Remapping terms and conditions

THIS AGREEMENT comes into force on commencement of installation of remapping technology or hardware to the customer in the EconomyTuning Order Form.

BETWEEN:

(1) Economy Tuning Ltd a company registered in UK under number 06831342
 whose registered office is at The Courtyard, Sulhampstead Abbots, Berkshire, RG7 4EE (“the Licensor”) and

(2) Customer as stated on the EconomyTuning Order Form (“the Licensee”)

WHEREAS:

(1) The Licensor has developed and owns or has licensed from third parties certain computer software applications to be installed on the customers vehicles electronic control unit(ECU). The purpose is to improve the engine performance or fuel economy or both in relation to vehicles owned or operated by the customer as defined by the supply agreement with RhinoWheels Ltd or its subsidiary Economy Tuning Ltd.

(2) The Licensor has agreed to deliver to the Licensee and install on the Licensee's vehicles the above ECU remapping and or hardware as appropriate and to grant to the Licensee a non-exclusive licence to use such programs, remapping or hardware.

IT IS AGREED as follows:

1. Definitions
In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
“Acceptance Date” the date on which the Licensed programs, remapping or hardware are installed by the Licensee pursuant to clause 7;

“Delivery Date” the delivery date specified on the order form or such extended date as may be agreed with the Licensee;

“Vehicles” such vehicles as may be specified by the Licensee from time to time and is as presently listed on the order form;

“Intellectual Property all vested contingent and future intellectual property rights
  Rights” including but not limited to copyright, trade marks, service marks, design rights (whether registered or unregistered), patents, know-how, trade secrets, inventions, get-up, database rights and any applications for the protection or registration or these rights and all renewals and extensions thereof existing in any part of the world whether now known or in the future created to which the Licensor may be entitled

“Location” the site where the vehicles are to be installed as specified by the Licensee from time to time and as listed on the order form;

“Licence” the licence granted by the Licensor pursuant to clause 2.1;

“Licence Fee” the fee for the Licence provided under this Agreement as agreed on the EconomyTuning Order Form agreed between the parties;

“Licensed Program the Licensed Programs, the Program Documentation and the
  Materials” Media if any applies;

“Licensed Programs ” the systems, applications programs, remapping or hardware and computer programs of the Licensor all releases and versions thereof;

“Media” the media on which the Licensed Programs and the Program Documentation are recorded or printed as provided to the Licensee by the Licensor specified on the order form;

“Program the operating manuals, user instructions, technical literature
  Documentation” and all other related materials in eye-readable form supplied to the Licensee by the Licensor for aiding the use and application of the Licensed programs, remapping or hardware if any apply;

“Specification” the specification of the Licensed Programs describing the facilities and functions thereof, a copy of which can be provided on request;

“Use the Licensed to read all or any part of the Licensed Programs from
  Program Materials” magnetic or other storage media, to load the Licensed Programs on the Vehicles for the storage and running of the Licensed Programs, to read and possess the Program Documentation in conjunction with the use of the Licensed Programs and to possess the Media.

