TERMS AND CONDITIONS – APOGRAPH LIMITED

1. INTERPRETATION

1.1 In these Terms and Conditions, the following definitions and rules of interpretation apply:

Apograph: Apograph Limited incorporated and registered in England and Wales (CRN: 07585574);

Business Day: a day on which banks in London are normally open for business;

Business Hours: between the hours of 8.30am to 5.30pm on any Business Day;

Charges: the sums payable for the Deliverables as set out in the Proposal;

Commencement Date: the date on which the Contract comes into force in accordance with Clause 2.2;

Conditions: these Terms and Conditions;

Contract: the contract between Apograph and the Customer for the supply of the Deliverables in accordance with these Conditions;

Contract Documents: any document which the parties intend to be legally binding, including any correspondence between the Customer and Apograph setting out further specifications, or containing minor adjustments or clarifications of the provisions of the other Contract Documents; the Proposal; and these Conditions;

Control: means the beneficial ownership of more than 50% of the issued voting capital of a company or the legal power to direct or cause the direction of the general management of the company, and the expression “Change of Control” shall be construed accordingly;

Customer: the person or company who purchases Deliverables from Apograph;

Data Protection Legislation: the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK or any successor legislation to the GDPR or the Data Protection Act 1998;

Deliverables: the Goods or Services to be provided by Apograph to the Customer in accordance with the Contract;

Fault: any failure of the Deliverables to operate in all material respects in accordance with the Contract or any failure in any product or system for which the Customer requires Support Services;

Force Majeure Event: an event or circumstance beyond the reasonable control of a party;

Goods: the goods as specified in the Order to be supplied to the Customer under the Contract;

Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up, 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;

Minimum Term: in the case of ongoing Services, the minimum duration of the Contract, being the period of 12 months from the Commencement Date or as specified in the Proposal, whichever is longer;

One-Off Support Services: means the provision of Support Services which are not provided on an ongoing basis under the Contract, including any ad-hoc or individual Support Services;

Order: the Customer’s acceptance of the Proposal, whether made orally or in writing;

Package: the relevant Bronze, Silver or Gold IT support package specified in the Proposal, as more particularly described on the Apograph website or as otherwise made available from time to time;

Personal Data: has the meaning given to it in the Data Protection Legislation;

Project Work: where the Deliverables comprise a planned undertaking of work designed to achieve a particular aim;

Proposal: the proposal, quote or estimate made by Apograph in writing setting out, as applicable, the scope of the work, the Charges, a specification of any Deliverables to be provided to the Customer and the estimated duration or timescales for the provision of the Services;

Services: the services to be provided to the Customer by Apograph in accordance with the Contract;

Service Levels: the Service Levels and Service Level Response Times referred to in the table at Clause 8.6;

Service Level Response Times: the Service Level Response Times referred to in the table at Clause 8.6; and

Support Services: has the meaning given to it in Clause 8.1.

1.2 Unless the context otherwise requires, words in the singular include the plural and in the plural include the singular, and a reference to one gender includes a reference to the other genders.

1.3 A reference to a statute or statutory provision is a reference to it as amended, extended, re-enacted or replaced from time to time and shall include all subordinate legislation made from time to time under that statute or statutory provision.

1.4 A reference to “writing” includes email and the expression “written” shall be construed accordingly.

1.5 Any words following the terms “including”, “include”, “in particular”, 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. BASIS OF CONTRACT

2.1 The Order constitutes an offer by the Customer to purchase the Deliverables set out in the Proposal in accordance with these Conditions. Each Order shall be the subject of a separate Contract and the Contract includes all Contract Documents.

2.2 Apograph will indicate its acceptance of the Order by either doing so orally or in writing, or by making arrangements with the Customer to provide the Deliverables, which is when the Contract shall come into force.

2.3 Apograph reserves the right not to accept any Order or make it a condition of its acceptance that the Customer must pay to Apograph a percentage of the Charges as a deposit or the Charges in full before the Deliverables are provided under the Contract.

2.4 Any photographs, images, samples, drawings, descriptive matter, advertising or other promotional material issued by Apograph are issued for the sole purpose of giving an indication of the Deliverables and shall not form part of the Contract or have any contractual force.

