Software Customisation Terms and Conditions

Version 8.3 - Effective 26th April 2018

Between:

[INSERT CUSTOMER] whose registered office is at [INSERT ADDRESS], company number [INSERT COMPANY NUMBER]; ("Customer")

and

Cloud9 Software Limited of Second Floor, 95 South Road, Waterloo, Liverpool, L22 0LR, England, company number 09829933; ("Company").

Recitals

A The Company and the Customer have already entered into a Software Agreement for the provision of Software Services (Intelligentcontract.com) to the Customer. The details of the Software Agreement are detailed on the Customisation Sales Order which forms part of this Customisation Agreement.

B The Customer wishes the Company to create the Customised Software for use as part of the Software Services, as set out in the Customisation Specification.

C The Company has agreed to create the Customised Software in accordance with these Customisation Terms and Conditions and the Customised Specification set out in exhibit A.

The parties hereby agree as follows:

1. Definitions

All terms in capitals used in the Customisation Agreement shall have the meaning set out in the Agreement, unless defined otherwise in the Customisation Agreement:

"Acceptance Tests" means the acceptance tests referred to in clause 10 which test whether the Customised Software provides the functions out in the Customisation Specification;

"Software Agreement" means the agreement between the Company and the Customer for the provision of the Software Services. The details of the agreement are set out in the Customisation Sales Order that accompanies these Customisation Terms and Conditions;

"Consequential Loss" means pure economic loss, losses incurred by any client of the Customer or other third party, loss of profits (whether categorised as direct or indirect loss), losses arising from business interruption, loss of business revenue, goodwill or anticipated savings, losses whether or not occurring in the normal course of business, wasted management or staff time and loss or corruption of data.

"Customisation Agreement" means the Customisation Terms and Conditions, Customisation Sales Order and Customisation Specification (set out in Exhibit A) together and any documents referred to therein;

"Customisation Sales Order" means the signed customisation sales order attached to these Customisation Terms and Conditions;

"Customisation Specification" means the specification that includes a description of the functions and performance criteria of the Customised Software, set out in Attachment A of these Customisation Terms and Conditions.

"Customisation Terms and Conditions" means these customisation terms and conditions (excluding the Customisation Specification and the Customisation Sales Order);

"Customised Software" means the software functions to be customised and added to the Software Services as set out in the Customisation Specification;

"Fees" means the fees set out in the Customisation Sales Order relating to the Customised Software to be provided under the Customisation Agreement;

"Ready for Use" means the Customised Software has passed the Acceptance Tests and is made available to the Customer for use with the Software Services;

"Software Services" means the Software Services that are already delivered to the Customer (Intelligentcontract.com).

2. Interpretation

In this Customisation Agreement unless the context otherwise requires:

2.1 a word importing the singular includes the plural and vice versa;

2.2 a word importing a gender includes each other gender;

2.3 a reference to any document is a reference to that document as varied, novated or replaced from time to time;

2.4 the singular includes the plural and vice versa;

2.5 a reference to a gender includes all other genders;

2.6 a reference to a person or entity includes a natural person, a partnership, corporation, trust, association, an unincorporated body, authority or other entity; and

2.7 a reference to a person includes that person’s legal personal representative, successors and permitted assigns.

3. Appointment of The Company

The Customer appoints the Company and the Company agrees to create the Customised Software upon and subject to the terms of the Customisation Agreement.

4. Term

The appointment of the Company shall commence on the date the Sales Order is signed by the Company and shall continue until the Ready for Use date or sooner termination in accordance with the terms hereof.

5. Company's Obligations

5.1 The Company must:

5.1.2 provide the Customised Software Ready for Use;

6. Customer’s Obligations

6.1 Customer must provide the Company promptly with information the Company reasonably requires so that the Company is not delayed in performing its obligations under the Customisation Agreement. In particular the Customer shall ensure that staff are available to answer queries about the Customisation Specification and to perform acceptance testing in time.

7. Fees, Invoicing and Payment

7.1 The Customer shall pay the Company the Fees set out in the Customisation Sales Order.

7.2 The Company shall render invoices to the Customer in respect of the Fees as follows:

7.2.1 50% on signature by the Company of the Customisation Sales Order;

7.2.2 50 % upon successful confirmation of the Acceptance Tests.

