Between:
(1) NETCALL TELECOM LIMITED, a company registered in England (Company number 02831215) with its registered office at 1st Floor, Building 2, Peoplebuilding Estate, Maylands Avenue, Hemel Hempstead, Hertfordshire, HP2 4NW, UK (“Netcall”); and
[Please note that with effect from 10th December 2020 that Netcall’s registered office has changed as follows and all correspondence should instead be directed to this address: Suite 203, Bedford Heights, Brickhill Drive, Bedford, MK41 7PH, UK]
(2) The Company whose name, registration number and registered office is as detailed on the Netcall order form, signed by an authorised officer of each party (“Customer”).
Customer agrees to purchase hardware, software and/or services as specified in the relevant Netcall order form agreed by the parties (“Order Form”) and which shall be subject to these terms and conditions (together the Order Form and these terms & conditons being the “Agreement”). This Agreement shall only come into force when an Order Form has been issued to Customer by Netcall, Customer has returned it signed to Netcall and Netcall has returned to Customer a countersigned copy of that Order Form. No other terms shall apply to the supply of any hardware, software and/or services by Netcall to Customer other than the terms expressly set out in this Agreement and the relevant Order Form. For the avoidance of doubt the terms of any Customer purchase order shall not be legally binding and may not act as a form of offer, counter-offer, modification, addition to and/or variation of this Agreement and/or any Order Form. In the event of any conflict, the order of precedence shall be firstly, the Order Form, these terms and conditions, then any schedule to this Agreement then any documents referred to in this Agreement.
1. SUPPLY OF SOFTWARE
1.1 Software Licence:
1.1.1 Netcall grants to Customer a non-exclusive, non-transferable licence to use the software (and associated documentation (if any)) identified in the Order Form (“Software”) subject to: (a) the terms of this Agreement; (b) any provisions set out in the Order Form; and, (c) the licence restrictions and contractual provisions imposed on Netcall and/or Customer by Netcall’s third party licensors which are available from Netcall, the relevant third party licensor and/or available via the Hardware as may be applicable and as such may be updated by such licensors. Software includes any new versions and/or releases of such software and/or documentation made available to Customer by Netcall. The Software is licensed only for Customer’s internal use save as expressly provided otherwise in the Order Form. Any third party software is only for use as, and must remain, a component of the Software as a whole.
1.1.2 Solely for Customer’s internal business purposes Customer may permit use of the Software by a third party consultant or sub-contractor provided that Customer ensures that any such third party complies with the terms of this Agreement and Customer shall indemnify Netcall in respect of any breach thereof by such third party. If Customer is noted on the Order Form as a reseller then Customer shall sublicence use of the Software (and the associated Hardware if any) subject to and consistent with the conditions in Schedule 1 and Customer shall not use the Software (and the associated Hardware if any) itself other than for the purposes of providing support to its sublicensee.
1.1.3 The Software is licensed for use only for the purpose for which it was designed and is for use only in connection with equipment that complies with Netcall’s minimum equipment and site requirements which are available on request (as updated from time to time) or as may be specified in the Order Form.
1.1.4 Customer may only make such copies as are reasonably necessary for back-up purposes. Any such copies are subject to the terms of this Agreement. Customer shall not remove and shall comply with the requirements of any copyright notices, trademark notices or other proprietary legends of Netcall and/or any third party licensor contained in the Software.
1.1.5 Customer is prohibited from decompiling, reverse engineering, disassembling, or otherwise reducing the Software to a human-perceivable form except as permitted by any applicable law. Where permitted by applicable law, the Customer shall agree to first make a written request to Netcall for it to supply the relevant information required specifying in reasonable detail the extent and objectives of the proposed decompilation, disassembly or unbundling exercise. Netcall shall be entitled to a reasonable fee for the provision of such information.
1.1.6 Except as expressly provided in this Agreement no licence is granted to translate, adapt, arrange, alter and/or modify the Software or any part of it and Customer shall not do or attempt any of such acts, whether for error correction or otherwise except in so far as Customer may lawfully do so without the authorisation of Netcall.
1.1.7 Customer is responsible for backing up any data held within and/or utilised by the Software or provided to Netcall and accordingly, Netcall shall have no liability for loss of, damage to or corruption of Customer data, however it happens.
1.1.8 Customer will give prompt notice to Netcall as soon as it becomes aware that Customer has exceeded any restrictions and/or usage limits specified in the Order Form in relation to the Software.
1.1.9 Customer shall ensure that use of the Software shall be in compliance with all applicable laws. Customer shall not, and shall not permit any third party, to use, rent, loan, distribute or otherwise deal in the Software and in particular shall not use the same to process data for third parties or provide a bureau service to third parties save as expressly provided otherwise in the relevant Order Form.
