Terms and conditions

TERMS AND CONDITIONS FOR GOODS AND/OR SERVICES

SOFTWARE KINGDOM LTD

 

These Terms set out the master terms and conditions which will govern the supply of Goods and/or Services to the Customer and in addition the relevant terms in the Services Addendum will apply (all as defined below).

1.            Definitions

In these Terms the following definitions apply:

Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.

SOFTWARE KINGDOM: means SOFTWARE KINGDOM LTD, a company incorporated in England (company number 9827768) whose registered office is at 35 Firs Avenue, London, United Kingdom, N11 3NE.

SOFTWARE KINGDOM Partner: means a distributor or reseller appointed by SOFTWARE KINGDOM LTD for the sale of the Managed Services. SOFTWARE KINGDOM LTD Partner Invoice: means an invoice issued by a SOFTWARE KINGDOM LTD Partner.

SOFTWARE KINGDOM LTD Materials: means any materials, equipment, documents and other property of SOFTWARE KINGDOM LTD.

SOFTWARE KINGDOM LTD’s System: the information and communications technology system to be used by SOFTWARE KINGDOM LTD in performing the Managed Services, including the Managed Services Hardware, the Managed Services Software, the Customer-side Equipment and communications links between the Managed Services Hardware and the Customer-side Equipment and the Customer’s Operating Environment.

Certificate of Authorisation: means the certificate as signed by the Customer.

Change Control Procedure: the procedures set out in clause 16.

Confidential Information: means all proprietary information disclosed by one party to the other party including (without limitation) (i) proprietary product-related technology, ideas, rule bases and algorithms; (ii) trade secrets; (iii) either party’s technical, business or financial information and plans; (iv) the terms of the Contract; and (v) any item marked as confidential by the disclosing party. Confidential Information shall not include information that the receiving party can show (a) is or becomes generally known or publicly available through no fault of the receiving party; (b) is known by or in the possession of the receiving party prior to its disclosure, as evidenced by business records, and is not subject to restriction; or (c) is lawfully obtained from a third party who has the right to make such disclosure

Consultancy Services: the consultancy services which may be performed by SOFTWARE KINGDOM LTD at the Customer’s request and as set out in an Order.

Contract: the contract between the Customer and SOFTWARE KINGDOM LTD for the supply of Goods and / or Services in accordance with these Terms. The Contract will include these Terms, the Service Levels, the relevant Services Addendum and the Order, as applicable.

Customer: the person, firm or company who purchases Goods and / or Services from SOFTWARE KINGDOM LTD.

Customer Account Team: the individuals appointed by SOFTWARE KINGDOM LTD from time to time who shall serve as the Customer’s primary contacts for the Customer’s activities under a Contract.

Customer Hardware: in respect of the Managed Services, means any computing hardware owned or leased by the Customer at the Customer Site.

Customer-side Equipment: any equipment located or to be located on a Customer Site but controlled or to be controlled exclusively by SOFTWARE KINGDOM LTD as part of the Managed Services.

Customer’s Operating Environment: in respect of the Managed Services, means the Customer’s computing environment (consisting of hardware, software and telecommunications networks) that is to be used by the Customer in connection with its use of the Managed Services and which interfaces with SOFTWARE KINGDOM LTD’s System in order for the Customer to receive the Managed Services, but excluding the Customer-side Equipment.

Customer Reports: means all reports and documents authored, produced, created or generated by SOFTWARE KINGDOM LTD or the SOFTWARE KINGDOM LTD Software in connection with the provision of the Managed Services to the Customer in accordance with the Contract for Managed Services.

Customer Site(s): means the Customer site(s) specified in the Contract or as notified to SOFTWARE KINGDOM LTD from time to time.

Customer’s System: in respect of the Testing Services, means the part of the Customer’s IT system which is being tested, as more particularly defined in an Order.

Good Industry Practice: the standards that fall within the upper quartile of a skilled and experienced provider of business-critical managed services similar or identical to the Managed Services, having regard to factors such as the nature and size of the parties, the Service Levels, the term, the pricing structure and any other relevant factors.

Goods: the goods (or any part of them) sold or licensed by SOFTWARE KINGDOM LTD to the Customer and as set out in the Order consisting of third party licensed software and/or third party hardware products.

Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, 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, topography rights, moral 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.

Maintenance: any error corrections, updates and upgrades that SOFTWARE KINGDOM LTD may provide or perform with respect to the Managed Services, as well as any support or training Managed Services provided to the Customer under the Contract for Managed Services.

Managed Services: the managed services described in the Order to be performed by SOFTWARE KINGDOM LTD in accordance with these Terms and the Order.

