Terms & Conditions

Data Valley Standard Terms & Conditions

 

    1. DEFINITIONS AND INTERPRETATION

      1. In this Agreement, unless the context requires otherwise:

        1. any reference to "persons" includes individuals, firms, partnerships, companies, corporations, associations, organisations or foundations (whether or not having separate legal personality);

        2. any reference to a recital, Clause or Schedule shall be construed as the relevant recital, Clause of or Schedule to this Agreement;

        3. a "party" shall be construed as a signatory to this Agreement;

        4. use of the singular shall include the plural and vice versa and words denoting any gender shall include all genders;

        5. any reference in this Agreement to any statute, statutory provision, subordinate legislation, code or guideline ("legislation") shall be construed as referring to such legislation as the same may from time to time be amended, modified, extended, varied, superseded, replaced, substituted or consolidated; and

        6. any phrase introduced by the terms "including", "include", "in particular" or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

      2. Clause headings are for ease of reference only and shall not affect the interpretation of this Agreement.

    2. LICENCE

      1. In consideration of the Software & Support Fees payable by the Client to DV, DV hereby grants to the Client, with effect from the Commencement Date and subject to the terms and conditions of this Agreement, a licence to:

        1. Use the DV Software for the licenses as agreed from the agreed contract period.

      2. For the purposes of Clause 2.1, "use" of the Software shall mean use of the Software in Object Code form for the purposes of the Client normal operational purposes and any act which is reasonably incidental to such use.

      3. Without prejudice to Clause 2.1 the Client shall have no right to copy, reverse engineer, decompile, disassemble or modify the Software except as permitted by law;

 

    1. support services

      1. DV shall during the Term, provide Support Services to the Client via DVLogIT from 9.00 hours to 17.00 hours Monday to Friday excluding all English Bank and Public Holidays. Extended hours can be provided by mutual agreement from time to time with prior notice.

      2. DV shall from time to time make available to the Client without additional charge any Modification as soon as practical following release of such Modification.

      3. DV shall use its best endeavours (including without limitation by provision of the Support Services) to correct any Faults in the Software reported to it by the Client provided such Faults do not result from:

        1. defects or errors resulting from any modifications of the Software made by any person other than DV without DV’s consent (and in the case of the Client such consent shall not be unreasonably withheld); or

        2. use of the Software for any purpose or in a context other than the purpose or context for which it was designed,

save that where the relevant Software has been used by the Client in accordance with the Documentation then DV shall not in any event be excused from its liability to correct Faults.

      1. DV shall perform and provide the Support Services with all due care, skill and diligence and in a timely manner. Without prejudice to the foregoing, DV shall ensure that all of its personnel engaged hereunder:

        1. have the necessary skills, expertise, qualifications and diligence to undertake such work and will confirm to the professional standards generally observed in the industry for similar services; and

        2. observe all reasonable requirements and procedures notified to DV by the Client including without limitation those pertaining to conduct and standard of work.

      2. The Support Services shall not include performing any repair, replacement or modification caused by:

        1. The Client’s neglect, misuse or failure to treat and use the Software or the Equipment in a prudent and proper manner or other than in accordance with the Documentation;

        2. malfunctions or breakdown of Equipment (unless initiated by the Software); or

        3. alterations to the Software or Data by any party other than the Client, DV or their authorised agents or other persons authorised by DV.

 

    1. WARRANTY Period

      1. Without limitation to the provisions of Clause 7, DV warrants, represents and undertakes to the Client that the Software shall:

        1. operate in accordance with the Specification; and

        2. be free from defects in workmanship or material,

under normal use for a period of ninety (90) days after receipt of the Software.

      1. If the Software fails to substantially conform to its Specification or operate in accordance with the Documentation and provided the non-conformity is reported to DV in writing within 30 days from the date of commencement of commercial use of the Software, then PROVIDED THAT such non-compliance has not been caused by any modification, variation or addition to the Software not authorised by DV in accordance with this Agreement or the use of the Software other than where such use was substantially not in accordance with the Documentation, then DV shall at its cost, without prejudice to the Clients other rights and remedies, either:

        1. repair the Software; or

        2. replace the Software with software of equivalent performance and functionality that meets requirements; or

        3. refund the Software Fee.

    2. intellectual property RIGHTS

      1. As between the parties, the Intellectual Property Rights in the Software belong to and shall remain vested in DV.

      2. The Client agrees to effect and maintain reasonable security measures to safeguard the Software from access or use by any unauthorised person.

    3. licence fee

      1. The Licence Fee is payable monthly by standing order, or annually in advance for the term agreed. No increase in the level of the Licence Fee shall be valid unless agreed in writing.