1.2 Delivery:
1.2.1 Netcall will deliver the Software to the location specified in the Order Form and use reasonable endeavours to do so by the delivery date specified in the Order Form.
1.2.2 Delivery will have occurred on the date the Software is delivered to Customer (either by a physical delivery on media, or remotely by electronic means), or the date when Netcall completes installation onto the relevant hardware, whichever is earlier. If the Customer fails to accept delivery of the Software or Netcall is unable to deliver such on time because the Customer has not provided appropriate instructions, documents, licences or authorisations or if the Customer advises Netcall that it cannot or does not wish to take delivery of the Software on the date specified for delivery then the Software shall be deemed to have been delivered on that delivery date.
1.2.3 Due to the dynamic nature of the Software, Netcall may amend it from time to time including substituting alternative items for any item of third party software provided that this will not have a substantial detrimental effect on the features and/or performance of the Software.
2 SUPPLY OF HARDWARE
2.1 The quantity, description, price and component parts of the hardware products shall be as set out in the Order Form (“Hardware”). Customer shall use the Hardware only in conjunction with the Software, for the purpose for which it was designed, in accordance with any associated user documentation and Customer shall comply with any applicable third party terms in relation to the Hardware.
2.2 Netcall will deliver the Hardware to the location specified in the Order Form and use reasonable endeavours to do so by the delivery date specified in the Order Form. If the Customer fails to accept delivery of the Hardware or Netcall is unable to deliver such on time because the Customer has not provided appropriate instructions, documents, licences or authorisations or if the Customer advises Netcall that it cannot or does not wish to take delivery of the Hardware on the date specified for delivery then the Hardware shall be deemed to have been delivered on that delivery date.
2.3 Netcall may substitute an equivalent alternative item for any item of Hardware at any time as part of routine support or where Netcall deems it operationally reasonably appropriate to do so. Customer must promptly implement any new releases made available by any relevant hardware manufacturer where such have been mandated by such manufacturer (e.g. to resolve security issues).
2.4 Risk and title in the Hardware shall pass at the point of delivery to Customer subject to Netcall’s right to exchange the Hardware as contemplated by clause 2.3. Customer shall ensure that use of the Hardware shall be in compliance with all applicable laws.
3 PROVISION OF SERVICES
3.1 Terms applying to all Services:
3.1.1 Netcall will provide the services identified in the Order Form being either implementation services, hosted services, managed services and/or support & maintenance services (“Services”). Notwithstanding any provision of any Order Form to the contrary all dates for the provision of the Services shall be estimates only.
3.1.2 Customer shall provide or procure that Netcall is granted such access to Customer’s premises, equipment, personnel, data, systems and/or infrastructure as is reasonably required to perform the Services (including to allow Services to be delivered remotely at Netcall or other locations).
3.1.3 Customer shall comply with the reasonable instructions of Netcall as may be relevant to the Services and Customer shall provide all reasonable co-operation to Netcall in its provision of the Services.
3.1.4 Netcall reserves the right to engage a sub-contractor to perform the Services provided that Netcall shall remain liable to Customer for any breach by Netcall’s subcontractor of Netcall’s obligations under this Agreement subject to the terms hereof.
3.1.5 Netcall reserves the right to increase the price charged for Services: (i) by written notice to Customer prior to any annual anniversary of the commencement of such Services by an amount equal to the previous month’s retail prices index (“RPI”) plus 2%; and (ii) to reasonably reflect any increase in costs beyond Netcall’s reasonable control (e.g. third party communications costs). Pursuant to (ii) Netcall may change its charges at any time for Services but it will provide Customer with prior written notice of any changes and Customer shall have the right to terminate the relevant Services which are subject to a price increase within 30 days of the date of the price change notice. Notwithstanding the foregoing, Netcall shall not increase the price of Support & Maintenance Services during the initial period thereof as set out in the Order Form.
3.1.6 If Netcall has been unable to complete implementation services within 90 days of the estimated completion date due to any act or omission of Customer or its third party suppliers then Netcall shall be deemed to have completed such implementation services and shall be entitled to charge for them in full.
3.1.7 Services shall be calculated and charged as set out in the relevant Order Form. If Customer purchases blocks of man days on an Order Form then Customer must instruct the use and permit the delivery of such man days within 12 months of the date of the relevant Order Form. If Customer does not do this, any unused man days purchased will be lost. Where a particular date is scheduled for Netcall to carry out Services and Customer cancels or reschedules such Services within 5 Working Days (where a “Working Day” shall mean 9am – 5.30pm Monday-Friday excluding UK public holidays) of the relevant date then Customer shall pay for such Services as if they were taken on the originally scheduled date.
