clause 9.1, this Agreement shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
14.7 This Agreement shall be governed by and construed in accordance with English law.
14.8 The courts of England & Wales shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.
14.1 In this Agreement, a reference to a statute or statutory provision includes a reference to:
15.2 The Clause headings do not affect the interpretation of this Agreement.
15.3 References in this Agreement to "calendar months" are to the 12 named periods (January, February and so on) into which a year is divided.
15.4 In this Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.
Innov8 Digital Media LTD is a company registered in England and Wales with company number 13953837. Registered Address: Enterprise Hub, M-SParc, Gaerwen, Anglesey, LL60 6AG.
If you have any questions about this Agreement, please contact us by email at the following address:
legal@innov8digitalmedia.com