CUSTOMER SERVICE AGREEMENT
BACKGROUND
(A) Leaning Technologies Limited incorporated and registered in England and Wales with company number 08227826 whose registered office is at 3rd Floor 207 Regent Street, London, England, W1B 3HH (Supplier).
(B) “Customer” or “Client” means the organisation that agrees to an Order Form.
(C) The Supplier supplies the Software to the Client, or the Client is exploring using the Software for its purposes.
(D) “Party”, “Parties” or “parties” shall mean Leaning Technologies and Customer.
AGREED TERMS
1 INTERPRETATION
1.1 The definitions (including those above and below) and rules of interpretation in this clause apply in this agreement.
Client’s Product or Licensee Application: any Licensee Application where Client has integrated CheerpJ with a valid Licence Agreement.
Business Day: a day other than a Saturday, Sunday or public holiday in The Netherlands when banks in Amsterdam are open for business.
CheerpJ or The Software: CheerpJ Core, and any other software provided to Client with a valid Licence Agreement.
Confidential Information: information that is proprietary or confidential in nature.
Deliverable: software, code or documentation created by the Supplier and provided to the Client as part of the Services under this agreement.
Effective Date: the date of this agreement.
Fees: the fees payable by the Client to the Supplier under this agreement and as more particularly described in Schedule 1 and Schedule 2 of the Order Form.
Order Form: this is an ordering document for a Service Agreement signed by both parties that refers to this Agreement, or submitted by you through an authorised third-party reseller.
Good Industry Practice: that degree of skill, care, prudence and foresight and operating systems and practice which would ordinarily be expected of a skilled and experienced supplier engaged in the same or similar type of undertaking as that of the Supplier under similar circumstances.
Initial Term: the initial term of this agreement, being 12 months from the Effective Date stated on the Order Form.
IPR: patents, copyrights, trademarks, database rights, rights of confidentiality, know how, trade secrets and any other intellectual property rights worldwide.
Normal Business Hours: 9.00 am to 5.00 pm local Amsterdam time, each Business Day.
Renewal Period: a period of twelve calendar months.
Services: the services provided by the Supplier to the Client under this agreement.
Support: assistance (including the resolution of issues) and bug fixing.
Term: has the meaning given in clause 9.1 (being the Initial Term together with any subsequent Renewal Periods).
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.
1.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
1.9 A reference to writing or written includes e-mail.
1.10 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.11 References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.
1.12 The schedules form part of this agreement.
2 SERVICES
2.1 The Supplier shall provide the Services to the Client on and subject to the terms of this agreement and in accordance with Schedule 1 and Schedule 2 of the Order Form.
3 SUPPLIER’S OBLIGATIONS
3.1 The Supplier shall:
3.1.1 provide the Client with:
(a) all necessary co-operation in relation to this agreement; and
(b) all necessary access to such information as may be required by the Client in order for the Client to receive the Services;
3.1.2 comply with all applicable laws and regulations with respect to its activities under or in connection with this agreement;
3.1.3 carry out its responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Supplier’s provision of the Services and without prejudice to any other right or remedy of the Client, the Client may adjust any agreed timetable or delivery schedule as reasonably necessary;
3.1.4 perform the Services using reasonable care and skill and in accordance with Good Industry Practice;
3.1.5 ensure only suitably qualified and experienced personnel with good English language skills provide the Services and will use all reasonable endeavours to ensure the continuity of the Supplier’s personnel providing the Services;
4 CLIENT’S OBLIGATIONS
4.1 The Client shall:
4.1.1 provide the Supplier with:
(a) all reasonably necessary co-operation in relation to this agreement; and
(b) all reasonably necessary access to such information as may be required by the Supplier;
in order to provide the Services; and
4.1.2 comply with all applicable laws and regulations with respect to its activities under or in connection with this agreement.
5 CHARGES AND PAYMENT
5.1 The Client shall pay the Fees to the Supplier in accordance with the terms of this agreement.
5.2 The Supplier shall invoice the Client quarterly for Services and the Client shall pay each properly issued invoice within 30 days after the date of receipt such invoice.
5.3 If the Supplier has not received payment within 30 days after the due date or other payment term if specified in Schedule 1 of the Order Form, and without prejudice to any other rights and remedies of the Supplier interest shall accrue on a daily basis on such due amounts at an annual rate equal to 2% over the then current base lending rate of HSBC from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
5.4 All amounts and fees stated or referred to in this agreement:
5.4.1 shall be payable in pounds sterling; and
5.4.2 are exclusive of value added tax, which shall be added to the Supplier’s invoice(s) at the appropriate rate where applicable.
6 PROPRIETARY RIGHTS
6.1 Each party retains rights to its existing IPR and further retains rights to its IPR as follows: the Software remains the IPR of the Supplier together with that in any Deliverables and the Client retains all IPR in the Client’s Product.
6.2 The Supplier warrants that: (a) it has all the rights in relation to The Software and the Services that are necessary for it to perform its obligations under this agreement and (b) that the Client’s receipt and use of the Services and any Deliverables provided by the Supplier as part of the Services as contemplated by this agreement will not infringe any IPR of a third party.
