1.1 In this Agreement, the following words will have the following meanings:
2.1 Atia will supply the Software and any applicable user documentation to the Customer on the licence terms and conditions of any third party supplier. The third party supplier's licence terms and conditions will be a contract between the third party supplier and the Customer under which the Customer will be granted a right to use the third party software.
2.2 Atia will supply the Software to the Customer and Atia grants to the Customer a non-exclusive, non-transferable licence to use the Software and any applicable user documentation at the Site for the internal business purposes of the Customer on the terms and conditions of this Agreement. If the Customer receives any revisions, updates or upgrades of the Software under any maintenance agreement, the licence of the Software in this clause will include a licence of any such revisions, updates or upgrades.
2.3 The Customer may only make copies of the Software as necessary for its incidental use of the Software and for archival or back-up purposes. Any such copies will be clearly marked with the appropriate copyright notice and will be subject to the terms and conditions of this Agreement. The Customer will ensure that all copies of the Software are held in a secure place and are obtained for no longer than is reasonable and the Customer will affect and maintain adequate security measures to safeguard the Software from access or use by any unauthorised person.
2.4 The Customer will not without the prior written consent of Atia:
2.5 Atia shall be entitled to inspect, at any time during office hours, the Customer's records relating to the use of the Software and Atia shall be entitled, at any time during office hours, to enter onto the Customer's premises in order to monitor the Customer's use of the Software to satisfy itself that terms of this Agreement are being complied with.
2.6 Save to the extent set out in this clause 2, or as may otherwise be required to be permitted by law, the Customer is strictly forbidden from using the Software in any other circumstances.
3.1 Atia will deliver the Equipment to the Site or such other address the Customer notifies to Atia prior to the date of this Agreement.
3.2 Delivery of the Equipment shall be deemed to take place at the time when the item of Equipment is delivered to the Customer's address. The risk in each item of the Equipment will pass to the Customer on delivery or on payment for that item whichever is the earlier. It will be the responsibility of the Customer to insure the Equipment on the passing of risk.
3.3 Property in the Equipment will remain with Atia at all times until Atia receives full payment of the Price under this Agreement.
3.4 Until property in the Equipment has passed, the Customer is in possession of the Equipment in a fiduciary capacity and will:
3.5 If Atia is unable to deliver any Equipment due to an act or omission of the Customer, Atia will store such Equipment at its own risk but the cost of such storage and of any insurance will be borne by the Customer.
4.1 No support or maintenance for the System will be provided by Atia unless the Customer has entered into a separate support or service level agreement with Atia.
4.2 Support services and maintenance agreements are for a minimum contract term of 12 months, unless specified in writing by Atia, and or at the request of the customer, and agreed in writing by Atia.
4.3 If the Customer has not entered into a separate support or service level agreement with Atia, Atia will, on the written request of the Customer, use its reasonable endeavours to supply the Customer with updates and upgrades to the Software at such prices to be determined by Atia.
5.1 The Customer will install the System at the Site unless otherwise set out in the Order.
5.2 Atia may provide the Customer with the number of days training set out in the Order at the Site. Any additional training required by the Customer which Atia agrees to provide will be carried out by Atia at such prices to be determined by Atia.
5.3 Atia will provide the consultancy services set out in the Order with reasonable skill and care. Any additional consultancy services required by the Customer which Atia agrees to provide will be carried out by Atia at Atia' standard time and material rates which Atia may amend from time to time.
6.1 The Intellectual Property Rights in the Software and any user documentation will remain the property of Atia.
6.2 On payment of all of the Price, Atia will indemnify the Customer against any damages (including costs) that may be awarded by a court to a third party or agreed to be paid to any third party by Atia in respect of any claim or action that the use of the Software by the Customer as permitted under this Agreement infringes any Intellectual Property Rights of such a third party effective in the United Kingdom (an "Intellectual Property Infringement") provided that the Customer:
6.3 Atia shall have no liability to the Customer under the indemnity in clause 6.2 if the Intellectual Property Infringement has been caused by:
6.4 If at any time it is alleged that the Software infringes the Intellectual Property Rights of any third party or if in Atia' reasonable opinion such an allegation is likely to be made, Atia may at its option and at its own expense:
7.1 Unless otherwise set out in the Order, the Customer will pay Atia the Price within 30 days of the date of the invoice which may be raised on the date of the installation (if Atia is carrying out installation) or on the date of delivery (if Atia is not carrying out installation).
