Terms & Conditions
SIPHON UK LTD PURCHASING TERMS AND CONDITIONS
Version: April 2020
Each of Siphon and Customer is a “Party” and collectively, the “Parties” to this Agreement.
This Agreement provides the terms and conditions upon which Customer shall procure, and Siphon shall provide, Products and Services for any Order that is valid and accepted by Siphon.
“Addendum” or “Addenda” means one or more addendum attached to this Agreement which sets forth, where deemed required, specific additional terms and conditions for the purchase of Products or Services from one or more Vendors, and the Prices in respect of the Products or Services.
“Affiliate” means any person or entity that now or in the future, directly or indirectly controls, is controlled by, or is under common control with a party.
“Agreement” means this Agreement and each Addendum or Scope of Work and all exhibits and attachments which are incorporated herein by this reference.
“Charges” means the prices or charges payable by Customer for Products or Services as set out in a Scope of Work, Quotation or Price List. The terms Charges and Prices may be used interchangeably and should be considered to have the same meaning.
“Confidential Information” means any information, however conveyed or presented, that relates to the business, affairs, operations, customers, processes, budgets, pricing policies, product information, strategies, developments, trade secrets, know-how, personnel and suppliers of either Party, together with all information derived by the receiving Party from any such information and any other information clearly designated by a party as being confidential to it (whether or not it is marked “confidential”), or which ought reasonably be considered to be confidential.
“Order” means where Customer agrees with a Quotation as supplied by Siphon, it shall issue to Siphon a purchase order for Products or Services, where Siphon at its discretion shall accept such Order if accurate compared to the supplied Quotation.
“Prices” means the prices or charges payable by Customer for Products or Services as set out in a Scope of Work, Quotation or Price List. The terms Charges and Prices may be used interchangeably and should be considered to have the same meaning.
“Products” means the equipment, software, licenses, services, goods, materials or as otherwise defined in an Addendum, to be provided by Siphon and its supplier partners to Customer. The specification of the Products to be supplied by Siphon shall be set out in each Quotation provided by Siphon.
“Quotation” means a list of Products or Services and their Prices provided by Siphon to Customer.
“Recommended Hardware” means hardware platform or resources supplied by Customer, meeting the minimum specification as specified by Vendor or Siphon, or a Vendor hardware appliance.
“Scope of Work” means a scope of work attached to this Agreement which sets forth a description of the Services, and the Charges in respect of the Services
“Services” means the services described in a Scope of Work or Service Level Agreement and any good or materials supplied by Siphon in connection with such services.
“Software” means any software provided by Siphon to the Customer whether as standalone software or as part of a Product and includes any firmware provided by Siphon and includes any upgrades, updates or new versions issued in accordance with this Agreement.
“Support” means a service provided by Siphon or a Vendor in association with a Product which provides the Customer with such technical assistance as they may require to enjoy the Product, subject to the terms and conditions applied to that specific support. For the avoidance of doubt, Support is a type of Service.
“Vendor” means the provider or manufacturer of Products or Services for which Siphon is authorised to distribute or resell to Customer.
2. Governing Terms
2.1. Any and all terms and conditions in addition to, or in conflict with these terms and contained in any order or acknowledgement relating to the Products or Services and issued by either party are hereby superceded by this Agreement which takes precedence, unless mutually agreed in writing. This Agreement will constitute the controlling terms for any Order that is accepted by Siphon and valid.
3. Ordering and Customer Orders
3.1. The Customer shall be entitled from time to time to request from Siphon the provision of Products or Services. As soon as reasonably practicable following a request to issue a Quotation, Siphon will issue the Customer with a Quotation detailing the volume and specification of the Products or Services together with the associated costs. If the Customer agrees with such Quotation, it shall issue to Siphon an Order for Products or Services. Siphon shall accept such Order if accurate compared to the supplied Quotation. The Parties agree that this Agreement and the terms of such Quotation and Order shall form the Agreement between the Parties. For the avoidance of doubt, any Addenda or Scopes of Work in effect at the time of the Order being received are incorporated into and form material parts of the Agreement.
