GENERAL TERMS AND CONDITIONS FOR SUPPORT AND MAINTENANCE SERVICES
The following General Terms and Conditions for Support and Maintenance Services (“Terms and Conditions”) are applicable to all support and maintenance services performed by Ixxus Limited (“Ixxus”) for any client (“Client”) pursuant to an Ixxus Statement of Work (“SOW”). These Terms and Conditions together with the applicable SOW constitute the whole and complete agreement by and between Ixxus and Client with respect to the subject matter thereof (“Agreement”) and shall come into effect on the earlier of (i) both Client and Ixxus signing the SOW or (ii) the commencement of the provision of the Services by Ixxus to the Client.
1. Services: Ixxus shall use reasonable endeavours to provide the services described in each SOW (“Services”) in accordance with all applicable terms and service levels detailed in each SOW, either directly or through a subcontractor. Client shall provide Ixxus in a timely manner, at no charge to Ixxus, with; (i) reasonable assistance and cooperation, and (ii) all applicable information, documentation and materials; necessary for the purpose of enabling Ixxus to perform such services. The Client’s obligations set forth herein, including but not limited to all payment obligations, are independent of any obligations, including payment obligations that arise from other agreements between Ixxus and Client.
2. Consideration: Client shall pay to Ixxus the fees specified in, and in accordance with, the applicable SOW (the “Fees”). If any Fees payment is overdue, Ixxus shall be entitled, without limiting its other remedies under this Agreement or otherwise, to suspend providing the Services until such payment is made in full. Ixxus may increase the Fee if: (i) the content or scope of the Services increases beyond or exceeds what is agreed to in the applicable SOW; or (ii) Client requires any change to the nature or scope of the Services or any additional support or work not referred to in the SOW; the revised Fee being calculated on a time and materials basis at Ixxus’s then standard time and materials rate for the additional Services provided.
3. Term and Termination: This Agreement shall come into force as provided above and (unless terminated early in accordance with this Clause 3 or any other term of this Agreement) shall continue for the applicable support and maintenance term specified in the SOW whereupon it shall automatically renew for a further 12 months on the same terms unless either party gives 60 days prior written notice. Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this Agreement without liability to the other if: (i) the other party commits a material breach of this Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or (ii) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party; or (iii) an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or (iv) a receiver is appointed of any of the other party’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets; or (v) the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way, or becomes bankrupt; or (vi) the other party ceases, or threatens to cease, to trade; or (vii) the other party takes or suffers any similar or analogous action to any of the foregoing in any jurisdiction in consequence of debt. Save as expressly provided in this Clause 3 or elsewhere in this Agreement, neither party may terminate this Agreement without the prior written consent of the other. Save as expressly provided in this Agreement, termination or expiry of this Agreement, however arising, shall not affect or prejudice the accrued rights of the parties as at termination or expiry, or the continuation of any provision expressly stated to survive, or implicitly surviving termination or expiry of this Agreement.
4. Independent Contractor: Nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties. The relationship between the parties shall be that of independent contractors. Neither party has the right to assume or create any obligation or responsibility on behalf of the other. Ixxus may prepare a press release related to this Agreement which, subject to Client approval not to be unreasonably withheld or delayed, may include an appropriate quote from Client designated senior executive.
5. Warranty: Ixxus warrants that it will perform the Services using reasonable skill and care. EXCEPT FOR THE FOREGOING EXPRESS WARRANTY SET FORTH IN THIS CLAUSE, IXXUS MAKES NO OTHER WARRANTIES UNDER THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, ANY SOW), AND ALL WARRANTIES AND CONDITIONS AND OTHER TERMS WHICH MAY BE IMPLIED BY STATUTE OR COMMON LAW, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY NONINFRINGEMENT AND QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW.
