1. Interpretation
1.1 Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.
1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.1 The Schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Schedules. If there is a conflict or inconsistency in or between any sections of the Agreement, the Main Terms shall take priority. Thereafter, the Schedules shall take decreasing order of priority.
1.2 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.3 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.4 Unless the context otherwise requires, a reference to one gender shall include a reference to the other gender.
1.5 This agreement shall be binding on, and enure to the benefit of, the parties to this agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party's personal representatives, successors and permitted assigns.
1.6 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.7 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.8 A reference to writing or written includes fax and email.
1.9 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.10 A reference to this agreement or to any other agreement or document referred to in this agreement is a reference of this agreement or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of this agreement) from time to time.
1.11 References to clauses and Schedules are to the clauses and Schedules of this agreement and references to paragraphs are to paragraphs of the relevant Schedule.
1.12 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. Commencement and duration
2.1 This agreement shall commence on the date we accept an order and shall continue, unless terminated earlier in accordance with clause 13 (Termination), until either party gives to the other party written notice to terminate.
2.2 The Supplier shall provide the Works from the date specified in the relevant statement of work or order (“SOW”).
3. Statements of Work
3.1 Each Statement of Work shall be agreed in the following manner:
(a) the Customer shall ask the Supplier to provide goods and or services, and shall provide the Supplier with as much information as the Supplier reasonably requests in order to prepare a draft Statement of Work;
(b) following receipt of the information requested from the Customer the Supplier shall, as soon as reasonably practicable either:
(i) inform the Customer that it declines to provide the goods and or services; or
(ii) provide the Customer with a draft Statement of Work.
(c) if the Supplier provides the Customer with a draft Statement of Work pursuant to clause 3.1(b)(ii), the Supplier and the Customer shall discuss and agree that draft Statement of Work; and
(d) both parties shall sign the draft Statement of Work when it is agreed.
3.2 Once a Statement of Work has been agreed and signed in accordance with clause 3.1(d), no amendment shall be made to it except in accordance with clause 7 (Change control) or clause 17 (Variation).
3.3 Each Statement of Work shall be part of this agreement and shall not form a separate contract to it.
4. Compliance with laws and policies
Changes to the Works required as a result of changes to the Applicable Laws shall be agreed via the change control procedure set out in clause 7 (Change control)
The Parties shall comply with all Applicable Laws with respect to the activities under this Agreement.
The Parties shall:
(a) comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption;
(b) notify the other party (in writing) if it becomes aware of any breach of clause 4.44(a), or has reason to believe that it or any person associated with it has received a request or demand for any undue financial or other advantage in connection with the performance of this agreement.
5. Supplier's responsibilities
5.1 The Supplier shall use reasonable endeavours to provide the Works, and deliver the Deliverables to the Customer, in accordance with a Statement of Work in all material respects.
5.2 The Supplier shall use reasonable endeavours to meet any performance dates specified in a Statement of Work but any such dates shall be estimates only and time for performance by the Supplier shall not be of the essence of this agreement.
5.3 The Supplier shall appoint a manager in respect of the Works to be performed under each Statement of Work, such person as identified in the Statement of Work. That person shall have authority to contractually bind the Supplier on all matters relating to the relevant Works (including by signing Change Orders). The Supplier may replace that person from time to time where reasonably necessary in the interests of the Supplier's business.
5.4 The Supplier shall procure and deliver the Purchasing Equipment to the Customer on the date requested by the Customer. The warranty for such Purchasing Equipment shall be in accordance with the original manufactures warranty. The Supplier shall liaise with the manufacturers for any defects in the Purchasing Equipment for and on behalf of the Customer. The Customer shall be responsible for troubleshooting the Purchasing Equipment before shipping them to the Supplier to be replaced or repaired as deemed necessary by the manufacturer of such Purchasing Equipment.
5.5 The Supplier does not warrant that:
(a) the Customer's use of the Services will be uninterrupted or error-free; or
(b) that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements; or
(c) the Software or the Services will be free from Vulnerabilities; or
(d) the Software, Documentation or Services will comply with any Heightened Cybersecurity Requirements.