2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks at any time to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.6 Unless otherwise agreed between the parties, the Proposal shall only remain valid for a period of 30 days from its date of issue before the Contract comes into force.

2.7 If there is an inconsistency between any of the Contract Documents, then they shall prevail in the following descending order of priority:

2.7.1 any document not mentioned in Clause 2.7.2 to 2.7.3 which the parties intend to be legally binding, including any correspondence between the Customer and Apograph setting out further specifications, or containing minor adjustments or clarifications of the provisions of the other Contract Documents;

2.7.2 the Proposal; and

2.7.3 these Conditions.

3. VARIATIONS

3.1 If the Customer wishes to propose a change to the Contract, including the addition of further Deliverables to an existing Package, it must submit a request to Apograph in writing. Apograph shall inform the Customer whether such variation is possible and whether it will have an effect on the cost or timing of the supply of the Deliverables. If the Customer wishes to proceed with the variation it must notify Apograph of this within a reasonable amount of time from when it was informed that such variation was possible. If the Customer fails to do so, or if Apograph does not confirm that the variation is possible, the Contract will continue to operate notwithstanding any proposed amendment by the Customer.

3.2 Subject to Clause 3.3, no changes to the Contract will be valid unless they are agreed in writing and signed by an authorised representative of both the Customer and Apograph, save that Apograph reserves the right to update these Conditions as it deems fit from time to time, with or without notice.

3.3 Apograph shall provide the Deliverables in accordance with the Contract, however Apograph reserves the right to make any changes to the Deliverables:

3.3.1 which are necessary to comply with any applicable law or safety requirement, including any applicable health and safety regulations; or

3.3.2 in order to make changes for technical, commercial or operational reasons which do not have a material adverse effect on the nature or quality of the Deliverables.

4. SUPPLY OF GOODS AND WARRANTY

4.1 Where the Deliverables comprise Goods, Apograph warrants that on delivery, and for a period of 12 months from the date of delivery (“the Warranty Period”), the Goods shall:

4.1.1 conform in all material respects with the description provided in the Contract;

4.1.2 be free from any material defects in design, material and workmanship;

4.1.3 be of satisfactory quality; and

4.1.4 be fit for any purpose held out by Apograph,
save that this shall only apply where the Goods are the subject of a manufacturer’s warranty, and if the relevant manufacturer’s warranty is different in duration than the Warranty Period, the Warranty Period shall be extended or reduced to the extent of the relevant manufacturer’s warranty accordingly.

4.2 Subject to Clause 4.3, Apograph shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full if:

4.2.1 the Customer gives notice in writing to Apograph during the Warranty Period and within a reasonable time of discovery, that some or all of the Goods do not comply with the warranty set out in Clause 4.1;

4.2.2 Apograph is given a reasonable opportunity of examining such Goods; and

4.2.3 the Customer (if required by Apograph) returns such Goods to Apograph’s principal place of business at its own cost.

4.3 Apograph shall not be liable for the Goods’ failure to comply with the warranty in Clause 4.1 if:

4.3.1 the Customer makes any further use of such Goods after giving notice in accordance with Clause 4.2.1;

4.3.2 the defect arises because the Customer fails to follow any oral or written instructions issued by Apograph or the manufacturer as to the storage, installation, commissioning, use or maintenance of the Goods, or fails to comply with good trade practice;

4.3.3 the defect arises as a result of Apograph following any instruction, drawing, design or specification supplied by the Customer;

4.3.4 the Customer alters or repairs the Goods without Apograph’s prior written consent;

4.3.5 the defect is a result of any work performed on such Goods by a third party not nominated or expressly approved by Apograph;

4.3.6 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions, taking into account the expected lifespan of those particular Goods; or

4.3.7 the Goods differ from the description provided in the Proposal as a result of changes made to ensure that they comply with applicable statutory or regulatory standards in accordance with Clause 3.3.

4.4 Except as provided in this Clause 4, Apograph shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in Clause 4.1.

4.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.