7.3 The Customer will pay all invoices together with Value Added Tax (if applicable) within 30 days of receipt.

7.4 All invoices rendered by the Company to the Customer will be payable in the currency set out in the invoice. Where payment of any invoice is late the Company reserves the right to suspend the provision of the Customised Software upon giving 7 days prior notice to the Customer. until all outstanding invoices have been paid in full. In addition, the Company is entitled to charge interest (both before and after any judgement) on the outstanding amount at the rate of 3% above the base rate of Barclays Bank plc from time to time, accruing on a daily basis and compounded quarterly, from the due date until the outstanding amount is paid in full. The Company reserves the right to recover any costs and reasonable legal fees it incurs in recovering overdue payment.

8. Intellectual Property Rights

8.1 The Customer acknowledges and agrees that to the extent that the Company, its subsidiaries or affiliates have created, developed or used software, data, programs, materials, content or other Intellectual Property Rights (which is not the pre-exiting Intellectual Property Rights of the Customer) in connection with providing the Customised Software for the Customer, the Company, its subsidiaries or affiliates shall have and retain exclusive ownership in all Intellectual Property Rights in the Customised Software, the Documentation and the Software Services and all other material created by the Company or its Personnel in relation to the Customisation Agreement.

8.2 All Intellectual Property Rights and title to the Customised Software (save to the extent incorporating any Customer or third party owned item) shall remain with the Company and/or its licensors and no interest or ownership in the Software, the Intellectual Property Rights or otherwise is conveyed to the Customer under the Customisation Agreement. No right to modify, adapt, or translate the Customised Software or create derivative works from the Customised Software is granted to the Customer. Nothing in the Customisation Agreement shall be construed to mean, by inference or otherwise, that the Customer has any right to obtain source code for the software comprised within the Software. Disassembly, decompilation or reverse engineering and other source code derivation of the software comprised within the Customised Software is prohibited.

8.3 From the Ready for Use date, the Company grants the Customer a non-exclusive, non-transferable right to use the Customised Software together with the Software Services for the Term of the Agreement. All use of the Customised Software by the Customer or its Authorised Users will be subject to, and in accordance with, the provisions of the Agreement.

8.4 The Customised Software is made available and may only be used solely by the Customer and its Authorised Users as part of the Software Services.

8.5 Once the Customised Software is incorporated into the Software Services, the Company reserves the right to alter the Customised Software at any time at its sole discretion.

9. Data Protection

9.1 Each party undertakes to comply with its obligations under relevant applicable data protection laws, principles and agreements in carrying out its obligations under the Customisation Agreement.

9.2 To the extent that personal data is processed by using the Customised Software, the parties acknowledge that the Company is a data processor and the Customer is a data controller and the parties shall comply with their respective statutory data protection obligations and their contractual obligations set out in the DPA, as set out In the Agreement.

9.3 If a third party alleges infringement of its data protection rights, the Company shall be entitled to take measures necessary to prevent the infringement of a third party’s rights from continuing.

10. Acceptance Testing

10.1 Customer will within 7 Business Days of receipt of the Customised Software from the Company inform the Company and seek its agreement to the number of days Customer expects the Acceptance Tests will take (the "Acceptance Testing Period").

10.2 The Customer will prior to the commencement of the Acceptance Tests provide to the Company for its review written details of the nature and purpose of the Acceptance Testing and the results expected to be achieved by carrying out the Acceptance Tests.

10.3 During the Acceptance Testing Period the Customer must perform the Acceptance Tests with the co-operation and assistance of the Company.

10.4 If the Customised Software fails to pass the Acceptance Tests within 30 days after the end of the Acceptance Testing Period, the Company must, within an additional 30 days, at its cost:

10.4.1 correct the Customised Software so that it provides the functions and meets the performance criteria set out in the Customisation Specification; and

10.4.2 repeat the Acceptance Tests with the Customer at its own cost at times convenient to both parties.

