Annex 1. GENERAL TERMS AND CONDITIONS 

These General Terms and Conditions apply to the Agreement between the Customer and the Company for the purchase of any Products from the Company.

1. Definitions 
1.1 All terms in capitals used herein shall have the meaning given to them below unless defined otherwise in the main terms of the Master Agreement. 

 

“Agreement”	means the Master Agreement and all schedules, appendices and annexes referred to therein;
“Business Day”	means Monday to Friday excluding any national holiday in the Netherlands;
“Business Hours”	means 9:00am to 5:30pm local Netherlands time, on each Business Day;
“Commencement Date”	means the date on which the Master Agreement begins as set out at the start of the Master Agreement;
“Company”	means Airsys Europe B.V.;
“Company Materials”	means all materials, equipment, documents and other property of the Company;
“Confidential Information”	means any and all information in any form whatsoever relating to the Company, Customer or a Partner Customer or the business, prospective business, finances, technical process, computer software (both source code and object code) and IPR of any of them (as the case may be), or compilations of two or more items of such information, whether or not each individual item is in itself confidential, which comes into a party’s possession as a result of the Agreement or provision of the Products, and which the party regards, or could reasonably be expected to regard, as confidential and any and all information which has been or may be derived or obtained from any such information;
“Consequential Loss”	means pure economic loss, special losses, losses incurred by any Authorised User or Partner Customer or other third party, losses arising from business interruption, loss of business revenue, goodwill or anticipated savings, losses whether or not occurring in the normal course of business, costs of procuring substitute goods or product(s) or wasted management or staff time;
“Customer”	means the party purchasing Products from the Company named at the start of the Master Agreement;
“Consultancy Services”	means the consultancy services including Deliverables, set out in the SOW;
“Deliverables”	means the deliverables to be provided to the Customer as set out in a SOW;
“DPA”	means the data processing agreement of the Company published at X as amended from time to time;
“Effective Date”	means the effective date set out in any Purchase Order for the provision of each Product;
“Fees”	means the fees payable to the Company by the Customer for the purchase of Products, as set out in each Purchase Order;
“Force Majeure”	means anything outside the reasonable control of the defaulting party including but not limited to acts of God, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war, terrorist act, rebellion, insurrection, riot, civil commotion, sabotage, epidemic, quarantine, restriction, labour dispute, labour shortage, strike, lockout or other industrial dispute, power shortage, failure of public power supplies, third party hacking, viruses, trojans, worms, logic bombs or other material attacking the Products, a denial-of-service attack, a distributed or malicious denial-of service attack, failure of communication facilities or unavailability of the Internet and change in legislation;
“General Terms and Conditions”	means these general terms and conditions of the Company set out in Annex 1 of the Agreement;
“Goods”	means the goods set out in Schedule 1 of the Agreement;
“Initial Term”	means the initial term set out in the Agreement and/or any Purchase Order, as applicable;
“IPR”	means all copyrights, patents, utility models, trademarks, service marks, registered designs, moral rights, design rights (whether registered or unregistered), technical information, know-how, database rights, semiconductor topography rights, business names and logos, computer data, generic rights, proprietary information rights and all other similar proprietary rights (and all applications and rights to apply for registration or protection of any of the foregoing) as may exist anywhere in the world;
“Master Agreement”	means the agreement entered into between the Company and the Customer for the purchase of Products from the Company;
“Privacy Policy”	means the privacy policy of the Company published at X as amended from time to time;
“Products”	means the Goods, Consultancy Services and SaaS Services set out in Schedule 1 of the Agreement and any other products, services or functions developed or added to them from time to time;
“Purchase Order”	means each completed purchase order accepted by the Company in writing for the purchase of Products from the Company, based upon the purchase order set out in Schedule 1 of the Agreement;
“Renewal Term”	means any renewal term set out in the Agreement and/or a Purchase Order, as applicable;
“SaaS Services”	means the SaaS services set out in Schedule 1 of the Agreement;
“SLA”	means the service level agreement of the Company published at X as amended from time to time;
“SOW”	means each signed SOW attached to or incorporated by reference in a Purchase Order;
“Special Terms – Consultancy Services”	means the additional terms and conditions applicable to Consultancy Services, set out in Annex 2 of the Agreement;
“Special Terms – Goods”	means additional terms and conditions applicable to Goods, set out in Annex 3 of the Agreement;
“Special Terms – SaaS Services”	means additional terms and conditions applicable to SaaS Services, set out in Annex 4 of the Agreement;
“Term”	means the term of the Agreement or the term of a Purchase Order as set out in the Purchase Order, as applicable;
“Territory”	means the countries listed in Schedule 1 of the Agreement;
“Time and Materials Basis”	means the Company’s standard daily consultancy rates published at X   , as amended from time to time.

 

1.2 In the Agreement:
     1.2.1 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality); 
     1.2.2 A reference to a party includes its successors or permitted assigns;
     1.2.3 A reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted; 
     1.2.4 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; and
     1.2.5 A reference to writing or written includes e-mails where this is specifically stated.

2. Ordering and Formation of the Contract 

2.1 The Purchase Order constitutes an offer by the Customer to purchase Products from the Company in accordance with the terms of the Agreement. A Purchase Order shall only be accepted upon the Company confirming acceptance of the offer in writing.  
2.2 Any quotation given by the Company shall not constitute an offer and is only valid for a period of 20 Business Days from its date of issue. 
2.3 The terms of the Agreement apply to the sale of all Products to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. 

3. Term 

3.1 The Customer shall have the right to purchase Products during the Term of the Agreement.  
3.2 Each Purchase Order shall commence on the date the Company signs each Purchase Order. 
3.3 The Products included in each Purchase Order shall be provided to the Customer from the respective Effective Date for each Product as set out in the Purchase Order.  
3.4 Where any Products are provided on an ongoing or fixed term basis, such Products will be provided for the Term stated in the Purchase Order in relation to each such Product. 

4. Obligations of the Customer  

The Customer shall: 

4.1 Pay the Company all Fees that the Company is entitled to under the Agreement. 
4.2 Cover all of its own expenses incurred pursuant to the Agreement. 
4.3 Comply with all applicable international, national, state/provincial, regional and local laws and regulations in performing its duties and in any of its dealings with respect to the Products. 

5. Obligations of the Company 

The Company shall: 

5.1 Provide all Products subject to the provisions of these General Terms and Conditions.
5.2 Provide the Goods subject to the Special Terms - Goods.  
5.3 Provide the SaaS Services subject to the Special Terms – SaaS Services.  
5.4 Provide the Consultancy Services subject to the Special Terms – Consultancy Services. 

6. Fees 

6.1 The Customer shall pay the Company the Fees set out in each Purchase Order.  
6.2 The Company may increase the Fees on giving notice to the Customer at any time before delivery of the Goods and/or SaaS Services, to reflect any increase in the cost of the Goods and/or SaaS Services to the Company that is due to: 
    6.2.1 Any factor beyond the control of the Company (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs); 
    6.2.2 Any request by the Customer to change the delivery date(s), quantities or types of Goods and/or SaaS Services ordered, or the Goods and/or SaaS Services specification; or 
    6.2.3 Any delay caused by any instructions of the Customer in respect of the Goods and/or SaaS Services or failure of the Customer to give the Company adequate or accurate information or instructions in respect of the Goods and/or SaaS Services. 
6.3 After the expiry of any Initial Term set out in a Purchase Order for a particular Product(s), the Company may increase the Fees for such Product(s) at the start of each Renewal Term. The new Fees shall apply for the duration of each applicable Renewal Term for that Product(s). 