Managed Services Hardware: all physical telecommunications, networking and computer equipment (including switches, routers, cables, servers, racks, cabinets and peripheral accessories) provided and/or used by SOFTWARE KINGDOM LTD to deliver the Managed Services to the Customer.

Managed Services Software: any software used by SOFTWARE KINGDOM LTD to provide the Managed Services to the Customer whether owned by a third party (Third Party Software), by the Customer (Customer Software) or by SOFTWARE KINGDOM LTD (including SOFTWARE KINGDOM LTD’s CTMSSA appliance) (SOFTWARE KINGDOM LTD Software).

Normal Business Hours: 09:00 to 18:00 local UK time on Business Days.

Order: the Customer’s order for the Goods and/or Services either issued by the Customer to SOFTWARE KINGDOM LTD or by SOFTWARE KINGDOM LTD to the Customer, and signed by the Customer which sets out the Goods and / or Services required together with other details specific to the Customer including support as required.

Security Report: the report produced by SOFTWARE KINGDOM LTD for the Customer on completion of the Testing Services.

Services: mean any services provided by SOFTWARE KINGDOM LTD to the Customer as set out in an Order including, without limitation: Managed Services, Consultancy Services, Testing Services, and Support Services.

Services Addendum: contains additional specific terms and conditions which will govern the supply of the type of Services specified in the Order. The Services Addendum is set out in Schedule A and forms part of this Contract.

Service Level: the standards, supplied to the Customer in an Order, which are to be achieved by SOFTWARE KINGDOM LTD in performing the Services.

Support Services: the support services which are more particularly described in an Order which are to be provided by SOFTWARE KINGDOM LTD to the Customer.

Terms: these terms and conditions as amended from time to time in accordance with clause 18.9.

Testing Services: the computer security testing services (including the provision of the Security Reports) supplied by SOFTWARE KINGDOM LTD to the Customer in respect of the Customer’s System, as further detailed in the Contract.

VAT: means Value Added Tax.

Web Portal: is defined in the Order.

 

2.            General

1.            These Terms govern the provision of Goods and / or Services as detailed in an Order and shall apply notwithstanding any conflicting, contrary or additional terms and conditions in any Order or other document of communication from the Customer or which are implied by trade, custom, practice or course of dealing.

2.            If the Order includes an order for the supply of Services, the terms of the Contract shall be supplemented and amended by the relevant Services Addendum.

3.            These Terms shall supersede any earlier terms and conditions of SOFTWARE KINGDOM LTD.

4.            The signing of an Order by the Customer, is proof of the Customer’s acceptance of these Terms and at which point the Contract will come into existence.

5.            In the event of an inconsistency between these Terms and any other document in respect of the provision of the Goods and / or the Services, these Terms will prevail.

6.            All drawings, descriptive weights, dimensions and the descriptions and illustrations contained in the Order, any sales literature, price lists, estimates of performance or other specifications provided by SOFTWARE KINGDOM LTD are approximate only and shall not form part of the Contract.

3.            Supply of Services

1.            SOFTWARE KINGDOM LTD shall provide to the Customer the Services specified in an Order in accordance with the Contract.

2.            SOFTWARE KINGDOM LTD shall use all reasonable endeavours to meet any agreed performance dates for the Services, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.

3.            SOFTWARE KINGDOM LTD shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and SOFTWARE KINGDOM LTD shall notify the Customer in any such event.

4.            Any Services which are outside the scope of the Order may be provided by SOFTWARE KINGDOM LTD at SOFTWARE KINGDOM LTD’s standard rates from time to time in accordance with clause 16.

4.            Supply of Goods

1.            Processing Orders for Goods

1.            Online orders paid by credit card online, enjoy the same delivery times of between 7 to 30 days from the date of the Order in the majority of cases. Goods requiring longer delivery times will be as to the standard procedures of delivery times for such Goods. Licence certificates which are issued direct from vendors may take longer.

2.            Orders are accepted by SOFTWARE KINGDOM LTD in writing in original documents, fax, internet email, or any other means bearing proof of sender and originator. The Customer agrees to send to SOFTWARE KINGDOM LTD a written Order in confirmation of any orders placed by telephone, duly marked with any confirmation reference provided to properly identify the Customer and the Goods ordered, otherwise SOFTWARE KINGDOM LTD reserves the right not to process the Order. To avoid doubt, Orders placed by e-mail or fax shall in any event be treated as confirmed written Orders from the Customer (pending receipt of any original documents), as long as they are received by SOFTWARE KINGDOM LTD.