10.5 The Customised Software will be deemed to have passed the Acceptance Tests if:

10.5.1 Customer provides to the Company written confirmation of the successful Acceptance Tests of the Customised Software prior to the end of the Acceptance Testing Period; or

10.5.2 Customer starts to use the Customised Software as part of the Software Services; or

10.5.3 the Acceptance Testing Period expires without Customer signing-off acceptance and the Company reasonably determines that the Customised Software has been delivered in accordance with the Customisation Specification.

10.6 If there is a dispute about whether the Customised Software is performing as per the Customisation Specification (and is therefore preventing acceptance sign off) because there’s an unintentional omission, a lack of detail in the Customisation Specification, an ambiguity or any other issue relating to the Customisation Specification that results in issues at the acceptance stage, the Company’s reasonable interpretation of the Customisation Specification is final.

10.7 The Company does not warranty at any time that the Customised Software will perform error free nor that the outputs produced will be as expected by the Customer.

11. Ready For Use

11.1 After the Acceptance Tests have been completed, the Company shall notify the Customer of the date on which the Customised Software is Ready for Use.

11.2 From the Ready for Use date, any bugs in the Customised Software will be dealt with in accordance with the terms of the Agreement, as the Customised Software will now form an integral part of the Software Services.

11.3 The Customisation Agreement will automatically terminate from the Ready for Use date all use of and access to the Customised Software shall form this date be governed by the terms of the Agreement.

11.4 Except as expressly stated herein, all warranties and conditions, whether express or implied by statute, common law or otherwise (including but not limited to satisfactory quality and fitness for purpose), are hereby excluded to the fullest extent permitted by law.

12. Liability

12.1 The Company does not exclude or limit its liability to the Customer for fraud, death or personal injury caused by any negligent act or omission or wilful misconduct of the Company in connection with the provision of the customisation of the Software.

12.2 In no event shall the Company be liable to the Customer whether arising under the Agreement or in tort (including negligence or breach of statutory duty), misrepresentation or however arising, for any Consequential Loss.

12.3 Subject to sections 12.1 and 12.2, the total liability of the Company in aggregate (whether in contract, tort or otherwise) under or in connection with the Customisation Agreement or based on any claim for indemnity or contribution shall not exceed 100 (one hundred) per cent of the total Fees (excluding any VAT, duty, sales or similar taxes) paid or payable by the Customer to the Company for the customisation of the Software.

12.4 The Customer shall indemnify and hold the Company and its suppliers or agents harmless from and against any cost, losses, liabilities and expenses, including reasonable legal costs arising from any claim relating to or resulting directly or indirectly from: (i) any use by the Company of any Customer Data or Customer provided item; and (ii) breaches of data protection law or regulations resulting from the Company processing data on behalf of and in accordance with the instructions of the Customer in providing the customisation of the Software.

13. Confidentiality

13.1 Each of the parties agree that each of them shall both during and after the term of this Customisation Agreement preserve the confidentiality of, and not directly or indirectly reveal, report, publish, disclose or transfer or use for its own or any other purposes Confidential Information except:

13.1.1 in the circumstances set out in clause 13.2 below;

13.1.2 to the extent otherwise expressly permitted by this Customisation Agreement; or

13.1.3 with the prior consent in writing of the party to whose affairs such Confidential Information relates.

13.2 The circumstances referred to in clause 13.1.1 above are:

13.2.1 where the Confidential Information is in the public domain;

13.2.2 where the Confidential Information enters the public domain otherwise than as a result of a breach of the obligations of the party in this clause 13;

13.2.3 if and to the extent the party makes disclosure of the Confidential Information to any person:

  • (i) in compliance with any requirement of law;
  • (ii) in response to a requirement of any applicable regulatory authority to which the party is subject where such requirement has the force of law; or
  • (iii) in order to obtain tax or other clearances or consents from the Inland Revenue or other relevant taxing or regulatory authorities; or

13.2.4 to the employees, directors, agents, consultants and professional advisers of the party.

13.3 Provided that any such information disclosable pursuant to clauses 13.2.3(i), 13.2.3(ii) or 13.2.3(iii) shall be disclosed only to the extent required by law.

13.4 The restrictions contained in this clause shall continue to apply after the termination or expiry of this Customisation Agreement without limit in time.