4.6 The provisions contained within this Clause 4 shall apply to any repaired or replacement Goods supplied by Apograph.

5. DELIVERY OF GOODS

5.1 This Clause 5 and Clause 6 shall only apply where the Deliverables comprise Goods under the Contract.

5.2 Apograph shall deliver the Goods to the location provided in the Proposal or any other location agreed between the parties in writing prior to delivery (“Delivery Location”).

5.3 Apograph shall use its reasonable endeavours to deliver the Goods on or before any agreed dates for delivery. If no delivery dates are specified, delivery shall be effected within a reasonable time from the date on which the Order was accepted. Any dates quoted for delivery of the Goods shall be approximate only, and the time of delivery is not of the essence.

5.4 Apograph shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide Apograph with adequate delivery instructions or any other instructions that are relevant to the delivery of the Goods.

5.5 Delivery of the Goods shall be made during Business Hours. Apograph reserves the right to charge the Customer a reasonable additional delivery fee where delivery is requested outside Business Hours.

5.6 The Customer shall be responsible, at its own expense, for preparing the Delivery Location for the delivery of the Goods and for the provision of all necessary access or other facilities reasonably required for Apograph to deliver and carry out any agreed installation of the Goods. Apograph reserves the right to recover from the Customer any costs incurred from the Customer’s failure to prepare the Delivery Location if such failure prevents or delays the delivery of, or installation of the Goods.

5.7 Apograph may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the applicable Contract. Each instalment shall be a separate Contract and no cancellation or termination by either party of any one Contract relating to an instalment shall entitle the Customer to cancel any other Contract or instalment.

5.8 Delivery of the Goods shall be completed once the Goods have been unloaded at the Delivery Location.

5.9 If the Customer fails to accept delivery of the Goods within 14 days of Apograph’s first attempt at delivering the Goods, Apograph shall store the Goods at its premises until delivery takes place. Apograph reserves the right to charge the Customer for any reasonable costs incurred in storing the Goods (including insurance) in accordance with this Clause 5.9 and the Customer shall reimburse Apograph in respect of any other reasonable out of pocket expenses incurred as a result of the Customer’s failure to accept delivery, such as the costs incurred for returning and re-attempting delivery of the Goods.

5.10 If the Customer fails to accept delivery of the Goods within 14 days of the date on which Apograph first stores the Goods in accordance with Clause 5.9, Apograph reserves the right to resell or otherwise dispose of all or part of the Goods. If the Goods are sold in accordance with this Clause 5.10, Apograph shall reimburse the Customer for any excess over the price of the Goods that it has already paid (less reasonable storage and reselling costs), or charge the Customer for any shortfall if the Goods cannot be resold for at least the price that the Customer agreed to pay for them.

6. TITLE AND RISK

6.1 The risk in any Goods which may from time to time be supplied by Apograph to the Customer under the Contract, shall pass to the Customer on completion of delivery.

6.2 The title to any Goods which may from time to time be supplied by Apograph to the Customer under the Contract, shall pass to the Customer on payment of all sums due from the Customer to Apograph.

6.3 Until title to the Goods has passed to the Customer, the Customer shall:

6.3.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Apograph’s property;

6.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

6.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on Apograph’s behalf from the date of delivery;

6.3.4 notify Apograph immediately if it becomes subject to any of the events listed in Clause 13.3; and

6.3.5 provide Apograph with such information relating to the Goods as the Apograph may reasonably require from time to time.

6.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in Clause 13.3, then, without limiting any other right or remedy Apograph may have, Apograph may at any time:

6.4.1 require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and

6.4.2 if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.

7. SUPPLY OF SERVICES

7.1 Apograph shall supply the Services to the Customer in accordance with the Proposal in all material respects, using reasonable care and skill.

7.2 Apograph shall use all reasonable endeavours to meet any estimated timescales specified in the Proposal, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services, unless Apograph expressly agrees otherwise in the Contract.

7.3 Apograph may from time to time appoint sub-contractors to perform the Services, or any part of the Services, in order to fulfil its obligations under the Contract.