3.            All Orders are subject to availability and to credit approval by SOFTWARE KINGDOM LTD, which may, in its sole discretion at any time, change the terms of Customer’s credit and require payment in cash, bank wire transfer or by official bank cheque. If SOFTWARE KINGDOM LTD believes that the Customer’s ability to make payments may be impaired, SOFTWARE KINGDOM LTD may suspend delivery even after the Order has been accepted.

2.            Delivery of Goods

1.            The Customer acknowledges that delivery dates of the Goods provided by SOFTWARE KINGDOM LTD are estimates only and that SOFTWARE KINGDOM LTD is not liable for failure to deliver on such dates.

2.            Software:

1.            If the Goods consist of third party licensed software, the Customer acknowledges that SOFTWARE KINGDOM LTD will not be responsible for the delivery of such software. Upon receipt of full payment, SOFTWARE KINGDOM LTD will provide the Customer with a letter containing a grant number. The Customer is responsible for using the grant number to download the software (and any updates or modifications) from the manufacturer’s website.

3.            Hardware:

1.            Delivery of the Goods to the carrier shall constitute delivery to the Customer and risk in the Goods shall pass to the Customer on delivery.

2.            Title to the hardware passes on full payment (in cash or cleared funds) of the hardware and any other goods or Services that SOFTWARE KINGDOM LTD has supplied to the Customer in respect of which payment has become due, and until then the Customer must insure and store the hardware separately from other goods so that they remain readily identifiable as SOFTWARE KINGDOM LTD’s property and may not modify, pledge or sell them. SOFTWARE KINGDOM LTD and/or SOFTWARE KINGDOM LTD’s agents, may enter the storage premises to repossess the hardware. In the event that the Customer sells the hardware before title passes, the Customer will become SOFTWARE KINGDOM LTD’s agent and the proceeds of that sale shall be held on behalf of SOFTWARE KINGDOM LTD, separately from the Customer’s general funds. SOFTWARE KINGDOM LTD may sue for the price before title passes.

3.            SOFTWARE KINGDOM LTD may deliver the hardware by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

4.            SOFTWARE KINGDOM LTD reserves the right to modify the specification of its Goods from time to time.

5.            Price and Payment

1.            In consideration of SOFTWARE KINGDOM LTD supplying Goods and / or Services, Customer will pay the charges in accordance with the Contract.

2.            Unless otherwise agreed by SOFTWARE KINGDOM LTD in writing, SOFTWARE KINGDOM LTD shall request payment of the charges, in full and cleared funds, in advance by submitting an invoice to the Customer prior to the commencement of the Services or delivery of the Goods and thereafter in accordance with the relevant Services Addendum, if applicable.

3.            All invoices issued by SOFTWARE KINGDOM LTD are payable within 30 days of the date of the invoice and without set-off or deduction.

4.            Interest shall accrue on any overdue amounts due and payable by the Customer to SOFTWARE KINGDOM LTD at the rate of 4% over the base lending rate of SOFTWARE KINGDOM LTD’s bank in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after the judgment.

5.            SOFTWARE KINGDOM LTD may increase any charges under a Contract as from each anniversary of the commencement date of the relevant Services, as set out in the Order, after the first such anniversary.

6.            Without prejudice to SOFTWARE KINGDOM LTD’s right to terminate the Contract, if the Customer fails to make payment in accordance with the Contract, SOFTWARE KINGDOM LTD may immediately suspend the Services or delivery of Goods without notice until payment is received.

7.            Unless otherwise stated any prices quoted in respect of the Goods or Services are exclusive of VAT and any other taxes.

8.            Supply of Goods. The following terms shall apply to the extent that SOFTWARE KINGDOM LTD supplies Goods to the Customer:

1.            Unless otherwise stated any prices quoted in respect of the Goods by SOFTWARE KINGDOM LTD are:

1.            exclusive of carriage, packing and insurance costs;

2.            exclusive of any release certificates;

and SOFTWARE KINGDOM LTD shall have the right to charge the Customer extra in respect of the above.

2.            Prices shall be as specified by SOFTWARE KINGDOM LTD and shall be applicable for the period specified in SOFTWARE KINGDOM LTD’s quote. If no period is specified, prices shall be applicable for thirty (30) days. Notwithstanding the foregoing, prices shall be subject to increase in the event of an increase in SOFTWARE KINGDOM LTD’s costs or other circumstances beyond SOFTWARE KINGDOM LTD’s reasonable control.

3.            Where the Customer does not adhere to agreed scheduled orders, SOFTWARE KINGDOM LTD reserves the right to amend at its sole discretion, the price structure in accordance with the quantities delivered.

9.            SOFTWARE KINGDOM LTD reserves the right to suspend deliveries where payment is not received in accordance with this clause 5 or in accordance with any alternative terms of payment agreed in writing.