“Support” Support either onsite, telephone or email

2. Grant of Licence
2.1 The Licensor grants to the Licensee a non-exclusive licence to Use any Licensed Program Materials supplied on and in conjunction with the vehicles subject to the terms and conditions contained in this Agreement.
2.2 The Licensee shall Use any Licensed Program Materials supplied for its own internal business purposes only, exclusively on vehicles owned by or operated by the licensee.
2.3 The Use of the Licensed Program Materials is restricted to use on and in conjunction with the vehicles save that:
if the Licensed Program Materials cannot be used with the Vehicles because it is inoperable for any reason then the Licence shall be temporarily extended without additional charge to use with any other vehicles until such failure has been remedied provided that such vehicles are under the direct control of the Licensee. The Licensee shall promptly notify the Licensor of such temporary use and of the commencement and cessation thereof;
the Licensee may with the prior written consent of the Licensor (such consent not to be unreasonably withheld) Use the Licensed Program Materials on and in conjunction with any replacement vehicles (to be specified by type and registration number) if the Use of the Licensed Program Materials on and in conjunction with the Vehicles is permanently discontinued. Upon such consent being given the replacement vehicles shall become the vehicles for the purposes of the Licence. A fee equal to the price per vehicle as stated on the order form is payable for each replacement vehicle.
2.4 The Licensee shall not without the prior written consent of the Licensor allow any vehicles ECU (where the Licensors program is present) to be read via any 3rd party except the main dealer, vehicle distributor or manufacturer for the purpose of diagnostic checks. All other reading, writing or ECU identification is strictly prohibited.
2.5 The Licence shall not be deemed to extend to any programs or materials of the Licensor other than the Licensed Program Materials unless specifically agreed to in writing by the Licensor.
2.6 The Licensee acknowledges that it is licensed to Use the Licensed Program Materials only in accordance with the express terms of this Agreement and not further or otherwise.
2.7 The licensee acknowledges that this agreement becomes irrevocable and binding on installation of the Licensed Program Materials or hardware.
2.8 Support will be provided as per the licensors standard Service Level Agreement (SLA) available on request, SLA is subject to change without warning however changes will be notified in writing within 7 days.
3. Term
The Licence shall commence on the Acceptance Date and shall until vehicle disposal or unless terminated in accordance with any of the provisions of clause 16 or any other clause of this Agreement.
4. Payment
4.1 The Licence Fee shall be paid by the Licensee.
4.2 The Licence Fee and other charges payable under this Agreement are exclusive of any applicable VAT and other sales tax which shall be payable by the Licensee at the rate and in the manner prescribed by law against submission of a valid tax invoice.
4.3 Any charges payable by the Licensee under this Agreement in addition to the Licence Fee shall be paid within 7 days after the receipt by the Licensee of the Licensor's invoice.
4.4 The Licensor shall have the right to charge interest on overdue invoices at the rate of 8% per year above the base rate of NatWest Bank PLC, calculated from the date when payment of the invoice becomes due for payment up to and including the date of actual payment whether before or after judgment.
5. Delivery and Installation
On the Delivery Date the Licensor shall deliver the relevant Licensed Program Materials (if any) to the Licensee and install the Licensed Programs on the Vehicles at the Location. The Licensed Programs so delivered shall consist of one copy of the object code of the Licensed Programs installed onto the vehicle ECU or one hardware installation as specified prior. A copy of the vehicles original program will be created and stored by the Licensor at the licensee’s risk. A copy of the original programs can be supplied on a CD at a cost of £25 per vehicle or all vehicles at the completion of the work on CD at a cost of £500.
6. Risk
Risk in the Media shall pass to the Licensee on delivery. If any part of the Media shall thereafter be lost, destroyed or damaged the Licensor shall promptly replace the same (embodying the relevant part of the Licensed Programs or Program Documentation) subject to the Licensee paying the cost of such replacement.
7. Testing and Acceptance
7.1 The licensee is entitled to test the effectiveness of the Licensed Program Materials using a 3rd party telemetry system or other datalogger agreed between the parties in advance. To qualify the Licensee must have suitable benchmark data covering a period of at least 7 days and 1000 miles prior to installation.
7.2 The Licensee shall supply to the Licensor immediately prior to installation of the Licensed Programs, benchmark data which in the reasonable opinion of the parties is suitable to test whether the Licensed Programs are in accordance with the Specification. The Licensor shall not be entitled to object to the test data or expected results unless the Licensor can demonstrate to the Licensee that they are not suitable for testing the Licensed Programs as aforesaid, in which event the Licensee shall make any reasonable amendments to such benchmark data as the Licensor may request. Subject to the receipt of such benchmark data and expected results, the Licensor shall accept such data.