7.4 The Customer shall:

7.4.1 ensure that the terms of the Order are complete and accurate in all respects;

7.4.2 co-operate with Apograph in all matters relating to the Deliverables;

7.4.3 provide Apograph, its employees, agents, consultants and subcontractors with, in a timely manner and free of charge, access to the Customer’s computer systems, resources, databases and other facilities as reasonably required by Apograph to provide the Deliverables;

7.4.4 promptly furnish Apograph with such information, assistance and materials as Apograph reasonably requires in order to provide the Deliverables, and ensure that such information is complete and accurate in all material respects;

7.4.5 obtain and maintain all necessary licences, permissions and consents which may be required for the Deliverables before the date on which the Services are due to commence or the Goods are to be delivered; and

7.4.6 promptly inform Apograph in writing if it intends to modify or carry out any work on any aspect of its IT system which would impact the functionality of the Deliverables or the IT system which Apograph is intended to maintain under the terms of the Contract.

7.5 If the performance of any of Apograph’s obligations under the Contract is prevented or delayed by any act or omission of the Customer, without prejudice to any other right or remedy it may have, Apograph shall be allowed an extension of time to perform its obligations equal to the delay caused by the Customer and Apograph shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Apograph’s failure or delay to perform any of its obligations as set out in this Clause 7.5.

8. SUPPORT AND SERVICE LEVELS

8.1 The provisions contained in this Clause 8 shall apply where the Deliverables comprise any maintenance, technical or support services (“Support Services”), subject to Clause 8.3.

8.2 Apograph shall perform the Support Services during Business Hours in accordance with the Service Levels set out in Clause 8.6.

8.3 The Customer acknowledges that the following shall not fall under the definition of Support Services:

8.3.1 any services provided by Apograph in connection with any apparent problem regarding the Deliverables which is reasonably determined by Apograph not to have been caused by a Fault, but rather by a cause outside Apograph’s control (including any investigational work resulting in such a determination), or any of the following causes:

8.3.1.1 any improper use, misuse or unauthorised alteration of the Deliverables by the Customer or any third party;

8.3.1.2 any use of the Deliverables by the Customer in a manner inconsistent with any instruction or recommendation issued by Apograph;

8.3.1.3 the use by the Customer of any hardware or software not provided by Apograph or approved by Apograph for use by the Customer in connection with the Deliverables; or

8.3.1.4 the use of any out of date version or release of the Deliverables.

8.4 The Customer may place a request for Support Services (“Support Services Request”) with Apograph’s helpdesk by:

8.4.1 raising a request through Apograph’s ticketing system; or

8.4.2 contacting Apograph’s helpdesk during Business Hours on the telephone number notified to the Customer from time to time, unless Apograph agrees otherwise with the Customer that the Support Services shall be available outside of Business Hours.

8.5 All Support Services Requests must include a description of the problem and the start time of the incident. Apograph shall use commercially reasonable efforts to prioritise all Support Services Requests received based on its reasonable assessment of the severity level of the problem reported.

8.6 Unless otherwise stated in the Proposal, Apograph shall respond to all Support Services Requests received in accordance with the Service Level Response Times specified in the table set out below:

Ongoing Support Services

Service Levels Description Service Level Response Time
Level 1 A total system failure, or an error in, or failure of, the Deliverables that:
i) disables all functions of the Deliverables; and
ii) affects all users of the Deliverables.
Apograph shall acknowledge the Support Services Request within 2 Business Hours of receipt.Apograph shall take reasonable steps to restore full functionality of the Deliverables as soon as reasonably practicable after acknowledging the Support Services Request.Level 2 An error in the Deliverables which:i) affects a large number of users of the Deliverables; orii) affects critical functions of the Deliverables; oriii) affects the operation of the Customer’s business.Apograph shall acknowledge the Support Services Request within 4 Business Hours of receipt.Apograph shall take reasonable steps to provide the Customer with a Fault correction as soon as reasonably practicable after acknowledging the Support Services Request.Level 3 An isolated or minor error in the Deliverables that:i) does not significantly affect the functionality of the Deliverables; oriii) does not materially impact the Customer’s business; oriv) affects a limited number of users of the Deliverables.Apograph shall acknowledge the Support Services Request within 8 Business Hours of receipt.Apograph shall take reasonable steps to provide the Customer with a Fault correction as soon as reasonably practicable after acknowledging the Support Services Request.Level 4 A minor error in the Deliverables that:i) does not impact the Customer’s business; or
Apograph shall acknowledge the Support Services Request within 8 Business Hours of receipt.Apograph shall take reasonable
IT02/KV01/3368458/APO2/1 Page 8ii) affects a single user of the Deliverables.
steps to provide the Customer with a Fault correction as soon as reasonably practicable after acknowledging the Support Services Request.One-Off Support Services
Service Levels Description Service Level Response Time
Standard Any system failure or error which has a material adverse impact on the Customer’s IT systems.
Apograph shall acknowledge the Support Services Request within 4 Business Hours of receipt, save where the Customer has purchased a Silver or Gold Package, in which case Apograph shall acknowledge the Support Services Request within 2 Business Hours of receipt.