3.1.8 Customer shall not, and shall not permit any third party, to use, rent, loan, distribute or otherwise deal in the Services and in particular shall not use the same to process data for third parties or provide a bureau service to third parties save as expressly provided otherwise in the relevant Order Form.
3.1.9 Save as is expressly provided otherwise in the Order Form Customer is responsible for backing up any data held within and/or utilised by the Services or provided to Netcall and accordingly, Netcall shall have no liability for loss of, damage to or corruption of Customer data, however it happens. Customer will give prompt notice to Netcall as soon as it becomes aware that Customer has exceeded any restrictions and/or usage limits specified in the Order Form in relation to the Services.
3.2 Implementation Services:
3.2.1 Netcall will provide the implementation services set out in the Order Form.
3.2.2 Customer shall be responsible for migration of data from any legacy system to the Software, Hardware and/or Services. Customer shall be responsible for establishing interfaces between Customer systems and the Software, Hardware and/or Services as applicable.
3.3 Hosted Services:
3.3.1 If an Order Form specifies, Netcall shall provide the hosted services described in that Order Form through a Netcall controlled hosted solution (either at Netcall or through Netcall’s designated data centre). The Order Form will specify the initial term of the provision of the hosted services. Unless a party serves notice of termination at least 90 days prior to expiry of the initial term specified in the Order Form (or any subsequent renewal term), the provision of hosted services shall automatically renew for one year periods on the same terms subject to any adjustment in the charges made by Netcall pursuant to clause 3.1.5. Non-payment by Customer of Netcall invoices shall entitle Netcall (without prejudice to any other rights and/or remedies) to suspend the provision of the hosted services. The hosted services shall be provided subject to Netcall’s standard service levels which are set out in the relevant Order Form and which Netcall may amend from time to time (provided it does not substantially decrease service levels without the prior written consent of Customer).
3.3.2 Customer shall ensure that its use of the hosted services shall be in compliance with all applicable laws. Customer shall not use the hosted services to store or distribute illegal or infringing content and agrees that if Netcall receives notices from third parties alleging the presence of such content in the hosted services being hosted by Netcall, Netcall shall be entitlted to take whatever action as Netcall deems fit, including deleting such content.
3.4 Managed Services:
3.4.1 If an Order Form specifies, Netcall shall provide the managed services described in that Order Form through a Netcall controlled managed solution (either at Netcall or through Netcall’s designated data centre). The Order Form will specify the initial term of the provision of the managed services. Unless a party serves notice of termination at least 90 days prior to expiry of the initial term specified in the Order Form (or any subsequent renewal term), the provision of managed services shall automatically renew for one year periods on the same terms subject to any adjustment in the charges made by Netcall pursuant to clause 3.1.5. Non-payment of Netcall invoices shall entitle Netcall (without prejudice to any other rights and/or remedies) to suspend the provision of the managed services. The managed services shall be provided subject to Netcall’s standard service levels which are set out in the relevant Order Form and which Netcall may amend from time to time (provided it does not substantially decrease service levels without the prior written consent of Customer).
3.4.2 Customer shall ensure that its use of the managed services shall be in compliance with all applicable laws. Customer shall not use the managed services to store or distribute illegal or infringing content and agrees that if Netcall receives notices from third parties alleging the presence of such content in the managed services being hosted by Netcall, Netcall shall be entitlted to take whatever action as Netcall deems fit, including deleting such content.
3.5 Software Support and Maintenance Services:
3.5.1 Unless otherwise stated in the Order Form, software support and maintenance services shall be provided by Netcall as set out in the Order Form.
3.5.2 The Order Form will specify the service description, service levels, service hours and initial term of support and maintenance services. Unless a party serves notice of termination at least 90 days prior to expiry of the initial term (or any subsequent renewal term), the provision of support and maintenance services shall automatically renew for one year periods on the same terms as this Agreement subject to any adjustment in the charges made by Netcall pursuant to clause 3.1.5. Non-payment of Netcall invoices shall entitle Netcall (without prejudice to any other rights and/or remedies) to suspend support and maintenance services. For the avoidance of doubt, in the event that support and maintenance services are not renewed in accordance with this clause then the support and maintenance services will cease but such cessation shall not affect the term of use of the Software as set out in clause 10.1 subject to any express term of licence to the contrary as set out in the Order Form.
3.5.3 Customer agrees to: (a) use, operate and maintain the Software in accordance with any relevant operating manuals and Netcall’s instructions and/or recommendations; (b) nominate and suitably train at least one dedicated support contact; (c) ensure that only suitably trained and experienced individuals submit service requests; and, (d) provide a suitable electronic link to the equipment running the Software to allow Netcall reasonable access. Netcall shall have no liability or obligation to provide support and maintenance services in relation to faults or service delays caused by Customer default, customisations, incorrect environments and/or Customer staff not being suitably trained/skilled.