5.6 The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
6. Customer's obligations
6.1 The Customer shall:
(a) co-operate with the Supplier in all matters relating to the Statements of Work;
(b) appoint a manager in respect of the Works to be performed under each Statement of Work, such person as identified in the Statement of Work. That person shall have authority to contractually bind the Customer on all matters relating to the relevant Works (including by signing Change Orders);
(c) provide, for the Supplier, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Customer's premises, office accommodation, data and other facilities as required by the Supplier including any such access as is specified in a Statement of Work;
(d) provide to the Supplier in a timely manner all documents, information, items and materials in any form (whether owned by the Customer or a third party) required under a Statement of Work or otherwise reasonably required by the Supplier in connection with the Works and ensure that they are accurate and complete in all material respects;
(e) inform the Supplier of all health and safety and security requirements that apply at the Customer's premises. If the Customer wishes to make a change to those requirements which will materially affect provision of the Works, it can only do so via the change control procedure set out in clause 7 (Change control);
(f) ensure that all the Customer's Equipment is in good working order and suitable for the purposes for which it is used and conforms to all relevant Local, State, and Federal laws ;
(g) obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable the Supplier to provide the Works, including in relation to the installation of the Supplier's Equipment, the use of all Customer Materials and the use of the Customer's Equipment, in all cases before the date on which the Works are to start;
(h) keep, maintain and ensure the Supplier's Equipment in good condition and not dispose of or use the Supplier's Equipment other than in accordance with the Supplier's written instructions or authorisation;
(i) provide clear delivery instructions and ensure the Purchasing Equipment is accepted at the place of delivery upon arrival, and shall arrange disposal of packaging from the Purchasing Equipment without delay;
(j) pay for all out of pocket expenses necessarily incurred by the Supplier in its performance of the Works including but not limited to shipping costs; and
(k) comply with any additional responsibilities of the Customer as set out in the relevant Statement of Work (if any).
6.2 If the Supplier's performance of its obligations under this agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees then, without prejudice to any other right or remedy it may have, the Supplier shall be allowed an extension of time to perform its obligations equal to the delay caused by the Customer.
7. Change control
7.1 Either party may propose changes to the scope or execution of the Works but no proposed changes shall come into effect until a relevant Change Order has been signed by both parties. A Change Order shall be a document setting out the proposed changes and the effect that those changes will have on:
(a) the Works;
(b) the SoW Charges;
(c) the timetable for the Works; and
(d) any of the other terms of the relevant Statement of Work.
7.2 If the Supplier wishes to make a change to the Works it shall provide a draft Change Order to the Customer.
7.3 If the Customer wishes to make a change to the Works:
(a) it shall notify the Supplier and provide as much detail as the Supplier reasonably requires of the proposed changes, including the timing of the proposed change; and
(b) the Supplier shall, as soon as reasonably practicable after receiving the information at clause 7.3(a), provide a draft Change Order to the Customer.
7.4 If the parties:
(a) agree to a Change Order, they shall sign it and that Change Order shall amend the relevant Statement of Work; or
(b) are unable to agree a Change Order, either party may require the disagreement to be dealt with in accordance with the dispute resolution procedure in clause 26 (Multi-tiered dispute resolution procedure).
7.5 The Supplier may charge for the time it spends on preparing and negotiating Change Orders which implement changes proposed by the Customer pursuant to clause 7.3 on a time and materials basis at the Supplier's daily rates.
8. Charges and payment
8.1 In consideration of the provision of the Works by the Supplier, the Customer shall pay the charges in accordance with the charges set out in a SoW.
8.2 The Supplier shall invoice the Customer for the SoW Charges at the intervals specified, or on the achievement of the Milestones indicated, in the Statement of Work. If no intervals are so specified, the Supplier shall invoice the Customer at the end of each month for Works performed during that month.
8.3 The Customer shall pay each invoice submitted to it by the Supplier within 30 days of receipt to a bank account nominated in writing by the Supplier from time to time.
8.4 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier any sum due under this agreement on the due date:
(a) a service charge of one and one-half percent (1.5%) per month (but not exceeding the maximum permitted by law) will be payable by Client on any past due amounts; and
(b) the Supplier may suspend part or all of the Works until payment has been made in full.
8.5 All sums payable to the Supplier under this agreement:
(a) are exclusive of VAT, withholding or other taxes now or hereafter imposed by any federal, state or local taxing authority upon or with respect to the sale of Equipment or performance of Services. Where applicable, Electrosonic shall invoice, and Client shall reimburse Electrosonic, for any such taxes due to, or charged by, any governmental entity as a result of this Contract ; and
(b) shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
9. Intellectual property rights
9.1 In relation to the Deliverables, save to the extent expressly amended in a SoW:
(a) the Supplier and its licensors shall retain ownership of all IPRs in the Deliverables, excluding the Customer Materials;
(b) subject to full payment of the SoW Charges, the Supplier grants the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free and irrevocable licence to copy and modify the Deliverables (excluding the Customer Materials) for the strict purpose of receiving and using the Works and the Deliverables; and
(c) the Customer shall not sub-license, assign or otherwise transfer the rights granted in clause 9.1(b):
(i) to its Affiliates and customers; and
(ii) subject to their entering into appropriate confidentiality undertakings, to third parties for the purpose of the Customer's receipt of services similar to the Works.