7. Invoicing 

7.1 All Fees shall be invoiced as set out in each Purchase Order.
7.2 All Fees are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Agreement by the Company to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT as are chargeable on the supply of the Products at the same time as payment is due for the supply of the Products. 
7.3 Each Party shall pay all other taxes, duties, levies imposed by all foreign, federal, state and local authorities (including without limitation, export, sales, use, excise and withholding taxes) based on any amounts paid or payable by such party under the Agreement. However, no party will be responsible for taxes based on the net income of any other party. Any applicable withholding taxes will be added to the Fees to be paid to the Company if, and as far as, the Company is obliged to pay withholding taxes according to local applicable tax laws.  

8. Payments 

8.1 The Customer shall pay all invoices within 30 days of their due date, in full without any set-off, counterclaim, deduction or withholding except as required by law. The Company may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Company to the Customer. 
8.2 Time for payment of invoices shall be of essence. 
8.3 All Fees shall be paid in cleared funds to a bank account nominated in writing by the Company, 
8.4 If the Customer believes that any invoice is incorrect, it must notify the Company in writing within 14 days of the invoice date but may not withhold payment of the Fee in whole or in part. 
8.5 If the Customer fails to make any payment due to the Company under the Agreement by the due date for payment, the Customer shall pay interest on the overdue amount at the commercial interest rate as meant in Article 6:119a Dutch Civil Code. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay interest together with the overdue amount. 
8.6 The Company reserves the right to recover any costs and reasonable legal fees it incurs in recovering overdue payments. 
8.7 The Customer agrees and accepts that in the event of non-payment of any invoice and without limiting other remedies available to the Company, the Company may suspend access to and use of the SaaS Services, withhold delivery or refuse to supply Goods and stop providing Consultancy Services until such time as all outstanding amounts are paid in full. 

9. Delivery 

9.1The Company reserves the right to refuse any orders placed by the Customer or to delay delivery of any Products, if the Customer: 
    9.1.1 Fails to make any payment under the Agreement;
    9.1.2 Fails to meet the credit or financial requirements established by the Company, including any limitation on allowable credit;
    9.1.3 Materially breaches any of its obligations under the Agreement. 
9.2 The Company reserves the right to discontinue the manufacture, license or sale of any or all Products at any time, and to refuse any orders for such discontinued Products without any liability whatsoever to the Customer or any other third party. The Company shall give the Customer at least ninety (90) days advance notice of any intention to discontinue Products. No such refusal or delay in delivery will be deemed a termination or breach of the Agreement.
9.3 If the Company's performance of any of its obligations in respect of provision of the Consultancy Services or SaaS Services is prevented or delayed by any act or omission of the Customer or failure by the Customer to perform any relevant obligation (“Default”): 
    9.3.1 The Company shall without limiting its other rights or remedies have the right to suspend performance of the Consultancy Services and/or SaaS Services until the Customer remedies the Default, and may rely upon the Default to relieve the Company from performance of any of its obligations to the extent the Default prevents or delays the Company's performance of any of its obligations; 
    9.3.2 The Company shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Company's failure or delay in performing any of its obligations as a result of a Default; and 
    9.3.3 The Customer shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Default. 

10. Termination 

10.1 Without limiting its rights or remedies, either party has the right to terminate this Agreement immediately if:
    10.1.1 The other party commits a material breach of its obligations under the Agreement and (if such breach is remediable) fails to remedy that breach within 30 days after receipt of notice in writing to do so;  
    10.1.2 The other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) if the other party is granted a moratorium, whether or not provisional, a petition for bankruptcy is filed for the other party or the other party’ company is liquidated or dissolved other than for restructuring or a merger of companies; 
    10.1.3 The other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; 
    10.1.4 A petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party; 
    10.1.5 The other party (being an individual) is the subject of a bankruptcy petition or order;  
    10.1.6 A creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; 
    10.1.7 An application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);  
    10.1.8 The holder of a qualifying charge over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver; A person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;  
    10.1.9 Any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clauses 10.1.2 to 10.1.8 above; 
    10.1.10 The other party suspends, threatens to suspend, ceases or threatens to cease to carry on all or substantially the whole of its business; 
    10.1.11 The other party's financial position deteriorates to such an extent that in the Company's opinion the Customer's capability to adequately fulfil its obligations under the Agreement has been placed in jeopardy; or 
    10.1.12 The other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.  
10.2 Without limiting its other rights or remedies, the Company may terminate the Agreement with immediate effect by giving written notice to the Customer if: 
    10.2.1 The Customer fails to pay any amount due under the Agreement on the due date for payment; or 
    10.2.2 The Customer fails to pay any amount due under any other contract between the Customer and the Company on the due date for payment. 
10.3 Without limiting its other rights or remedies, the Company may suspend the supply of Products or all further deliveries of Goods under the Agreement or any other contract between the Customer and the Company if the Customer fails to pay any amount due under the Agreement or any other contract between the Customer and the Company on the due date for payment, the Customer becomes subject to any of the events listed in clause 10.1.2 to clause 10.1.12, or the Company reasonably believes that the Customer is about to become subject to any of them. 
10.4 Each party has the right to terminate the Agreement without cause, upon or after expiry of the Initial Term, by giving the other party 60 days written notice prior to the start of any Renewal Term. Such notice shall be effective from the expiry of the current Renewal Term.
10.5 Upon termination of the Agreement: 
    10.5.1 All Purchase Orders will automatically terminate; 
    10.5.2 The Customer shall immediately pay to the Company all of the Company's outstanding unpaid invoices and interest and, in respect of Goods and Consultancy Services supplied but for which no invoice has yet been submitted, the Company shall submit an invoice, which shall be payable by the Customer immediately on receipt and, in respect of SaaS Services, the Company shall raise an invoice for any outstanding amounts due, which shall be payable by the Customer immediately on receipt; and 
    10.5.3 All licences granted under the Agreement shall terminate on the effective date of termination; 
    10.5.4 The Customer shall cease using the SaaS Services; 
    10.5.5 The Customer shall return all Company Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Company may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Agreement. 
10.6 In the event that the Customer has pre-paid any amounts in respect of the Products, the Company will only credit the Customer for any unearned portion of the pre-paid amounts in the event that the Company terminates the Agreement early without cause or the Customer terminates early with cause. In all other circumstances the Company will not provide credit for any unearned portion of any pre-paid amounts. 
10.7 Termination of the Agreement for any reason shall not affect the accrued rights and remedies of the parties arising under this Agreement and in particular without limitation the right to recover damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry. All clauses which by their nature should survive termination, shall survive the expiry or termination of the Agreement and shall remain in force and effect.  

11. Intellectual Property Rights 

11.1 The Customer acknowledge the exclusive right of the Company, its licensors or any third party owners in and to all IPRs in the Products and all other materials covered by the Agreement.  
11.2 The Customer acknowledges that, in respect of any third party IPRs in the Goods, Consultancy Services or SaaS Services the Customer's use of any such IPRs is conditional on the Company obtaining a written licence from the relevant licensor on such terms that will either: 
    11.2.1 Entitle the Company to sub-licence such rights to the Customer; or 
    11.2.2 Grants the Customer a licence or sub-licence directly with the relevant licensor; 
and where the Company is required to pass on third party licence terms to the Customer, the Customer agrees to be bound by the terms of such third party licences. 
11.3 All Company Materials are the exclusive property of the Company. 

