Terms & Conditions

STANDARD CONDITIONS FOR THE SALE OF SERVICES (IPR GENERATED VESTING IN THE BUYER)

STANDARD CONDITIONS FOR THE SALE OF SERVICES (IPR GENERATED VESTING IN THE BUYER)

1. Definitions

In these conditions:

“Buyer” means the person, firm or company which accepts a quotation of the Seller for the sale of the Services or whose order for the Services is accepted by the Seller.

“Services” means those services to be provided by the Seller as specified in a quotation of the Seller or as are specified in amendments to such quotation agreed in writing between the Buyer and the Seller.

“Seller” means Covnetics Limited whose registered office is at Eliot Park Innovation Centre, 4 Barling Way, Nuneaton CV10 7RH.

“Intellectual Property Rights” or “IPR” means: patent, patent applications and other statutory rights in inventions; copyrights (including without limitation copyrights in software); registered design rights, applications for registered design rights, unregistered design rights and other statutory rights in designs; and other similar or equivalent forms of statutory protection, wherever in the world arising or available; but excluding rights in confidential information or trade secrets.

“Conditions” means these Standard Terms and Conditions for the Provision of Services and any other special terms and conditions agreed in writing between the Buyer and the Seller.

“Contract” means the contract for the sale and purchase of the Services.

“Contract Price” means the price stated in the Contract for the complete performance of the Services and delivery of any deliverables.

“Writing” includes fax, email and any comparable means of communication.

“Software” means a software program being sequences of instructions to carry out a process in, or convertible into, a form executable by a computer, and fixed in any tangible medium of expression. Software shall include but not  be limited to RTL, hardware description language, netlist, bit stream, microcode.

2. Basis of the Sale of Services

2.1 The Seller shall sell and the Buyer shall purchase the Services in accordance with any quotation in Writing of the Seller which is accepted by the Buyer, or any order in Writing of the Buyer which is accepted by the Seller, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Buyer.

2.2 No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Seller.

2.3 The Seller’s employees or agents are not authorised to make any representations concerning the Services unless confirmed by the Seller in Writing. In entering into the Contract the Buyer acknowledges that it does not rely on any such representations which are not so confirmed.

2.4 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the application or use of the Services which is not confirmed in Writing by the Seller is followed or acted upon entirely at the Buyer’s own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.

2.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.

3. Orders and Specifications

3.1 No order submitted by the Buyer shall be deemed to be accepted by the Seller until confirmed in Writing by the Seller’s authorised representative.

3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the Services within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.

3.3 The nature, quality and description of any specification for the Services shall be those set out in the Seller’s quotation (if accepted by the Buyer) or the Buyer’s order (if accepted by the Seller).

3.4 If the Services are to be provided in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement of any patent, copyright, design, trade mark or other intellectual property rights of any other person which results from the Seller’s use of the Buyer’s specification.

3.5 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in Writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs, damages, charges and expenses incurred by the Seller as a result of cancellation.

4. Fees for the Services

4.1 The fees for the Services shall be the Seller’s quoted fees. All fees quoted are valid for 30 days only or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.

4.2 Any estimates given in the Seller’s quotation are submitted for budgetary purposes only and are not formal offers open for acceptance. However, the Seller undertakes to keep the Buyer regularly updated of progress against such estimates.

4.3 The Seller reserves the right, by giving notice to the Buyer at any time before the provision of the Services, to increase the fees for the Services to reflect any increase in the cost to the Seller which is due to any factor beyond the reasonable control of the Seller, any change in the dates or specification for the provision of the Services which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.

4.4 The fees are exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Seller.

5. Terms of Payment

5.1 The Buyer shall pay each Seller’s invoice in full and without any deduction for any purpose within thirty (30) days of the date of such invoice.

5.2 If a Seller’s invoice is not fully paid at its due date the Seller shall be entitled, in addition to any other rights and remedies, to suspend performance of the Services until such time as the invoice is paid in full and to charge interest on any amount unpaid. The Buyer shall pay such interest in accordance with the provisions of the Late Payment of Commercial Debts (Interest) Act 1998.

5.3 No payment due to the Seller may be withheld or offset by the Buyer against any sums that may be due or become due from the Seller.

6. The Services and Deliverables

6.1 The Seller warrants that it will carry out the Services using all reasonable care and skill and will use such personnel in the performance of the Services as it considers suitably qualified. Unless otherwise specified in the Contract, the Services will be performed during normal working hours.

6.2 Where the Contract specifies the provision of deliverables by the Seller to the Buyer the Seller warrants that such deliverables will comply with their specifications, as described in the Contract for a period of 30 days from their delivery to the Buyer or as otherwise specified in the Contract. The Seller shall have no liability for damages or other consequences resulting from the Buyer’s use of the deliverables.