7.3 The Licensee shall accept the Licensed Programs immediately after the Licensor has demonstrated that the Licensed Programs have correctly processed the test data by achieving the expected results.
7.4 In the event of failure of the Licensed Programs to pass the tests referred to in clause 7.2 the Licensor shall and in any event not later than 14 days following notification of the relevant failure at its own expense correct the errors in the Licensed Programs and notify the Licensee that it is ready to repeat the tests and such tests shall be repeated within 7 days after such notice at a time mutually convenient to both parties.
7.5 In the event of failure of the Licensed Programs to pass the repeat tests referred to in clause 7.4 the Licensee shall be entitled to terminate this Agreement or, by notice to the Licensor within 30 days require the Licensor to correct the errors in the Licensed Programs in which event the provisions of clause 7.4 shall, mutatis mutandis, apply.
7.6 Notwithstanding the above, installation of the Licensed Programs shall be deemed to be completed and the Licensed Programs shall be deemed to be accepted upon successful execution of the tests referred to above or when the Licensed Programs have been put into operational use, whichever is the earlier.
8. Copying
8.1 The Licensee may not make any copies of the Licensed Programs
8.2 No copies may be made of the Program Documentation without the prior written consent of the Licensor. The Licensor shall provide the Licensee with 1 copies of the Program Documentation containing sufficient information to enable proper use of all the facilities and functions set out in the Specification. If the Licensee requires further copies of the Program Documentation then these may be obtained under licence from the Licensor in accordance with its standard scale of charges from time to time in force.
9. Restrictions on Alterations
9.1 The parties acknowledge that the Licensed Programs may be modified by the Licensor in order to integrate and operate with third party software.
9.2 Subject to clause 9.3, the Licensee undertakes not to translate, adapt, vary, modify, disassemble, decompile or reverse engineer the Licensed Program Materials without the Licensor's prior written consent.
9.3 Notwithstanding clause 9.2, in the case of reverse analysis where permitted by applicable law, the Licensee may incidentally decompile the Licensed Programs only if it is essential to do so in order to achieve interoperability of the Licensed Programs with another software program or hardware ('Permitted Purpose') and provided the information obtained by the Licensee during such decompilation is only used for the Permitted Purpose and is not disclosed or communicated to any third party without the Licensor's prior written consent and is not used to create any software which is substantially similar to the expression of the Licensed Program Materials nor used in any manner which would be restricted by copyright.
9.4 Notwithstanding clause 9.3, the Licensee undertakes to first consult the Licensor regarding any data the Licensee requires in order to achieve interoperability or to deduce underlying ideas and principles so that the Licensor may consider making the same available to the Licensee (without the Licensee having to rely on clause 9.3) subject to the restrictions on disclosure set out in clause 9.3.
10. Security and Control
The Licensee shall during the continuance of the Licence:
10.1 effect and maintain adequate security measures to safeguard the Licensed Program Materials from access or use by any unauthorised person;
10.2 retain the Licensed Program Materials and all copies thereof under the Licensee's effective control;
11. Proprietary Rights
11.1 The Licensed Program Materials and the Intellectual Property Rights of whatever nature in the Licensed Program Materials are and shall remain the property of the Licensor.
11.2 The Licensee shall notify the Licensor immediately if the Licensee becomes aware of any unauthorised use of the whole or any part of the Licensed Program Materials by any person.
12. Intellectual Property Rights
12.1 The Licensor shall defend at its own expense any claim brought against the Licensee alleging that the Use of the Licensed Program Materials infringes the Intellectual Property Rights of a third party ('Intellectual Property Claim') and the Licensor shall pay all costs and damages awarded or agreed to in settlement of an Intellectual Property Claim provided that the Licensee:
furnishes the Licensor with prompt written notice of the Intellectual Property Claim;
provides the Licensor with reasonable assistance in respect of the Intellectual Property Claim;
gives to the Licensor the sole authority to defend or settle the Intellectual Property Claim.
12.2 If, in the Licensor's reasonable opinion, the use of the Licensed Program Materials are or may become the subject of an Intellectual Property Claim then the Licensor shall either:
obtain for the Licensee the right to continue using the Licensed Program Materials which are the subject of the Intellectual Property Claim; or
replace or, with the written consent of the Licensee, modify the Licensed Program Materials which are the subject of the Intellectual Property Claim so they become non-infringing.
12.3 If the remedies set out in clause 12.2 above are not in the Licensor's opinion reasonably available, then the Licensee shall return the Licensed Program Materials which are the subject of the Intellectual Property Claim and the Licensee will forfeit the corresponding portion of any Licence Fee, as normally depreciated, whereupon this Agreement shall immediately terminate.
12.4 The Licensor shall have no liability for any Intellectual Property Claim resulting from the Use of the Licensed Program Materials in combination with any vehicles (other than the Vehicles) or programs not supplied or approved by the Licensor or any modification of any item of the Licensed Programs by a party other than the Licensor or its authorised agent.
13. Warranties
13.1 The Licensor warrants that for 365 days following the Acceptance Date:
the Licensed Programs will provide the facilities and functions set out in the Specification when properly used on the Vehicles;
the Licensed Programs will provide the facilities and functions set out in the Specification when vehicles are properly maintained in line with the manufacturers specifications.
the Licensed Programs will provide the facilities and functions set out in the Specification assuming the installations are not tampered with or varied in any way.
the Program Documentation will as necessary provide adequate instructions to enable the Licensee to make proper use of such facilities and functions;
the Licensed Programs will operate fully with any related third party software.
13.2 The Licensor warrants that in providing its obligations under this Agreement it will attain standards of care and skill as high as any currently available in the vehicle remapping industry and that all personnel will have qualifications and experience appropriate for the tasks to which they are allocated.
13.3 The Licensor shall ensure that itself and its servants, agents and subcontractors take all reasonable precautions to ensure that no known viruses for which detection and antidote software is generally available are coded or introduced into the Licensed Programs.
13.4 The Licensor warrants that neither the performance nor functionality of the Licensed Programs is affected by dates before, during or after the year 2000.
13.5 The Licensor warrants that the Licensed Programs:
will comply with all legal requirements now and hereafter
do and will comply with all laws and regulations applicable in the United Kingdom or any country of the European Union.
13.6 If the Licensor receives written notice from the Licensee after the Acceptance Date of any breach of the said warranties then the Licensor shall at its own expense and within 4 weeks after receiving such notice remedy the defect or error in question.
13.7 When notifying a defect or error the Licensee shall (so far as it is able) provide the Licensor with a documented example of such defect or error.
13.8 The said warranties above shall be subject to the Licensee complying with its obligations under the terms of this Agreement and shall also be subject to the limits and exclusions of liability set out in clause 14 below. In particular, the said warranties shall not apply to the extent that any defect in the Licensed Programs arose or was exacerbated as a result of:
incorrect use, operation or corruption of the Licensed Programs;
any unauthorised modification or alteration of the Licensed Programs;
any unauthorised modification or alteration of the vehicle;
use of the Licensed Programs with other software or on vehicles with which it is incompatible.
Where the vehicle is no longer owned or operated by the licensee
13.9 To the extent permitted by applicable law, the Licensor:
disclaims all other warranties with respect to the Licensed Programs, either express or implied, including but not limited to any implied warranties relating to quality, fitness for any particular purpose or ability to achieve a particular result;
makes no warranty that the Licensed Programs are error free or that its use will be uninterrupted and the Licensee acknowledges and agrees that the existence of such errors shall not constitute a breach of this Agreement;
does not give any warranty in respect of third party products, OEM software or any other vehicle manufacturer system. The Licensor will pass on to the Licensee the benefit of any third party warranty supplied by a third party manufacturer or supplier.
14. Liability
14.1 The Licensor shall during the term of this Agreement maintain employer's liability, third party liability, product liability and professional negligence insurance cover in respect of its liabilities arising out of or connected with this Agreement, such cover to be to a minimum value of £1,000,000 and with an insurance company of repute. The Licensor shall on request supply copies of the relevant certificates of insurance to the Licensee as evidence that such policies remain in force. The Licensor undertakes to use reasonable commercial efforts to pursue claims under such insurance policies.