12. Confidential Information 

12.1 Each party may use the Confidential Information of the other only for the purposes of the Agreement. Each party must keep confidential all Confidential Information disclosed to it, except where the recipient of Confidential Information is required to disclose the Confidential Information by law to any regulatory, governmental or other authority with relevant powers to which either party is subject. 
12.2 Each party may disclose the Confidential Information of the other party to those of its employees and agents who need to know the Confidential Information for the purposes of the Agreement, but only if the employee or agent is bound by confidentiality undertakings equivalent to those set out in the Agreement. 
12.3 Both parties agree to return (or destroy) all documents, materials or data containing Confidential Information to the disclosing party without delay upon completion of the Consultancy Services or termination or expiry of the Agreement. 
12.4 The obligations of confidentiality under the Agreement do not extend to information that: 
    12.4.1 Was in the other party’s lawful possession before the negotiations leading to the Agreement; or 
    12.4.2 Is, or after the Commencement Date, becomes publicly known other than through any act or omission of the receiving party; or  
    12.4.3 Is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or 
    12.4.4 Is independently developed by the receiving party, which independent development can be shown by written evidence; or 
    12.4.5 Is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body. 

If either party is required to disclose any Confidential Information pursuant to clause 12.4.5 such party shall, where lawfully permitted to do so: 
    
    12.4.6 Promptly consult with, and take into account any comments from the other party prior to making any disclosure; and  
    12.4.7 Work with the other party to ensure that any exemptions or other legitimate means of preventing disclosure or limiting disclosure are used to the fullest extent possible. 
12.5 The parties acknowledge and agree that without prejudice to the general confidentiality provisions in this clause 12 and without limitation, all information falling within the definition of Confidential Information and any information which is supplied by the disclosing party to the receiving party pursuant to the Agreement or the negotiation thereof is: 
    12.5.1 Confidential Information the disclosure of which by the receiving party would be an actionable breach of confidence; or  
    12.5.2 A trade secret of the disclosing party; and  
    12.5.3 Information, the disclosure of which would be likely to prejudice the commercial interests of the disclosing party or of any other person. 
12.6 Each party shall be entitled to pursue equitable relief, including injunctions and specific performance, as a remedy for any breach of clause 12 of this Agreement. Such equitable relief shall be in addition to and not exclusive of any other relief to which any of the parties may be entitled. 

13. Customer Data 

13.1 The Company understands that data may be valuable however data loss during provision of the Products is always a possibility, and in some cases, data may be unrecoverable, erased, or reformatted. It is therefore the Customer's responsibility to back up all existing data, software, and/or programmes, and to decide whether to erase any such data, prior to entering into the Agreement.  

14. Data Protection 

14.1 Each party undertakes to comply with its obligations under relevant applicable data protection laws, principles and agreements. 
14.2 To the extent that personal data is processed when the Customer, Partner Customers or Authorised Users use the Products, 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 obligations under applicable data protection law and the terms of the DPA.  
14.3 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. 
14.4 Where the Company collects and processes personal data of a Customer, Partner Customer or Authorised User as a data controller, when providing the Products to any of them, such collection and processing shall be in accordance with the Privacy Policy.  

15. Warranties 

15.1 Each party warrants and represents that: 
    15.1.1 It has full corporate power and authority to enter into the Agreement and to perform the obligations required hereunder;  
    15.1.2 The execution and performance of its obligations under the Agreement does not violate or conflict with the terms of any other agreement to which it is a party and is in accordance with any applicable laws; and  
    15.1.3 It shall respect all applicable laws and regulations, governmental orders and court orders, which relate to the Agreement. 
15.2 Except as expressly stated in the Agreement, 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 excluded to the fullest extent permitted by law. 

16. Liability 

16.1 Nothing in the Agreement shall limit or exclude the Company's liability for: 
    16.1.1 Death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; 
    16.1.2 Fraud or fraudulent misrepresentation; 
    16.1.3 Breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); 
    16.1.4 Breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); 
    16.1.5 Defective products under the Consumer Protection Act 1987; or 
    16.1.6 Wilful misconduct. 
16.2 The Company shall not be liable for any Consequential Loss arising out of or related to the Agreement, whether based on contract or tort (including negligence or breach of statutory duty), misrepresentation or otherwise, even if a party was advised of the possibility of such damages.  
16.3 The Company shall not be liable for any loss of profits (whether direct or indirect) arising out of or related to the Agreement, whether based on contract or tort (including negligence or breach of statutory duty), misrepresentation or otherwise, even if a party was advised of the possibility of such damages. 
16.4 Subject to clauses 16.1. to 16.3 inclusive the total liability of the Company to the Customer in aggregate (whether in contract, tort, breach of statutory duty or otherwise) for any and all claims relating to or arising under the Agreement, including any indemnity or contribution shall be limited to the total Fees (excluding all taxes) paid by the Customer to the Company for the Goods and/or, SaaS Services and/ or Consultancy Services, as applicable, during the 12 month period immediately prior to either: 
    16.4.1 The date on which the circumstances resulting in the Company’s liability arose; or 
    16.4.2 If one such specific date cannot be agreed, or ascertained, the date on which the Company’s liability is agreed or determined. 

If the duration of the Agreement has been less than 12 months, such shorter period shall apply. 

16.5 The Customer shall not raise any claim under the Agreement more than 1 year after:  
    16.5.1 The discovery of the circumstances giving rise to a claim; or  
    16.5.2 The effective date of termination or expiry of the Agreement. 
16.6 The parties acknowledge and agree that in entering into the Agreement, each had recourse to its own skill and judgement and have not relied on any representation made by the other, their employees or agents. 

17. Insurance 

17.1 For the Term of the Agreement and for a period of 12 months thereafter, the Customer shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance and public liability insurance to cover its liabilities that may arise under or in connection with the Agreement and shall, at the request of the Company produce both the insurance certificate giving details of cover and the receipt for the current year's premium in respect of each insurance. 

18. Assignment 

18.1 No party may assign or transfer its rights under the Agreement without the prior written consent of the other party, such consent shall not be unreasonably withheld, however the Company shall be entitled to assign the Agreement to: 
    18.1.1 Any company in the Company’s group of companies; or 
    18.1.2 Any entity that purchases the shares or assets of the Company as the result of a merger, takeover or similar event. 

19. Relationship between the Parties 

19.1 The parties to the Agreement are independent contractors and nothing in the Agreement will be construed as creating an employer-employee relationship. The Customer shall not have, and shall not represent that it has, any power, right or authority to bind the Company, or to assume or create any obligation or responsibility, express or implied, on behalf of the Company. 

20. Force Majeure 

20.1 Except with respect to the obligation to pay the Fees, if a party is wholly or partially unable to comply with its obligations under the Agreement due to Force Majeure, then that party’s obligation to perform in accordance with the Agreement will be suspended for the duration of the Force Majeure, subject to the non-defaulting party’s right to terminate.  
20.2 As soon as practicable after an event of Force Majeure arises, the party affected by Force Majeure must notify the other party of the extent to which the notifying party is unable to perform its obligations under the Agreement. 
20.3 The Company shall not be liable to the Customer as a result of any delay or failure to perform its obligations under the Agreement as a result of Force Majeure. If the Force Majeure prevents the Company from providing any of the Products for more than 2 weeks, the Company shall, without limiting its other rights or remedies, have the right to terminate the Agreement immediately by giving written notice to the Customer. 