6.3 Such warranties are in place of any condition or warranty of any kind, express or implied, statutory or otherwise, concerning the quality or fitness for any particular purpose of the Services and deliverables.

6.4 The Buyer will be deemed to have accepted the Services or a deliverable on the first to occur of the following events:

6.4.1 the Buyer having confirmed in Writing (by sign-off of documents or as otherwise agreed) that the Services are completed or the deliverable is acceptable; or

6.4.2 the expiry of a 2 week period since completion of the Services or delivery of a deliverable without the Buyer having notified the Seller in writing of any failure of the Services or deliverable to meet its specification or description in the Contract; or

6.4.3 the Buyer having made use of a deliverable.

6.5 In the case of both Services and deliverables, the Seller will use all reasonable endeavours to meet any dates specified in the Contract but time shall not be of the essence in respect of any such dates.

6.6 The Seller may, from time to time, substitute new personnel for any personnel named in the Contract or then providing the Services. The Buyer may also request substitution, provided it has valid reasons for doing so and gives the Seller not less than 21 days notice in Writing. The Seller shall use reasonable endeavours to comply with any request by replacing such personnel with other suitably skilled and experienced personnel.

7. The Buyer’s Responsibilities

7.1 The Buyer shall, in a timely manner, provide the Seller with such information and help as reasonably required by the Seller and will comply with any specific responsibilities identified in the Contract. The Buyer will also grant (or procure the grant) to the Seller of appropriate rights of use of or access to the Buyer’s or third party owned property sufficient to enable the Seller to perform the Services or deliver the deliverables in accordance with the Contract.

7.2 The Seller shall not be liable for any failure or delay in the performance of the Services or supply of the deliverables or any defect in the deliverables which is caused or contributed to by the Buyer failing to meet its responsibilities (whether wholly or in part). In such instance, the timetable or any completion date agreed by the parties for the work specified in the Contract shall be automatically extended by such period of time as is reasonable in the circumstances (which in any event shall be at least equal to the period of delay). Further, the Buyer shall pay to the Seller such reasonable additional costs and expenses as the Seller may have incurred as a result of the delay or failure.

7.3 If the Buyer wishes to change the Services or a deliverable, it may request such change in Writing. The Seller shall evaluate such change request but shall be under no obligation to effect any change until agreement in Writing (including agreement as to scope, revised timetables of work or delivery and additional cost) has been recorded in Writing and signed by both parties.

8. Intellectual Property Rights (“IPR”)

8.1 Subject to the conditions set out below, all IPR generated by the Seller in the course of its performance of the Services and relating solely to a deliverable (and not to any other product or service of the Seller) shall vest in the Buyer and the Seller shall do all that is reasonably necessary to assign such IPR to the Buyer.

8.2 The Buyer shall indemnify and keep indemnified the Seller against all costs, losses, damages and expenses arising out of or in connection with any claim made against the Buyer by a third party alleging the use of the deliverables infringes its IPR.

8.3 All other IPR generated or owned by the Seller (whenever generated or acquired and in whatever form) shall remain vested in the Seller.

8.4 For the avoidance of doubt, the Buyer will not be authorised to use any of the Seller’s proprietary Software without executing a software licence agreement with the Seller.

8.5 The Buyer undertakes that no design, specification or instruction provided by the Buyer shall cause the Seller to infringe any IPR in its performance of the Services.

8.6 Nothing in the Contract shall prevent the Seller from using all of its knowledge and know-how gained in performing the Services and creating the deliverables in the course of providing services to others, even where those services are the same as or similar to the Services.

8.7 No rights or licences (whether express or implied) are granted by either party to the other except as expressly set out in these Conditions.

9. Confidentiality

9.1 All information supplied by either party to the other in whatsoever form shall be treated as confidential and shall not be disclosed or used by the receiving party otherwise than for performing its obligations under the Contract and, for such purpose, shall only disclose such information to those of its employees having a need to know.

9.2 Neither party shall be required to keep such information which (i) is in or comes into the public domain otherwise than through a breach of its obligations under Clause 9.1 above, or (ii) has been lawfully received from a third party without restriction as to its use or disclosure, or (iii) was already in the receiving party’s possession free of any restriction prior to receipt, or (iv) was independently developed by the receiving party.

9.3 The provisions of this Clause 9 shall continue in force during the term of the Contract and for five years thereafter.

10. Limitation of Liability

10.1 The liability of either party in respect of loss or damage to tangible property of the other party caused by its negligence shall be limited to £1,000,000 per event or series of connected events and £2,000,000 in aggregate.

