Standard Terms & Conditions for Goods & services supplied
by Accura (Data Design Services Ltd)
THESE TERMS AND LICENCE AGREEMENT (The “Agreement”) is by and between The Customer (named in Exhibit A) on behalf of itself its subsidiaries, afﬁliates and members (collectively, “you”, “your” or “Customer”), and Data Design Services Ltd (“we”, “us” or “the Company”), together with any of the entities whose products, services or software it resells, (“Licensor”). Each of Customer and Licensor will be referred to in this Agreement individually as a “Party” and together as the “Parties.” This Agreement will be effective as of the date of the last signature below (“Effective Date”).
This Agreement is comprised of this cover page and the below exhibits, including, without limitation, any schedules or documents attached hereto or referenced herein (collectively, “Addenda”), and will constitute the entire agreement between the Parties and will replace all prior oral or written communications between the Parties relating to the subject matter hereof. In the event there is a conﬂict among the provisions of this Agreement and any Addenda, the provisions of this Agreement shall prevail and control.
• Exhibit A – Accura MIS Quote Proposal
• Exhibit B – Accura MIS Statement of Work
2. Prices: All fees will be set forth in applicable Addenda and shall remain ﬁxed for a twelve (12) month duration. At the end of this period price increases may not exceed three percent (3%) in any twelve (12) month duration. All prices are exclusive of applicable tax – which will be charged at the appropriate rate.
3. Intellectual Property Indemniﬁcation Rights: THE COMPANY AGREES TO INDEMNIFY THE CUSTOMER AGAINST LOSSES INCURRED FOR CLAIMS BY THIRD-PARTIES AS A RESULT OF THE ACCURA SOFTWARE INFRINGING THE INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY. NO TITLE OR OWNERSHIP OF SOFTWARE PRODUCTS OR ANY THIRD-PARTY SOFTWARE LICENSED TO YOU UNDER THIS AGREEMENT IS TRANSFERRED TO YOU UNDER ANY CIRCUMSTANCES.
4. Software: (a) Licence Grant. THE Company grants the Customer the non-exclusive right and licence to use software produced by the Company (i.e.: for which the Company and its licensors are the copyright owners as ordered by Customer hereinafter called the "Software Program(s)") at a single site address speciﬁed on the Proposal conﬁrmation; or in the absence of this the normal trading address of the Customer; or any such place agreed in writing. Subject to Customer’s making all payments due under the contract in full, the foregoing right and licence shall be perpetual. (b) Usage. The Customer shall have the right to use the Software Program(s) only for his/her/their/its internal use, on the maximum number of computer terminals, PC's, or workstations speciﬁed in the system Proposal. The Company may terminate such rights if within 30 days after written notice specifying the default and demanding its cure (i) the Customer fails to promptly pay all undisputed sums due under this Agreement and all undisputed sums due under any related agreement in respect to Software Support Charges or (ii) is in breach of any other of these Terms and Conditions. (c) Ownership. The Customer acknowledges that all property and copyright in the Software Program(s) is and shall remain vested in the Company and that all property and copyright in any future enhancement or revision of any part of the Program(s) shall also belong to the Company. The Customer has no right to assign or transfer any rights granted in part or in whole to any third party under any circumstances without the Company’s written consent. (d) Conﬁdentiality. The Customer undertakes to maintain the strict conﬁdentiality of the Software Program(s) including related literature, manuals, or other documentation issued by the Company and not to divulge or release possession of them or any part thereof to any third-party, or use them or any part thereof or permit them or any part thereof to be used in such a way that any similar Program(s) is developed there-from in part or in whole on any computer equipment. (e) Survival. The Customer shall at all times remain liable for any breach of provision of clause (b) and (d). (f) Modiﬁcations. Any modiﬁcations to the Software Program made on behalf of the Customer shall be to the Customer’s account and the Customer may request the Company to will give a ﬁrm written quotation for any modiﬁcation prior to ordering starting on the modiﬁcation. Otherwise Customer shall pay such price as may be reasonable. All modiﬁcation made to the Software Program shall be deemed a part of the Software Program for purposes of this Agreement. (g) Warranty. Program(s) shall carry a 30-day warranty against defects, during which time the Company shall free-of-charge rectify any Program defects (as deﬁned in the speciﬁcation produced by the Company), notiﬁed in writing as soon as is reasonably possible (this warranty and rectiﬁcation offer is in addition to and not in lieu of any other remedies available to Customer or representations made by Company). (h) Training. Software training sessions shall be provided at the Customer's request, and charged at a predetermined rate applicable at the time. Training will normally run between 09:30 – 17:00 Monday to Friday, excluding statutory holidays; however, the Company does not accept any liability for losses incurred by the Customer in the Company failing to meet speciﬁc training dates, or times.