21. Miscellaneous 

21.1 The rights granted to the parties under the Agreement are non-exclusive. 
21.2 The Agreement and its schedules, annexes and appendices constitute the entire agreement and understanding between the parties and supersede all prior agreements, negotiations and discussions between the parties relating to the subject matter of the Agreement.  
21.3 In the event of any inconsistency between the content of the main terms of the Agreement and its schedules, annexes or appendices, the terms of Schedule 1 shall prevail, followed by Annexes 2, 3, and 4, the General Terms and Conditions (Annex 1), the main terms of the Agreement and then the appendices. Where more than one Annex applies to the Agreement, the terms of Annexes 2, 3 and 4 shall prevail over the terms of Annex 1 in relation to the Products specified in Annex 2, 3 or 4. 
21.4 Should a provision of the Agreement be invalid or become invalid then the legal effect of the other provisions shall be unaffected. A valid provision is deemed to have been agreed which comes closest to what the parties intended commercially and shall replace the invalid provision.   
21.5 Amendments to, or notices to be sent under the Agreement, shall be in writing and shall be deemed to have been duly given if sent by registered post to a party at the address given for that party in the Agreement. Notwithstanding the aforesaid, the Company may change or modify the terms of the Agreement in order to comply with a change in applicable law, upon giving the Customer 30 days notice via email. All changes shall be deemed to have been accepted unless the Customer terminates the Agreement prior to the expiry of the 30 day period. 
21.6 Each party acknowledges that it has not entered into the 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 the Agreement. 
21.7 Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way. 
21.8 Failure to exercise, or any delay in exercising, any right or remedy under the Agreement, or at law or equity, shall not be a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy. 
21.9 Nothing contained in the Agreement is intended to be enforceable by any third party pursuant to any rights that such third party may have under applicable law or otherwise and the Contracts (Rights of Third Parties) Act 1999 is hereby specifically excluded. 
21.10 Neither party shall make any public statement, press release or other announcement relating to the terms or existence of the Agreement, or the business relationship of the parties, without the prior written consent of the other party. Notwithstanding the aforesaid the Company may use the Customer’s name and trademarks (logo only) to list it as a client of the Company on its website and in other marketing materials and information. 
21.11 Each party will pay its own legal, accountancy and other costs arising out of and in connection with the Agreement. 

22. Dispute Resolution 

22.1 The parties will use their respective reasonable efforts to negotiate in good faith and settle any dispute that may arise out of or in relation to the Agreement. 
22.2 If any such dispute cannot be settled amicably within 30 days through ordinary negotiations of the sales directors of each party, the dispute shall be escalated in writing to the chief operating officer of the Company and the chief financial officer of the Customer who shall in good faith try and resolve the dispute. If the dispute or difference is not resolved within 14 days of the dispute being escalated the parties shall then be entitled to pursue their claim in accordance with clause 23 below. 

23. Governing Law and Jurisdiction 

23.1 The Agreement shall be governed by and construed in accordance with the laws of England and Wales. The courts of England shall have exclusive jurisdiction for the settlement of all disputes arising under the Agreement. 

Annex 2. SPECIAL TERMS - CONSULTANCY SERVICES 

These Special Terms - Consultancy Services apply to the Agreement between the Customer and the Company where Consultancy Services are purchased. These Special Terms – Consultancy Services apply in addition to the General Terms and Conditions (Annex 1) in relation to the Consultancy Services only. 

1. Definitions 

1.1 All terms in capitals used herein shall have the meaning given to them below unless defined otherwise in the main terms of the Agreement. 
 

“Customer Data”	means information or data of the Customer provided to the Company in connection with the Consultancy Services;
“Functional Description”	means the description of the Consultancy Services set out in the SOW;
“Illegal Content”	means any data or content which is defamatory, or constitutes a breach of the IPR or legal rights of any third party;
“Implementation Period”	means the implementation period set out in a SOW;
“Implementation Plan”	means the written document setting out the detailed implementation of the Consultancy Services, agreed after the Effective Date and set out in a SOW;
“Term”	means any term set out in a Purchase Order for the provision of the Consultancy Services;
“Working Hours”	means 9.00am – 5.30pm local Netherlands time, on a Business Day.

2. Supply of Consultancy Services  

2.1 The Customer engages the Company and the Company agrees to provide the Consultancy Services to the Customer in accordance with the terms of the Agreement, as more particularly set out in the SOW. 
2.2 The Company shall use all reasonable endeavours to meet any performance dates for providing the Consultancy Services set out in the Purchase Order or SOW, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Consultancy Services. 
2.3 The Company shall have the right to make any changes to the Consultancy Services which are necessary to comply with any applicable law, regulation or safety requirement, or which do not materially affect the nature or quality of the Consultancy Services, and the Company shall notify the Customer in any such event. 

3. Licence to use the Deliverables 

3.1 Subject to the payment of the Fees, the Customer is granted a non-exclusive, non-transferable licence to use the Deliverables (including any associated IPR and Confidential Information of the Company). The licence to use the Deliverables shall commence from any Effective Date included in the Purchase Order relating to the Consultancy Services and continue for any Term stated in the Purchase Order for the Consultancy Services. 

4. Intellectual Property Rights 

4.1 All IPR and title to Company Materials (save to the extent these incorporate any non-Company IPR or third party owned items) shall remain with the Company.  
4.2 The Customer shall retain sole ownership of all rights, title and interest in and to Customer Data and its pre-existing IPR and shall have the sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data. The Customer grants the Company a non-exclusive, licence to use Customer Data, its IPR and any third party owned item from the Commencement Date for the Term of the Agreement to the extent required for the provision of the Consultancy Services. 
4.3 The Customer grants the Company a non-exclusive, non-transferable, revocable licence to display its name, logo and trademarks, as designated and/or amended by the Customer from time to time and as required in the provision of the Consultancy Services. 

5. Customer Obligations 

5.1 The Customer shall: 
    5.1.1 Ensure that the terms of the Purchase Order and SOW are complete and accurate; 
    5.1.2 Cooperate with the Company in all matters relating to the Consultancy Services; 
    5.1.3 Provide the Company, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation and other facilities as reasonably required by the Company to provide the Consultancy Services; 
    5.1.4 Provide the Company with such information and materials as the Company may reasonably require to supply the Consultancy Services and ensure that such information is accurate in all material respects; 
    5.1.5 Keep and maintain all Company Materials at the Customer's premises in safe custody at its own risk, maintain the Company Materials in good condition until returned to the Company, and not dispose of or use the Company Materials other than in accordance with the Company's written instructions or authorisation; 
    5.1.6 Notify the Company of any changes to the Customer’s account or other details and ensure that the information that the Company holds in respect of the Customer is correct, up to date and complete. 

6. Term and Termination 

6.1 The Consultancy Services shall commence on the date set out in the SOW and shall continue until expiry of any fixed term set out in the SOW, completion of the Consultancy Services or pursuant to any early termination right available under the terms of the Agreement. 
6.2 In addition to any other right of termination, the Company may terminate the Consultancy Services provided under any Purchase Order with immediate effect if:  
    6.2.1 The Customer is in breach of these Special Terms – Consultancy Services; or 
    6.2.2 The Company is prohibited under applicable law, or otherwise from providing the Consultancy Services. 

7. Fees  

7.1 All Fees shall be calculated on a Time and Materials Basis.  
7.2 The standard daily rate for each individual who provides Consultancy Services is based upon an individual working 7.5 hours during Working Hours on a Business Day.  
7.3 The Company shall be entitled to charge an overtime rate of 150% per cent of the standard daily rate on a pro-rata basis for each part day or for any time worked by individuals who provide Consultancy Services outside Working Hours or Business Days. 
7.4 The Company shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Company engages in connection with providing the Consultancy Services including, but not limited to travel expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Company for the performance of the Consultancy Services, and for the cost of any materials. 
7.5 The Company reserves the right to increase its standard daily rates for the Consultancy Services, provided that such rates cannot be increased more than once in any 12 month period of the Term of the SOW. The Company shall give the Customer written notice of any such increase 1 month before the proposed date of the increase. If such increase is not acceptable to the Customer, it shall notify the Company in writing within 3 weeks of the date of the Company's notice and the Company shall have the right without limiting its other rights or remedies to terminate the Purchase Order by giving 1 week’s written notice to the Customer. 

8. Invoicing 

8.1 The Company shall invoice the Customer the Fees set out in the Purchase Order for the provision of the Consultancy Services. 
8.2 All Fees shall be invoiced as set out in the Purchase Order. 