9.2 In relation to the Customer Materials, the Customer:
(a) and its licensors shall retain ownership of all IPRs in the Customer Materials; and
(b) grants to the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Customer Materials for the term of this agreement for the purpose of providing the Works to the Customer.
9.3 The Supplier:
(a) warrants that the receipt and use of the Works and the Deliverables by the Customer and its permitted sub-licensees shall not infringe the rights, including any Intellectual Property Rights, any rights of third parties to the extent that the infringement results from copying;
(b) shall, subject to clause 12.4 & 12.5, indemnify the customer against all direct and reasonable liabilities, costs, expenses, damages and losses and other reasonable professional costs and expenses) suffered or incurred or paid by the Customer arising out of or in connection with any claim brought against the Customer for actual or alleged infringement of a third parties Intellectual Property Rights, to the extent that the infringement or alleged infringement results from copying, arising out of, or in connection with, the receipt and use of the Works and Deliverables.
(c) shall not be in breach of the warranty at clause 9.3(a), and the Customer shall have no claim under the indemnity at clause 9.3(b) to the extent the infringement arises from:
(i) the use of Customer Materials in the development of, or the inclusion of the Customer Materials in, the Works or any Deliverable;
(ii) any modification of the Works or any Deliverable, other than by or on behalf of the Supplier; and
(iii) compliance with the Customer's specifications or instructions.
9.4 The Customer:
(a) warrants that the receipt and use in the performance of this agreement by the Supplier, its agents, subcontractors or consultants of the Customer Materials shall not infringe the rights, including any Intellectual Property Rights, of any third party; and
(b) shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred or paid by the Supplier arising out of or in connection with any claim brought against the Supplier, its agents, subcontractors or consultants for actual or alleged infringement of a third party's Intellectual Property Rights, arising out of, or in connection with, the receipt or use in the performance of this agreement of the Customer Materials.
9.5 If either party (Indemnifying Party) is required to indemnify the other party (Indemnified Party) under this clause9, the Indemnified Party shall:
(a) notify the Indemnifying Party in writing of any claim against it in respect of which it wishes to rely on the indemnity at clause 9.3(b) or clause 9.4(b) (as applicable) (IPRs Claim);
(b) allow the Indemnifying Party, at its own cost, to conduct all negotiations and proceedings and to settle the IPRs Claim, always provided that the Indemnifying Party shall obtain the Indemnified Party's prior approval of any settlement terms, such approval not to be unreasonably withheld;
(c) provide the Indemnifying Party with such reasonable assistance regarding the IPRs Claim as is required by the Indemnifying Party, subject to reimbursement by the Indemnifying Party of the Indemnified Party's costs so incurred; and
(d) not, without prior consultation with the Indemnifying Party, make any admission relating to the IPRs Claim or attempt to settle it, provided that the Indemnifying Party considers and defends any IPRs Claim diligently, using competent counsel and in such a way as not to bring the reputation of the Indemnified Party into disrepute.
10. Data protection
10.1 Both parties will comply with all applicable requirements of any applicable Data Protection Legislation, and Schedule 5. The provisions in Schedule 5 are in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.
11. Confidentiality
11.1 Each party undertakes that it shall not at any time during this agreement, and for a period of five years after termination of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 11.2(a).
11.2 Each party may disclose the other party's confidential information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 11; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
11.3 No party shall use the other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
12. Limitation of liability
12.1 References in this clause 12 to liability include every kind of liability arising under or in connection with this agreement including but not limited to liability in contract (including indemnities, if any), tort (including negligence), misrepresentation, restitution, equity or otherwise.
12.2 Nothing in this agreement limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by negligence; and
(b) fraud or fraudulent misrepresentation.
12.3 Subject to clause 12.2, the Supplier's total liability to the Customer in respect of a SoW shall not exceed fifty (50) percent the total charges paid by the Customer to the Supplier under a SoW during the 12 months immediately preceding the date on which the claim arose.
