Cyprium Communications Terms & Conditions

AGREED TERMS
1. COMMENCEMENT AND DURATION
1.1 We will provide the Services to you, from the Start Date, on the terms and conditions of this Agreement.

1.2 The Services supplied under this Agreement shall continue to be supplied for the Duration, unless this Agreement is terminated earlier in accordance with clause 7.

2. SUPPLY OF SERVICES
2.1 In supplying the Services, we will:

(a) perform the Services with reasonable care and skill;

(b) use reasonable endeavours to perform the Services;

(c) ensure that the Deliverables, and all goods, materials, standards and techniques used in providing the Services are of satisfactory quality and are fit for purpose;

(d) co-operate with you in all matters relating to the Services; and

(e) comply with all applicable laws, statutes, and regulations from time to time in force.

2.2 If a change to the Services is requested or required that results in a change to the Charges and or the Payment Schedule a revised and updated Charges, Payment Schedule and Service specification will be agreed and signed by both parties. Any change is not valid until agreed and signed by both parties.

3. CHARGES AND PAYMENT
3.1 In consideration of the provision of the Services you will pay the Charges (plus VAT at the prevailing rate) [as set out in the Payment Schedule].

3.2 [You will pay each invoice due and submitted to you within 30 days of the invoice date, to the bank account specified by us in writing.]

3.3 If you fail to make any payment due to us under this Agreement by the due date for payment, then, without limiting our remedies under clause 7 (Termination):

(a) You will pay interest on the overdue amount at the rate of 4% a year above Santander’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment.  You will pay the interest together with the overdue amount; and

(b) We may suspend all Services until payment has been made in full.

3.4 All amounts due under this Agreement 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).

4. CUSTOMER’S OBLIGATIONS
4.1 You will:

(a) co-operate with us in all matters relating to the Services;

(b) allow us, in a timely manner and at no charge, access to your data and other information as reasonably required by us;

(c) provide, in a timely manner, such up to date and accurate information as we may reasonably require;

(d) allow us to make changes to the Services as required from time to time; and

(e) allow us to communicate directly with any applicable third parties connected with the Services.

4.2 If our performance of our obligations under this Agreement is prevented or delayed by any act or omission of yours, your agents, subcontractors, consultants or employees, we will:

(a) not be liable for any costs, charges or losses sustained or incurred by you that arise directly or indirectly from such prevention or delay; and

(b) be entitled to payment of the Charges despite any such prevention or delay.

5. INTELLECTUAL PROPERTY
5.1 We, together with our licensors, will retain ownership of all Supplier IPRs. You and your licensors will retain ownership of all Intellectual Property Rights in the Customer Materials and Deliverables.

5.2 We grant you a fully paid-up, worldwide, non-exclusive, royalty-free, licence to copy the Supplier IPRs for the purpose of receiving and using the Services in your business during the term of the Agreement.

5.3 You grant us a fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable licence to copy and modify the Customer Materials and Deliverables for the term of this Agreement for the purpose of providing the Services to you in accordance with this Agreement.

5.4 You will keep us indemnified in full against any sums awarded by a court against us as a result of or in connection with any claim brought against us for infringement of a third party’s rights (including any Intellectual Property Rights) arising out of, or in connection with, the receipt or use by us of the Customer Materials.

6. LIMITATION OF LIABILITY
6.1 Nothing in this Agreement shall limit or exclude our liability for:

(a) death or personal injury caused by our negligence, or the negligence of our personnel, agents or subcontractors;

(b) fraud or fraudulent misrepresentation; and

(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.

6.2 Subject to clause 6.1, our total liability to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this Agreement shall be limited to the average annual Charges (calculated by reference to the Charges in successive 12 month periods from the Start Date) paid by you under this Agreement.

6.3 The conditions 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.

7. TERMINATION

7.1 Either party may give written notice to the other party not later than 3 months before the end of the Initial Term or the relevant Extended Term to terminate this Agreement.

7.2 Without prejudice to any other rights or remedies which the parties may have, either party may terminate this Agreement immediately on giving written notice to the other if the other party suffers or commits a Termination Event.

7.3 On termination of this Agreement for whatever reason:

(a) you will immediately pay to us all of our outstanding Charges and interest.

(b) termination of the Agreement will not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination; and

(c) clause 5 (Intellectual Property), this clause 7 and clause 8 (Confidentiality and Property) will survive and continue in full force and effect.