6. Confidentiality: The parties have imparted and may from time to time impart to each other certain Confidential Information (as defined below) and the parties may otherwise obtain Confidential Information concerning the business and affairs of the other pursuant to this Agreement, including information marked or identified by the disclosing party as confidential or information which may be reasonably regarded as the Confidential Information of the disclosing party. Each party agrees that it will use such Confidential Information solely for the purposes of this Agreement, and that it shall be held in confidence by the receiving party to the same extent and in at least the same manner as such party protects its own confidential or proprietary information. Each party shall not disclose, publish, release, transfer or otherwise make available such Confidential Information, whether directly or indirectly to any third party without the disclosing party’s consent. For the purposes of this Agreement, “Confidential Information” shall mean all information and documentation of a party, whether disclosed to or accessed by the other party in connection with this Agreement, which the receiving party knows or should know is confidential or proprietary, including without limitation: (a) all information of a party that is not permitted to be disclosed to third parties under local laws or regulations; (b) information relating to a party’s customers, employees, technology, operations, facilities, consumer markets, products, capacities, systems, procedures, security practices, research, development, business affairs and finances, ideas, concepts, innovations, inventions, designs, business methodologies, improvements, trade secrets, copyrightable subject matter, patents and other intellectual property and proprietary information; (c) the terms of this Agreement; and (d) any information developed by a party by reference to the other party’s information. Except to the extent that any applicable law provides otherwise, Confidential Information shall not include information that: (v) is independently developed by the receiving party without violating the disclosing party’s proprietary rights or using or accessing any Confidential Information, as shown by the receiving party’s written records; (w) is or becomes publicly known (other than through unauthorised disclosure); (x) is disclosed by a third party free of any obligation of confidentiality to a party; (y) is already known by the receiving party (free from any obligations of confidentiality owned to the disclosing party) at the time of its disclosure to the receiving party by the disclosing party, as shown by the receiving party’s written records; or (z) must be disclosed by the disclosing party in the discharge of its obligations to supply information for parliamentary, governmental, or judicial purpose provided that the disclosing party will inform the other as soon as practicable of any such obligation to disclose. This provision shall survive the expiry or prior termination of this Agreement howsoever arising.
7. Limitation of Liability: IXXUS SHALL NOT IN ANY CIRCUMSTANCES BE LIABLE WHETHER IN TORT (INCLUDING WITHOUT LIMITATION FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY HOWESOEVER ARISING), CONTRACT, MISREPRESENTATION (WHETHER INNOCENT OR NEGLIGENT) OR OTHERWISE FOR (i) LOSS OF PROFITS; OR (ii) LOSS OF BUSINESS; OR (iii) DEPLETION OF GOODWILL OR SIMILAR LOSSES; OR (iv) LOSS OF ANTICIPATED SAVINGS; OR (v) LOSS OF GOODS; OR (vi) LOSS OF CONTRACT; OR (vii) LOSS OF USE; OR (viii) LOSS OR CORRUPTION OF DATA OR INFORMATION; OR (ix) ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR PURE ECONOMIC LOSS, COSTS, DAMAGES, CHARGES OR EXPENSES; (IN EACH CASE) EVEN IF IT IS REASONABLY FORESEEABLE THAT SUCH LOSSES OR DAMAGES MAY ARISE, OR IXXUS IS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES ARISING. IN NO EVENT SHALL IXXUS’S AGGREGATE LIABILITY UNDER ANY AND ALL CLAIMS ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE OR BREACH OF STATUTORY DUTY HOWSOEVER ARISING), MISREPRESENTATION (WHETHER INNOCENT OR NEGLIGENT), RESTITUTION OR ANY OTHER THEORY, EXCEED THE SERVICES FEES PAID BY CLIENT TO IXXUS UNDER THE APPLICABLE SOW. Ixxus shall have no liability to the Client under this agreement, or otherwise, by reason of content supplied by the Client, content owners, end users or other third parties. Nothing in this Clause 7, or this Agreement generally, shall exclude or limit the liability of Ixxus for death or personal injury caused by Ixxus’ negligence, or for fraud or fraudulent misrepresentation. Any intention to claim must be notified to Ixxus within 6 months of Acceptance date.