6.            Customer Obligations

1.            Supply of Goods. The following terms shall apply to the extent that SOFTWARE KINGDOM LTD supplies Goods to the Customer:

1.            The Customer is responsible for its own choice of Goods and its suitability for the Customer’s purposes.

2.            Supply of Services:

1.            The Customer shall, throughout the provision of Services by SOFTWARE KINGDOM LTD:

2.            provide SOFTWARE KINGDOM LTD and SOFTWARE KINGDOM LTD’s employees and/or agents with all reasonable courtesy, information, cooperation, facilities and access to enable SOFTWARE KINGDOM LTD to perform the Services, failing which SOFTWARE KINGDOM LTD shall not be obliged to perform the Service or provide any assistance;

3.            provide such personnel assistance, including the Customer Account Team and other Customer personnel, as may be reasonably requested by SOFTWARE KINGDOM LTD from time to time;

4.            be responsible for the removal of any non-SOFTWARE KINGDOM LTD supplied products, the backup and confidentiality of all data, and all of its legal and regulatory requirements.

5.            comply with all applicable laws and regulations with respect to its activities under the Contract; and

6.            carry out all other Customer responsibilities set out in this Contract, the Order or in any of the sections in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, SOFTWARE KINGDOM LTD may adjust any timetable or delivery schedule set out in the Order as reasonably necessary.

7.            Warranties

1.            Supply of Goods

1.            SOFTWARE KINGDOM LTD warrants to the Customer that upon delivery to the Customer the Goods shall substantially conform to the applicable manufacturer’s specifications for such goods. To the fullest extent permitted by applicable law SOFTWARE KINGDOM LTD makes no other warranty, express or implied, with respect to the Goods. In particular, SOFTWARE KINGDOM LTD makes no warranty in respect of the quality of the Goods or their suitability or fitness for any particular purpose or use or in respect of infringement.

2.            If, on examination by the Customer, it is found that the Goods do not substantially meet the manufacturer’s specifications, SOFTWARE KINGDOM LTD’s liability will be limited to and SOFTWARE KINGDOM LTD can elect to (i) refund the Customer’s purchase price for the Goods (without interest), (ii) repair the Goods, or (iii) replace the Goods; provided, however, that the Goods are returned to SOFTWARE KINGDOM LTD, along with acceptable evidence of purchase, within fifteen (15) days from date of delivery, transportation charges prepaid, with a valid RMA (Returns Material Authorisation) number issued by SOFTWARE KINGDOM LTD and sent to the Customer by a provable method in original form or an electronic form, via fax, or email.

3.            SOFTWARE KINGDOM LTD shall use its reasonable endeavours to transfer to the Customer whatever transferable warranties and indemnities SOFTWARE KINGDOM LTD receives from the manufacturer of the Goods, including any transferable warranties and indemnities in respect of patent or Intellectual Property Right infringement.

4.            To the fullest extent permitted by law, neither SOFTWARE KINGDOM LTD nor its manufacturers shall have any liability to the Customer for any damage to or defects in the Goods caused by fair wear and tear, improper use, maintenance or repair, negligent handling, failure to observe the instructions accompanying the Goods or any alterations thereto

5.            For the avoidance of doubt, Goods sold by SOFTWARE KINGDOM LTD are not designed, intended or authorised for use in life support, life sustaining, nuclear, or other applications in which the failure of such goods could reasonably be expected to result in personal injury, loss of life or catastrophic property damage. If the Customer uses or sells the Goods for use in any such applications: (i) the Customer acknowledges that such use or sale is at the Customer’s sole risk; (ii) the Customer agrees that SOFTWARE KINGDOM LTD and the manufacturer of the Goods are not liable, in whole or in part, for any claim or damage arising from such use; and (iii) the Customer agrees to indemnify, defend and hold SOFTWARE KINGDOM LTD and the manufacturer of the Goods harmless from and against any and all claims, damages, losses, costs, expenses and liabilities arising out of or in connection with such use or sale.

2.            The Services.

1.            SOFTWARE KINGDOM LTD warrants that the Services will be performed using reasonable skill and care in accordance with the Contract (including these Terms). This warranty shall not apply to the extent of any non-conformance that is caused by (a) use of the Services contrary to SOFTWARE KINGDOM LTD’s instructions or (b) reasons beyond SOFTWARE KINGDOM LTD’s reasonable control.

3.            The Customer warrants to SOFTWARE KINGDOM LTD:

1.            that it has not been induced to enter into the Contract by any prior representations whether oral or in writing, except as specifically contained in the Contract, and the Customer hereby waives any claim for breach of any such representations which are not specifically so mentioned; and

2.            that it has considered the limits of liability contained in clause 11 and determined the same to be reasonable having regard to the subject matter, value and all other aspects of the Contract.