8. CONFIDENTIALITY AND  PROPERTY
8.1 All In-put Materials, your equipment and all other materials and tools, drawings, specifications and data supplied by you to us will, at all times, be and remain your exclusive property.

8.2 No party shall use the other party’s confidential information for any purpose other than to perform its obligations under this Agreement.

9. ANTI-BRIBERY
9.1 Both Parties will:

(a) comply with all applicable laws, statutes, and regulations relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (“Relevant Requirements”);

(b) not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;

(c) have and shall maintain in place throughout the term of this Agreement its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements, the Relevant Policies and clause 9.1(b), and will enforce them where appropriate;

(d) promptly report to the other party any request or demand for any undue financial or other advantage of any kind received by it in connection with the performance of this Agreement.

9.2 Breach of this clause 9 shall be deemed a material breach.

10. GENERAL
10.1 Events beyond our control. Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control.

10.2 Assignment and other dealings.

(a) This Agreement is personal to the parties and neither party will assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Agreement without the other party’s written consent.

(b) We may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under this Agreement.

10.3 Entire Agreement.

(a) 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.

(b) 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 based on any statement in this Agreement.

10.4 Variation. No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

10.5 Waiver.  A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.  A delay or failure to  exercise, or the single or partial exercise of, any right or remedy shall not:

(a) waive that or any other right or remedy; or

(b) prevent or restrict the further exercise of that or any other right or remedy.

10.6 Severance. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.

10.7 Notices.
(a) Any notice or other communication given to a party under or in connection with this Agreement shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, or e-mail.

(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 11.7 (a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second business day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by e-mail, one Business Day after transmission (provided a copy of the email is sent by post on the next available business day).

(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

10.8 Third party rights. No one other than a party to this Agreement shall have any right to enforce any of its terms.

10.9 Governing law. This Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England.

10.10 Jurisdiction. Each party irrevocably agrees that the courts of England 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).
SCHEDULE 1
DEFINITIONS AND INTERPRETATION

The definitions and rules of interpretation in this schedule apply in this Agreement.
Charges:
the charges payable by you as set out in the Payment Schedule (Contract Details).

Customer Materials:
all materials, equipment and tools, drawings, specifications and data supplied by you to us.

Deliverables (what we are giving to you):
all Documents, products, artwork and materials developed by us or our agents, subcontractors, consultants and employees in relation to the Services.

Document:
includes, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.

In-put Material (what you will provide to us):
all Documents, information and materials provided by you to us relating to the Services.
Intellectual Property Rights:

Order Form:
all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, chip topography rights,  rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.

Our confirmation of your order for the Services.
Services:
the services to be provided by us under this Agreement, as set out more specifically in the Order Form and our obligations under this Agreement, together with any other services which you requests from us.

Supplier IPRs:
all Intellectual Property Rights necessary or desirable to enable you to receive and use the Services (excluding any Customer Materials or Deliverables).

Termination Event:  (a) failing to pay any amount due under this Agreement on the due date for payment and remaining in default at least 30 days after being notified in writing to make such payment; or
(b) committing a material breach of any of the terms of this Agreement and (if such a breach is remediable) failing to remedy that breach within 30 days of being notified in writing of the breach; or
(c) repeatedly breaching 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; or
(d) suspending, or threatening to suspend, payment of its debts, being unable to pay its debts as they fall due, admitting an inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or
(e) making a proposal for, or entering into any compromise or arrangement with, its creditors other than for the sole purpose of a scheme for a solvent amalgamation with one or more other companies, or its solvent reconstruction; or
(f) 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 that party other than for the sole purpose of a scheme for a solvent amalgamation with one or more other companies, or its solvent reconstruction; or
(g) an application is made to court, or an order is made, for the appointment of an administrator, a notice of intention to appoint an administrator is given, or an administrator is appointed; or
(h) a creditor or encumbrancer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or
(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 paragraph (d) to paragraph (h) above (inclusive); or
(j) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.

VAT:
value added tax chargeable under English law for the time being and any similar, additional tax.

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) and that person’s legal and personal representatives, successors and permitted assigns.

1.3 Words in the singular shall include the plural and vice versa.

1.4 A reference to writing or written includes e-mail.

1.5 Where the words include(s), including or in particular are used in this Agreement, they are deemed to have the words without limitation following them. Where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them.