3.5.4 Netcall may record telephone calls between representatives of Customer and representatives of Netcall for training and service improvement purposes.
4 PRICE & PAYMENT
4.1 All sums payable under this Agreement are exclusive of any VAT. Customer is responsible for all taxes, charges, levies, assessments and other fees of any kind imposed on the purchase of the Hardware, Software and/or Services. Customer shall not be entitled to set off amounts due to it against any amounts due to Netcall pursuant to, or in connection with this Agreement or pursuant to or in connection with any other agreement made between the parties.
4.2 Customer shall pay Netcall’s reasonable out of pocket travel, accommodation and subsistence expenses incurred by Netcall in attending any location outside of Netcall’s offices as requested by Customer.
4.3 Netcall shall invoice Customer for the charges due hereunder as set out in the Order Form. Customer shall pay all amounts due without deduction or withholding in pounds sterling within 30 days of date of Netcall’s invoice. Netcall may without prejudice to its other rights and/or remedies suspend Customer’s right to use the Software and/or suspend Netcall’s performance of its obligations under any Order Form if Customer fails to pay any amount due to Netcall on time. Interest on late payments shall be charged by Netcall at the rate of 2% above the base lending rate from time to time of the Bank of England, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgement.
5 WARRANTIES
5.1 Netcall warrants that the Software will during normal use provide in all material respects the facilities and functions described in Netcall’s standard documentation for such Software. Such warranty will commence upon the initial delivery of or provision of access to the Software (whichever the later) and continue for 60 days thereafter. Customer hereby agrees that its sole remedy in respect of any breach of the said warranty is that Netcall will remedy such breach without charge to Customer and if in Netcall’s reasonable opinion, Netcall is unable to remedy any such breach then its liability for that failure is limited to refunding a reasonable portion of the fees paid for that Software (where such portion shall be calculated by Netcall acting reasonably and having regard to the circumstances of the breach in question). The aforesaid warranty shall not apply: (a) if the Software is not running on the minimum equipment requirements identified in the relevant Software documentation and/or Order Form; (b) to Software modified by Customer and/or any third party other than in accordance with Netcall’s written instructions; (c) where any environmental specification for the operation of the Software is not maintained; (d) to any loss, damage or destruction of or to the Software, save where the loss, damage or destruction is caused by Netcall; or (e) to any defect or malfunction caused by negligence, neglect or misuse (other than by Netcall’s negligence, neglect or misuse).
5.2 The parties acknowledge that the Software will not be free of minor defects nor shall the Software function without interruption.
5.3 Customer is responsible for ensuring that the facilities and functions in the Software meet its requirements.
5.4 Netcall warrants that all Services will be carried out with reasonable care and skill by personnel whose qualifications and experience will be appropriate for the tasks to which they are allocated. Netcall warrants that it will use reasonable endeavours to provide the hosted and/or managed services in substantial conformance with Netcall’s standard documentation for the hosted and/or managed services as applicable. The parties acknowledge that hosted and/or managed services will not be free of minor defects nor shall the hosted and/or managed services function without interruption. Netcall shall have no liability or obligations under the aforesaid warranties unless it has received written notice of the breach of warranty in question no later than 60 days after the date on which Netcall performed the act or omission which caused the breach of warranty. Customer hereby agrees that its sole remedy in respect of any breach of the said warranties is that Netcall will remedy such breach without charge to Customer and if in Netcall’s reasonable opinion, Netcall is unable to remedy any such breach then its liability for that failure is limited to refunding a reasonable portion of the fees paid for the relevant Services for 12 months prior to the date of the breach (where such portion shall be calculated by Netcall acting reasonably and having regard to the circumstances of the breach in question).
5.5 No warranty whatsoever is given in respect of any third party or open source software.
5.6 Both parties will take all reasonable steps to ensure that their own computer systems are virus checked and that they do not transmit viruses to the other party during electronic interconnection or the exchange of media such as CD-ROM’s and diskettes.
5.7 Except as expressly set forth in this Agreement all warranties, conditions, representations and other terms implied by statute or common law in respect of the Hardware, Software and/or Services are, to the fullest extent permitted by law, excluded.
6 LIMITATION OF LIABILITY
6.1 This clause 6 sets out the entire financial liability of Netcall (including any liability for the acts or omissions of its employees, agents and sub-contractors) to Customer in respect of all matters arising out of this Agreement and/or the Order Form. All claims by Customer must be made against Netcall only and not against any of Netcall’s third party licensors.
6.2 Nothing in this Agreement and/or the Order Form shall be construed as limiting or excluding the liability of Netcall:
6.2.1 for death or personal injury resulting from negligence; or
6.2.2 for any damage or liability incurred by Customer as a result of fraud (including a fraudulent misrepresentation) by Netcall; or
6.2.3 for any liability which cannot lawfully be limited or excluded.