7.2 The Customer will pay Atia for any other sums due or owing to Atia under this Agreement within 30 days of the date of the applicable invoice.
7.3 The Customer will pay Atia on demand interest on any part of the Price not paid on the due date of payment at the rate of 4% above the base rate of Barclays Bank PLC from time to time from the due date for payment until receipt by Atia of the full amount in cleared funds (including any accrued interest) whether before or after judgment.
7.4 All the Prices are exclusive of any VAT and other sales taxes which the Customer will pay Atia in addition.
7.5 If the Customer fails to make any payment in accordance with this Agreement, Atia may, in addition to its rights to terminate this Agreement, suspend the performance (without liability) of any or all of its obligations under this Agreement until it has received payment in full of the outstanding sum.
8.1 The Customer assumes the responsibility for the selection of the System to achieve its intended results.
8.2 Atia warrants that the Software will, on the date of delivery and for a period of 60 days thereafter, when properly used in accordance with this Agreement and in accordance with any instructions or directions issued by Atia from time to time, perform substantially in accordance with the user documentation for the Software.
8.3 The warranty set out in clause 8.3 will only apply if no alterations have been made to the Software by any person other than Atia.
8.4 Atia will have no liability or obligations under the warranty set out in clause 8.3 other than to use its reasonable endeavours to correct the Software if the Customer has notified Atia within the warranty period that the Software does not substantially comply with the user documentation. The foregoing states the entire liability of Atia, whether in contract or tort, for defects or errors in the Software.
8.5 Atia warrants that it will use its reasonable endeavours to ensure that no computer viruses, or similar items have been, or will be, introduced by it into the Software.
8.6 Atia will have no liability for any errors or defects in any of the Equipment, Atia may at its discretion assign to the Customer the benefit of any warranties Atia receives in relation to that Equipment from the manufacturer of that Equipment
8.7 If Atia incurs any costs or expenses in remedying or attempting to remedy a defect or error in the System notified to it by the Customer, and such defect or error is found not to be caused by or attributable to any breach of warranty, Atia will be entitled to receive payment from the Customer for any work carried out by Atia at Atia' time and material rates as may be amended from time to time.
8.8 Except as expressly set out in this Agreement, all terms and conditions, warranties and representations expressed or implied by statute, common law or otherwise (including without limitation the implied warranties of satisfactory quality and fitness for purpose) are hereby excluded to the fullest extent permitted by law.
9.1 Nothing in this Agreement excludes or limits Atia' liability for death or personal injury caused by its negligence or for its fraud or for any liability which it is not permitted to be excluded or limited by law.
9.2 Subject to clause 9.1, Atia has no liability for the quality and performance of the Software or any Equipment manufactured by a third party and unless the Customer has entered into a support agreement with Atia, the Customer will be liable for the cost of any necessary services, repair or correction of the Third Party Software and any Equipment manufactured by a third party.
9.3 Subject to clause 9.1, Atia shall not be liable to the Customer under this Agreement in any circumstances including without limitation arising from its negligence, any of its other tortious acts, any breaches of this Agreement, or under any indemnity set out in this Agreement or in contract, tort or otherwise:
9.4 Subject to clause 9.1, the entire liability of the Supplier in contract, tort or otherwise howsoever arising out of, under or in connection with this Agreement including any legal costs will be limited to the Price.
10.1 The Customer acknowledges that Atia will be relying on the Customer's cooperation to perform its obligations under this Agreement. The Customer agrees to cooperate with Atia so as not to hinder or prevent the performance by Atia of any of its obligations under this Agreement.
10.2 Without limitation to the generality of clause 10.1 the Customer will:
11.1 This Agreement may be terminated forthwith by either party giving to the other written notice in the event that:
11.2 Atia may terminate this Agreement forthwith by giving the Customer notice in writing if the Customer has not paid any sums due under this Agreement within 30 days of the due date of payment.
11.3 The Customer may terminate the agreement by giving 3 full calendar months notice in writing to Atia. Atia are not liable for any reimbursement to the customer of fees charged in relation to this agreement.
11.4 The customer may terminate the agreement with 1 months notice, if the anniversary of the agreement is within 1 month.
11.5 The Customer is liable for any charges deemed reasonable by Atia, if this agreement is terminated prior to the anniversary of the original agreement.