9. Payment Terms 

9.1 The Customer shall pay the Company the Fees for the provision of the Consultancy Services as set out in each Purchase Order

10. Representations and Warranties 

10.1 The Company warrants and represents that: 
    10.1.1 The Consultancy Services shall be performed with reasonable skill and care and in a professional manner. 
    10.1.2 The Deliverables will operate to provide in all material respects the facilities and functions implemented by the Company, as set out in the SOW. If there is a breach of this warranty, the Company shall use reasonable commercial endeavours, to correct any material defect. Notwithstanding the aforesaid, the Company shall only be obliged to remedy any material defect if: (i) the Company is notified immediately in writing upon discovery of the defect; and (ii) following the Company’s examination of the Deliverables it is established that such a defect exists. 
10.2 The warranties given in clause 10.1 do not cover deficiencies or damages relating to: 
    10.2.1 Any third party components not provided by the Company; or  
    10.2.2 Any third party provided connectivity necessary for the provision or use of the Deliverables; or  
    10.2.3 Compliance with third party software or products, non-Company programmes or data used in combination with the Deliverables except as set out in the SOW; or  
    10.2.4 A failure of the Deliverables to conform with the Functional Description caused by the use or operation of the Deliverables with an application or in an environment other than that set out in the SOW; or  
    10.2.5 Modifications made to the Deliverables not carried out by the Company.  
10.3 No warranty is made regarding the results the can be achieved from using the Deliverables or that the Deliverables will operate uninterrupted or error free. 
10.4 The Customer warrants and represents that: 
    10.4.1 It rightfully owns the necessary user rights, copyrights and ancillary copyrights and permits required for it to fulfil its obligations under the Agreement; 
    10.4.2 It shall maintain reasonable security measures (as may change over time) covering, without limitation, treating any identification, password or username or other security device for use of the Deliverables with due diligence and care and take all necessary steps to ensure that they are kept confidential, secure and are used properly and are not disclosed to unauthorised persons. Any breach of the above shall be immediately notified to the Company in writing; 
    10.4.3 It shall ensure that its network and systems comply with the relevant specification provided by the Company in the SOW and that it is solely responsible for procuring and maintaining its network connections and telecommunications links from its systems and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the Internet. 
10.5 All third party content or information provided by the Company via the Deliverables, for example prices is provided “as is”. The Company provides no warranties in relation to such content or information and shall have no liability whatsoever for use or reliance upon such content or information. 

11. Contacts 

11.1 The Customer shall provide a designated application support contact who will be responsible for and have sufficient information to respond to support questions. 
11.2 The Customer shall provide a designated billing contact with all relevant contact information to respond to billing and payment questions regarding the Consultancy Services. 

12. Miscellaneous 

12.1 In the event of any inconsistency between the content of these Special Terms – Consultancy Services and the remainder of the terms of the Agreement, the terms of Schedule 1 shall prevail followed by these Special Terms – Consultancy Services in relation to the Consultancy Services, and Annexes 3 and 4 in relation to other Products, followed by the General Terms and Conditions (Annex 1), the main terms of the Agreement and then the appendices. 

Annex 3. SPECIAL TERMS - GOODS 

These Special Terms – Goods apply to the Agreement between the Customer and the Company where Goods are purchased. These Special Terms – Goods apply in addition to the General Terms and Conditions (Annex 1) in relation to the Goods only. 

1. Definitions 

1.1 All terms in capitals used herein shall have the meaning given to them below unless defined otherwise in the main terms of the Agreement.

 

“Customer Data”	means information or data of the Customer provided to the Company in connection with the Goods;
“Delivery Location”	means the locations to which Goods shall be delivered as set out in the Purchase Order, or such other location as the parties may agree at any time after the Company notifies the Customer that the Goods are ready;
“Functional Description”	means the description of the Goods set out in Schedule 1 of the Agreement;
“Software”	means any software which is made available to the Customer by the Company, its licensors or a third party as Goods or as part of any Goods.

2. Goods 

2.1 The Customer shall purchase the Goods set out in each Purchase Order from the Company. 
2.2 The Company reserves the right to amend the specification of the Goods during the Term of the Agreement if required by any applicable law or regulatory requirements. 
2.3 Any samples, drawings, descriptive matter or advertising issued by the Company and any descriptions of the Goods or illustrations on the Company’s website or descriptions of the Goods contained in the Company’s catalogues or brochures or on the Company’s website are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Agreement or have any contractual force and the Customer agrees that it does not rely in any way on them when entering into the Agreement. 
2.4 The Company aims to ensure that all information on www.airsys.com/eur is complete, correct and current. If the Company unintentionally publishes information on its website that is incomplete or incorrect, it will try to correct this, but the Company cannot and will not be held responsible for any Consequential Loss caused by the use of the website or the information made available on the website. 

3. Delivery of the Goods 

3.1 Delivery of the Goods is completed on the date the Goods arrive at the Delivery Location. 
3.2 Any dates quoted for delivery of the Goods are approximate only, and time of delivery is not of the essence.  
3.3 If the Company fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods.  
3.4 The Company shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by Force Majeure, the Customer's failure to provide the Company with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods. 
3.5 If the Customer fails to accept or take delivery of the Goods within 2 Business Days of the Company notifying the Customer that the Goods are ready, then except where such failure or delay is caused by Force Majeure or by the Company’s failure to comply with its obligations under the Agreement in respect of the Goods: 
    3.5.1 Delivery of the Goods shall be deemed to have been completed at 9.00 am on the 3rd Business Day following the day on which the Company notified the Customer that the Goods were ready; and 
    3.5.2 The Company shall store the Goods until delivery takes place and charge the Customer for all related costs and expenses (including insurance). 
3.6 The Customer shall not be entitled to reject the Goods if the Company delivers up to and including 5 per cent more or less than the quantity of Goods ordered, but a pro-rata adjustment shall be made to the applicable invoice on receipt of notice from the Customer that the wrong quantity of Goods was delivered. 
3.7 The Company may deliver the Goods in instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment. 
3.8 The Customer must notify the Company within 48 Business Hours of any short shipment or other material error (“Error”) in any delivery made by the Company to the Customer.  If the Customer fails to notify the Company in accordance with this clause, the Company shall have no liability whatsoever for the Error. 
3.9 The Customer cannot cancel Purchase Orders accepted by the Company unless the Company agrees to the cancellation in writing.  The Company may, at the Company’s sole discretion, agree to cancel a Purchase Order for Goods ordered in error on terms that indemnify the Company against any losses.   If the Goods ordered in error have already been shipped by the Company, such terms will include: 
    3.9.1 Return of the Goods within 30 days from the date of the original invoice for the Goods; 
    3.9.2 That the Goods are, when received back by the Company and at the sole discretion of the Company, suitable for resale by the Company; and 
    3.9.3 A fee of 20 per cent of the value of the Goods plus shipping. 
3.10 Clause 3.9 will not apply to bespoke or customised items ordered by the Customer for which no such right of return is offered by the Company. 

4. Title and Risk 

4.1 The risk in the Goods shall pass to the Customer on completion of delivery. 
4.2 Title to the Goods or licence to use any Software in the Goods as appropriate shall not pass to the Customer until the Company receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Company has supplied to the Customer, in which case title to the Goods or licence to use any Software in the Goods as appropriate shall pass at the time of payment of all such sums. 
4.3 Until title to the Goods has passed to the Customer where applicable, the Customer shall: 
    4.3.1 Store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Company’s property; 
    4.3.2 Not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; 
    4.3.3 Not sell, charge, pledge or otherwise encumber the Goods; 
    4.3.4 Maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Company’s behalf from the date of delivery; 
    4.3.5 Notify the Company immediately if it becomes subject to any of the events listed in the General Terms and Conditions relating to termination; and 
    4.3.6 Give the Company such information relating to the Goods as the Company may require from time to time. 
4.4 If before title to any Goods passes to the Customer the Agreement is terminated by the Company or the Customer becomes subject to any of the events listed in the General Terms and Conditions relating to termination, then, without limiting any other right or remedy the Company may have, the Company may at any time: 
    4.4.1 Require the Customer to deliver up all Goods in its possession; and 
    4.4.2 If the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them. 