8.            Returned Goods and Cancellations

1.            The following terms will apply to the extent that SOFTWARE KINGDOM LTD is supplying Goods to the Customer:

1.            Software

1.            SOFTWARE KINGDOM LTD, as a reseller, places orders from distributors and/ or product manufacturers on the back of an Order placed by the Customer in accordance with these Terms. Software Orders placed with SOFTWARE KINGDOM LTD cannot be cancelled or returned after receipt of the Order. In exceptional cases where the distributors and/ or product manufacturers fail to deliver the Goods ordered, for a prolonged period of time of at least four weeks, and subject to the Customer notifying SOFTWARE KINGDOM LTD in writing of non-delivery, SOFTWARE KINGDOM LTD upon confirmation of non-delivery of the Goods to the Customer by the distributor or product manufacturer, may apply to the distributor and/ or product manufacturer for cancellation of the Order. Only when SOFTWARE KINGDOM LTD is successful in obtaining a written confirmation of cancellation of the Order from the distributor and/ or product manufacturer, and a full credit is issued by the distributor, then SOFTWARE KINGDOM LTD at its sole discretion may be able to accept a Customer’s request for cancellation. In such cases where SOFTWARE KINGDOM LTD accepts in writing the Customer’s request and grants a cancellation of a software order for that Customer then a handling and administration charge of a minimum of 25% of the value of the Order will be charged by SOFTWARE KINGDOM LTD.

2.            Hardware

1.            No return of hardware Goods shall be accepted by SOFTWARE KINGDOM LTD without a Return Material Authorisation (“RMA”) Number, which may be issued by SOFTWARE KINGDOM LTD at its sole discretion. A request to return hardware Goods must be made in writing within seven (7) days of the date of receiving hardware goods and must state all faults. Returned hardware Goods must be in the original manufacturer’s shipping cartons complete with all packing materials. All hardware Goods for return shall be returned freight prepaid in the manner specified in the fully completed RMA. The RMA must be issued and authorised by a director of SOFTWARE KINGDOM LTD. If returned hardware Goods are claimed to be defective, a complete description of the nature of the defect must be included with the returned goods. SOFTWARE KINGDOM LTD will endeavour to replace all returned defective hardware Goods within the manufacturer’s normal production periods. If SOFTWARE KINGDOM LTD cannot replace such Goods within the manufacturer’s normal production time then SOFTWARE KINGDOM LTD will issue an order cancellation to the Customer and all necessary accounting documents.

2.            Notwithstanding any provision of these Terms to the contrary, orders for special, custom, value-added and other non-standard goods, including Goods to be assembled in kit form, Goods which have been tested, assembled or integrated for the Customer, work-in-process and Goods otherwise identified by SOFTWARE KINGDOM LTD as non-cancellable and non-returnable shall be non-cancellable and non-returnable. Goods not eligible for return shall be returned to the Customer, freight collect.

3.            All Goods returned in accordance with this clause 8.1.2 carry a minimum cancellation charge of 25% of purchase price.

4.            Acceptance of delivery of unauthorised returned Goods by an unauthorised employee of SOFTWARE KINGDOM LTD, does not constitute acceptance of returns, nor a cancellation of the Order by SOFTWARE KINGDOM LTD. Any such returned Goods, shall be returned to the Customer, freight collect.

9.            Intellectual Property Rights

1.            The Customer acknowledges that rights in respect of all Intellectual Property Rights connected with the Goods do not pass to the Customer, unless otherwise specifically authorised in writing by SOFTWARE KINGDOM LTD.

2.            If an Order for Goods includes software or other Intellectual Property Rights, such software or other Intellectual Property Rights are provided by SOFTWARE KINGDOM LTD to the Customer subject to the copyright and user license, the terms of which are set forth in the license agreement accompanying such software or intellectual property or supplied in connection with it. Nothing in these Terms shall be construed to grant any rights or license to use any software in any manner or for any purpose not expressly permitted by such license agreement. Unless otherwise provided for in writing by an authorised signatory of SOFTWARE KINGDOM LTD, SOFTWARE KINGDOM LTD is not the licensor and the Customer acquires the license directly from the manufacturer or the manufacturer’s licensor. SOFTWARE KINGDOM LTD sells such software as a reseller on behalf of the relevant manufacturer.

3.            The Customer agrees to indemnify SOFTWARE KINGDOM LTD against all claims, damages, costs (including legal costs calculated on an indemnity basis) made by any person or company which SOFTWARE KINGDOM LTD may incur, either as a result of work done in accordance with the Customer’s specifications or for the infringement of any Intellectual Property Rights resulting from such customisation.