6.3 Subject to clause 6.2, Netcall shall not be liable to Customer for any of the following (where in each of clauses 6.3.1 to 6.3.7 inclusive whether of a direct or indirect nature):
6.3.1 loss of, damage to and/or corruption of data;
6.3.2 loss of profits;
6.3.3 loss of business;
6.3.4 depletion of goodwill;
6.3.5 loss of anticipated savings;
6.3.6 loss of contract;
6.3.7 loss of use; and/or
6.3.8 special, indirect or consequential loss.
6.4 Subject to clause 6.2 Netcall’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of this Agreement and/or the Order Form (or any collateral contract) shall be limited to:
6.4.1 in the case of claims relating to the Software, 100% of the fee paid and payable in relation thereto by the Customer;
6.4.2 in the case of claims relating to implementation services, 100% of the fee paid and payable in relation thereto by the Customer;
6.4.3 in the case of claims relating to hosted services, 100% of the fee paid and payable in relation thereto by the Customer for the 12 months preceding the date on which the cause of action giving rise to the claim arose;
6.4.4 in the case of claims relating to managed services, 100% of the fee paid and payable in relation thereto by the Customer for the 12 months preceding the date on which the cause of action giving rise to the claim arose;
6.4.5 in the case of claims relating to support and maintenance services, 100% of the fee paid and payable in relation thereto by the Customer for the 12 months preceding the date on which the cause of action giving rise to the claim arose;
6.4.6 in the case of claims relating to Hardware, 100% of the fee paid and payable in relation thereto by the Customer; and
6.4.7 in the case of all other matters, £25,000.
6.5 Netcall shall not be liable for any loss or damage suffered by Customer where such loss or damage is suffered in consequence of any unavailability or failure or interruption of the Software and/or Services arising from any of Customer’s systems, equipment or any third party equipment or where caused by Customer’s acts or omissions or inadequately trained Customer personnel.
6.6 If Netcall’s performance of its obligations under this Agreement and/or the Order Form is prevented or delayed by any act or omission of Customer, its agents, sub-contractors and/or employees, Netcall shall not be liable for any costs, charges and/or loss sustained or incurred by Customer arising directly or indirectly from such prevention or delay.
7 INTELLECTUAL PROPERTY
7.1 All intellectual property rights in the Hardware, Software and/or Services (including any modifications, alterations or adaptations thereto whether made by Netcall, Customer or any third party) are and shall remain the sole property of Netcall (or its licensors).
7.2 Subject always to the limitations and exclusions of liability set out in clause 6, Netcall shall indemnify and hold Customer harmless against its reasonable losses, liabilities and damages directly arising from any claim that the current and/or immediately preceding release of the Netcall owned Software infringes the copyright of a third party (“Claim”) provided that Customer complies with clauses 7.3 to 7.5 (inclusive) and provided that the Claim does not arise as a result of the use of that software in combination with any material not supplied by Netcall nor arise as a result of a modification to that software that is not undertaken by Netcall.
7.3 Customer shall promptly give notice in writing to Netcall if it becomes aware of any: (a) Claim; and/or (b) any infringement or suspected infringement by a third party of the intellectual property rights relating to Hardware, Software and/or Services.
7.4 Netcall shall, in its absolute discretion, decide what action to take in respect of any Claim. Customer shall at Netcall’s reasonable cost provide Netcall with such reasonable assistance that Netcall may reasonably request and which may be required by Netcall for the purpose of defending the Claim. Netcall shall conduct and have sole control over any consequent action that it deems necessary and Netcall shall be entitled to all damages and other sums that may be paid or awarded as a result of that action. Customer shall not (whether through action or inaction) prejudice Netcall’s defence of such Claim.
7.5 In relation to any Claim, Customer shall, at Netcall’s reasonable cost, provide such assistance and shall take such steps or actions as Netcall may consider reasonable or appropriate to prevent or to terminate the infringement and/or to defend the claim.
7.6 Netcall shall have the right to replace and/or change all or part of the Hardware, Software and/or Services in order to avoid any infringement provided the same does not have a substantial detrimental effect to Customer.
7.7 If Customer uses “Open Source” software (which shall also include software known as “copyleft” and “freeware”) in conjunction with any of the Hardware, Software and/or Services Customer must ensure that Customer’s use does not: (a) create, or purport to create, obligations of Netcall or its licensors with respect to the Hardware, Software and/or Services; or (b) grant, or purport to grant, to any third party any rights to, or immunities under, Netcall’s or its licensors’ intellectual property or proprietary rights in the Hardware, Software and/or Services.