3.2. In order to accurately describe the Products or Services that form part of any Quotation, Siphon may provide additional documents in the form of bill of materials, Scope of Work or other similar documentation. Where such documentation is provided as part of a Quotation the contents of such documents are considered part of the Quotation and any subsequent Order shall constitute acceptance of the contents of such documents.
4.1. Prices for products are to be provided by Siphon in each Quotation and exclude any taxes which may be applicable and shall be invoiced at the prevailing rate at the time of invoicing. Any Prices for shipping or handling over and above the Prices in relation to Products or Services will be provided in the Quotation.
5.1. Any delivery period quoted is an estimate only and commences from the Siphon acknowledgement of the Order. Siphon will take reasonable endeavours to deliver the Products, Services and/or Support at the time stated but shall be under no liability to do so.
5.2. Siphon reserves the right to deliver Products in more than one consignment and to invoice each consignment separately. Each consignment shall be deemed to be a separate Contract. Any breach in relation to any single consignment shall not entitle the Customer to terminate the entire Contract.
5.3. The Customer shall be responsible for the cost and risk of delivering the Products, which shall be arranged by Siphon through a third-party carrier. The costs will be invoiced to Customer by Siphon.
5.4. Delivery shall be complete on the completion of unloading at the agreed delivery location, or when delivered electronically. Standard delivery is to a ground floor loading bay with signed delivery.
5.5. Title to the Products delivered to the Customer shall pass to the Customer upon payment in full by the Customer of the cost for the Products as set out in each Quotation.
6. Licenses, Permits and Export Control
6.1. Siphon Products shall meet the standards and certifications as set forth in each Quotation provided. Any additional certifications shall be at the Customer’s sole responsibility.
6.2. Customer agrees that for any Product sold by Siphon to Customer that is of United States origin then Customer will comply fully with the export control laws and regulations of the United States Government. Siphon will provide the Customer with all reasonable assistance to allow the Customer to comply with the export control laws and regulations of the United States Government.
7. Limited Warranty and Disclaimer of Warranty
7.1. Siphon warrants that all Products (except any software forming part of the Products) shall at all times meet the standards and certifications as set forth in each Quotation provided to Customer.
7.2. Siphon warrants that the Products supplied will conform in all material respects to the functional description as in each Quotation. The limited warranty for software granted hereunder is supplemental to any warranties contained in the Software License Agreement or otherwise.
7.3. Siphon will provide standard warranty support to Customer for all hardware purchased for a period of twelve (12) months from date of shipment. Customer should return faulty hardware to Siphon as per the process outlined in the Siphon Technical Support Agreement or Returns Process, whichever is applicable. Should further extended warranty be provided on certain products this will be notified to Customer as part of a Quotation.
7.4. Siphon will, as soon as possible following notification as provided for herein, provide replacements, bug fixes, patches or workarounds for non-conformances reported to Siphon’s service department within ninety (90) days of delivery by access to download or other appropriate delivery method. Siphon does not warrant that use of the Software will be uninterrupted or error free. The ninety (90) day warranty period commences after the Software has been successfully delivered.
7.5. Siphon warrants that all Services performed by it, if any, will be performed with utmost skill and care and in accordance with the standards expected from a market leader providing the same or similar Services. For any breach of this warranty or the failure of Siphon to perform the service, Siphon shall promptly perform or re-perform the Services at a mutually agreed charge between Siphon and Customer.
7.6. Siphon warrants to the Customer that the Products shall not infringe any rights of any third-party and shall indemnify and keep the Customer indemnified against all costs, claims, damages and expenses suffered or incurred by the Customer arising out of or in connection with the Products infringing any third-party’s rights.
7.7. The foregoing product and Services warranties do not extend to defects or nonconformities from abuse of use of the Products, acts of God, improper use, incorrect installation by the Customer, any modifications made by the Customer or a 3rd party on the Customer’s request and not approved by Siphon or unauthorized maintenance of the Software.
7.8. The foregoing warranties are in lieu of all other warranties, express or implied, including but not limited to, any implied warranties of merchantability and fitness for a particular purpose.
7.9. The terms and limitations of this warranty represent bargained for provisions agreed to in return for pricing and other terms.