      2. The Client shall pay the Licence Fee to DV in the amounts and at the times agreed

      3. The Licence Fee is exclusive of value added tax or any other applicable sales tax (“VAT”). Calculation of VAT will be the responsibility of DV who will send VAT invoices to the Client prior to the relevant payment.

      4. If the Client fails to pay by the due date any amount payable by it under this Agreement (save for amounts disputed in accordance with Clause 6.5), DV shall be entitled but not obliged to charge interest on the overdue amount, from 30 days after the due date up to the date of actual payment, at the rate of two per cent per annum above the base rate for the time being of Barclays Bank Plc.  The parties agree that this Clause 6.5 is a substantial remedy for late payment of any sum payable under this Agreement in accordance with section 8(2) of the Late Payment of Commercial Debts (Interest) Act 1998.

      5. If the Client disputes in good faith any fees payable under this Agreement, it shall provide DV with written reasons for the dispute within 15 days of the date of the applicable invoice.  The parties shall seek to settle the disputed amount as soon as reasonably practicable but the Client shall not be obliged to pay any disputed amount, and interest thereon shall not accrue, until the dispute has been resolved to the reasonable satisfaction of each of the parties to this Agreement.

      6. DV shall not cease fulfilling its obligations under this Agreement due to the late payment of or failure to pay any sums due in accordance with this Agreement unless the Client fails to make such payment within 30 days of the due date provided that this condition shall not apply in relation to amounts disputed pursuant to Clause .

    4. WARRANTIES

      1. Without prejudice DV warrants, represents and undertakes to the Client that:

        1. it has, and will retain throughout the Term, all right, title and authority to enter into this Agreement, to grant the rights and licences expressed to be granted in this Agreement and to perform all of its obligations under this Agreement;

        2. the Software, Documentation, Modifications and the Source Code Materials shall be fit for their purpose and, without limitation, the Software shall conform with its Specification and operate in accordance with the Documentation;

        3. all Intellectual Property Rights in the Software and Documentation are valid and subsisting and that the exercise by the Client of the rights licensed will not infringe the rights (including without limitation any Intellectual Property Rights) of any third party;

        4. no company, entity or person has any claim or entitlement whatsoever to the Intellectual Property Rights or any other rights in the Software or Documentation and that DV has all necessary registrations, authorisations, consents and licences to enable the parties to exercise their rights and comply with their obligations hereunder;

        5. it will ensure that the security at DV’s premises is adequate to prevent the unauthorised access to any Client documents, data or computer systems;

        6. it shall provide the Support Services with all reasonable care and skill and in accordance with best industry practice; and

        7. all employees and any permitted sub-contractors of DV involved in the provision of the Support Services are appropriately qualified and experienced to undertake their tasks, which will be performed in a professional and competent manner and will be supervised at all times, DV shall procure that such persons comply with all applicable laws and regulations.

    5. INDEMNITY AND limitation of liability

      1. The aggregate liability of each party in respect of any loss or damage suffered by the other party and arising out of or in connection with this Agreement shall not exceed the Software & Licence Fee actually paid by the Client to DV pursuant to this Agreement.

      2. Neither party shall be liable for any economic losses (including loss of revenues, profits, contracts, business or anticipated savings), or any loss of goodwill or reputation, or any special or indirect or consequential losses in any case, whether or not such losses were within the contemplation of the parties at the date of this Agreement, or were suffered or incurred by latter party arising out of or in connection with any matter arising under this Agreement.  Nothing in this Clause shall limit either party’s liability for death or personal injury caused by its negligence or for fraud or fraudulent misrepresentation.

    6. force majeure

      1. Neither party shall be liable to the other party for any delay in or failure to perform any or all of its obligations under this Agreement if the delay or failure is due to circumstances beyond its reasonable control including without limitation nuclear accident, war or terrorist activity, acts of God, civil commotion, or compliance with any law or governmental order or regulation except that:

        1. neither lack of funds nor a default or misconduct by any third party employed or engaged as an agent or independent contractor by the party claiming Force Majeure shall be a cause beyond the reasonable control of that party unless caused by events or circumstances which are themselves Force Majeure; and

        2. mere shortage of materials, equipment or supplies shall not constitute Force Majeure unless caused by events or circumstances which are themselves Force Majeure.

      2. A party suffering an event of Force Majeure shall promptly notify the other party of the nature and extent of the Force Majeure and if it prevails for a continuous period in excess of one month the other party may terminate this Agreement forthwith by notice in writing to the party so prevented in which case neither party shall have any liability to the other except that rights and liabilities which accrued prior to such termination shall continue to subsist.