12.4 This clause 12.4 sets out specific heads of excluded loss and exceptions from them:
(a) subject to clause 12.2, the following types of loss are wholly excluded:
(i) loss of profits;
(ii) loss of sales or business;
(iii) loss of agreements or contracts;
(iv) loss of anticipated savings;
(v) loss of use or corruption of software, data or information;
(vi) loss of or damage to goodwill; and
(vii) indirect or consequential loss.
12.5 The Supplier has given commitments as to compliance of the Services with relevant specifications in clause 5.1. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this agreement.
12.6 Unless the Customer notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire six months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
12.7 Except as otherwise expressly provided in this agreement, the equipment and services are provided for use “as is” without warranty of any kind. To the maximum extent permitted by law and other than as warranted herein, the Supplier disclaims all warranties of any kind, either express or implied, including, without limitation, implied warranties of merchantability, non-infringement, and fitness for a particular purpose. The Customer is responsible for the supervision, management and control of Customer’s use of the equipment and services. This responsibility includes, but is not limited to, the determination of appropriate uses for the equipment and services to achieve intended results.
12.8 Notwithstanding any other provision in this agreement, the Supplier’s liability under this agreement shall be reduced proportionately to the extent it is caused or contributed to by any breach, negligence or omission of this agreement by the Customer or its directors, employees, agents, affiliates, subcontractors and representatives.
13. Termination
13.1 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of this agreement and such breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(b) the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
the other party (i) is unable to pay its debts as they mature or admits in writing its inability to pay its debts as they mature, (ii) makes a general assignment for the benefit of creditors, (iii) files a voluntary petition for bankruptcy or has filed against it an involuntary petition for bankruptcy, or (iv) applies for the appointment of a receiver or a trustee for substantially all of its assets or permits the assignment of any such receiver or trustee who is not discharged within a period 30 days after such appointment;
(c) 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 any of its creditors;
(d) 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, limited liability partnership or partnership);
(e) an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other party (being a company);
(f) the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(g) a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
(h) 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 the other party's assets and such attachment or process is not discharged within 14 days;
(i) 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 clause 13.1(c) to clause 13.1(i) (inclusive); or
(j) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
13.2 Without affecting any other right or remedy available to it, the Supplier may terminate this agreement with immediate effect by giving written notice to the Customer if:
(a) the Customer fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment; or
(b) there is a change of Control of the Customer.
14. Consequences of termination
14.1 On termination or expiry of this agreement:
(a) all existing Statements of Work shall terminate automatically;
(b) the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of the Works supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt;
(c) the Customer shall, return all of the Supplier's Equipment. If the Customer fails to do so, then the Supplier may enter the Customer's premises and take possession of the Supplier's Equipment. Until the Supplier's Equipment has been returned or repossessed, the Customer shall be solely responsible for its safe keeping;
(d) the Supplier shall on request return any of the Customer Materials not used up in the provision of the Works; and
(e) all licences granted under this agreement shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation.
14.2 Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.
14.3 Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
15. Force majeure
15.1 Force Majeure Event means any circumstance not within a party's reasonable control including, without limitation:
(a) acts of God, flood, drought, earthquake or other natural disaster;
(b) epidemic or pandemic (as defined by the World Health Organisation);
(c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
(d) nuclear, chemical or biological contamination or sonic boom;
(e) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
(f) collapse of buildings, fire, explosion or accident;
(g) any labour or trade dispute, strikes, industrial action or lockouts;
(h) non-performance by suppliers or subcontractors (other than by companies in the same group as the party seeking to rely on this clause); and
(i) interruption or failure of utility service.
15.2 Provided it has complied with clause 15.4, if a party is prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of this agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
15.3 The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.
15.4 The Affected Party shall:
(a) as soon as reasonably practicable after the start of the Force Majeure Event but no later than five days from its start, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the agreement; and
(b) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
15.5 If the Force Majeure Event prevents, hinders or delays the Affected Party's performance of its obligations for a continuous period of more than two weeks, the party not affected by the Force Majeure Event may terminate this agreement by giving four weeks' written notice to the Affected Party.
16. Assignment and other dealings
16.1 The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.
16.2 The Supplier may at any time assign, mortgage, charge, delegate, declare a trust over or deal in any other manner with any or all of its rights under this agreement, provided that the Supplier gives prior written notice of such dealing to the Customer.
17. Variation
Subject to clause 7 (Change control), no variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
18. Waiver
18.1 A waiver of any right or remedy under this agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
18.2 A failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
18.3 A party that waives a right or remedy provided under this agreement or by law in relation to one party, or takes or fails to take any action against that party, does not affect its rights in relation to any other party.