8.1. All references to Software throughout this Agreement relates to any software provided by Siphon to the Customer whether as standalone software or as part of a Product or Service and includes any firmware provided by Siphon and includes any upgrades, updates or new versions issued in accordance with this Agreement. Software is provided to the Customer as a Right to Use License, and this is provided to Siphon by its supplier partners, and Siphon warrants to the Customer that it has the authorisation from the Vendor of the software to resell this Software to the Customer, on the terms of the Software License Terms in Exhibit A.
9. Software License Agreement
9.1. Software forming part of the Products or Services and any included firmware is subject to the Siphon License Terms attached as Exhibit A to this Agreement. The Software License is provided to Siphon by its supplier partners and Siphon warrants to the Customer that it has the ability to license the Software to the Customer on the terms of the Software License.
10.1. For any Support after the warranty period provided (if applicable) Customer should purchase Annual Support Contracts from Siphon in connection with the Products or Services as per each Quotation provided.
11. Recommended Hardware
11.1. Should Customer provide its own hardware for the Software solution the Customer hardware must meet or exceed the recommended minimum hardware specification provided by Siphon in each Quotation and/or with its Vendors. Siphon shall have the ability to inspect the Customer provided hardware to ensure its compliance with the agreed specification following the commencement of work associated with each Order. In the event the Customer equipment is shown not to meet the agreed specification the Customer shall, as soon as reasonably practicable, rectify such failure. Siphon shall not be liable to meet its performance obligations under this Agreement in respect of such applicable Customer hardware that does not meet the agreed specification until Customer has brought the relevant hardware in line with the agreed specification but shall perform such obligations on an all commercially reasonable endeavours basis during such period.
12. Proprietary Information
12.1. All information, excluding computer Software provided by Siphon, in whatever form recorded, which either Party may furnish in writing whether or not marked “proprietary” or “confidential”, shall remain the property of the disclosing Party and may be used or disclosed only with the discloser’s specific authorization.
13.1. Either party (the “Disclosing Party”) may disclose to the other party (the “Receiving Party”) Confidential information of the Disclosing Party.
13.2. Confidential Information shall not include, or (as the case may be) shall no longer include, information that:
(a) was in the public domain at the time of disclosure;
(b) enters into the public domain through no fault of the Receiving Party;
(c) was in the Receiving Party’s possession free of any obligation of confidence at the time of disclosure;
(d) is received from the Receiving Party from a third party under no obligation of confidence;
(e) is developed by the Receiving Party independently of and without reference to the Confidential Information of the Disclosing Party; or
(f) is identified in writing by the Disclosing Party as no longer being Confidential Information.
13.3. The Receiving Party shall:
(a) use Confidential Information of the Disclosing Party only for the purposes of performing its obligations under this Agreement;
(b) not disclose such Confidential Information to others for any purpose without the prior written consent of the Disclosing Party (unless such disclosure is required by law as confirmed by written legal advice);
(c) limit dissemination of such Confidential Information to such of the Receiving Party’s personnel as have a need to know it; and
(d) protect such Confidential Information in the same manner as it protects its own confidential information and in any event in a reasonable manner.
13.4. The rights and obligations regarding disclosure and use of Confidential Information shall survive the expiry or earlier termination of the Agreement.
14. Anti-Bribery Compliance
14.1. The Parties shall:
(a) comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (“Relevant Requirements”);
(b) not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
(c) have and shall maintain in place throughout the term of this Agreement its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements and part (b) above, and will enforce them where appropriate;
(d) promptly report to the other any request or demand for any undue financial or other advantage of any kind received by it in connection with the performance of this Agreement;
(e) immediately notify the other in writing if a foreign public official becomes an officer or employee of it or acquires a direct or indirect interest in it, and each Party warrants to the other that it has no foreign public officials as officers, employees or direct or indirect owners at the date of this Agreement;
(f) within 1 month of being requested to do so, and annually thereafter, certify to the other in writing signed by an officer, compliance with this paragraph by it and all persons associated with it. Each Party shall provide such supporting evidence of compliance as the other may reasonably request.