14. Force Majeure

14.1 Neither party shall be under any liability to the other for any failure to perform any or all of their obligations under this Customisation Agreement if such failure shall be due to any circumstances beyond the reasonable control of the parties including (without limitation) acts of God or fire, flood, strike, or labour disputes, civil commotion, sabotage, statute, order, or any regulation of any government, public or local authority.

15. Termination

15.1 This Customisation Agreement may be terminated by the Company immediately by giving written notice to the Customer if the Customer has failed to pay any amount due under this Customisation Agreement and then fails to make that payment within 14 days after receiving notice from the Company requiring it to do so.

15.2 This Customisation Agreement may be terminated by either party:

15.2.1 immediately if the other party breaches any provision of this Customisation Agreement and fails to remedy the breach within fourteen (14) days after receiving a written notice from the non-defaulting party requiring it to remedy the breach; or

15.2.2 immediately by written notice from the non-defaulting party to the defaulting party if the defaulting party breaches a material provision of this Customisation Agreement and that breach is not capable of being remedied; or

15.2.3 if the other party ceases or threatens to cease to carry on business; or the other party goes into voluntary or involuntary liquidation (otherwise than for the purpose of a solvent reconstruction or amalgamation) or has a receiver or administrator or similar person appointed or is unable to pay its debts within the meaning of s268 Insolvency Act 1986 or ceases or threatens to cease to carry on business or if any event occurs which is analogous to any of the foregoing in another jurisdiction.

15.3 Termination of the Customisation Agreement for whatever reason shall not affect the accrued rights of the parties. All clauses which by their nature should continue after termination shall, for the avoidance of doubt, survive the expiration or sooner termination of the Customisation Agreement and shall remain in force and effect.

15.4 If Customer does not provide the Company with acceptance signoff within 90 days of being provided the Customised Software for acceptance sign off, the Company can at its discretion terminate this Customisation Agreement. The initial 50% of the Fee already paid, will not be refunded to the Customer. The remaining unpaid 50% of the Fee will not be payable by the Customer and the Customised Software will not be made available to the Customer.

16. Miscellaneous

16.1 This Customisation Agreement and its schedules constitute the entire agreement and understanding between the parties in relation to the customisation of the Software.

16.2 This Customisation Agreement may only be modified, or any rights under it waived, in a written document executed by both parties.

16.3 Each party acknowledges that it has not entered into this Customisation Agreement in reliance on any statement or representation, whether or not made by the other party, except in so far as the representation has been incorporated into this Customisation Agreement.

16.4 The Company’s relationship with the Customer during the term of this Customisation Agreement shall be that of an independent contractor. The Company shall not have, and shall not represent that it has, any power, right or authority to bind the Customer, or to assume or create any obligation or responsibility, express or implied, on behalf of the Customer.

16.5 The Company shall not be entitled to any pension, bonus, sick pay, holiday or other fringe benefits from the Customer and the Company shall bear exclusive responsibility for the discharge of any income tax, national insurance contributions, VAT and other taxation liability arising out of any fees paid under the Customisation Agreement and shall indemnify the Customer against all payments which it may be required to make by the Inland Revenue or other similar authority.

16.6 Should one or more of the provisions of this Customisation Agreement be deemed to be invalid, illegal or unenforceable, the remaining clauses shall remain unaffected. The parties shall then agree to substitute the invalid clause by a clause that is legally and economically as far as possible comparable to the invalid clause.

16.7 Notices shall be given in writing and shall be deemed to have been duly given if, sent by registered post or acknowledged fax to the address given for the respective party at the beginning of this Customisation Agreement. E-mail is specifically excluded.

16.8 In the event of any inconsistency between the content of terms of this Customisation Agreement and its Attachments, the terms of the Customisation Sales Order shall prevail followed by the Customisation Specification and then the Customisation Terms and Conditions.

16.9 Nothing contained in the Customisation Agreement is intended to be enforceable by a third party under the Contracts (Rights of Third Parties) Act 1999, or any similar legislation in any applicable jurisdiction.

16.10 Each party will pay its own legal, accountancy and other costs arising out of and in connection with this Customisation Agreement.

16.11 This Customisation Agreement will be governed by and construed in accordance with the laws of England and Wales and the parties shall submit to the exclusive jurisdiction of the English courts.