8.7 The parties may, on a case-by-case basis, agree in writing to a reasonable extension or variation of the Service Level Response Times.
8.8 Unless otherwise agreed in writing between the parties, all Service Level Response Times shall be calculated within Business Hours. By way of a worked example, if a Standard Support Services Request (where the Customer has not purchased a Silver or Gold Package) is submitted by the Customer at any time on a Sunday, Apograph shall acknowledge the Support Services Request by no later than 12.30pm on the following Monday.
8.9 Apograph reserves the right to charge the Customer an additional fee if the Customer requires a Fault correction or acknowledgement in advance of the relevant Service Level Response Time provided in Clause 8.6.
8.10 Where applicable, the Customer shall provide Apograph with:
8.10.1 prompt notice of any Faults; and
8.10.2 such output and other data, documents, information, assistance and (subject to compliance with all Customer’s security and encryption requirements notified to Apograph in writing) remote access to the Customer systems, as are reasonably necessary to assist Apograph to reproduce operating conditions similar to those present when the Customer detected the relevant Fault and to respond to the relevant Support Services Request.
8.11 The Service Level Response Times are subject to Clause 8.10 and shall commence once the Customer provides Apograph with all relevant materials and information relating to the Fault.
8.12 Apograph shall use all commercially reasonable efforts to resolve Faults by electronic means. Unless otherwise agreed in writing between the parties, on-site support shall only be provided if the Fault cannot be resolved by electronic means and the Customer shall be liable to reimburse Apograph for any and all expenses incurred as a result of the provision of such on-site Support Services.
8.13 In accordance with Clause 8.10, the Customer shall provide Apograph with direct access to its premises and other facilities, free of charge and in a timely manner, in order for Apograph to carry out the Support Services.
8.14 Apograph shall charge the Customer an additional fee for any remedial work required to restore any damage to the Deliverables or the Customer’s IT system, where such damage is caused by a third party.
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9. CHARGES AND PAYMENT
9.1 In consideration for the provision of the Deliverables, the Customer shall pay to Apograph the Charges.
9.2 If no fixed price has been specified for the provision of the Services, the Charges for the Services shall be calculated on a time and materials basis in accordance with Apograph’s daily or half-daily rate in the case of Project Work, or hourly fee rate in the case of any other Services, as set out in the Proposal.
9.3 In the case of ongoing Services Apograph shall submit invoices to the Customer on a monthly basis for the Services which are scheduled to be provided in that calendar month, or in all other instances once the provision of the Deliverables has completed.
9.4 The Customer shall pay each invoice due and submitted to it within 30 days of the date of the invoice in full and in cleared funds and in pounds sterling to a bank account nominated in writing by Apograph. Time for payment shall be of the essence of the Contract.
9.5 If the Customer requires Apograph to perform any additional services outside the scope of the Proposal, Apograph shall charge the Customer on a time and materials basis at its hourly rates current at the time when the relevant service was provided, unless otherwise agreed between the parties prior to the performance of such service.
9.6 Unless otherwise stated in the Proposal, Apograph shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom Apograph engages in connection with the Deliverables including travelling expenses, which shall be at the rate of 0.45p per mile in the case of any car journey which is anticipated to take over half an hour, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by Apograph for the performance of the Services, and for the cost of any associated materials.
9.7 The Customer shall additionally be liable to reimburse Apograph for any disbursements or costs it incurs such as hosting fees, third party software or plug-ins required in order for Apograph to provide the Services.
9.8 If the Deliverables incorporate or rely on any third party software, the Customer must pay to Apograph the relevant licence fee relating to such third party software prior to Apograph incurring such cost. Unless otherwise agreed in writing, such third party licences shall be automatically renewed by Apograph upon the expiration of the relevant licence term, and the Customer shall remain liable to reimburse Apograph in respect of the fee for the renewed licence.
9.9 In the case of ongoing Services, Apograph reserves the right to increase the Charges on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Commencement Date.
9.10 If the Customer becomes subject to any of the events listed in Clause 13.3, or Apograph reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to make any payment due to Apograph by payment date, Apograph reserves the right to cease to provide the Customer with the Deliverables until such payment has been made in cleared funds and to claim interest due on the late payment in accordance with Clause 9.12. In the event of a bona fide dispute, the Customer shall pay to Apograph any undisputed part of the payment due to Apograph pending resolution of the dispute. This Clause 9.10 applies without limiting any other remedy Apograph may have under the Contract.