15. Force Majeure
15.1. Subject to due compliance with the following provisions, neither Party shall in any circumstances be liable to the other for any delay or non-performance of its obligations under this Agreement arising from any cause or causes beyond its reasonable control including, without limitation, any of the following: act of God, governmental act, war, fire, flood, explosion or civil commotion but not including industrial action of its employees or those of its sub-contractors or suppliers.
15.2. In the event of either party being so delayed or prevented from performing its obligations such party shall:
(a) give notice in writing of such delay or prevention to the other party as soon as reasonably possible stating the commencement date and extent of such delay or prevention, the cause thereof and its estimated duration;
(b) use all reasonable endeavours to mitigate the effects of such delay or prevention upon the performance of its obligations under this Agreement; and
(c) resume performance of its obligations as soon as reasonably possible after the removal of the cause of the delay or prevention.
15.3. If Siphon is prevented from performing its obligations by an event of force majeure for more than 3 months, the Customer may terminate this Agreement by notice to Siphon subject to payment of all amounts due to Siphon under this Agreement up to the date when the event of force majeure occurred.
16.1. Prices do not include any sales, use, excise, ad valorem, property or other taxes applicable to the sale, use, license, or delivery of the Products or Services supplied, all of which are the responsibility of Customer.
17. Termination and Consequences of Termination
17.1. In the event either Party defaults in the performance of any material obligation or covenant hereunder and fails to cure said default within thirty (30) days of written notice specifying the breach and requesting it to be remedied, then the non-defaulting Party may terminate this Agreement. Without prejudice to the aforementioned, in the event that Siphon defaults in the performance of any material obligation or covenant hereunder and fails to cure said default within thirty (30) days of written notice specifying the breach and requesting it to be remedied, the Customer shall be entitled to terminate any individual Order raised pursuant to this Agreement or part of this Agreement only. Termination for default shall in no way prejudice the rights or remedies available to the non-defaulting Party as a result of the default. Customer may terminate the Agreement with immediate effect and be released from any outstanding contractual obligations should a resolution be passed or an order made for the winding up of Siphon or its supplier partner or if Siphon or its supplier partner becomes subject to an administration order or a receiver or administrative receiver is appointed over or an encumbrancer takes possession of any of Siphon’s or its supplier partner’s property or equipment or any analogous or similar event occurs in any jurisdiction.
17.2. The Customer shall be entitled to terminate this Agreement and all Orders made pursuant to it at any time on 3 months’ written notice to Siphon provided that it will pay to Siphon all amounts properly due and payable to Siphon for performance by Siphon of its obligations hereunder up to the date of such termination (as set out in any Order or Customer Order) an amount equal to all costs genuinely incurred by Siphon in procuring the Products or Services from its suppliers and any other third parties directly relating to any Order or Customer Order placed by the Customer prior to receipt of written notice of termination. Siphon agrees to provide a receipted invoice in respect of all such costs and to use reasonable endeavours to recover such costs from its suppliers and other third parties and in any event shall mitigate the sums payable by the Customer pursuant to this paragraph. Ownership of any Products and/or Services paid for by the Customer shall pass to the Customer on such payment.
17.3. Termination of this Agreement in whole or in part for any reason other than for breach of this Agreement by the Customer shall not act to terminate the provision of Products or Services or any associated Software License Agreement set out in existing Orders or Customer Orders by Siphon unless and until the relevant Order or Customer Order also terminates or expires and Siphon agrees to continue to provide the Products or Services in accordance with the terms set out in the Orders and Customer Orders and this Agreement provided that the Customer continues to pay the price for such Products or Services set out in any Quotation.
18.1. Invoicing terms for Products or Services shall be completed 100% on dispatch date of Products unless stated otherwise in Quotation. All invoices shall be paid within thirty (30) calendar days. Timely payment by Customer to Siphon of all sums due hereunder is a material element hereof. Except in the case of payments subject to a bona fide dispute Siphon may charge the Customer interest at the rate of 2.5% above the base lending rate of Lloyds Bank plc from time to time. Customer shall reimburse Siphon for all reasonable costs and expenses of collection of overdue amounts properly payable including reasonable attorney’s fees provided that such costs and expenses shall not include Siphon’s own internal administrative costs.