7.8 Netcall shall be entitled to use Customer’s corporate name and logo on Netcall promotional/communication materials simply to indicate that the Customer is a customer of Netcall.
8 CONFIDENTIALITY AND NETCALL’S PROPERTY
8.1 Each Party shall keep in strict confidence the Software, all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and which have been disclosed by one Party (the “Disclosing Party”) to the other (the “Receiving Party”), its employees, agents and/or sub-contractors and any other confidential information concerning the Disclosing Party’s business, the Hardware, the Software, and/or the Services which the Receiving Party may obtain as a result of such disclosure (“Confidential Information”). Each Party shall restrict disclosure of such Confidential Information to such of the Receiving Party’s employees, agents and/or sub-contractors as may need to know the same for the purposes of this Agreement, and shall ensure that its employees, agents and/or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the parties to this Agreement. The Receiving Party shall be liable for any breach of the obligations in this Agreement by any of its employees, agents and/or sub-contractors. Customer agrees that Netcall may report to the relevant third party licensors the appropriate information relating to the Third Party Software licensed to Customer hereunder.
8.2 The obligations of confidentiality in clause 8.1 shall not apply to any information which: (a) was lawfully in the possession of the Receiving Party prior to its disclosure by the Disclosing Party; (b) is already public knowledge or becomes so at a future date (other than as a result of a breach by the Receiving Party of this Agreement); (c) comes into the Receiving Party’s knowledge from a third party who lawfully possesses such information and such disclosure is not in breach of a duty of confidence; (d) is required to be disclosed pursuant to any statute, regulation, applicable stock exchange rule, ordinance or order of a court of competent jurisdiction (subject to the Receiving Party, where reasonably practicable, giving the Disclosing Party not less than two Working Days written notice thereof); or, (e) independently developed by the Receiving Party without access to or knowledge or use of the Confidential Information.
9 DATA PROTECTION
9.1 Each Party shall comply with its respective obligations under the provisions of the Data Protection Act 1988 (“Act”). “Data Controller”, “Data Processor”, “Personal Data”, “Process”, shall have the meanings ascribed to them by the Act.
9.2 In respect of any Personal Data Processed by Netcall in connection with the Hardware, Software and/or Services, Customer shall act as a Data Controller and shall comply with its obligations as such under the Act. Insofar as Customer provides or otherwise makes available Personal Data to Netcall and such Personal Data is Processed by Netcall, or if Netcall is required to Process Personal Data in order to provide the Services, Customer shall ensure that it has all rights, consents and authority to permit Netcall to lawfully Process such Personal Data. Netcall agrees that it shall only use the Personal Data Processed on behalf of Customer to provide the Hardware, Software and/or Services and as instructed by Customer and shall apply appropriate technical and organisational measures against the unauthorised or unlawful Processing of Personal Data and against accidental loss, destruction of, or damage to, that Personal Data (provided and to the extent that Customer is obliged by law to impose such obligations on Netcall as Data Processor).
10 TERM AND TERMINATION
10.1 In respect of the Software the term of use shall be for the period stated in the Order Form or, if no such period is stated, for a period of three years. If the term of use expires or if the Agreement terminates earlier then Customer shall immediately cease use. In respect of the support and maintenance services the minimum period shall be for the initial term stated in the Order Form or, if no such period is stated, for a period of three years and Customer may extend the provision thereof as set out in clause 3.5.2.
10.2 In respect of implementation services the term of use shall be the same as the term of use of the corresponding Software under clause 10.1. In respect of the hosted and/or managed services the term of provision shall be for the period stated in the Order Form or, if no such period is stated, for a period of one year. If the term of provision of the hosted and/or managed services expires or if the Agreement terminates earlier then Customer shall immediately cease use.
10.3 Either party may terminate this Agreement immediately on giving written notice to the other party if: (a) the other party commits a material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or, (b) the other party becomes insolvent or is otherwise unable to pay its debts as they fall due.
11 CONSEQUENCES OF TERMINATION
11.1 On termination or expiry of this Agreement for any reason Customer shall:
11.1.1 immediately pay to Netcall all outstanding unpaid invoices together with any amounts due in respect of Hardware, Software and/or Services supplied but not yet invoiced;
11.1.2 immediately deliver up to Netcall the Hardware (if that Hardware has not been fully paid for) and Software (or any part thereof) and any copies thereof or any related manuals and documentation; and
11.1.3 immediately deliver up and/or permanently destroy all copies of Netcall’s Confidential Information and copies of programs, manuals and documentation used by Netcall for the provision of Services.
11.2 If Customer fails to perform its obligations under clause 11.1, then Netcall may enter Customer’s premises and take possession of such Hardware, Software and/or Netcall Confidential Information.