14.2 The Licensor shall indemnify the Licensee for personal injury or death caused by the negligence of its employees in connection with the performance of their duties under this Agreement or by defects in any product supplied pursuant to this Agreement.
14.3 The Licensor will indemnify the Licensee for direct damage to tangible property caused by the negligence of its employees in connection with the performance of their duties under this Agreement or by defects in any product supplied pursuant to this Agreement. The Licensor's total liability under this clause shall be limited to £100,000 for any one event or series of connected events, for vehicle power train related incidents this is restricted to £4000 in any claim..
14.4 Save in respect of claims for death or personal injury arising from the Licensor's negligence, in no event will the Licensor be liable for any damages resulting from loss of data or use, lost profits, loss of anticipated savings, nor for any damages that are an indirect or secondary consequence of any act or omission of the Licensor whether such damages were reasonably foreseeable or actually foreseen.
14.5 Except as provided above in the case of personal injury, death and damage to tangible property, the Licensor's maximum liability to the Licensee under this Agreement or otherwise for any cause whatsoever (whether in the form of the additional cost of remedial services or otherwise) will be for direct costs and damages only and will be limited to the greater of:
the sum for which the Licensor carries comprehensive insurance cover pursuant to clause 14.1 above; or
a sum equivalent to the price paid to the Licensor for the products or services that are the subject of the Licensee's claim, plus damages limited to 25% of the same amount for any additional costs directly, reasonably and necessarily incurred by the Licensee in obtaining alternative products and/or services.
14.6 The parties acknowledge and agree that the limitations contained in this clause 14 are reasonable in the light of all the circumstances.
14.7 The Licensee's statutory rights as a consumer (if any) are not affected. All liability that is not expressly assumed in this Agreement is excluded. These limitations will apply regardless of the form of action, whether under statute, in contract or tort including negligence or any other form of action. For the purposes of this clause, the 'Licensor' includes its employees, sub-contractors and suppliers who shall all have the benefit of the limits and exclusions of liability set out above in terms of the Contracts (Rights of Third Parties) Act 1999. Nothing in this Agreement shall exclude or limit liability for fraudulent misrepresentation.
15. Confidential Information
15.1 Both parties to this Agreement undertake, except as provided below, to treat as confidential and keep secret all information marked 'confidential' or which may reasonably be supposed to be confidential, including, without limitation, information contained or embodied in the Licensed Program Materials, the Specification and other information supplied by the Licensee or Licensor (in this Agreement collectively referred to as 'the Information') with the same degree of care as it employs with regard to its own confidential information of a like nature and in any event in accordance with best current commercial security practices, provided that, this clause shall not extend to any information which was rightfully in the possession of either party prior to the commencement of the negotiations leading to this Agreement or which is already public knowledge or becomes so at a future date (otherwise than as a result of a breach of this clause).
15.2 Both parties shall not without the prior written consent of the other party divulge any part of the Information to any person except:
to their own employees and then only to those employees who need to know the same;
to either party's auditors, an officer of Inland Revenue, an officer of HM Revenue and Customs, a court of competent jurisdiction, governmental body or applicable regulatory authority and any other persons or bodies having a right duty or obligation to know the business of the other party and then only in pursuance of such right duty or obligation;
any person who is for the time being appointed by either party to maintain the Vehicles on which the Licensed Programs are for the time being used (in accordance with the terms of the Licence) and then only to the extent necessary to enable such person to properly maintain the Vehicles.
15.3 Both parties undertake to ensure that persons and bodies referred to in clause 15.2 are made aware before the disclosure of any part of the Information that the same is confidential and that they owe a duty of confidence to the other party.
15.4 Each party to this Agreement shall promptly notify the other party if it becomes aware of any breach of confidence by any person to whom it divulges all or any part of the Information and shall give the other party all reasonable assistance in connection with any proceedings which the other party may institute against such person for breach of confidence.
15.5 The foregoing obligations as to confidentiality shall remain in full force and effect notwithstanding any termination of the Licence or this Agreement.