9.11 All amounts payable by the Customer under the Contract are exclusive of value added tax chargeable from time to time (“VAT”). Where any taxable supply for VAT purposes is made under the Contract by Apograph to the Customer, the Customer shall, on receipt of a valid VAT invoice from Apograph, pay to Apograph such additional amounts in respect of VAT as are chargeable on the supply of the Deliverables at the same time as payment is due for the supply of the Deliverables.
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9.12 If the Customer fails to make any payment due to Apograph under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount in accordance with the Late Payment of Commercial Debts (Interest) Act 1998, which is currently at 8% above the base rate of the Bank of England. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
9.13 All amounts due under the Contract from the Customer to Apograph 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).
9.14 Apograph may, at any time, set off any liability of the Customer to Apograph against any liability of Apograph to the Customer whether pursuant to the Contract or to any other dealing between the parties.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 All Intellectual Property Rights in or arising out of or in connection with the Deliverables (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by Apograph. If, under the Contract, any specific Intellectual Property Rights in the Deliverables are to vest in the Customer, Apograph shall procure that an assignment of such Intellectual Property Rights is granted in favour of the Customer on payment of all sums due from the Customer to Apograph.
10.2 Apograph grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to use the Deliverables to the extent required for and for the sole purpose of receiving the Services. The Customer shall not sub-licence, assign or otherwise transfer the rights granted in this Clause 10.2.
10.3 The Customer grants Apograph a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer (“Customer Materials”) to Apograph for the term of the Contract to the extent required for and for the sole purpose of providing the Deliverables to the Customer.
10.4 The Customer hereby warrants, represents and undertakes to Apograph that it is fully entitled to enter into and perform the Contract and it shall either own, or have obtained and paid for licences to use, all Customer Materials.
10.5 The Customer undertakes to defend Apograph from and against any claim or action that the possession, use, development, modification or maintenance of Customer Materials (or any part thereof) infringes the Intellectual Property Rights of a third party (“Claim”) and shall fully indemnify and hold Apograph harmless from and against any losses, damages, costs (including all legal fees) and expenses incurred by or awarded against Apograph as a result of, or in connection with, any such Claim.
10.6 If any third party makes a Claim, or notifies intention to make a Claim against Apograph, Apograph shall use its best endeavours to give the Customer notice of such Claim as soon as reasonably practicable and shall not make any admission of liability, agreement or compromise in relation to the Claim without the Customer’s prior written consent (such consent not to be unreasonably withheld, delayed or made subject to unreasonable condition).
11. LIMITATION OF LIABILITY
11.1 Nothing in the Contract shall limit or exclude Apograph’s liability for death or personal injury caused by its negligence, for fraud or fraudulent misrepresentation or for breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982, or section 12 of the Sale of Goods Act 1979 nor for any other liability which cannot be limited or excluded by applicable law.
11.2 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 the Contract.
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11.3 Subject to Clause 11.1, Apograph shall not be liable to the Customer whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or for any special, indirect or consequential loss, loss of or diminution to goodwill, loss of business, loss of anticipated savings, loss of goods, loss of use, any destruction or corruption of data, or special damage, costs or expenses arising under or in connection with the Contract, or for any direct damage arising in connection with the Contract.
11.4 Subject to Clause 11.1, Apograph’s total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to the Charges paid by the Customer under the Contract.
11.5 Except as expressly stated in these Conditions, Apograph shall not give any representations, warranties or undertakings in relation to the Deliverables. Any representation, condition or warranty which might be implied or incorporated into these Conditions by statute, common law or otherwise is excluded to the fullest extent permitted by law. In particular, Apograph shall not be responsible for ensuring that the Deliverables are suitable for the Customer’s requirements.
11.6 This Clause 11 shall survive termination of the Contract.
12. INDEMNITY