5. Software Program Support: Software Program support provides ongoing usage help, program upgrades, bug ﬁxes, modem service and unlimited telephone assistance between 09:00 and 17:30 (GMT) Monday-Friday excluding Company closures advised in writing at least 1 week in advance of such closure and UK public holidays as detailed here: Over and above UK support hours, additional support may be provided via our local reseller partners and/or agents during normal office hours, excluding public holidays as defined by the respective government website, and company closures which will be advised in writing. Support Services are limited to the Accura suite of software products and speciﬁcally exclude hardware related issues, operating system and all 3rd-party products. Support staff may offer assistance with data import/export and/or report and layout design, or installation of upgrades/patches however these are discretionary and do not form part of the Support contract. The support contract will commence on date of initial training for 12 months and automatically renew on an ongoing perpetual basis unless either Party gives 30 days written notice of cancellation (by receipted post) prior to anniversary date. Support charges are detailed within the speciﬁcation contained herein.
6. Payment Terms: UNLESS OTHERWISE STATED, ALL PRICES QUOTED ARE IN THE CURRENCY OF THE CUSTOMER, EXCLUSIVE OF TAX AND VALID FOR 30 DAYS FROM QUOTATION DATE. FOR MODULE/SYSTEM ORDERS: A NON-REFUNDABLE 25% DEPOSIT IS DUE WITH ORDER, THE BALANCE FALLING DUE ON COMPLETION OF TRAINING. FOR ADDITIONAL USER-LICENCE ORDERS AFTER THE INITIAL INSTALLATION, FULL PAYMENT IS REQUIRED WITH ORDER BEFORE LICENCES CAN BE ISSUED. NOTE: WHERE TRAINING HAS BEEN AGREED IN SEPARATE STAGES/SITE VISITS FULL PAYMENT WILL FALL DUE ON COMPLETION OF THE FIRST TRAINING STAGE. WHERE AN ORDER HAS NOT BEEN CANCELLED AND INSTALLATION/TRAINING HAS BEEN DEFERRED BY THE CUSTOMER THROUGH NO FAULT OF THE COMPANY AND THIS EXCEEDS 60 DAYS FROM ORDER DATE FULL PAYMENT SHALL FALL DUE IMMEDIATELY. Furthermore (a) No deviation from these payment terms detailed herein will apply unless expressly agreed in writing by a Director of the Company. The Company reserves the right to withhold technical support, installation, and/or training services for non-payment of overdue amounts. (b) Without prejudice to any other rights it may have; and having taken reasonable measures to recover undisputed overdue sums; the Company is entitled to charge interest at 2% above the Current Base Rate of National Westminster Bank PLC, on overdue payments; along with any legal costs, court fees, or debt recovery costs incurred by the Company. (c) Additionally, after failure to pay undisputed overdue sums, the Company shall be entitled without notice to remove from the Customer's location all software, documentation and user manuals relating to goods with invoices that remain outstanding. If the Customer shall thereafter within 30 days require use of such software, and only when all outstanding payments have been received the Company will at its sole discretion reinstall the software and any relating documentation subject to prior receipt of a predetermined reinstatement fee. (d) You do not have the right to set off any money you may claim from us against any sums that you may owe the Company.
