“Agreement” means the latest version of these terms and conditions and any clarification notes that are issued from time to time by Ivy and either sent to Customers or placed on Ivy’s website.
“Customer” means the legal entity named on the Invoice.
“Intellectual Property” includes but is not limited to copyright, trade marks, service marks, design rights (whether registered or unregistered), patents, know-how, trade secrets, inventions, get-up, confidential information, database rights and any applications for the protection or registration or these rights and all renewals and extensions thereof existing in any part of the world whether now known or in the future created.
“Ivy” means Ivy Limited.
“Price” means the charge for the Products, Services, software or maintenance of any of the foregoing.
“Products” means goods sold by Ivy pursuant to this Agreement, and as specified on the Invoice.
“Services” means the services to be performed by Ivy pursuant to this Agreement and as specified on the relevant Invoice.
“Third Party Products” means Products not manufactured or assembled or authored by Ivy and supplied to Ivy by third parties for re-supply by Ivy.
2. PRODUCTS AND SERVICES
2.1 Ivy shall supply and the Customer shall purchase the Products and/or the Services as principals only, so that no other party shall have any rights or obligations, or be entitled to sue or liable to be sued, under this Agreement.
2.2 The Products and Services are supplied subject to the terms and conditions of this Agreement to the exclusion of any other terms and conditions of the Customer, and any variations to this Agreement shall have no effect unless expressly agreed in writing and signed by a duly authorised representative of Ivy.
2.3 The supply of Products and/or Services will start on the date specified on Ivy’s Invoice or as soon as possible after the date of the Invoice if no other date is specified.
3. DELIVERY, TITLE AND RISK
3.1 The Products shall be delivered at the Customer’s address stated on the Invoice or such other address as may be agreed, save for Products which are capable of delivery via the internet in which case delivery shall be deemed to have taken place upon the Customer’s receipt of the access codes provided by Ivy in order to access the Products via the Internet.
3.2 Supply factors may cause Products to be delivered by instalments. Each separate instalment shall be invoiced and paid for in accordance with this Agreement.
3.3 Risk passes on delivery. Title to Products only passes to the Customer when full payment is made and Ivy shall be entitled at any time before title passes (without any liability):
(i) to terminate Customer’s right to use, sell or otherwise deal in Products;
(ii) to enter the premises of Customer and re-possess Products; or
(iii) to use or sell Products.
4. ACCEPTANCE OF PRODUCTS
Unless the Customer shall, promptly after delivery, inspect the Products and notify Ivy in writing of any defects found, the Products shall be deemed to have been accepted on delivery.
5.1 Ivy will provide Services as specified on the Invoice.
5.2 The Customer agrees that Ivy shall not be liable for any direct, indirect or consequential losses occurring as a result of Ivy’s failure or omission to provide the Services or meet relevant response times for attending on site except as set out in Clause 9.
5.3 The Customer may upgrade the Services it receives in accordance with the then current Ivy policy.
5.4 Ivy may take instructions from a person whom it reasonably believes to be authorised to act on behalf of the Customer.
5.5 Ivy shall be under no obligation to supply the Services where, in Ivy’s reasonable opinion, these are needed because of improper or inadequate installation, use or maintenance; actions or modifications by unauthorised third parties or the Customer; or accidental or wilful damage.
6. CUSTOMER’S OBLIGATIONS
6.1 The Customer shall properly use the Products and Services and shall provide Ivy with all reasonable facilities and information to enable Ivy to perform its duties.
6.2 If Ivy attends by appointment to carry out Services but access is not granted or is delayed, Ivy reserves the right to charge waiting time at its then current hourly rates.
6.3 If Ivy provides the Customer with a Product or Service the Customer undertakes not to create internet links, frame, fork, mirror, reverse engineer, access, conduct automated tests, access data that is not the Customer’s or copy any part of the Product or Service for any purpose other than that expressly authorised in this Agreement.