4.            All Intellectual Property Rights in or arising out of or in connection with the Services and the Security Reports shall be owned by SOFTWARE KINGDOM LTD and the Customer shall have the right to use such Intellectual Property Rights for its own business purposes.

5.            SOFTWARE KINGDOM LTD agrees that it will not disclose the Customer’s confidential information to any third party and will at all times comply with clause 15 below (Confidentiality).

10.         Data Protection

1.            In addition to this clause 10, please see SOFTWARE KINGDOM LTD’s full Privacy Policy, as published on its website, which forms part of these Terms and sets out the basis on which SOFTWARE KINGDOM LTD will use the Customer’s personal data.

2.            The Customer hereby consents to SOFTWARE KINGDOM LTD receiving data, including personal data about the Customer and its business with SOFTWARE KINGDOM LTD including, but not limited to information about the Customer, its authorised personnel, business situation, turnover, planned turnover with SOFTWARE KINGDOM LTD, the credit line and the Customer’s liabilities towards SOFTWARE KINGDOM LTD and to SOFTWARE KINGDOM LTD processing that data in connection with the supply or potential supply of Goods and/or Services. The Customer hereby gives its explicit consent to the sharing of such personal data by SOFTWARE KINGDOM LTD with SOFTWARE KINGDOM LTD’s associated companies and in particular, agrees to the transfer of such information to employees of SOFTWARE KINGDOM LTD in Europe/ Middle East/ Africa, United Kingdom and United States. For purposes of centralisation the Customer acknowledges and agrees that the received data may be transferred to a data processing centre in the US. For the purposes of this clause “associated companies” shall mean any company belonging to the SOFTWARE KINGDOM LTD Group of companies.

3.            Each party undertakes as soon as reasonably practicable to obtain the requisite registrations under the data protection laws applicable to it, to maintain such registrations throughout the term of the Contract and to comply with the provisions of the said Act insofar as they apply to the Contract. The Customer as data controller hereby warrants that it has obtained all permissions required to provide SOFTWARE KINGDOM LTD as data processor with such personal data of its employees and other third parties as SOFTWARE KINGDOM LTD reasonably requires to provide the Services.

11.         Limitation of Liability

1.            SOFTWARE KINGDOM LTD shall not be liable for the loss of or damage to software programs during repair or upgrade of any Goods whether or not the same are under warranty.

2.            Subject to this clause 11, SOFTWARE KINGDOM LTD’s entire liability in respect of any breach of its contractual obligations or any representations statement or tortuous act or omission including negligence or arising under or in connection with the Contract shall be limited in respect of each event or series of connected events to:

1.            in respect of the Services, 100% of the total charges paid or payable by the Customer to SOFTWARE KINGDOM LTD under the relevant Contract in respect of the Services actually provided as at the date the loss arises; and

2.            in respect of the Goods, the purchase price paid by the Customer for the Goods.

3.            In no event shall SOFTWARE KINGDOM LTD have any liability for any direct losses including any loss of profit, goodwill, business, contracts, anticipated savings, loss of use or loss of or corruption of data or information or any type of special, indirect or consequential loss (including loss or damages suffered by the Customer as a result of an action brought by a third party) or for any loss, damage, expenses, costs or other claims for compensation arising from any;

1.            information or instructions supplied by the Customer which are faulty, damaged, incomplete, incorrect, inaccurate, illegible, out of sequence, or in the wrong form, or arising from their late arrival or non-arrival;

2.            virus or other malicious software code entering or leaving the Customer’s System (other than in breach of SOFTWARE KINGDOM LTD’s obligation in clause 7.2.1);

3.            loss of or corruption to data on programs held or used by or on behalf of the Customer (other than in breach of SOFTWARE KINGDOM LTD’s obligation in clause 7.2.1);

4.            failure of SOFTWARE KINGDOM LTD to meet the Service Levels (apart from the rebates payable by SOFTWARE KINGDOM LTD referred to in the Order, if any);

5.            infringement of any Intellectual Property Rights of any third party in material transmitted in the provision of the Managed Services;

unless the Customer shall have served notice in writing of any facts which may give rise to a claim against SOFTWARE KINGDOM LTD hereunder within one week of the date it either became aware of the circumstances giving rise to a claim or the date when it ought reasonably to have become so aware.

4.            Except as expressly provided in these Terms, all warranties (express or implied statutory or otherwise) including, without limitation, any implied warranty of satisfactory quality are hereby excluded to the fullest extent permitted by law.