5. Licence to use the Software 

5.1 Subject to the payment of the Fees, the Customer is granted a non-exclusive, non-transferable perpetual licence to use the Software (including any associated IPR and Confidential Information of the Company or its licensors) from the Effective Date in connection with the Goods. Such licence permits the Customer to download, install and use copies of the Software from the Effective Date. 
5.2 Installation and use of the Software by the Customer is subject to the terms and conditions of any third party owner of the Software. The Customer shall agree to comply with any third party terms and conditions applicable to the Software before downloading, installing or using the Software.  
5.3 Unless otherwise specified in the Agreement, the Software is provided and may only be used as intended by the Company and/or its licensors. 
5.4 The Company and its licensors and providers of the Software reserve the right to electronically monitor use of the Software. 

6. Intellectual Property Rights 

6.1 All IPR and title to the Software shall remain with the Company and/or its licensors. No interest or ownership in the Software, IPR or otherwise is transferred to the Customer under the Agreement. 
6.2 The Customer shall retain sole ownership of all rights, title and interest in and to Customer Data and its pre-existing IPR and shall have the sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data. The Customer grants the Company a non-exclusive, licence to use Customer Data, its IPR and any third party owned item from the Commencement Date for the Term of the Agreement to the extent required for the provision of the Goods and Services. 
6.3 The Customer is not allowed to remove any proprietary marks or copyright notices from the Goods including the Software. 
6.4 The Company may take and maintain technical precautions to protect the Goods including the Software from improper or unauthorised use, distribution or copying.  

7. Fees and Invoicing 

7.1 The Company shall invoice the Customer the Fees set out in the Purchase Order for the provision of the Goods (including any Software). 
7.2 All Fees shall be invoiced as set out in the Purchase Order. 
7.3 Travel fees, incidental costs and other expenses shall be invoiced in addition to the Fees in arrears, as and when they arise on a Time and Materials Basis. 

8. Payment Terms 

8.1 The Customer shall pay the Company the Fees for the provision of the Goods (including any Software) under this Agreement as set out in each Purchase Order. 

9. Representations and Warranties 

9.1 The Company warrants and represents that the Goods shall:  
    9.1.1 Confirm with the description of the Goods set out in the Functional Description and/or the Company’s catalogue(s) and/or the Company’s website; 
    9.1.2 Be of satisfactory quality; and  
    9.1.3 Be fit for any purpose held out by the Company. 
9.2 Notwithstanding any statutory warranty right that a Customer may have, if the Customer notifies the Company in writing within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 9.1. above, the Company shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full provided that: 
    9.2.1 The Company is given a reasonable opportunity of examining the Goods; and 
    9.2.2 The Customer (if asked to do so by the Company) returns the Goods to the Company’s place of business at the Customer’s own cost; and 
    9.2.3 The Customer’s right to any statutory warranty has not expired. 
9.3 The Company shall not be liable for the Goods' failure to comply with the warranty if: 
    9.3.1 The Customer makes any further use of such Goods after giving a notice in accordance with clause 9.1; 
    9.3.2 The defect arises because the Customer failed to follow the Company’s or manufacturer’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; 
    9.3.3 The Customer alters or repairs the Goods without the written consent of the Company; 
    9.3.4 The defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or 
    9.3.5 The Goods differ from the description of the Goods in the Functional Description and/or the Company’s catalogues(s) and/or the Company’s website as a result of changes made to ensure they comply with applicable statutory or regulatory standards. 
9.4 Except as provided in this clause 9, the Company shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 9.1. 
9.5 Subject to any statutory rights to the contrary, the warranty given in clause 9.1 shall not apply to any repaired or replacement Goods supplied by the Company under clause 9.2. 
9.6 The Company shall have no obligation to repair or replace any defective Goods: 
    9.6.1 Where the defect is due to failure of components that are not original to the delivered Goods or caused by abuse, misuse or any external cause, in which case the Company reserves the right to refuse to repair or replace the Goods and stop providing maintenance and support services and shall hold the Customer liable for any diagnostic fee; 
    9.6.2 For any damage to the Goods resulting from any unauthorized modifications or repairs or replacements not performed by the Company; 
    9.6.3 Where any statutory warranty right has expired.  

If damage to the Goods results as set out above in this clause 9.6, the Company shall obtain the Customer's prior authorisation before incurring any additional costs for providing support and maintenance of the Goods, even if the Goods are covered by the warranty in clause 9.1 or a service level agreement. If the Customer declines authorisation, the Company may leave the Goods unrepaired in the damaged condition without any liability whatsoever. 

9.7 The Customer warrants and represents that: 
    9.7.1 It rightfully owns the necessary user rights, copyrights and ancillary copyrights and permits required for it to fulfil its obligations under the Agreement. 
    9.7.2 Its data does not contain any illegal files or data. 

10. Miscellaneous 

10.1 In the event of any inconsistency between the content of these Special Terms – Goods and the remainder of the terms of the Agreement, the terms of Schedule 1 shall prevail followed by these Special Terms – Goods in relation to the Goods, and Annexes 2 and 4 in relation to other Products, followed by the General Terms and Conditions (Annex 1), the main terms of the Agreement and then the appendices. 

Annex 4. SPECIAL TERMS - SAAS SERVICES
 

These Special Terms – SaaS Services apply to the Agreement between the Customer and the Company where SaaS Services are purchased. These Special Terms – SaaS Services apply in addition to the General Terms and Conditions (Annex 1) in relation to the SaaS Services only. 

1. Definitions 

1.1 All terms in capitals used herein shall have the meaning given to them below unless defined otherwise in the main terms of the Agreement. 

 

“Authorised Users”	means employees, agents, consultants or independent contractors of the Customer or Partner Customer who have been expressly authorised by them to receive a password in order to access the Solution or Services online;
“Bug”	means an unwanted or unintended property of the Solution that can be reproduced and causes the Solution to malfunction but does not affect the availability of the Solution;
“Current Version”	means the Version of the Solution available to the Customer on the Commencement Date or subsequently any new Version which replaces it during the Term of the Agreement;
“Customer Data”	means all data imported into the Solution or Services for the purpose of using the Solution and Services or facilitating use of the Solution and Services;
“Documentation”	means the training materials and user manuals relating to the use of the Solution or Services, as well as any additional documentation that the Company specifically creates for the Customer or otherwise provides to assist in the correction of any issue with the Solution or Services;
“Emergency Maintenance”	means maintenance, Upgrades, Updates, repairs to hardware and software related to resolving immediate problems causing instability in the Solution;
“Feedback”	means feedback, innovations or suggestions created by a Customer, Partner Customer or Authorised User regarding the attributes, performance or features of the Solution or Services;
“Functional Description”	means the description of the Solution set out in Schedule 1 of the Agreement;
“Illegal Content”	means any data or content which is defamatory, or constitutes a breach of the IPR or legal rights of any third party;
“Incident”	means a malfunction of the Solution which can be reproduced, is not a Bug and whose root cause is found in the hosting service, network, hardware or third party software components;
“Initial Term”	means the initial term set out in each Purchase Order for the SaaS Services;
“Planned Maintenance”	means maintenance, Upgrades, Updates, installation of new Releases or Versions and repairs which are non-critical and not urgent, to hardware and software;
“Release”	means an Upgrade to the functionality of the Solution which results in a change in the Release number;
“Renewal Term”	means the renewal term set out in each Purchase Order for the SaaS Services;
“Services”	means the hosting, maintenance and support services set out in the SLA;
“Solution”	means the software application described in more detail in the Functional Description;
“Statistical Data”	means aggregated, anonymised data derived from a Customer, Partner Customer or Authorised User using the Solution or Services which does not include any personal data or their Confidential Information;
“Term”	means the term set out in each Purchase Order for the provision of the SaaS Services;
“Travel Fees”	means all reasonable costs associated with any travel and subsistence expenses incurred by the Company (or its employees, permitted subcontractors or agents) in performing its obligations under the Agreement;
“Update”	means any new or updated applications services or tools (including any software programmes) made available by the Company to correct a Bug(s) in the Solution or Services during the Term of the Agreement;
“Upgrade”	means any new or updated applications services or tools (including any software programmes) made available by the Company to improve the functionality of the Solution or Services during the Term of the Agreement;
“Version”	means an Update of the Solution which results in a change in the Version number.