8. Personnel: Client shall not, without the prior written consent of Ixxus, at any time during the continuance of this Agreement and for a period of nine (9) months following termination or expiry of this Agreement, either directly or indirectly, solicit or entice away from Ixxus, or employ or attempt to employ, or engage as a contractor or attempt to engage as a contractor, any person who is, or has been, engaged as an officer, employee or sub-contractor of Ixxus and who has been involved in the Services provided under this Agreement.
9. Ownership of Deliverables: The Client acknowledges and agrees that all copyright and other intellectual property rights in any and all software, technology, information, data, documents, and other work developed by Ixxus and/ or supplied by Ixxus to the Client pursuant to this Agreement (“Deliverables”) shall belong to Ixxus or its licensors. Deliverables which relate to a particular software product supplied and licensed by Ixxus to the Client under a separate agreement, shall be deemed to be part of the software product to which they relate and may be used by the Client on and subject to the same terms. In all other cases, the Client shall have a non-exclusive rights and licence to use any Deliverables for any purpose strictly necessary to make use of the Services provided hereunder. In the event that any Deliverables supplied under this Agreement comprise or incorporate proprietary software and materials belonging to third parties and/ or open-source software and materials (collectively “Third Party Software”) the Client acknowledges and agrees that Third Party Software may be subject to separate licence terms and terms and conditions (“Third Party Licence Terms”). Accordingly, (i) the Client shall, if reasonably requested to do so by Ixxus, enter into any third party licence agreements which Ixxus is required by any relevant licensor of any Third Party Software to require its clients to enter into; and (ii) the Client agrees to comply with any applicable Third Party Licence Terms relating to any Third Party Software, including but not limited to any Third Party Licence Terms which are referred to in the SOW or which may accompany the Deliverable.
9. Miscellaneous: (i) Except as may be amended by a mutually executed amendment, these Terms and Conditions and the applicable SOW are the complete and exclusive statement of the mutual understanding of the parties and supersede any other agreement or pre-printed terms and conditions that may appear on any purchase order relating to the terms hereof and no offer to supply the Services in a SOW shall be deemed to have been made on terms other than as set out herein. (ii) Neither the rights nor the obligations arising under this Agreement are assignable or transferable by Client, and any such attempted assignment or transfer shall be void and without effect. (iii) The waiver by either party of a breach of the Agreement or any right hereunder shall not constitute a waiver of any subsequent breach of the Agreement; nor shall any delay by either party to exercise any right under this Agreement operate as a waiver of any such right. (iv) Any notice, report, approval or consent required or permitted hereunder shall be in writing and shall be deemed to have been effectively given: (a) immediately upon personal delivery or facsimile transmission (receipt confirmed and with a confirmation copy sent by post) to the parties to be notified, (b) one day after deposit with a commercial overnight courier with tracking capabilities, or (c) on the fifth day following posting, if posted by international first class or recorded post postage pre-paid, in each case addressed at such address as set forth in the SOW. (v) If any provision of the Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that the Agreement shall otherwise remain in full force and effect and be enforceable. (vi) The parties agree that a material breach of the Agreement adversely affecting Ixxus’s proprietary rights in the Deliverables would cause irreparable injury to Ixxus for which monetary damages would not be an adequate remedy and that Ixxus shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law. (vii) The parties do not intend any term of this Agreement to be enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999. (viii) Both parties will comply with their obligations under the Data Protection Act 1998. (ix) Ixxus may use Client’s name and logo on its website and in marketing materials. Ixxus may put to-gether a press release for Client’s approval, such approval not to be unreasonably withheld. (x) This Agreement shall be governed and construed in accordance with English law and the parties submit to the exclusive jurisdiction of the English courts.