19. Rights and remedies
The rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
20. Severance
20.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
20.2 If any provision or part-provision of this agreement is deemed deleted under clause 20.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
21. Entire agreement
21.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
21.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
22. No partnership or agency
22.1 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
22.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
23. Third party rights
23.1 Unless it expressly states otherwise, this agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
24. Notices
24.1 Any notice or other communication given to a party under or in connection with this agreement shall be in writing and shall be sent by email to the address specified in the relevant SoW or as notified by the parties.
24.2 Any notice or communication shall be deemed to have been received at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume.
24.3 This clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
25. Non-solicitation and employment
25.1 The Customer shall not, without the prior written consent of the Supplier, at any time from the date on which any Works commence to the expiry of 24 months after the completion of such Works, solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of the Supplier in the provision of such Works.
25.2 Any consent given by the Supplier in accordance with clause 25.1 shall be subject to the Customer paying to the Supplier a sum equivalent to 50% of the then current annual remuneration of the Supplier's employee, consultant or subcontractor or, if higher, 50% of the annual remuneration to be paid by the Customer to that employee, consultant or subcontractor.
26. Dispute resolution procedure
26.1 If a dispute arises out of or in connection with this agreement or the performance, validity or enforceability of it (“Dispute”) then the parties shall endeavour to resolve the dispute in good faith.
26.2 If the parties are unable to resolve the Dispute then they shall use all reasonable endeavours to agree appropriate options for alternative dispute resolution.
26.3 If the parties are unable to resolve the Dispute or agree upon an alternative dispute resolution procedure, then the Dispute shall be finally resolved by the courts in accordance with Clause 27.
27. Governing law and Jurisdiction
27.1 The Governing law and jurisdiction shall vary depending upon the domicile of the Electrosonic Group Company (“Domicile”) specified in the SOW.
27.2 If the Domicile is within the USA, then the contract is made in accordance with and shall be governed and construed in accordance with the laws of the State of Minnesota, United States, without regard to its rule of conflicts of laws. All claims arising under or related to this contract or the negotiation, validity or performance of the terms of the contract by the parties hereto, shall be venued in a Federal or state court sitting in the State of Minnesota, and each party irrevocably consents to the sole and exclusive personal jurisdiction of such courts, waives any objection to the laying of venue in any such court and agrees not to plead or claim that such litigation has been brought in any inconvenient forum or that there are indispensable parties that are not subject to the jurisdiction of such courts.
27.3 If the Domicile is the United Arab Emirates (“UAE”), then this contract and any dispute or claim whatsoever relating to it or its formation shall be governed by and construed in accordance with English law and the parties irrevocably agree that the Dubai International Finance Centre (DIFC) shall have exclusive jurisdiction. Nothing in this Clause shall (or shall be construed so as to) limit the right of the Supplier to take proceedings against the Customer in the courts of any country in which the Customer has assets for the purposes of enforcing any judgment or award nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdiction (whether concurrently or not) if and to the extent permitted by applicable law.
27.4 If the Domicile is the Netherlands, then this contract, and any dispute or claim arising out of or in connection with this contract or its subject matter or formation, including any non-contractual disputes or claims, will be exclusively governed by and construed in accordance with the laws of the Netherlands, excluding conflict of law rules and choice of law principles that provide otherwise. The United Nations Convention on the International Sale of Goods will not apply to this contract. Any dispute or claim arising out of or in connection with the contract, including any non-contractual claim, will be finally and exclusively resolved by arbitration under the Netherlands Arbitration Institute (“Nederlands Arbitrage Instituut”) Rules of Arbitration (the “RULES”).
27.5 For all Domicile’s other than the USA, UAE, or the Netherlands, then this Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
28. Marketing
28.1 The Supplier may, without Customer’s consent, use, show, describe, list or name the Customer and/or Customer’s project as a customer for promotional purposes, content creation, award submissions, video assets, project profiles, industry events, and other marketing activities online, in print and in person; provided that, the Supplier may not disclose Customer’s sensitive business information.
Schedule 1: Definitions
Affiliate: any entity that directly or indirectly controls, is controlled by, or is under common control with another entity.
Agreement: comprises the Main Terms and the Schedules.
Applicable Laws: all applicable laws, statutes, regulation from time to time in force.
Change Order: has the meaning given in clause 7.1.
Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical measures: as defined in the Data Protection Legislation.
Customer's Equipment: any equipment, including tools, systems, cabling or facilities, provided by the Customer, its agents, subcontractors or consultants which is used directly or indirectly in the supply of the Works including any such items specified in a Statement of Work.