2. Services and Solution 

2.1 The Customer engages the Company and the Company agrees to provide the Solution, Services and Documentation to the Customer in accordance with the terms of the Agreement from the Commencement Date for the Term of the Agreement. 
2.2 The Company shall use all reasonable endeavours to meet any provisioning dates for providing the Solution and Services, but any dates shall be estimates only and time shall not be of the essence for the provision of the Solution and Services. 
2.3 The Company shall have the right to make any changes to the Solution and Services which are necessary to comply with any applicable law, regulation or safety requirement, or which do not materially affect the nature or quality of the Solution and the Services, and the Company shall notify the Customer in any such event. 

3. Licence to use the Solution and Services 

3.1 Subject to the payment of the Fees, the Customer is granted a non-exclusive, non-transferable licence to permit the Customer, Partner Customers or Authorised Users to use the Solution and Services (including any associated IPR and Confidential Information of the Company) from the Commencement Date for the Term of the Agreement for their business operations. Such licence permits the Customer to make copies of software or other information necessary for the Customer to receive the Solution and Services via the Internet. Where open source or third party software is used as part of the Services, such software use by the Customer will be subject to the terms of the open source or third party licences. No additional implied rights are granted beyond those specifically mentioned in this clause 3.1. 
3.2 Notwithstanding the Customer’s statutory rights, no right to modify, adapt, or translate the Solution or Services or create derivative works from the Solution or Services is granted to the Customer. 
3.3 Nothing in the 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 Solution or Services. Disassembly, decompilation or reverse engineering and other source code derivation of the software comprised within the Solution or Services is prohibited. To the extent that the Customer is granted the right by law to decompile such software in order to obtain information necessary to render the Solution or Services interoperable with other software the Company will provide access to any relevant source code or information provided that the Customer makes a written request identifying the relevant details of the Solution or Services with which operability is sought and the nature of the information needed. The Company has the right to impose reasonable conditions including but not limited to the imposition of a reasonable fee for providing such access and information. 
3.4 Unless otherwise specified in this Agreement, the Solution and Services are provided and may only be used in conjunction with: 
    3.4.1 Existing systems and applications in order to facilitate communications between Authorised Users; 
    3.4.2 Providing access to the Solution and Services solely to Authorised Users; and 
    3.4.3 Accessing and using the Documentation as necessary to enable use of the Solution and Services. 
3.5 The Customer may not: 
    3.5.1 Lease, loan, resell, assign, licence, distribute or otherwise permit access to the Solution and Services; or 
    3.5.2 Use the Solution or Services to provide ancillary services related to the Solution or Services; or 
    3.5.3 Permit access to or use of the Solution or Services by or on behalf of any third party; except as permitted in the Agreement. 
3.6 The Company reserves the right to electronically monitor the use of the Solution and Services. 

4. Intellectual Property Rights 

4.1 All IPR and title to the Solution, Services and Documentation (save to the extent these incorporate any Customer Data, non-Company IPR or third party owned item) shall remain with the Company and/or its licensors and subcontractors. No interest or ownership in the Solution, Services, Documentation, IPR or otherwise is transferred to the Customer under the Agreement. 
4.2 The Customer shall retain sole ownership of all rights, title and interest in and to Customer Data and its pre-existing IPR and shall have the sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data. The Customer grants the Company a non-exclusive, licence to use Customer Data, its IPR and any third party owned item from the Commencement Date for the Term of the Agreement to the extent required for the provision of the Solution and Services. 
4.3 The Customer is not allowed to remove any proprietary marks or copyright notices from the Solution or Services. 
4.4 The Customer grants the Company a non-exclusive, non-transferable, revocable licence to display its name, logo and trademarks, as designated and/or amended by the Customer from time to time and as required in the creation of correspondence, documentation and website front ends in the provision of the Solution and Services. 
4.5 The Customer assigns all rights, title and interest in any Feedback to the Company. If for any reason such assignment is ineffective, the Customer shall grant the Company a non-exclusive, perpetual, irrevocable, royalty free, worldwide right and licence to use, reproduce, disclose, sub-licence, distribute, modify and exploit such Feedback without restriction. 
4.6 The Customer grants the Company the perpetual right to use Statistical Data and nothing in the Agreement shall be construed as prohibiting the Company from using the Statistical Data for business and/or operating purposes, provided that the Company does not share with any third party Statistical Data which reveals the identity of the Customer, Partner Customer, Authorised Users, or their Confidential Information. 
4.7 The Company may take and maintain technical precautions to protect the Solution and Services from improper or unauthorised use, distribution or copying.  

5. Term and Termination 

5.1 The licence to access and use the Solution and Services shall commence on the Effective Date set out in each Purchase Order for the SaaS Services and continue for the duration of the Initial Term set out in the Purchase Order for the SaaS Services. On expiry of the Initial Term, each licence will automatically renew for successive Renewal Terms as set out in the Purchase Order and continue until either party terminates the licence by giving the other at least  60 days notice at any time. 
5.2 The Customer may terminate any licence under a Purchase Order, without cause, during the Initial Term of a Purchase Order, but shall remain liable to pay all Fees for the remainder of the original Initial Term. Such termination shall be effective upon expiry of the Initial Term. If the Solution and Services are used after termination, the Customer shall be charged re-deployment fees and monthly subscription fees for a minimum of 3 months in addition. 
5.3 In addition to any other right of termination, the Company may terminate the licence to use or access the Solution and Services or the provision of any Services with immediate effect if:  
    5.3.1 The Customer has used or permitted use of the Solution and Services other than in accordance with these Special Terms – SaaS Services; or 
    5.3.2 The Company is prohibited under applicable law, or otherwise from providing the Solution or Services. 
5.4 Upon termination of the Agreement the Company shall:  
    5.4.1 Cease providing the Solution and Services to the Customer;  
    5.4.2 At the option of the Customer, following receipt of a request from the Customer delete (in accordance with the terms of the DPA) or return all Customer Data stored in the Company’s database in its then current format, free of charge, provided that such request is made within 30 days of termination. If the Customer requires any Customer Data to be returned in a different format the Company reserves the right to charge for this additional service on a Time and Materials Basis. 

6. Fees and Invoicing 

6.1 The Company shall invoice the Customer the Fees set out in the Purchase Order for the provision of the Solution and Services. 
6.2 All Fees shall be invoiced as set out in the Purchase Order. 
6.3 Travel Fees, incidental costs and other expenses shall be invoiced in addition to the Fees in arrears, as and when they arise. 

7. Payment Terms 

7.1 The Customer shall pay the Company the Fees for the provision of the Solution and Services under this Agreement as set out in each Purchase Order. 