5.            Nothing in these Terms shall limit or exclude SOFTWARE KINGDOM LTD’s liability for any fraud or fraudulent misrepresentation or death or personal injury resulting from negligence.

6.            This clause 11 shall survive termination of the Contract.

12.         Indemnities

1.            The Customer will indemnify SOFTWARE KINGDOM LTD against all liabilities, costs, expenses, damages and losses (including any direct (including any loss of profit, loss of reputation, loss of corruption of data or information), indirect or consequential losses, loss and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by SOFTWARE KINGDOM LTD in carrying out the provision of the Services and arising out of or in connection with:

1.            the Theft Act 1968, the Computer Misuse Act 1990, the Regulation of Investigatory Powers Act 2000, the Data Protection Act 1998 or otherwise as arising as a result of a failure by the Customer to comply with its obligations under the Contract; and

2.            any third party claims arising out of or in connection with the provision of the Goods and/or Services to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of its obligations under the Contract by the Customer, its employees, agents or subcontractors.

2.            The Customer indemnifies SOFTWARE KINGDOM LTD in respect of any loss, liability, damages, costs and expenses which SOFTWARE KINGDOM LTD may suffer as a result of the failure of the Customer to comply with its obligation set out in clause 6.

13.         Termination

1.            Services

1.            The Contract in respect of any Services provided to the Customer shall commence on the date stated in the Order and shall continue until terminated in accordance with this clause 13.

2.            Without limiting its other rights or remedies each party may terminate the Contract with immediate effect by giving written notice to the other party if:

1.            the other party commits a material breach of the Contract 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;

2.            if any distress or execution is levied on the other party’s property or if the other party has a receiver, administrator, administrative receiver or manager appointed over the whole or any part of its assets, becomes insolvent, compounds or makes any arrangement with its creditors, is the subject of a bankruptcy petition or order, or 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 or goes into liquidation, or if the other party suffers any analogous proceeding under foreign law; or

3.            the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.

3.            In respect of the provision of the Services and without limiting its other rights or remedies, SOFTWARE KINGDOM LTD may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract to SOFTWARE KINGDOM LTD or to a SOFTWARE KINGDOM LTD Partner on the due date for payment or for any reason and at any time by giving the Customer 1 month’s written notice.

2.            Termination or cancellation shall be without prejudice to any rights or liabilities of the parties accrued at the date of termination.

14.         Consequences of Termination

1.            On termination of the Contract for any reason:

1.            the Customer shall immediately pay to SOFTWARE KINGDOM LTD, where applicable, all of SOFTWARE KINGDOM LTD’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, SOFTWARE KINGDOM LTD shall submit an invoice, which shall be payable by the Customer immediately on receipt;

2.            the Customer shall return all of the SOFTWARE KINGDOM LTD Materials. If the Customer fails to do so, then SOFTWARE KINGDOM LTD may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract;

3.            the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry;

4.            clauses which expressly or by implication have effect after termination shall continue in full force and effect; and

5.            the Customer shall promptly remove, dismantle or uninstall all SOFTWARE KINGDOM LTD Software, Managed Services Hardware or other proprietary material of SOFTWARE KINGDOM LTD from the Customer Operating Environment and Customer Site and warrant to SOFTWARE KINGDOM LTD that it has done the same.

2.            In addition, upon termination:

1.            SOFTWARE KINGDOM LTD shall cease to provide the Services to the Customer;

2.            the Customer shall be obliged to remove all SOFTWARE KINGDOM LTD proprietary software and any other software residing on the security service appliance and to certify that this has been done; and

3.            if terminated for convenience by the Customer, the Customer shall be liable for the contracted amount due for the entire Contract period.

15.         Confidentiality

1.            A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 15 shall survive termination of the Contract.

2.            The Receiving Party may disclose confidential information:

1.            to the extent such confidential information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the Disclosing Party as much notice of such disclosure as possible;

2.            to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out its obligations under the Contract. The Receiving Party shall ensure that its employees, officers, representatives or advisers to whom it discloses the Disclosing Party’s confidential information comply with this clause 15; and

3.            if such confidential information is now or hereafter comes into the public domain otherwise than as a result of a breach of this clause 15.

16.         Change control

1.            If either party wishes to change the scope of the Services (including Customer requests for additional Services), it shall submit details of the requested change to the other in writing via the Web Portal, as more particularly described in the Order.

2.            If either party requests a change to the scope or execution of the Services, SOFTWARE KINGDOM LTD shall, within a reasonable time, provide a written estimate to the Customer of:

1.            the likely time required to implement the change;

2.            any variations to the charges arising from the change;

3.            the likely effect of the change on the Services; and

4.            any other impact of the change on the terms of the Contract.