16. Termination
16.1 The Licensee may terminate the Licence at any time by giving at least 30 days' prior written notice to the Licensor.
16.2 If the licensee terminates the license pursuant to 16.1 the full license fee becomes payable.
16.3 The Licensor may terminate the Licence forthwith on giving notice in writing to the Licensee if:
the Licensee commits any serious breach of any term of this Agreement and (in the case of a breach capable of being remedied) shall have failed, within 30 days after the receipt of a request in writing from the Licensor to do so, to remedy the breach (such request to contain a warning of the Licensor's intention to terminate); or
the Licensee permanently discontinues the use of the Licensed Program Materials.
16.4 The licensor may terminate the licence immediately if the licensee becomes insolvent, ceases to trade or is sold or transferred to any individual or corporate body of any kind.
16.5 Pursuant to 16.4 The license renewal fee becomes payable for all vehicles installed by the licensor where the licensee’s business is purchased, transferred or assigned, and vehicles remain. The fee must be paid within 30 days of the transaction.
16.6 Save as expressly provided in clause 16.3, 16.4 or elsewhere in this Agreement the Licence may not be terminated.
16.7 Forthwith upon the termination of the Licence, the Licensee shall request that the Licensor at the licensees cost, return all vehicles to standard settings. This charge is currently £150 per vehicle and is payable in full prior to the vehicles being returned to standard. Vehicles must been made available at a time to suit and agreed by the licensor.
16.8 Any termination of the Licence or this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision in this Agreement which is expressly or by implication intended to come into or continue in force on or after such termination.
17. Data Protection
The parties undertake to comply with the provisions of the Data Protection Act 1998 and any related legislation in so far as the same relates to the provisions and obligations of this Agreement.
18. Interpretation
18.1 In this Agreement unless the context otherwise requires:
words importing any gender include every gender;
words importing the singular number include the plural number and vice versa;
words importing persons include firms, companies and corporations and vice versa;
references to numbered clauses are references to the relevant clause in this Agreement;
reference in any schedule to this Agreement to numbered paragraphs relate to the numbered paragraphs of that schedule;
the headings to the clauses, and paragraphs of this Agreement will not affect the interpretation;
any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment;
any obligation on any party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
any party who agrees to do something will be deemed to fulfil that obligation if that party procures that it is done.
18.2 In the case of conflict or ambiguity between any provision contained in the body of this Agreement and any provision contained in the provision in the body of this Agreement shall take precedence.
19. Agency, Partnership
This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in this Agreement.
20. Amendments
This Agreement may not be released, discharged, supplemented, interpreted, amended, varied or modified in any manner except by an instrument in writing signed by a duly authorised officer or representative of each of the parties.
21. Announcements
No party shall issue or make any public announcement or disclose any information regarding this Agreement unless prior written consent has been obtained from the other party.
22. Assignment
22.1 This Agreement is personal to the parties and, subject to clause 22.2 below, neither this Agreement nor any rights, licences or obligations under it, may be assigned by either party without the prior written approval of the other party.
22.2 Notwithstanding the foregoing, either party may assign this Agreement to any acquirer of all or of substantially all of such party's equity securities, assets or business relating to the subject matter of this Agreement or to any entity controlled by, that controls, or is under common control with a party to this Agreement. Any attempted assignment in violation of this clause will be void and without effect.
22.3 The license renewal fee becomes payable for all vehicles installed by the licensor where the licensee’s business is assigned.
23. Entire Agreement
This Agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the subject matter of this Agreement. However the obligations of the parties under any pre-existing non-disclosure agreement shall remain in full force and effect in so far as there is no conflict between the same. The parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement.
24. Force Majeure