Customer Materials: all documents, information, items and materials in any form, whether owned by the Customer or a third party, which are provided by the Customer to the Supplier in connection with the Works, including the items provided pursuant to clause 6.1(d).
Data Protection Legislation: any applicable data protection legislation, including the UK GDPR, and the GDPR.
Deliverables: any output of the Works to be provided by the Supplier to the Customer as specified in a Statement of Work and any other documents, products and materials provided by the Supplier to the Customer in relation to the Works (excluding the Supplier's Equipment).
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Milestone: a date by which a part or all of the Works is to be completed, as set out in a Statement of Work.
Purchasing Equipment: any equipment which is listed in the SoW and is procured by the Supplier for and on behalf of the Customer. Title in such equipment shall pass upon receipt of full payment by the Supplier. Risk in such equipment shall pass upon delivery to Customer’s premises or the project site as applicable.
SoW Charges: the sums payable for the Works as set out in a Statement of Work.
Statement of Work: a detailed schedule to the Main Agreement, agreed in accordance with clause 3, describing the goods and/or services to be provided by the Supplier.
Supplier's Equipment: any equipment, including tools, systems, cabling or facilities, provided by the Supplier to the Customer and used directly or indirectly in the supply of the Works, including any such items specified in a Statement of Work but excluding any such items where title passes to the Customer.
Works: the Available Services which are provided by the Supplier under a Statement of Work.
Schedule 2: Data Protection: Processing, personal data and data subjects
For the purposed of this schedule, where a party to this agreement provides the other party with personal data then the party providing the personal data will be the Discloser, and the recipient of the personal data will be the Receiver.
The parties acknowledge that for the purposes of the Data Protection Legislation, the Discloser is the controller, and the Recipient is the processor. This Schedule sets out the scope, nature and purpose of processing by the Processor.
Without prejudice to the generality of this schedule, the Discloser will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Receiver for the duration and purposes of this agreement.
Without prejudice to the generality of this schedule, the Receiver shall, in relation to any personal data processed in connection with the performance by the Receiver of its obligations under this agreement:
(a) process that personal data only on the documented written instructions of the Discloser unless the Receiver is required by Applicable Laws to otherwise process that personal data. Where the Receiver is relying on the laws of a member of the European Union or European Union Law as the basis for processing personal data, the Receiver shall promptly notify the Discloser of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Receiver from so notifying the Discloser;
(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Discloser, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
(d) not transfer any personal data outside of the European Economic Area unless the prior written consent of the Discloser has been obtained and the following conditions are fulfilled:
(i) the Discloser or the Receiver has provided appropriate safeguards in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) the Receiver complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
(iv) the Receiver complies with reasonable instructions notified to it in advance by the Discloser with respect to the processing of the personal data;
(e) assist the Discloser, at the Discloser's cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify the Discloser without undue delay on becoming aware of a personal data breach;
(g) at the written direction of the Discloser, delete or return personal data and copies thereof to the Discloser on termination of the agreement unless required by Applicable Law to store the personal data; and
(h) maintain complete and accurate records and information to demonstrate its compliance with this schedule and immediately inform the Discloser if, in the opinion of the Receiver, an instruction infringes the Data Protection Legislation.
Either party may, at any time on not less than 30 days' notice, revise this schedule by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).
For the performance of the Works, the Customer consents to the Supplier collecting, using and disclosing information as set forth in the Supplier’s Privacy Policy (available at electrosonic.com/company/emea-privacy-policy-2/).
Schedule 3: Standard Warranty
If the Domicile is anywhere other than the USA or Canada, the following warranty shall apply:
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Electrosonic Standard Warranty |
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| System Sale – Electrosonic Installation | 0-90 days | 91-365 days |
| Electrosonic technician returns to site free of charge if unable to resolve problem via service desk | x | POA |
| Repair / replacement of faulty product (subject to OEM warranty period – generally 90 days from initial live date), shipping costs excluded | x | POA |
If the domicile is within the USA or Canada, the following warranty applies:
GENERAL
Every audio-visual system supplied and installed by Electrosonic consists of equipment and the interconnections which allow the system to work. It may, or may not, also include off-the-shelf or custom software. Unless otherwise stated in the project contract document, Electrosonic provides a Standard Warranty on every system it supplies and installs.
Electrosonic, Inc. ("Electrosonic") maintains a specific business unit to manage the service and support of its system integration projects. The Service Solutions Group is staffed by trained technicians who fulfill the company’s Standard Warranty obligations, as well as provide a range of additional services. In this regard, the Service Solutions Group can provide technicians for, and administer, separate Maintenance and Service Support Agreements (at additional cost) that include repair and support at levels beyond the terms of the Standard Warranty. These are called Higher Level Maintenance and Service Support Agreements.