3.            If SOFTWARE KINGDOM LTD requests a change to the scope of the Services, the Customer shall not unreasonably withhold or delay consent to it.

4.            If the Customer wishes SOFTWARE KINGDOM LTD to proceed with the change, SOFTWARE KINGDOM LTD has no obligation to do so. If SOFTWARE KINGDOM LTD does not proceed with the change it will document and communicate the reasons why it will not proceed and may provide counterproposals for the Customer’s consideration.

17.         Service review and governance

Where the Services require the appointment of project managers, the Customer project manager(s) and SOFTWARE KINGDOM LTD project manager(s) shall have regular online review meetings (Review Meetings) to monitor and review the performance of the Contract, to discuss any changes proposed in accordance with clause 16 and to discuss the Service Levels. SOFTWARE KINGDOM LTD recommends that such Review Meetings are held once a quarter. The parties agree that the minimum number of Review Meetings is once every 12 months. The Review Meetings may be minuted by SOFTWARE KINGDOM LTD project manager(s) and copies of those minutes may be circulated to, and approved by, both parties.

18.         General

1.            The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of SOFTWARE KINGDOM LTD which is not set out in the Contract.

2.            Force majeure:

1.            For the purposes of these Terms, Force Majeure Event means an event beyond the reasonable control of SOFTWARE KINGDOM LTD including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of SOFTWARE KINGDOM LTD or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, a total failure of the internet or telecommunication services or default of suppliers or subcontractors.

2.            SOFTWARE KINGDOM LTD shall not be liable to the Customer as a result of any delay or failure to perform its obligations under the Contract as a result of a Force Majeure Event.

3.            If the Force Majeure Event prevents SOFTWARE KINGDOM LTD from providing any of the Goods and/or Services for more than 8 weeks, SOFTWARE KINGDOM LTD shall, without limiting its other rights or remedies, have the right to terminate the Contract (or cancel any Order) immediately by giving written notice to the Customer.

4.            If an Order is cancelled or the Contract is terminated, in whole or in part, due to a Force Majeure Event, the Customer will be liable to pay to SOFTWARE KINGDOM LTD for any Goods delivered or Services rendered on a pro-rata basis with a minimum charge of 20% of the price paid for the Goods or Services.

3.            Assignment and subcontracting:

1.            SOFTWARE KINGDOM LTD may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.

2.            The Customer shall not, without the prior written consent of SOFTWARE KINGDOM LTD, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.

4.            Notices:

1.            Any notice or other communication required to be given to a party under or in connection with the Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party’s main fax number.

2.            Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by fax, on the next Business Day after transmission.

3.            This clause 18.4 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, “writing” shall not include e-mails and for the avoidance of doubt notice given under the Contract shall not be validly served if sent by e-mail.

 

4.            A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

5.            Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.

5.            Severance:

1.            If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.

2.            If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

6.            No partnership

Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.

7.            Third parties

A person who is not a party to the Contract shall not have any rights under or in connection with it.

8.            Variation

Except as set out in these Terms, any variation, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by SOFTWARE KINGDOM LTD.

9.            Governing law and jurisdiction

The Contract, 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, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.

10.         Construction and Use

SOFTWARE KINGDOM LTD shall not be responsible for adapting or modifying any Goods to conform to statutory requirements not current at the time of the acceptance or order.

11.         Third Party Claims

The Contract or Contracts to which these Terms apply is between the Customer and SOFTWARE KINGDOM LTD only. No third party shall acquire any rights against SOFTWARE KINGDOM LTD and SOFTWARE KINGDOM LTD shall have no liability to any third party arising out of or in connection with any Contract. All rights under The Contracts (Rights of Third Parties) Act 1999 are expressly excluded except in respect of any manufacturer under clause 7.1.3 (who shall have the benefit of clause 7.1.3 notwithstanding the foregoing but whose consent is not required to vary these Terms). Furthermore the Customer shall indemnify SOFTWARE KINGDOM LTD against all actions, claims or demands by third parties in tort or otherwise arising directly or indirectly in connection with faults or defects in the Goods (or the use of the Goods) or the Services provided.

12.         Non Reliance The Customer agrees that SOFTWARE KINGDOM LTD will have no liability for any statement or representation made by SOFTWARE KINGDOM LTD (whether innocently or negligently) upon which the Customer relied upon when agreeing to these Terms, unless such statement or representation was made fraudulently.

13.         Information The Customer undertakes to provide SOFTWARE KINGDOM LTD promptly with any information which SOFTWARE KINGDOM LTD may reasonably require from time to time to enable SOFTWARE KINGDOM LTD to proceed uninterruptedly with the performance of the Contract.