7. Passing of Title and Risk: FROM the time of installation the Software Product shall be the risk of the Customer, who shall be solely responsible for their custody and maintenance, unless otherwise expressly agreed in writing. Pending payment of the full purchase price of the Software Product the Customer shall at all times keep the goods comprehensively insured against loss, damage, or accident, ﬁre, theft, and other risks usually covered by insurance in the type of business of which the goods are to be used; for an amount, at least equal to the Full retail value of the goods. (a) Installation. Vendor shall provide Customer with all necessary technical conﬁguration, speciﬁcations, installation and implementation procedures and any Services required for Customer to use the Software Products. (b) Acceptance. Once the Software Products have been installed, Customer shall have, thirty (30) business days to test and review the installed Software Products to ensure they conform with the Speciﬁcations and this Agreement, however this acceptance process shall not alter the agreed payment terms. (c) Rejection. If the installed Software Products function with any errors or fail to conform with the Speciﬁcations and this Agreement, Customer may reject such Software Products, by providing Company with written notice specifying such error or failure. Upon receipt of such notice, Company shall correct all such errors and/or failures as soon as practicable. If Company is unable to correct such error or failure, Customer may terminate this agreement upon 30 days written notice to Company and will receive a full refund of any monies paid excluding training & implementation services received and irrecoverable costs (e.g. travel and accommodation costs).
8. Conditions and Warranties: THE Company warrants that (i) the Software Program will perform in accordance with the Speciﬁcations and will not infringe the Intellectual Property rights of a third party; (ii) it owns or otherwise has all right, title and interest in and to the Software Products, and any associated Intellectual Property and has the absolute right to provide the foregoing to Customer; (iii) Company will not introduce or expose Customer to any Computer Virus; (iv) Software Products shall not contain, and shall not have been developed or modiﬁed through the use of, Public Software; (v) Software Product will not disable or interfere with any other process, system or technology of Customer; and (vi) Software Product complies with applicable laws; (vii) the Services will be performed with all reasonable skill and care and in accordance with applicable law, the Accura Installation Guide, any agreed time scales and the Speciﬁcations; (viii) all Agents performing the Services are qualiﬁed, competent and will use good industry standards in performing their obligations. Company further agrees that it will remain responsible for the actions and inactions of all Agents. In the event of any breach of these warranties The Company will promptly correct any error or defect in the Software and /or will re-perform the Services at no cost to the Customer. The foregoing offer of correction is in addition to, and not in lieu of, Customers other rights and remedies under this Agreement. EXCEPT AS SPECIFICALLY SET OUT HEREIN THE COMPANY DISCLAIMS AND EXCLUDES ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, BY STATUTE OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF DESCRIPTION, DESIGN, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM ANY PREVIOUS COURSE OF DEALING, USAGE OR TRADE PRACTICE. For clarity - unless the Company has been provided a detailed, written speciﬁcation of requirements and/or buying criteria prior to contract and have submitted written responses conﬁrming the criteria are addressed by the solution offered, the Company does not warrant the solution meets any speciﬁc criteria – whether measured by industry practice or “norm,” statute, customer perception/expectation, or against a competitive product.
9. Limitation of Liability: EXCEPT IN RESPECT OF (i) CLAIMS FOR BREACH OF CONTRACT (INCLUDING WARRANTIES), (ii) FRAUD, (iii) DEATH OR PERSONAL INJURY, (iv) BREACH OF ITS CONFIDENTIALITY OR SECURITY OBLIGATIONS HEREUNDER, (v) ITS INDEMNIFICATION OBLIGATIONS HEREUNDER, OR (vi) ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, THE COMPANY SHALL NOT LIABLE IN ANY EVENT HOWEVER ARISING WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE FOR ANY INDIRECT, SPECIAL AND CONSEQUENTIAL DAMAGES. WITHOUT LIMITATION LOSS OF PROFITS AND REVENUE ARE INCLUDED UNDER THE HEADING OF CONSEQUENTIAL DAMAGES.