This document describes what a Standard Warranty is, what it covers and how it is implemented.
STANDARD WARRANTY
Unless otherwise stated in the project contract document, a Standard Warranty is included with every audio-visual sister supply and installation proposal provided by Electrosonic. Higher Level Maintenance and Service Support Agreements, where applicable, are defined either in the proposal as an addition to the Standard Warranty or in a separate agreement. A Standard Warranty can, at any time, be augmented by a Higher-Level Maintenance and Service Support Agreement.
Electrosonic’s Standard Warranty assures that the equipment and interconnections, supplied by it as part of the system, will be free from defects in materials and workmanship for the period of said warranty.
The equipment and software covered by a Standard Warranty is specifically identified in a list of all the items supplied for the project. This list will be provided with the Proposal, and amended at the end of the project. The final list, the "Covered Equipment List" will detail all model numbers and serial numbers. Only equipment matching these numbers is covered by the Standard Warranty. By definition, all interconnections that allow the system to operate, if they were provided and installed by Electrosonic at the time of installation, are covered by the same Standard Warranty.
WARRANTY PERIOD
The Standard Warranty runs from the day on which the system is accepted by the customer as Substantially Complete, i.e. ready for use at the customer's convenience, or the time of first beneficial use by the customer, whichever occurs first, for a period of twelve months. Substantial Completion does not imply that Electrosonic’s work is complete or that manuals, final drawings, and final paperwork have been submitted or approved.
For the first 90 days after the Warranty period begins, the Standard Warranty includes on-site fault diagnosis and rectification. After that, unlimited telephone support is available for diagnosis, but equipment must be removed from the system, returned to Electrosonic, and re-installed by the customer.
The Standard Warranty is divided into an Equipment and Software warranty and a Services warranty.
EQUIPTMENT WARRANTY
The equipment listed in the Proposal (the "Equipment"), and amended at the end of the project (Covered Equipment) is covered by warranties provided by the original manufacturer of such Equipment (in each such case, the "Manufacturer's Warranty"). To the extent that Electrosonic is permitted, Electrosonic assigns each such Manufacturer’s Warranty to the customer and Electrosonic shall act as the liaison coordinating support from applicable Equipment manufacturers.
If no Manufacturer’s Warranty is provided to the customer with respect to a piece of Equipment, Electrosonic itself warrants that each such piece of Equipment will be free from defects in materials and workmanship during the Standard Warranty period.
In cases where a Manufacturer’s Warranty has been assigned to the customer and such warranty extends beyond the Standard Warranty Period, no further warranty liaison is provided by Electrosonic after the Standard Warranty period is over {though the Manufacturer’s Warranty is still in effect). Any such warranty claim will be managed by the customer.
In cases where a Manufacturer's Warranty has been assigned to the customer, but such warranty expires prior to the Warranty Period, Electrosonic warrants each such piece of Equipment will be free from defects in materials and workmanship from the date that the applicable Manufacturer’s Warranty expires until the date that would have been the end of the Standard Warranty Period.
The foregoing is collectively referred to hereinafter as the "Equipment Warranty."
SERVICES WARRANTY
Electrosonic warrants that interconnection between the equipment in the system, which were supplied and installed by Electrosonic, and the Services performed in fabricating, installing, and commissioning the system will perform as described in the proposal during the Warranty period.
The Equipment Warranty and the Services Warranty are collectively referred to hereinafter as the "Standard Warranty".
Electrosonic Standard Warranty
| System Sale – Electrosonic Installation | 0-90 Days | 91-365 Days |
| · Electrosonic technician returns to site free of charge if telephone support does not resolve problem | X | |
| · Full exchange/repair of defective product | X | X |
| · Repair of defective product at Electrosonic – parts and labor included. * | X | |
| · Standard return shipping paid by Electrosonic | X | |
|
The warranty period begins at first beneficial use or substantial completion whichever occurs first
*Product repair times vary based on repair center workload
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Exclusions and Disclaimers
The Standard Warranty does not cover acts of God or malfunction in any component caused by improper occurrences or actions taken by others after the date of Substantial Completion. These include modifications to the equipment or system by anyone other than Electrosonic, misuse, abuse, neglect, improper adjustment, tampering. improper/inadequate maintenance, and/or malfunctions resulting from adjustment, service, or maintenance by unqualified personnel. LCD panels or phosphor-based displays that are scratched, broken, burned by a static image or have imperfections in any special coating are not covered under the Standard Warranty or that of the original manufacturer. Physical damage or data loss resulting from electrical power spikes, surges, brown or black outs are not covered.