Notwithstanding anything else contained in this Agreement, neither party shall be liable for any delay in performing its obligations under this Agreement if such delay is caused by circumstances beyond its reasonable control (including without limitation any delay caused by any act or omission of the other party) provided however that any delay by a sub-contractor or supplier of the party so delaying shall not relieve the party from liability for delay except where such delay is beyond the reasonable control of the sub-contractor or supplier concerned. Subject to the party so delaying promptly notifying the other party in writing of the reasons for the delay (and the likely duration of the delay), the performance of such party's obligations shall be suspended during the period that the said circumstances persist and such party shall be granted an extension of time for performance equal to the period of the delay. Save where such delay is caused by the act or omission of the other party (in which event the rights, remedies and liabilities of the parties shall be those conferred and imposed by the other terms of this Agreement and by law):
24.1 any costs arising from such delay shall be borne by the party incurring the same;
24.2 either party may, if such delay continues for more than 10 weeks, terminate this Agreement forthwith giving notice in writing to the other by reason of such termination.]
25. Notices
25.1 All notices under this Agreement shall be in writing.
25.2 Notices shall be deemed to have been duly given:
when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
when sent, if transmitted by fax or e-mail and a successful transmission report or return receipt is generated; or
on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
on the tenth business day following mailing, if mailed by airmail, postage prepaid,
in each case addressed to the most recent address, e-mail address, or facsimile number notified to the other party.
26. Schedules
The provisions of any Schedules shall form part of this Agreement as if set out here.
27. Severance
If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
28. Successors and Assignees
28.1 This agreement shall be binding upon, and inure to the benefit of, the parties and their respective successors and permitted assignees, and references to a party in this Agreement shall include its successors and permitted assignees.
28.2 In this Agreement references to a party include references to a person:
who for the time being is entitled (by assignment, novation or otherwise) to that party's rights under this Agreement (or any interest in those rights); or
who, as administrator, liquidator or otherwise, is entitled to exercise those rights,
and in particular those references include a person to whom those rights (or any interest in those rights) are transferred or pass as a result of a merger, division, reconstruction or other reorganisation involving that party. For this purpose, references to a party's rights under this Agreement include any similar rights to which another person becomes entitled as a result of a novation of this Agreement.
29. Waiver
No delay, neglect or forbearance on the part of either party in enforcing against the other party any term or condition of this Agreement shall either be or be deemed to be a waiver or in any way prejudice any right of that party under this Agreement. No right, power or remedy in this Agreement conferred upon or reserved for either party is exclusive of any other right, power or remedy available to that party.
30. Counterparts
This Agreement may be executed in any number of counterparts or duplicates, each of which shall be an original, and such counterparts or duplicates shall together constitute one and the same agreement.
31. Time of the Essence
Time shall be of the essence in this Agreement as regards any time, date or period mentioned in this agreement or subsequently substituted as a time, date or period by agreement in writing between the parties.
32. Subcontracting
With the prior written consent of the Licensor (such consent not to be unreasonably withheld or delayed) the Licensee may perform any or all of its obligations under this Agreement through agents or sub-contractors, provided that the Licensee shall remain liable for such performance and shall indemnify the Licensor against any loss or damage suffered by the Licensor arising from any act or omission of such agents or sub-contractors.
33. Language
This Agreement is made only in the English language. If there is any conflict in the meaning between the English language version of this Agreement and any version or translation of it in any other language, the English language version shall prevail.
34. Costs and Expenses
Each party shall bear its own legal costs and other costs and expenses arising in connection with the drafting, negotiation, execution and registration (if applicable) of this Agreement.
35. Set-off
Where either party has incurred any liability to the other party, whether under this Agreement or otherwise, and whether such liability is liquidated or unliquidated, each party may set off the amount of such liability against any sum that would otherwise be due to the other party under this Agreement.
36. Third Parties
Subject to clause 14.7 above, a person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from such Act.
37. Proper Law and Jurisdiction
37.1 [This Agreement and all matters arising from it and any dispute resolutions referred to below shall be governed by and construed in accordance with English law notwithstanding the conflict of law provisions and other mandatory legal provisions save that:
the Licensor shall have the right to sue to recover its fees in any jurisdiction in which the Licensee is operating or has assets; and