8. Representations and Warranties 

8.1 The Company warrants and represents that: 
    8.1.1 It has the right to licence the Solution and Services; 
    8.1.2 The Services shall be performed with reasonable skill and care and in a professional manner in accordance with good industry practice and that the Services will be provided in accordance with the SLA; 
    8.1.3 The Solution will operate to provide in all material respects the facilities and functions implemented by the Company as set out in the Functional Description. If there is a breach of this warranty, the Company shall use reasonable commercial endeavours, to correct any material defect or to replace the defective Solution. Notwithstanding the aforesaid, the Company shall only be obliged to remedy any material defect if: (i) the Company is notified immediately in writing upon discovery of the defect; and (ii) following the Company’s examination of the Solution, it is established that such a defect exists. 
8.2 The warranties given in clause 8.1 do not cover deficiencies or damages relating to: 
    8.2.1 Any third party components not provided by the Company; or  
    8.2.2 Any third party provided connectivity necessary for the provision or use of the Solution and Services; or  
    8.2.3 Compliance with third party software or products, non-Company programmes or data used in combination with the Solution or Services except as set out in the Implementation Plan; or  
    8.2.4 A failure of the Solution to conform with the Functional Description caused by the use or operation of the Solution with an application or in an environment other than that set out in the Implementation Plan; or  
    8.2.5 Modifications made to the Solution not carried out by the Company.  
8.3 No warranty is made regarding the results the can be achieved from using the Solution and Services or that the Solution and Services will operate uninterrupted or error free. 
8.4 The Customer warrants and represents that: 
    8.4.1 It rightfully owns the necessary user rights, copyrights and ancillary copyrights and permits required for it to fulfil its obligations under the Agreement; 
    8.4.2 It, Partner Customers and Authorised Users shall maintain reasonable security measures (as may change over time) covering, without limitation, confidentiality, authenticity and integrity to ensure that the access to the Solution and Services granted under the Agreement is limited as set out under the Agreement. In particular the Customer, Partner Customer and Authorised Users shall treat any identification, password or username or other security device for use of the Solution and Services with due diligence and care and take all necessary steps to ensure that they are kept confidential, secure and are used properly and are not disclosed to unauthorised persons. Any breach of the above shall be immediately notified to the Company in writing. The Customer shall be liable for any breach of the Agreement by a Partner Customer or Authorised User; 
    8.4.3 It and Partner Customers shall ensure that their networks and systems comply with the relevant specifications provided by the Company from time to time and that they are solely responsible for procuring and maintaining their network connections and telecommunications links from their systems to the Company’s data centres and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s or Partner Customer’s network connections or telecommunications links or caused by the Internet. 
8.5 All third party content or information provided by the Company via the Solution or Services, for example prices is provided “as is”. The Company provides no warranties in relation to such content or information and shall have no liability whatsoever for use or reliance upon such content or information. 

9. Liability 

9.1 The Customer shall be liable for any breaches of the Agreement caused by the acts, omissions or negligence of any Partner Customer or Authorised User who access the Services and Solutions as if such acts, omissions or negligence had been committed by the Customer itself. 

10. Indemnities 

10.1 The Company shall at its own expense, defend or at its own option settle any claim brought against the Customer by a third party on the basis of an infringement of any IPR by the Solution or Services (excluding any claim deriving from any Customer, Partner Customer or Authorised User provided item) and pay any final judgment entered against the Customer on such issue or any settlement thereof, provided that: 
    10.1.1 The Company is promptly notified of each such claim; 
    10.1.2 The Company is given sole control of the defence and/or settlement; and 
    10.1.3 The Customer fully co-operates and provides all reasonable assistance to the Company in the defence or settlement. 
10.2 If all or part of the Solution or Services becomes, or in the opinion of the Company may become, the subject of a claim or suit of infringement, the Company shall at its own expense and sole discretion: 
    10.2.1 Procure for the Customer the right to continue to use the Solution or Service or the affected part thereof; 
    10.2.2 Replace the Solution or Service or affected part with another suitable non-infringing service or software; 
    10.2.3 Modify the Solution or Services or affected part to make the same non-infringing. 
10.3 The Company shall have no obligations under clauses 10.1 and 10.2 above to the extent that a claim is based on: 
    10.3.1 A modification of the Solution or Services by anyone other than the Company; 
    10.3.2 The combination, operation or use of the Solution or Services with other services or software not provided by the Company if such infringement would have been avoided in the absence of such combination, operation or use; or 
    10.3.3 The use of the Solution or Services in any manner inconsistent with the Agreement; or 
    10.3.4 The negligence or wilful misconduct of the Customer. 
10.4 Clauses 10.1 to 10.3 state sole and exclusive rights and remedies of the Customer and the Company’s entire obligations and liability for any claims made under these clauses. 
10.5 The Customer shall defend, indemnify and hold the Company and its employees, sub-contractors or agents harmless from and against any costs, losses, liabilities and expenses, including reasonable legal costs arising from any claim relating to or resulting directly or indirectly from: 
    10.5.1 Any claimed infringement or breach by a Customer, Partner Customer or Authorised User of any IPR with respect to use of the Solution or Services outside of the scope of the Agreement; or 
    10.5.2 Use by the Company of any Customer Data or a Customer, Partner Customer or Authorised User provided item, in particular storage or publication on the Internet of any Illegal Content; or 
    10.5.3 Any access to or use of the Solution or Services by a Partner Customer, Authorised User or a third party; 
    10.5.4 Breaches of data protection law or regulations or the terms of the DPA by a Customer, Partner Customer or Authorised User; and 
    10.5.5 Any breach of the terms of the Agreement by a Partner Customer or Authorised User; 

and the Company shall be entitled to take reasonable measures in order to prevent Illegal Content from being published on the Internet or breaches of third party rights from continuing. 

10.6 Subject to clauses 10.1 to 10.5 inclusive, each party (“the first party”) indemnifies and undertakes to keep indemnified the other party, its officers, servants and agents (“the second party”) against any costs or expenses (including the cost of any settlement) arising out of any claim, action, proceedings or demand that may be brought, made or prosecuted against the second party under any indemnity contained in clause 10. Such indemnity extends to and includes all costs, damages and expenses (including legal fees and expenses) reasonably incurred by the second party in defending any such action, proceeding claim or demands. 

11. Security 

11.1 The Company shall permit the Customer to specify which Partner Customers, or Authorised Users may access the Services and Solution through its standard application security options. 
11.2 The Customer, Partner Customer and Authorised Users must ensure that each password is only used by the user to which it has been assigned. The Customer is responsible for any and all activities that occur under the Customer’s account and via the Customer’s passwords. The Customer will immediately notify the Company if the Customer becomes aware of any unauthorised use of its account or passwords or breach of security. The Company shall have no liability for any loss or damage arising from the Customer’s failure to comply with these requirements. 
11.3 The Company may suspend access to the Solution and Services, or portion thereof, at any time, if in the Company’s sole reasonable discretion, the integrity or security of the Services or Solution is in danger of being compromised by acts of a Customer, Partner Customer or Authorised Users. The Company shall where possible give the Customer 24 hours written notice, before suspending access to the Services and Solution, giving specific details of its reasons. 

12. Contacts 

12.1 The Customer shall provide a designated application support contact who will be responsible for and have sufficient information to respond to support questions. 
12.2 The Customer shall provide a designated billing contact with all relevant contact information to respond to billing and payment questions regarding the Services. 

13 Miscellaneous 

13.1 In the event of any inconsistency between the content of these Special Terms – SaaS Services and the remainder of the terms of the Agreement, the terms of Schedule 1 shall prevail followed by these Special Terms – SaaS Services in relation to the SaaS Services, and Annexes 2 and 3 in relation to other Products, followed by the General Terms and Conditions (Annex 1), the main terms of the Agreement and then the appendices.