10.2 Neither party excludes or limits its liability to the other party for (i) fraud or fraudulent misrepresentation; or (ii) death or personal injury caused by its negligence; or (iii) breach of confidentiality; or (iv) breach of indemnities and/or undertakings given in accordance with Clause 8 above.

10.3 Neither party shall be liable for any loss of profit, production, anticipated savings, goodwill or business opportunities or any type of indirect, economic or consequential loss.

10.4 Neither party shall be liable for any delay in or failure to perform its obligations if the delay or failure resulted from circumstances beyond its reasonable control.

10.5 Subject to the other provisions of this Clause 10, the total aggregate liability of either party for all claims made by the other in relation to the Contract for loss or damage suffered by that party, however that liability arises, shall be limited to the Contract Price or the sum of £1,000,000 whichever is the lesser.

11. Non-Solicitation

11.1 The Buyer shall not, without the prior consent in Writing of the Seller, actively initiate recruitment of any of the Seller’s personnel who are performing the Services or have been assigned to the Services by the Buyer.

11.2 In the event of any breach of Clause 11.1 above, the Buyer agrees that (in recognition of the value of such personnel to the Seller and the inconvenience caused to it as a result of the breach) it shall pay to the Seller a sum which is the equivalent to twelve (12) months’ gross salary of that personnel. The parties expressly agree that this sum is a genuine pre-estimate of the loss likely to be suffered by the Seller in these circumstances.

12. Term and Termination

12.1 Subject to the conditions set out below, the Contract shall come into force upon signature of it by authorised representatives of both parties and shall remain in force until all the obligations of the parties have been performed in accordance with the terms of the Contract or by prior agreement in Writing of the parties.

12.2 Either party may terminate the Contract by notice in Writing if:

12.2.1 the other party has committed a material breach of the Contract and has failed to remedy it within 30 days of having been requested to do so in Writing (for the avoidance of doubt, failure to make any payment when due shall constitute a material breach), or

12.2.2 the other party becomes bankrupt or insolvent or a receiver or administrative receiver is appointed for all (or a substantial part) of that party’s assets.

13. Dispute Resolution

13.1 If a dispute arises between the parties, they shall use reasonable endeavours to resolve the matter amicably.

13.2 If the parties fail to achieve amicable resolution within 30 days of the dispute arising, the parties may attempt in good faith to resolve the dispute through an Alternative Dispute Resolution (ADR) procedure as recommended to the parties by the Centre for Dispute Resolution (such procedure to be conducted in London).

13.3 However, if the matter has not been resolved by an ADR procedure within 30 days of the initiation of that procedure, or if either party will not participate in an ADR procedure, the courts of England and Wales shall decide the dispute.

14. General

14.1 If the Buyer issues any form of order other than a signed copy of the Seller’s quotation, the Buyer hereby acknowledges that the terms of such order shall not apply and that it will be used by the Seller solely for the purpose of referencing invoices.

14.2 Neither party may assign, sub-contract or sub-license any rights, licences, benefits or obligations obtained under the Contract in whole or in part without the prior consent in Writing of the other party, such consent not to be unreasonably withheld or delayed.

14.3 Any notice given by either party to the other must be in Writing and may be delivered personally or by first class post (or equivalent) to the other party at the address stated in the Contract (or any other address notified for this purpose by that party) or by telefax, electronic or digital transmission. Notices shall be deemed to have been served when personally delivered, or (if transmitted by telefax, electronic or digital transmission) when transmitted, provided that such transmission is confirmed by receipt of a successful transmission report and the notice is confirmed by mail. In the case of notice by post, service will be deemed to have been given (7) business days after the date of posting.

14.4 No failure, delay or indulgence by either party in enforcing its powers or rights will prejudice or restrict that party’s powers or rights, and no waiver of any such powers, rights or any breach of any contractual terms by the other party will constitute a waiver of any power, right or later breach.

14.5 All clauses in the Contract which are expressed to survive or are by implication intended to survive termination of the Contract will continue to survive notwithstanding termination of the Contract.

14.6 If any provision of the Contract shall be held by any court of competent jurisdiction to be invalid or unenforceable, the invalidity or lack of enforceability of such provision shall not affect the other provisions or clauses of the Contract which shall continue in full force and effect.

14.7 The headings in these Conditions are inserted for convenience only and shall not be referred to in the interpretation of the Contract.

15. Entire Agreement and Governing Law

15.1 The Contract constitutes the entire agreement between the parties with respect to the subject matter of it and supersedes all conditions and warranties, express or implied, statutory or otherwise and all representations, statements, negotiations and understandings, whether in Writing or oral.

15.2 The Contract and any disputes arising out of it shall be governed by English law.