12.1 The Customer shall indemnify Apograph and keep Apograph fully and effectively indemnified against all actions, costs, demands, liabilities, losses, claims and expenses of whatsoever kind or nature (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) arising from any actual or threatened breach or non-performance of any of the warranties, representations, undertakings or obligations on the Customer’s part contained in the Contract.
13. TERMINATION AND CANCELLATION
13.1 Unless otherwise agreed between the parties, in the case of ongoing Services, the Customer may request cancellation of the Contract within 7 days from the Commencement Date. If the Customer wishes to cancel the Contract in accordance with this Clause 13.1, it should immediately notify Apograph of this in writing. Upon receiving such notification, Apograph shall, at its sole discretion, decide whether or not to agree to such cancellation in whole or in part. If Apograph agrees to the cancellation of the Contract, the Customer shall be liable to reimburse Apograph for the payment of any reasonable out of pocket expenses and administration fees incurred by Apograph.
13.2 In the case of ongoing Services, without limiting either party’s other rights or remedies, the Contract shall continue until either party gives to the other party at least 3 months’ written notice to terminate the Contract, such notice to expire no later than each anniversary of the Commencement Date, subject to the expiry of the Minimum Term.
13.3 If the Customer becomes subject to any of the following events, or Apograph reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to Apograph, Apograph may upon written notice, immediately terminate the Contract, or cancel or suspend the supply of the Goods or the provision of the Services without incurring any liability to the Customer. For the purposes of this Clause 13.3, the relevant events are:
13.3.1 the Customer fails to pay any amount due under the Contract on the due date for payment;
13.3.2 the Customer commits a material breach under the Contract and (if such breach is remediable) fails to remedy that breach within 7 days after receipt of notice to do so;
13.3.3 the Customer repeatedly breaches any of the terms of the Contract 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 the Contract;
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13.3.4 the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
13.3.5 an order is made or a resolution is passed for the winding up of the Customer or the appointment of a liquidator;
13.3.6 an administrator, administrative receiver or receiver is appointed, or there is an application for the appointment of any of the above or for an administration order, in respect of the whole or any part of the Customer’s assets or business;
13.3.7 the Customer makes any composition with its creditors or takes or suffers any similar or analogous action in consequence of debt; or
13.3.8 the Customer experiences a Change of Control.
13.4 On termination of the Contract for any reason, the Customer shall immediately pay to Apograph all of Apograph’s outstanding unpaid invoices and interest, together with any Charges due to Apograph:
13.4.1 to reflect any Deliverables already provided which have not yet been fully paid for;
13.4.2 to cover the cost of returning any Goods which are no longer required by the Customer under the Contract;
13.4.3 to cover the cost of any required remedial work required to restore the Customer’s IT system back to its original state, and
in respect of the Deliverables provided but for which no invoice has been submitted, Apograph may submit an invoice, which shall become due and payable immediately on receipt.
13.5 Termination of the Contract 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 Contract which existed at or before the date of termination or expiry.
14. FORCE MAJEURE
14.1 Apograph 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. If the Force Majeure Event prevents Apograph from providing any of the Services for a continuous period of more than 7 Business Days, Apograph shall have the right to terminate the Contract with immediate effect by giving notice to the Customer.
15. CONFIDENTIALITY
15.1 Each party undertakes that it shall not at any time disclose to any person any information disclosed to it by the other party concerning the business or affairs of the other party or of any member of its group, including information relating to a party’s operations, system processes, plans, product information, know-how, designs, trade secrets, software, market opportunities, clients and customers (“Confidential Information”), except as permitted by Clause 15.2.
15.2 Each party may disclose the other party’s Confidential Information:
15.2.1 to its employees, officers, agents, consultants or sub-contractors (“Representatives”) who need to know such information for the purposes of carrying out that party’s obligations or exercising its rights under the Contract, provided that the disclosing party shall take all reasonable steps to ensure that its Representatives comply with the confidentiality obligations contained in this Clause 15 as though they were a party to the Contract. The disclosing party shall be responsible for its Representatives’ compliance with the confidentiality obligations set out in this Clause 15; and
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15.2.2 as may be required by law, Court order or any governmental or regulatory authority.