    7. TERM AND TERMINATION

      1. This Agreement shall come into force on the Commencement Date for a minimum period of 24 months. Following this initial period a rolling contract period will commence allowing 3 months notice to be given from either party.

      2. Either party may terminate this Agreement (without prejudice to its other rights and remedies) with immediate effect by written notice to the other party if:

        1. the Defaulting Party commits a breach of its warranties or material obligations under this Agreement and if the breach is capable of remedy, fails to remedy it during the period of 30 days starting on the date of receipt of notice from the Non-Defaulting Party requiring it to be remedied; or

        2. the Defaulting Party becomes insolvent (including being unable to pay its debts as they fall due and/or that the value of its assets is less than the amount of its liabilities taking into account its contingent and prospective liabilities), proposes an individual, company or partnership voluntary arrangement, has a receiver, administrator or manager appointed over the whole or any part of its business or assets; if any petition shall be presented, order shall be made or resolution passed for its winding up (except for the purpose of amalgamation or reconstruction agreed to in writing in advance by the Non-Defaulting Party, such agreement not to be unreasonably withheld or delayed), bankruptcy or dissolution (including the appointment of provisional liquidators/interim receivers or special managers); or if it shall otherwise propose or enter into any composition or arrangement with its creditors or any class of them or if it ceases or threatens to cease to carry on business.

      3. Termination of this Agreement shall not prejudice either party from pursuing any other remedies available to it, including injunctive relief.

    8. NOTICES

      1. Any notice given under this Agreement shall be in writing and shall be served by hand, delivered or sent by prepaid recorded or special delivery post or prepaid international recorded airmail, to the relevant addressee at the address referred to on page 1 of this Agreement or such other address as the relevant party may designate to the other in writing from time to time.  Any such notice shall be deemed to have been served at the time of delivery.  For the avoidance of doubt, notice given under this Agreement shall not be validly served if sent by email.

    9. NON-SOLICITATION OF EMPLOYEES

      1. Each party hereby undertakes that, save with the prior written consent of the other party, it will not, during the Term and for a period of six (6) months thereafter, either on its own account or for any other person, firm or company, actively solicit, interfere with or endeavour to entice away any employee of the other party or any company associated with such party.

    10. GENERAL

      1. This Agreement, and the documents referred to in it, constitutes the entire agreement and understanding of the parties and supersedes any previous agreement between the parties relating to the subject matter of this Agreement.  Each of the parties acknowledges and agrees that in entering into this Agreement, and the documents referred to in it, it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty, understanding, promise or assurance (whether negligently or innocently made) of any person (whether party to this Agreement or not) other than as expressly set out in this Agreement.  Nothing in this Clause shall operate to limit or exclude any liability for fraud.

      2. Each party undertakes that it will not at any time hereafter use or disclose to any person, except to its professional representatives or as may be required by law or any legal or regulatory authority, the terms and conditions or existence of this Agreement or any confidential information concerning the business or affairs of the other party which may have come to its knowledge unless such information is public knowledge or already known to such party at the time of disclosure or subsequently becomes public knowledge other than by breach of this Agreement or subsequently comes lawfully into the possession of such party from a third party.  Neither party shall use any such confidential information except for the performance of this Agreement or make any announcement relating to this Agreement or its subject matter without the prior written approval of the other party.

      3. No addition to, or modification of, any provision of this Agreement shall be binding on the parties unless made by a written instrument and signed by a duly authorised representative of each of the parties.

      4. Each party shall do, sign, execute and deliver all deeds, documents, instruments and acts reasonably required of it by notice from the other party to carry out and give full effect to this Agreement and the rights and obligations of the parties under it.

      5. The failure to exercise or delay in exercising a right or remedy under this Agreement shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies and no single or partial exercise of any right or remedy under this Agreement shall prevent any further exercise of the right or remedy or the exercise of any other right or remedy.  The rights and remedies contained in this Agreement are cumulative and not exclusive of any rights or remedies provided by law.

      6. The invalidity, illegality or unenforceability of any provision of this Agreement shall not affect or impact the continuation in force of the remainder of this Agreement.

      7. Nothing in this Agreement shall be construed as creating a partnership or joint venture of any kind between the parties or as constituting either party as the agent of the other party for any purpose whatsoever and neither party shall have the authority or power to bind the other party or to contract in the name of or create a liability against the other party in any way or for any purpose.

      8. This Agreement shall be exclusively governed by and construed in accordance with the laws of England and Wales and the parties hereby irrevocably submit to the exclusive jurisdiction of the English High Court.