The Standard Warranty does not cover projection lamps. Projection lamps are covered under the original manufacturer's ninety (90) day limited warranty, and they must be returned to Electrosonic for evaluation or product exchange.
The Standard Warranty does not cover acts, omissions, defects, or other problems specifically excluded by the applicable Manufacturer's Warranty.
In the event that replacement of equipment during the Standard Warranty period is necessary, Electrosonic will attempt, but does not guarantee to be able, to provide the identical part or piece. In cases where an identical part or piece Rs not available, Electrosonic will make commercially reasonable efforts to supply a replacement with a form and function that is close to the original, as applicable
THE FOREGOING REMEDIES SHALL BE CUSTOMER'S EXCLUSIVE REMEDIES FOR BREACH OF THE STANDARD WARRANTY AND SHALL CONSTITUTE FULFILLMENT OF ALL LIABILITIES OF ELECTR OSONIC AND ITS AFFILIATES AND AGENTS (INCLUDING ANY LIABILITY FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES) WITH RESPECT TO THE SAME, WHETHER IN WARRANTY, CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, OR OTHERWISE. OTHER THAN THE STANDARD WARRANTY PROVIDED HEREIN, ELECTROSONIC MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE PROPOSAL, THE EQUIPMENT OR THE SERVICES. ALL OTHER WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COURSE OF DEALING OR THAT PARTICULAR RESULTS WILL BE OBTAINED, ARE EXPRESSLY WAIVED AND DISCLAIMED. NO AGENT, EMPLOYEE OR REPRESENTATIVE OF ELECTROSONIC HAS ANY AUTHORITY TO BIND ELECTROSONIC TO ANY AFFIRMATION, REPRESENTATION OR WARRANTY THAT DIFFERS FROM THE STANDARD WARRANTY.
Notwithstanding the foregoing, Electrosonic reserves the right to exchange, or repair Equipment covered by the Standard Warranty, as determined by Electrosonic, subject to the terms and conditions set forth herein. The foregoing shall be customer's exclusive remedy and shall constitute fulfillment of all liabilities of Electrosonic and its affiliates and agents (including any liability for direct, indirect, special, incidental, or consequential damages), whether in warranty, contract, negligence, tort, strict liability, or otherwise, with respect to any nonconformance of or defect or deficiency in the Equipment or Services.
WARRANTY REPAIRS
A repair of Equipment covered by the Standard Warranty ("Warranty Repairs") includes both the cost of parts and the cost of labor.
Electrosonic will not be responsible for Warranty Repairs unless: (I) customer gives written notice of the defect, reasonably described, to Electrosonic within [three (3)] days of the time when Buyer discovers or ought to have discovered the defect, and provided that such notice is received by Electrosonic during the Standard Warranty Period; (ii) Electrosonic is given a reasonable opportunity after receiving the notice to examine such Equipment and customer (if requested to do so by Electrosonic) returns such Equipment to Electrosonic’s facility for examination; and (iii) Electrosonic verifies, at its discretion, that the Equipment is covered by the Standard Warranty.
Electrosonic will NOT process any Warranty Repairs without obtaining an accurate model number, serial number, and detailed description of the failure for its IMA (Return Merchandize Authorization) record. For a Warranty Repair to be authorized, this information must match the data contained in the "Covered Equipment List".
All Warranty Repairs must be performed at an Electrosonic repair facility or at the manufacturer’s authorized repair facility. Any attempt to repair Equipment by unauthorized personnel will void any rights remaining under the Standard Warranty.
SHIPPING
Customer is responsible for arranging and paying for the outgoing shipping costs for all Equipment or product being returned from customer's facility to the appropriate Electrosonic repair facility and/or manufacturer’s repair facility as required. This includes all Equipment and products being returned to
Electrosonic for Warranty Repairs. Electrosonic will arrange for and pay ground service shipping for all equipment being returned to the customer after Warranty Repair and for all equipment being sent out for exchange pursuant to the Standard Warranty.
Customer is responsible to pay the shipping charges for all other express shipments (including counter to counter fees) and all shipments of Equipment or other products shipped back to customer after Non• Warranty Repairs have been performed.
Customer must check all units immediately upon receipt. If any shipping damage is found, customer is responsible for reporting such damage to the carrier immediately.