the Licensor shall have the right to sue for breach of its intellectual property rights and other proprietary information and trade secrets ('IPR') (whether in connection with this Agreement or otherwise) in any country where it believes that infringement or a breach of this Agreement relating to its IPR might be taking place. For the avoidance of doubt, the place of performance of this Agreement is agreed by the parties to be England.
37.2 Each party recognises that the other party's business relies upon the protection of its IPR and that in the event of a breach or threatened breach of IPR, the other party will be caused irreparable damage and such other party may therefore be entitled to injunctive or other equitable relief in order to prevent a breach or threatened breach of its IPR.
37.3 With respect to all other disputes which are not IPR related pursuant to clauses 37.1 and 37.2 above and its special rules the following procedures in clauses 37.3 to 37.6 shall apply. Where there is a dispute the aggrieved party shall notify the other party in writing of the nature of the dispute with as much detail as possible about the deficient performance of the other party. A representative from senior management of each of the parties ('representatives') shall meet in person or communicate by telephone within 5 business days of the date of the written notification in order to reach an agreement about the nature of the deficiency and the corrective action to be taken by the respective parties. The representatives shall produce a report about the nature of the dispute in detail to their respective boards and if no agreement is reached on corrective action, then the chief executives of each party shall meet in person or communicate by telephone, to facilitate an agreement within 5 business days of a written notice by one to the other. If the dispute cannot be resolved at board level within a further 5 business days, or if the agreed upon completion dates in any written plan of corrective action are exceeded, either party may seek its legal remedies as provided below.
37.4 If the parties cannot resolve a dispute in accordance with the procedure in clause 37.3 above, then they shall with the assistance of the Centre for Effective Dispute Resolution ('CEDR'), seek to resolve the dispute or difference amicably by using an Alternative Dispute Resolution ('ADR') procedure acceptable to both parties before pursuing any other remedies available to them. If either party fails or refuses to agree to or participate in the ADR procedure or if in any event the dispute or difference is not resolved to the satisfaction of both parties within 90 days after it has arisen, the matter shall be settled in accordance with the procedure below.
37.5 If the parties cannot resolve the dispute by the procedure set out above, the parties shall irrevocably submit to the exclusive jurisdiction of the courts of England and Wales for the purposes of hearing and determining any dispute arising out of this Agreement.
While the dispute resolution procedure above is in progress and any party has an obligation to make a payment to another party or to allow a credit in respect of such payment, the sum relating to the matter in dispute shall be paid into an interest bearing deposit account to be held in the names of the relevant parties at a clearing bank and such payment shall be a good discharge of the parties' payment obligations under this Agreement. Following resolution of the dispute, whether by mediation or legal proceedings, the sum held in such account shall be payable as determined in accordance with the mediation or legal proceedings, and the interest accrued shall be allocated between the parties pro rata according to the split of the principal sum as between the parties.
37.6 If the dispute shall be of a technical nature relating to the functions or capabilities of the Licensed Program Materials or any similar or related matter then such a dispute shall be referred for final settlement to an expert nominated jointly by the parties or failing such nomination within 14 days after either party's request to the other therefore nominated at the request of either party by the President for the time being of the British Computer Society. Such expert shall be deemed to act as an expert and not as an arbitrator. His decision shall (in the absence of clerical or manifest error) be final and binding on the parties and whose costs shall be borne between the parties in equal shares unless he determines that the conduct of either party is such that such party should bear all of such fees.
37.7 In any other case the dispute shall be determined by the High Court of Justice in England and the parties submit to the exclusive jurisdiction of that Court for such purposes.]
38. Non-poaching of Staff
The Licensee covenants with the Licensor that it shall not either during the term of this Agreement or within a period of 6 months thereafter directly or indirectly entice away or endeavour to entice away from the Licensor any person who has during the previous 12 months been employed by Licensor to perform this Agreement.
39. Compliance with Relevant Law
Both parties will comply with all applicable laws, rules and regulations in respect of all activities conducted under this Agreement.