10. Default or Insolvency of Customer: IF the Customer, subject to applicable periods for notice and cure, shall be in breach of any obligations under the contract, if any distress or execution shall be levied on the Customer's property or assets or if the Customer shall take or offer to make any arrangement or composition with his creditors or commit any kind of bankruptcy or if any bankruptcy petition be presented against him (if the Customer is a company) if any Resolution or Petition to wind up such company shall be passed or presented or if a Receiver of the whole or any part of such company's undertaking property or assets shall be appointed, the Company in its discretion and without prejudice to any other right or claim may by notice in writing determine wholly or in part any and every contract between the Company and the Customer or may (without prejudice to the Company's right subsequently to determine the contract for the same cause should it so decide) by notice in writing suspend further deliveries of goods, software and services until any defaults by the Customer are remedied.
12. Installation of Hardware: WHERE the Customer supplies hardware it is the Customer responsibility that the equipment shall be fully operational, installed, conﬁgured, networked, and tested and meet the minimum speciﬁcations required running the software ordered, and made available in a timely fashion as to not hinder agreed installation dates. For the purposes of clariﬁcation, “installation” of the software shall be deemed to have taken place when the software is installed and running on the Customer workstation(s) and/or server(s).
13. Delivery: THE Company shall provide the Software Product and Services by any date stipulated in the Proposal but time shall not be of the essence.
14. Force Majeure: THE Company shall be entitled to delay or cancel delivery of goods, Software Product and Services or to reduce the amount delivered if it is prevented from or hindered by manufacturing obtaining or delivering the goods by normal route or means of delivery through any circumstances beyond its reasonable control including (but not limited to) strikes, lockouts, accidents, war, ﬁre, reduction in or unavailability of power at manufacturing plant, breakdown in plant or machinery, or shortage of unavailability of raw materials from normal source of supply. Notwithstanding the foregoing, the Customer may cancel its order and receive a full refund if the delivery of the software is delayed by more than 60 days.
15. Cancellation: CANCELLATION of the Agreement will only be accepted in writing by receipted delivery method. Within 10 days of the date of the Agreement, cancellation will forfeit all deposits paid. Where a deposit has not been paid, the Customer shall indemnify the Company to the value of 25% of the contract value within 7 days of cancellation (as-if a deposit had been paid). Any cancellation outside this period is not acceptable. Furthermore, the Company reserves the right to recover from the Customer any unrecoverable costs incurred (over and above loss of deposit) up to the date of cancellation (for example: hotels, ﬂights, or allocated training days at the applicable daily rate that cannot be resold). For training-only orders postponement or cancellation must be notiﬁed to us giving no less than 72 hours’ notice prior to schedule commencement, otherwise the full cost of the allocated training days will be come due immediately.
16. Subcontracting: THE Company may assign the contract with the Customer in part or in whole to any person, ﬁrm, or company they see ﬁt without prior notice; but in the event of any such assignment or subcontracting, the Company shall remain liable within the limitations of warranty and liability outlined herein for under-performance of contractors.
17. Professional services: TRAINING costs and schedules are set forth in the Proposal. THE COMPANY is not liable for loss or inconvenience as a result of delays in training schedules due to Customer fault or delay. The software is not supplied with a printed manual, however help sheets, and video resources are available that show common tasks.
18. Licensing Assignment: THE software is licenced for the sole use of the Customer named in the Agreement and for the number of installed workstation user licences detailed, NOT the number of users concurrently using the software (unless otherwise stated). The software is licenced for the non-exclusive use of the Customer and this is not transferable except as described below. Neither Party may assign or transfer this Agreement or any rights of obligations hereunder without the other Party’s prior written consent. Notwithstanding the foregoing, either Party may assign the Agreement or any rights of obligations herein to any party who controls, is controlled by or is under common control with that Party or to a successor in interest by merger or acquisition, by operation of law, or purchase of the majority of the assets of that Party’s business.
19. Agreement Drafting: THE headings in these terms are for ease of reference only and shall not affect their interpretation or construction. No forbearance, delay, indulgence by either Party in enforcing its respective rights shall prejudice or restrict the rights of that Party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or any later breach.
20. Modiﬁcations: IN the event Customer (or its employee or agent) modiﬁes the software sold hereunder without the express written consent of the Company, including, without limitation, the modiﬁcation or removal of any safety devices from the software, or Customer fails to implement any changes in the software directed by the Company, the Customer agrees to indemnify, defend and hold the Company harmless from any and all claims, demands, suits, costs (including reasonable attorney fees and costs of suit), and expenses incurred thereby, whether in contract, tort, or otherwise resulting from such modiﬁcation.