6.3 The Client’s use of the Software (including any use by the Client’s clients) is subject to a separate licence agreement agreed between the parties (as may be varied or amended by mutual agreement of the parties from time to time) (‘Licence Agreement’). The Client’s (and its clients) use of any Deliverables shall also be governed by the terms of the Licence Agreement (provided that it is agreed that the Deliverables may be used by the Client in order to continue to provide services and software to its clients).
7 CONFIDENTIALITY
7.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party’s Confidential Information shall not be deemed to include information that:
7.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
7.1.2 was in the other party’s lawful possession free of any obligation of confidence before the disclosure;
7.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
7.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence; or
7.1.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
7.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this agreement. Upon termination of this agreement the recipient party shall return and/or delete the other’s Confidential Information in the recipient party’s possession, custody or control.
7.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
7.4 Unless otherwise agreed and subject to clause 7.5, no party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), except as required by law, regulation (including without limitation the AIM rules and Market
Abuse Regulation (MAR)), any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
7.5 Nothing in this clause 7 shall prohibit or restrict the Client from publicly announcing the execution of this agreement and the commercial arrangement with the Supplier set out herein. The Client will provide the Supplier with a draft of the proposed announcement before its issue and consider in good faith the Supplier’s reasonable suggestions as to any proposed amendments. In addition, the Supplier will give good faith consideration to issuing a statement in support of and/or otherwise endorsing the proposed commercial arrangement and the service supply hereunder where reasonably requested to do so by the Client.
7.6 The above provisions of this clause 7 shall survive termination of this agreement, however arising.
8 LIMITATION OF LIABILITY
8.1 Except as expressly and specifically provided in this agreement all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement.
8.2 Nothing in this agreement excludes the liability of a party:
8.2.1 for death or personal injury caused by that part’s negligence; or
8.2.2 for fraud or fraudulent misrepresentation.
8.3 Subject to clause 8.1, clause 8.2 and clause 8.4:
8.3.1 neither party shall be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and
8.3.2 each party’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited in any calendar year to the total Fees payable by the Client in that calendar year.
8.4 Nothing in this clause 8 shall operate to limit or exclude a party’s liability for breach of clause 7.
9 TERM AND TERMINATION
9.1 This agreement shall, unless otherwise terminated as provided in this clause 9, commence on the Effective Date stated on the Order Form and shall continue for the Initial Term and, thereafter, this agreement shall be automatically renewed for successive Renewal Periods, unless:
9.1.1 either party notifies the other party of termination, in writing, at least one month before the end of the Initial Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Term or Renewal Period; or
9.1.2 otherwise terminated in accordance with the provisions of this agreement;
and the Initial Term together with any subsequent Renewal Periods shall constitute the Term.
9.2 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
9.2.1 the other party fails to pay any amount due under this agreement by the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment and citing this clause 9.2.1;
9.2.2 the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
9.2.3 the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
9.2.4 the other party 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;
9.2.5 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
9.2.6 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
9.2.7 an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
9.2.8 the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
9.2.9 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
9.2.10 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
9.2.11 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 9.2.4 to clause 9.2.10 (inclusive); or
9.2.12 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
9.3 On termination of this agreement for any reason any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry shall not be affected or prejudiced.
9.4 Termination of this agreement shall not terminate any provisions that expressly or by implication are intended to continue in force following the termination of this agreement.
10 FORCE MAJEURE
Neither party (affected party) shall have any liability to the other party (unaffected party) under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control (Force Majeure), including, without limitation, strikes, lock-outs or other industrial disputes (not involving the workforce of the affected party), failure of a utility service or transport or telecommunications network outside the control of the affected party, act of God, war, riot, act of terrorism, civil commotion, fire, flood, and storm, provided that the affected party (a) promptly notifies the unaffected party of such an event and its expected duration and (b) continues to use all reasonable endeavours to perform its obligations under this agreement. Where the Force Majeure lasts for more than 30 days the unaffected party may terminate this agreement.
11 CONFLICT
If there is an inconsistency between any of the provisions in the main body of this agreement and the Schedules on the Order Form, the provisions in the main body of this agreement shall prevail.
12 VARIATION
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
13 WAIVER
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
14 RIGHTS AND REMEDIES
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
15 SEVERANCE
15.1 If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
15.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
16 ENTIRE AGREEMENT
16.1 This agreement constitutes the whole agreement between the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter it covers.
16.2 Each of the parties acknowledges and agrees that in entering into this agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement, other than as expressly set out in this agreement.
17 ASSIGNMENT
17.1 The Supplier shall not, without the prior written consent of the Supplier, assign, novate, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
17.2 The Client may at any time assign, novate, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
18 NO PARTNERSHIP OR AGENCY
Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of
any obligation or liability and the exercise of any right or power).
19 THIRD PARTY RIGHTS
This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
20 NOTICES
20.1 Any notice required to be given under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this agreement, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party’s fax number as set
out in this agreement.
20.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
21 GOVERNING LAW
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
22 JURISDICTION
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
This agreement has been entered into on the date stated In the Order Form by the parties’ duly authorised representatives.
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