11.6 Subject to clauses 11.7 and 11.8, each party's further rights and obligations cease immediately on termination of this Agreement, but termination does not affect a party's accrued rights and obligations at the date of termination.
11.7 Notwithstanding the termination of this Agreement clauses 6.1, 9, 11, 13, 14 and 18 of this Agreement will remain in full force and effect.
11.8 Within 10 (ten) days of the termination of this Agreement the Customer will deliver up to Atia the Software and all copies of all and any part of it and will certify in writing to Atia that none of the Software and no copies or reproductions of all or part of it have been retained by the Customer or another person.
12.1 If a party (the "Affected Party") is prevented, hindered or relayed from or in performing any of its obligations under this Agreement by a Force Majeure Event, the Affected Party's obligations under this Agreement are suspended while the Force Majeure Event continues and to the extent that it is prevent, hindered or delayed.
12.2 In clause 12.1, "Force Majeure Event" means an event beyond the reasonable control of the Affected Party including, without limitation, strike, lock-out, labour dispute, (but excluding strikes, lockouts and labour disputes involving employees of the Affected Party) act of God, war, riot, civil commotion, malicious damage (but excluding malicious damage involving the employees of the Affected Party) compliance with a law or governmental order, rule regulation or direction, accident, fire, flood and storm.
13.1 In clause 13, "Confidential Information" means all information disclosed (whether in writing, orally or by another means and whether directly or indirectly) by a party (the "Disclosing Party") to the other party (the "Receiving Party") whether before or after the date of this Agreement including, without limitation, information relating to the Software or to the Disclosing Party's products, operations, processes, plans or intentions, product information, customers know-how, design rights, trade secrets, market opportunities and business affairs.
13.2 The Receiving Party will:
13.3 The Receiving Party may disclose Confidential Information to any of its directors other officers, employees, professional advisors, contractors and customers (a "Recipient") to the extent that disclosure is reasonably necessary for the purposes of this Agreement or (in the case of the Customer) to the use of the Software.
13.4 The Receiving Party will ensure that a Recipient is made aware of and complies with the Receiving Party's obligation of confidentiality under this Agreement as if the Recipient was a party to this Agreement.
13.5 Clauses 13.2 and 13.4 do not apply to Confidential Information which:
14.1 A variation of this Agreement is valid only if it is in writing and signed by or on behalf of each party.
14.2 The failure to exercise or delay in exercising a right or remedy provided by this Agreement or by law does not constitute a waiver of the right or remedy or a waiver of other rights or remedies. No single or partial exercise of a right or remedy provided by this Agreement or by law prevents further exercise of the right or remedy or the exercise of another right or remedy.
14.3 Except where this Agreement provides otherwise the rights and remedies contained in this Agreement are cumulative and not exclusive of rights or remedies provided by law.
14.4 If any provision of this Agreement is held to be illegal, invalid or unenforceable in whole or in part, this Agreement shall continue to be valid as to its other provisions and the remainder of the affected provision.
15.1 Neither party may assign or transfer or purport to assign or transfer any of its rights or obligations under this Agreement without obtaining the other party's prior written consent.
16.1 A notice or other communication under or in connection with this Agreement will be in writing and may be delivered personally or sent by first class post or by fax to the address set out on the Order or such other address as may be notified by either party from time to time.
16.2 In the absence of evidence of earlier receipt, a notice or other communication is deemed given:
17.1 This Agreement contains the entire agreement and understanding of the parties and supersedes all prior agreements, understandings or arrangements (both oral and written) relating to the subject matter of this Agreement and will apply in place of and prevail over any terms or conditions contained or referred to in any documentation submitted by the Customer or in any correspondence between the parties. Each of the parties acknowledges and agrees that it does not enter into this Agreement on the basis of and does not rely, and has not relied upon, and shall have no remedy in respect of, any statement or representation or warranty or other provision made, given or agreed to by the other party to this Agreement (whether negligently or innocently made) except those expressly repeated or referred to in this Agreement and the only remedy available in respect of any misrepresentation or untrue statement made to it shall be a claim for breach of contract under this Agreement. Nothing in this clause shall operate to limit or exclude liability for fraud.
17.2 If these terms and conditions conflict with any terms in the Order, the terms in the Order will prevail.
This Agreement is governed by, and will be construed in accordance with, English law. The parties hereby irrevocably submit to the exclusive jurisdiction of the English Courts.