21. Contingencies: IN the event the Company's performance is limited, delayed or prevented in whole or in part, directly or in directly, by acts of God; war; force of arms; ﬁre; the elements; riot; labour disputes; picketing or other labour controversies; sabotage; civil commotion; accidents; any governmental action, prohibition or regulation; delay in transportation facilities; shortage or breakdown of or inability to obtain or non-arrival of any labour, material, or equipment used in the software development; failure of any Party to perform any contract with the Company relative to software development; or from any cause whatsoever beyond the Company's control, whether or not such cause be similar or dissimilar to those enumerated. The Company shall not be liable for any default, delay or damages arising there from. The Company shall promptly notify Customer of the occurrence of any such contingency and of the contemplated effect thereof on the development and delivery of the software.
22. Non-Solicitation: THE Customer agrees not to solicit, coerce, or offer employees, sub-contractors, partners, resellers or associates of the Company for full or part-time employment or sub-contracting whilst they are engaged by the Company and in any event for a minimum period of 5 YEARS from the commencement of the Contract; and likewise, not to respond to approaches by the same. Failure to adhere to this will be enforceable by law and the Customer agrees to indemnify the Company for all resulting costs and losses including legal, recruitment, training, performance, revenue and proﬁts.
23. Termination: EITHER Party may terminate the Agreement (excluding the perpetual licence of the Accura Software) by written notice to the other Party in the event of a material breach by the other Party which is not remedied within 30 days of receipt of notice or immediately in the event of the insolvency or winding up of either Party.
24. Entire agreement: THIS Agreement constitutes the whole agreement between the Parties and supersedes any previous
agreement, understanding or arrangement between the Parties. Each Party acknowledges that in entering in this Agreement it does not rely on any statement or representation of any person other than expressly set out in this Agreement. Furthermore, if any software behaviour and/or feature is mission critical to the Customer it must be notiﬁed in writing prior to order placement, otherwise it shall not form part of this agreement and may not be used as a reason for non-payment or litigation.
25. Review: No variation, amendment of or addition to these terms and conditions shall be effective except with the prior agreement in writing of both Parties, however any subsequent agreement may carry their own revised terms and conditions.
26. Proper Law: THE Agreement shall be governed by the laws of the country and/or state/province where the software is installed and all Parties agree to submit to the jurisdiction of these courts. Any hearings shall be heard at the closest proximity to the head ofﬁces of the Company. In cases where the Company and the Customer are in different countries all Parties agree to enter into mediation by third-party arbitrator to establish a mutually agreeable mode of legal recourse, governance, and location. Where it is agreed this location it outside of the UK the Customer agrees to pay all reasonable travel, accommodation and subsistence expenses for a representative of the Company to attend a legal hearing in person.
27. Dispute Resolution: Any dispute arising under or pertaining to the Agreement to which these terms and conditions pertain shall be decided in accordance with the Dispute Resolution Procedures set out in the accompanying Conﬁrmation Agreement.