11.3 The accrued rights of each Party shall, notwithstanding any specific provision herein, survive the termination of this Agreement.
11.4 For the avoidance of doubt for any implementation services performed on a fixed price basis Netcall may charge Customer on a quantum meruit basis for any such implementation services performed up to the date of termination of this Agreement and for any other reasonable charges to which Netcall is committed in respect of the anticipated performance of those services which may be immediately invoiced by Netcall and shall be payable by the Customer notwithstanding such termination.
11.5 The provisions of clauses 4, 6, 7, 8, 9, 10, 11 and 12 will survive the termination of this Agreement.
12 GENERAL
12.1 This Agreement contains the entire understanding of the Parties with respect to the subject matter hereof and supersedes and extinguishes any prior drafts, agreements, undertakings, understandings, promises or conditions, whether oral or written, express or implied between the parties. Each Party acknowledges to the other that it has not been induced to enter into this Agreement by, nor has it relied upon, any representations, promises, covenants or undertakings of the parties with respect to such subject matter other than those expressly set out in this Agreement. This Agreement may not be modified except by written document signed by authorised representatives of Netcall and Customer.
12.2 Any notice under this Agreement must be in writing and must be addressed to a director of the other party (or equivalent position) and be personally delivered or sent by expedited delivery service or certified or registered mail, return receipt requested, first-class postage prepaid, or sent by email (provided that the sender confirms the email by sending an original confirmation copy by certified or registered mail or expedited delivery service within 3 Working Days after transmission) to the recipient party at its registered office or such changed address as shall be notified by one party to the other for the purposes of this clause. Any notice shall be deemed to have been given at the time of personal delivery, or in the case of email upon transmission provided confirmation is sent as described above, or in the case of expedited delivery service or registered or certified mail 3 business days after the date and time of mailing.
12.3 Netcall may assign the benefit of this Agreement to any person, firm or company. Customer shall not be entitled to assign this Agreement without the prior written consent of Netcall.
12.4 Neither party is responsible for failure to fulfil its obligations in this Agreement due to causes beyond its reasonable control that directly or indirectly delay or prevent its timely performance hereunder and if a party shall become aware of any such causes it shall promptly inform the other party thereof.
12.5 Netcall may, without prejudice to any other rights it may have, set off any liability of Customer to Netcall against any liability of Netcall to Customer.
12.6 The parties shall comply with their respective obligations under applicable law regarding anti-bribery and anti-corruption.
12.7 No employment, partnership or agency relationship will be deemed to exist between Customer and any Netcall personnel.
12.8 For the duration of this Agreement and for six months following its expiry or termination, Customer will not solicit the employment or services of any personnel of Netcall who has been engaged in connection with this Agreement.
12.9 Each right or remedy of a party under this Agreement is without prejudice to any other right or remedy of that party whether under this Agreement or not.
12.10 Customer shall permit reasonable access by Netcall to its premises during Working Days to audit compliance with the terms of this Agreement and to remove items of Software that are not licensed and/or being used in accordance with the terms of this Agreement.
12.11 If any provision of this Agreement is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Agreement and the remainder of such provision shall continue in full force and effect.
12.12 Failure or delay by a party in enforcing or partially enforcing any provision of this Agreement shall not be construed as a waiver of any of its rights under this Agreement.
12.13 Any waiver by a party of any breach of, or any default under, any provision of this Agreement by the other party shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of this Agreement.
12.14 Except as expressly stated therein, the parties to this Agreement do not intend that any term of this Agreement shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
12.15 The invalidity, illegality or unenforceability of any provision of this Agreement, or a provision in any other agreement which is identical to one in this Agreement shall not affect the other provisions and this Agreement shall be given effect as if the invalid, illegal or unenforceable provision has been deleted.
12.16 The Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
12.17 Unless agreed otherwise in writing, Customer shall reimburse Netcall on a full indemnity basis for all costs, compensation payments, tribunal awards, expenses and charges arising from any claim, demand or action made by any of Customer’s employees or ex-employees or any trade union or staff association which represents Customer’s employees or ex-employees (or, in any case where Customer has outsourced services which are the same as or similar to the Services, the employees or ex-employees of such third party service provider or any trade union or staff association representing those employees) on the grounds that the provision and/or cessation of the Services constitutes a relevant transfer for the purposes of TUPE (where TUPE means the Transfer of Undertakings (Protection of Employment Regulations 2006) or any amendment thereto or similar subsequent legislation).