6.4 The Customer shall be responsible for:
6.4.1 complying with all Customer applicable regulatory requirements;
6.4.2 using properly licensed software and Ivy shall not be liable to remedy any problems arising from failure to maintain such properly licensed software or the effect of any computer virus;
6.4.3 using the Products and Services lawfully and complying with all relevant licences, codes of practice, instructions or guidelines issued by a regulatory authority;
6.4.4 not using the Products or Services in any way which contravenes any law or regulation or infringes the rights of Ivy or any third party;
6.4.5 not using the Products or Services in any way that Ivy considers to be detrimental to the provision of the Products or Services to the Customer or any other customer of Ivy.
7. PRICE AND PAYMENT
7.1 Payment shall be made in full on or before the supply of Products or Services or, if agreed at the time of order, within 14 days of the date of Invoice.
7.2 The Price of the Products and/or Services shall be Ivy’s quoted price or, where no Price has been quoted (or a quoted Price is no longer valid), the price listed in Ivy’s published price list current at the date of the Customer’s order and in any case as shown on the Invoice.
7.3 All Prices quoted in writing are valid for 14 days. Oral quotations are valid only to the end of the business day upon which they are given.
7.4 The Price and any additional charges payable under this Agreement are exclusive of all sales taxes including Value Added Tax.
7.5 Time for payment is of the essence. Ivy reserves the right to charge interest on sums more than 7 days overdue on a day to day basis, as well after as before any judgement, from the date or last date for payment thereof to the date of actual payment (both days inclusive) at the rate of 1.5% per month to date of payment. Such interest shall be paid on demand.
8.1 Nothing in this Agreement shall be construed as being a warranty by Ivy in respect of any Third Party Products
8.2 Ivy warrants that spare parts (other than ordinary consumables) used in repairing Products will be free from defects in materials, workmanship and design for a period of 90 days from installation in the Products.
8.3 If before the expiry of the warranty period Ivy receives written notice from the Customer of any breach of the warranty then Ivy shall, within a reasonable time, repair or, at its option, replace Products or spare parts that are defective or otherwise remedy such defects.
8.4 This warranty does not apply to defects resulting from improper or inadequate installation, use or maintenance; actions or modifications by unauthorised third parties or the Customer or accidental or wilful damage.
8.5 Ivy does not give any warranty that the Products are fit for any particular purpose other than that for which the Products are ordinarily used.
9.1 Ivy shall not be liable for any loss or damage sustained or incurred by the Customer or any Third Party (including without limitation any loss of use of the Products or Services or loss of or spoiling of any of the Customer’s programs or data) resulting from any breakdown of or fault in the Products or Services, unless such breakdown or fault is caused by the negligence or wilful misconduct of Ivy, its employees, agents or sub-contractors, or to the extent that such loss or damage arises from any negligent delay by Ivy in providing the relevant Services and then only to the extent not excluded by this Agreement.
9.2 Ivy shall indemnify the Customer and keep the Customer fully and effectively indemnified against any loss of or damage to any property or injury to or death of any person caused by any negligent act or omission or wilful misconduct of Ivy, its employees, agents or sub-contractors, or by any breach of its contractual obligations, or to any loss arising due to fraud.
9.3 The Customer shall indemnify Ivy and keep Ivy fully and effectively indemnified against any loss of or damage to any property or injury to or death of any persons caused by any negligent act or omission or wilful misconduct of the Customer, its employees, agents or sub-contractors or by any breach of its contractual obligations.
9.4 Except in respect of injury to or death of any person, for which no limit applies, Ivy’s liability under sub-clauses 9.1, 9.2 in respect of each event or series of connected events shall not exceed the Price or £5,000 whichever is the greater.
9.5 Notwithstanding anything else contained in this Agreement, Ivy shall not be liable to the Customer for loss of profits or contracts or other indirect or consequential loss whether arising from negligence, breach of contract or howsoever.
10. FORCE MAJEURE
Neither party shall be liable for any delay in performance caused by circumstances beyond its reasonable control and the party in delay shall be entitled to a reasonable extension of time for performance. Ivy shall not be liable for failure of Services where such failure is caused by the refusal or delay of a third party supplier to provide a communications service and no alternative service is available at reasonable cost or where legal or regulatory restrictions are imposed which prevent the supply of the Services.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 Neither party shall acquire any rights or licences to the other party’s Intellectual Property except as expressly provided in this Agreement.