15.3 Each party reserves all rights (including but not limited to Intellectual Property Rights) in its Confidential Information. No rights or obligations in respect of a party’s Confidential Information other than those expressly stated in the Contract are granted to the other party or to be implied from these Conditions. In particular, no licence is hereby granted directly or indirectly under any patent, invention, discovery, copyright or other Intellectual Property Right held, made, obtained or licensable by either party now or in the future.
16. NON-SOLICITATION
16.1 The Customer must not employ or engage or otherwise facilitate the employment or engagement of, or directly or indirectly solicit or entice away (or attempt to solicit or entice away) from Apograph, for the duration of the Contract and for the period of 12 months thereafter, any of Apograph’s staff to perform the same or similar functions as those in which they are employed by Apograph to perform, without Apograph’s prior written consent.
16.2 The Customer shall however not be in breach of Clause 16.1 if it runs a public advertising campaign open to the general public not specifically targeted at any of Apograph’s staff.
17. DATA PROTECTION
17.1 This Clause 17 shall applies where Apograph processes Personal Data on behalf of the Customer under the Contract, in which case the parties acknowledge that for the purposes of and under the meaning of the Data Protection Legislation, the Customer is the data controller and Apograph is the data processor.
17.2 Both Apograph and the Customer shall comply with all applicable requirements of the Data Protection Legislation. This Clause 17 is in addition to, and does not relieve, remove or replace, either party’s obligations under the Data Protection Legislation.
17.3 Without prejudice to Clause 17.2, the Customer must ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of any Personal Data to Apograph for the duration and purposes of the Contract.
17.4 Without prejudice to Clause 17.2, Apograph shall, in relation to any Personal Data processed in connection with the performance its obligations under the Contract:
17.4.1 process that Personal Data only on the written instructions of the Customer unless otherwise required to do so by law;
17.4.2 ensure that it has in place appropriate technical and organisational measures 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;
17.4.3 ensure that all personnel who have access to or process Personal Data are under an obligation to keep the Personal Data confidential; and
17.4.4 not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained, such consent not to be unreasonably withheld or delayed, and the following conditions are fulfilled:
17.4.4.1 there are appropriate safeguards in place in relation to the transfer;
17.4.4.2 the data subject has enforceable rights and effective legal remedies;
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17.4.4.3 Apograph complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
17.4.4.4 Apograph complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
17.4.5 assist the Customer, at the Customer’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;
17.4.6 notify the Customer without undue delay on becoming aware of a Personal Data breach; and
17.4.7 maintain complete and accurate records and information in order to demonstrate its compliance with this Clause 17.
18. NOTICES
18.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its principal place of business or such other address as that party may have specified to the other party in writing, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier, fax or e-mail.
18.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in Clause 18; if sent by pre-paid first class post or recorded delivery, 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 fax or e-mail, one Business Day after transmission.
18.3 The provisions of this Clause 18 shall not apply to the service of any proceedings or other documents in any legal action.
19. GENERAL
19.1 If any Court or 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 to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
19.2 The Contract 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. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty that is not expressly set out in the Contract.
19.3 The Customer shall not assign, transfer, mortgage, charge, sub-contract, or deal in any other manner with any of its rights and obligations under the Contract without the express prior written consent of Apograph.
19.4 Apograph may at any time assign, transfer, mortgage, charge, sub-contract, or deal in any other manner with any of its rights and obligations under the Contract.
19.5 A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under the Contract 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 the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
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19.6 No one other than a party to the Contract, their successors and permitted assignees, shall have any right to enforce any of its terms.
19.7 The 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.
19.8 Each party irrevocably agrees that the courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.

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