Schedule 1 – Reseller Conditions
If Customer is designated as a reseller on the Order Form then in respect of the Software covered by that Order Form, Customer may sublicence use of that Software (together with the sale of the associated Hardware) subject to the following obligations:
1. Prior to exercising its right to sublicence the Software (and sell the associated Hardware) Customer must have executed an appropriate written legal agreement (“Sublicence Agreement”) with its sublicensee(s) (“Reseller Customer”) which shall include provisions to the following effect:
1.1 Reseller Customer is prohibited from decompiling, reverse engineering, disassembling, or otherwise reducing the Software (and/or the associated Hardware) to a human-perceivable form except as permitted by any applicable law. Where permitted by applicable law, the Reseller Customer shall agree to first make a written request to Netcall for it to supply the relevant information required specifying in reasonable detail the extent and objectives of the proposed decompilation, disassembly or unbundling exercise. Netcall shall be entitled to a reasonable fee for the provision of such information;
1.2 the retention of ownership of all intellectual property rights in the Software (and/or the associated Hardware) by Customer and its suppliers;
1.3 a disclaimer by Customer of all applicable statutory warranties that may be applicable to the Software (and/or the associated Hardware), to the full extent allowed by law;
1.4 an acknowledgement that no contract exists between Netcall and Reseller Customer and that all warranty and other claims shall be made directly against Customer and not against Netcall;
1.5 Reseller Customer shall not be entitled to assign its licence and/or any of its rights or obligations hereunder nor sub-license the use (in whole or in part) of the Software (and/or the associated Hardware) without the prior consent of Reseller and its licensors;
1.6 Reseller Customer will maintain the Software (and/or the associated Hardware) as confidential and limit access to the same to those of its employees, agents and/or sub-contractors who either have a need to know or who are engaged in the use of the Software (and/or the associated Hardware);
1.7 Reseller Customer shall not remove from the Hardware and Reseller Customer will reproduce on any copy of the Software any logos, copyright and trade mark notices of Netcall and its licensors;
1.8 a limitation of Customer’s liability not to exceed price of the Software (and/or the associated Hardware) and provision that sole remedy shall be a right of return and refund, if any, from Customer;
1.9 a disclaimer of indirect, special, incidental, punitive or consequential damages; and
1.10 Reseller’s Customer’s right to use the Software (and/or the associated Hardware) is solely for its internal business purposes. Reseller Customer shall not, and shall not permit any third party, to use, rent, loan, distribute or otherwise deal in any Software (and/or the associated Hardware) and/or Services and in particular shall not process data for third parties or provide a bureau service to third parties.
2. Netcall shall provide Customer with the software support and maintenance services and/or implementation services detailed in the Order Form. Customer shall provide to Reseller Customer appropriate support and maintenance services and/or implementation services as may be agreed between them and Customer may pass the benefit of such services to Reseller Customer and to no other entity. Netcall is not obliged to provide first line support services to Customer and Customer shall use its reasonable endeavours to resolve any service requests or technical issues (including first line service requests or support issues) raised by Reseller Customer.
3. The rights granted to the Reseller Customer by Customer shall be no more extensive that the rights granted to Customer by Netcall under the applicable Order Form. Customer shall only market and/or supply the Software (and/or the associated Hardware) as an indivisible package.
4. Reseller Customer shall be bound by the applicable terms of this Agreement in relation to its use of the Hardware and/or Software.
5. Customer shall ensure that the grant of any sublicence does not breach applicable law, including without limitation, export controls.
6. Customer shall ensure that Netcall has the right to audit the Reseller Customer’s use of the Software (and/or the associated Hardware) where such right shall be comparable to that right set out in clause 12.10.
7. Customer shall not contract with the Reseller Customer so as to create a right of action by the Reseller Customer against Netcall.
8. Customer shall not permit any Reseller Customer to do anything that would otherwise be a breach of this Agreement if such had been undertaken by Customer. Customer undertakes, if so requested by Netcall, to take action against any Reseller Customer to enforce compliance with the terms of this Agreement, the terms of any Sublicence Agreement and/or to protect Netcall’s (or Netcall’s licensors) intellectual property rights in the Software (and/or the associated Hardware). Customer agrees to indemnify Netcall for all losses suffered by Netcall as a consequence of any breach by any Reseller Customer of a Sublicence Agreement.
9. On termination or expiry of the Order Form and/or Agreement for any reason the corresponding sublicence granted thereunder to Reseller Customer shall immediately terminate.
10. Customer shall promptly notify Netcall in writing of the identity of any third party that becomes a Reseller Customer and/or the execution of a Sublicence Agreement with a Reseller Customer.
11. Customer shall comply with all the licence restrictions and contractual provisions imposed on Netcall and/or Customer by its third party suppliers and/or licensors in relation to its use, marketing, sublicensing, operation and/or supply of the Software (and/or the associated Hardware). Reseller shall not remove any logos, copyright notices, trade mark notices or other notices affixed to the Hardware nor shall Reseller remove prior to shipment to Reseller Customer any licensing and/or user documentation accompanying the Hardware.