28. Conﬁdentiality: During the course of this Agreement, each Party may obtain or gain access to non-public information from the other Party that is conﬁdential and proprietary in nature. The Parties agree that at all times, and notwithstanding the termination or expiration of this Agreement, they shall: (i) retain all ownership rights in and to their Conﬁdential Information; (ii) maintain in strict conﬁdence all Conﬁdential Information using the same standard of care that a Party uses to protect its own Conﬁdential Information of a like nature and, in any event, no less than a reasonable standard of care; (iii) not use the Conﬁdential Information for any reason other than to fulfil its obligations pursuant to this Agreement and solely for the beneﬁt of the Party that disclosed the Conﬁdential Information; and (iv) not use, reproduce or disclose the Conﬁdential Information to any third party, in each case, without prior express written consent of the other Party. A Party will, and will ensure that its staff and agents, comply with all of conﬁdentiality and non-disclosure and non-use obligations hereunder. A Party will promptly notify the other Party in the event that a Party learns of any unauthorized release or use of Conﬁdential Information. Notwithstanding the foregoing, Customer may share the terms of this Agreement within dependent contractors and consultants under similar restrictions as set forth herein. In the event a Party is required to disclose any Conﬁdential Information by law, court order, or regulatory agency action, a Party shall provide the other Party: (i) immediate written notice thereof; (ii) the opportunity to oppose such request for disclosure; and (iii) any cooperation that is reasonably requested by a Party to oppose such request for disclosure. A Party agrees to limit the disclosure to only the Conﬁdential Information speciﬁcally required to be disclosed. Upon the termination or expiration of this Agreement or any Addenda (in which event only the relevant Conﬁdential Information provided or otherwise made available pursuant to such Addenda), a Party will:
(i) immediately cease to use any and all Conﬁdential Information of the other Party; (ii) return to the other Party such Conﬁdential Information, and all copies thereof, within ten (10) days of the termination or expiration with such returned Conﬁdential Information in the same form as provided or otherwise made available to a Party or in such other form as reasonably requested by a Party; and (iii) upon request, certify in writing to the other Party that it has complied with its obligations set forth in this section.
“Agent(s)” means any of Company’s employees, subcontractors, staff, licensors, providers, or other third parties or individuals that provide or may provide Software Products or Services or other products or services on Company’s behalf pursuant to this Agreement.
“Computer Virus” means any malicious data, code, program, routine, device or other internal component (e.g., computer worm, computer time bomb, software lock, malicious logic, Trojan horse, bug, error, defect or trap door, or similar component), which could damage, destroy, delete, disable, deactivate, alter or disrupt any computer program, ﬁrmware or hardware or which could, in any manner, reveal, damage, delete, disable, deactivate, destroy, alter or disrupt any data or other information in any manner that is capable of deleting, disabling, deactivating, interfering with, or otherwise harming Customer’s hardware, data, or computer programs or codes, or that is capable of providing access or produce modiﬁcations not authorized by Customer.
“Conﬁdential Information” means any information a Party receives or has access to under this Agreement or any Addenda, whether or not disclosed by a Party, and whether or not labelled as being conﬁdential, which is not publicly known, including, but not limited to: client information and data, software, ﬁnancial information, schematics, requirements, conﬁguration information, research papers, projections, routines, processes, formulas, trade secrets, innovations, inventions, discoveries, improvements, research or development and test results, speciﬁcations, data, know-how, formats, plans, sketches, drawings, models, customer lists, customer and supplier identities and characteristics, agreements, marketing knowledge and information, sales figures, pricing information, marketing plans and business plans, organizational structure and operations, strategies, “Conﬁdential Information” shall not include information that a Party can demonstrate through written documentation: (i) was publicly known through no wrongful act of a Party; (ii) was in a Party’s lawful possession prior to disclosure under this Agreement and was not received as a breach of any conﬁdentiality obligations; (iii) was independently developed by a Party outside the scope of this Agreement; or (iv) was lawfully obtained from a third party without conﬁdentiality restrictions.
“Intellectual Property” means any and all copyrights, trademarks, service marks, U.S. patents, trade names (registered and unregistered), trade secrets, know-how, inventions, licences and all other intellectual property or proprietary rights throughout the world.
“Public Software” means software that is, contains or is derived from software distributed as freeware, shareware or open source software, or under similar licensing or distribution models that (i) require the licensing, disclosure or distribution of source code to any other person or entity; (ii) prohibitor limit the receipt of consideration in connection with licensing or distributing any software; (iii) allow any person or entity to de-compile, disassemble or reverse engineer any software.
“Services” means any and all services performed or provided by Company for Customer under this Agreement and any Addenda including Support Services, Training Services and Professional/programming Services.
“Speciﬁcation(s)” are deﬁned as the description of the products or services in the quote proposal and/or as described at the Company website and sales literature, or as an addendum to the quote proposal document and includes any documentation and other information relating to the Software Product and Services, including, without limitation, marketing materials and the user and reference materials, operating manuals, user manuals, training materials, technical manuals, and supporting materials.