11.2 The Customer undertakes that in the event that Ivy provides the Customer with software or Products or Services under licence by a third party, the Customer shall comply with any terms and conditions of such licence. The Customer shall not, directly or indirectly, sublicense, resell, rent, lease, distribute or otherwise transfer or grant rights in any of the Products or Services or software or use the Services or software otherwise than in accordance with this Agreement.
11.3 The Customer shall keep Ivy fully and effectively indemnified against all costs, claims, demands, expenses and liabilities suffered by Ivy whether arising out of or in connection with any breach of clauses 11 or 12 of this Agreement and/or any infringement by the Customer of the Intellectual Property rights of any third party in connection with its use of any Products, Services.
12. CONFIDENTIALITY AND SECURITY
12.1 The Customer agrees not to disclose details of any of the Intellectual Property to any third party and at all times to keep the same strictly confidential.
12.2 The Customer shall be responsible for the proper use of security details and shall take all necessary steps to ensure they are kept secure, confidential and nor made available to any unauthorised person.
12.3 Ivy shall not be liable for any unauthorised or unlawful access or use of the Products or Services and reserves the right to change or suspend security details on giving notice to the Customer or requiring the Customer to change its security settings, in the event that Ivy believes there is or is likely to be any misuse or breach of security in respect of the Products or Services.
13.1 Ivy may give 90 days’ written notice to terminate the provision of Services and Products, provided that if Ivy gives such notice it will give credit for any sums paid to it for the period after the final day of the provision of service.
13.2 This Agreement may be terminated forthwith by written notice from either party if;
(i) the other commits any material breach of any of the terms of this Agreement (other than a breach relating to the payment of any sum due hereunder) and, if capable of remedy, shall have failed within 30 days after the receipt of a request in writing from the other party to do so, to remedy the breach (such notice to detail the breach and to contain a warning of such party’s intention to terminate); or
(ii) the other becomes insolvent or bankrupt or is otherwise unable to pay its debts as they fall due.
13.3 This Agreement may be terminated forthwith by written notice from Ivy if the Customer fails to pay any sum due (other than in respect of any Service or Third Party Product referred to in clause 13.4 below) and such sum remains unpaid for 14 days after written notice from Ivy that such sum has not been paid.
13.4 In respect of any Service and/or Third Party Product which is provided by Ivy on a subscription basis, this Agreement may be terminated forthwith and without notice if the Customer fails to pay any sum due in respect of such Service and/or Third Party Product and such sum remains unpaid 14 days from the due date.
13.5 Termination of this Agreement shall be without prejudice to any claims that either party may have against the other which accrued prior to such termination.
13.6 Notwithstanding anything else contained in this Agreement, Ivy reserves the right to suspend the supply of any Services forthwith and without notice for any period as may be necessary for the purpose of resolving any problem or fault arising from or in connection with any breach of clause 6 and/or clause 12.2 by the Customer.
14. ENTIRE AGREEMENT
14.1 This Agreement supersedes all prior agreements, arrangements and understandings between the parties and constitutes the entire agreement between the parties relating to the subject matter hereof.
14.2 The Customer warrants to Ivy that it has not been induced to enter into this Agreement by any prior oral representation (whether innocently or negligently made) except as specifically contained in this Agreement.
Ivy may assign all or any of its obligations under this Agreement to a competent third party. The Customer shall not assign or otherwise transfer any of its rights or obligations.
16.1 All notices must be in writing and sent to the address of the recipient set out in this Agreement or the recipient’s registered office or such other address as the recipient may designate.
16.2 Any such notice may be delivered personally or by first class post or facsimile transmission and shall be deemed to have been served if by hand when delivered, if by first class post 3 business days after posting and if by facsimile the next working day following transmission if a transmission report is generated confirming successful transmission of such facsimile.
17. LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the laws of England.