19. Assignment and Third-Party Rights
19.1. Subject to 19.2 below, except for an assignment in the event of a merger, reorganization, sale or other transfer of all or substantially all of its capital stock or assets, neither Party may assign its rights or obligations hereunder without the other Party’s consent, which consent shall not be unreasonably withheld related to this Agreement.
19.2. The Customer shall be permitted to assign or otherwise transfer all of its rights and obligations under this Agreement to a third party on notice to Siphon provided that:
(a) the Customer will, following such assignment, cease offering services to its customer which utilizes the solution provided; and
(b) the third party to which this Agreement is assigned or otherwise transferred is not a direct competitor of Siphon or its supplier partners.
19.3. No person who is not a party to this Agreement has any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
20. Cancellation and Rescheduling
20.1. The Customer may terminate any Order on 3 months written notice at any time provided the Customer shall pay Siphon an amount equal to all costs incurred by Siphon in procuring the Products and any services from its suppliers and any other third parties directly relating to such Order prior to receipt of written notice of termination. Siphon agrees to provide a receipted invoice in respect of all such costs and to use reasonable endeavours to recover such costs from its suppliers and other third parties and in any event shall mitigate the sums payable by the Customer pursuant to this paragraph. Ownership of any Products and/or Services paid for by the Customer shall pass to the Customer on such payment in full.
20.2. Customer may, upon no less than fifteen (15) business days prior written notice to Siphon, reschedule the delivery of any Product scheduled for Delivery to a date later than the original Delivery date but not more than sixty (60) days past the original Delivery date. Siphon does not provide any other cancellation facility other than the timeframes above and will not accept any cancellation outside of these timeframes.
21. Patent Infringement
21.1. Siphon agrees to defend, indemnify and hold Customer harmless from and against all costs, claims damages, expenses, claims, penalties or liabilities whatsoever incurred by the Customer as a result of or in connection with the Products or Services as delivered by Siphon under this Agreement infringing or misappropriating any patent rights, copyrights, trade secrets, trademarks or other intellectual property rights of any person. The Customer agrees to give Siphon prompt notification of any actual or threatened claim, the Customer’s reasonable cooperation in the defence thereof and the granting to Siphon of the sole control over the defence or settlement of the claim. The Customer shall not make any admissions that may be prejudicial to the defence or settlement of any claim or action for infringement or alleged infringement of third-party intellectual property rights.
21.2. In the event that the use or sale of all or any portion of the Products or Services are enjoined, or, in Siphon’s judgment, may be enjoined, as a result of a suit based on alleged infringement or misappropriation of the third party intellectual property rights, Siphon agrees to either: (i) procure for Customer the right to continue to exploit the Products or Services in accordance with this Agreement, or (ii) replace or modify the infringing or misappropriating Products or Services so that it becomes non-infringing and does not materially decrease the level of services provided by Siphon under the Order.
21.3. Regardless of any other provisions of this Agreement, this Section shall not apply (i) to any designs, specifications or modifications originating with or requested by Customer, or (ii) to the combination of any Product with other equipment, hardware or software not supplied by Siphon if such infringement or misappropriation would not have occurred but for such combination, or (iii) Customer failure to install an available update, where the update would have avoided the infringement claim.
22. Limitation of Liability
22.1. Nothing in this Agreement shall limit a party’s liability in respect of any claims:
(a) for death or personal injury caused by the negligence of such party;
(b) resulting from any fraud including fraudulent misrepresentation made by such party or its employees;
(c) for which liability may not otherwise lawfully be limited or excluded.
22.2. Subject to clause 22.1 immediately above, neither party shall be liable to the other for business interruption, loss of revenue, other than in respect of any profit element, loss of goodwill or anticipated savings (whether direct or indirect) or special, indirect, incidental or consequential damages of any nature and from any cause whether based in contract, tort (including negligence) or other legal theory even if such party has been advised of the possibility of such damages.
22.3. Subject to clause 22.1 above, neither party shall have any liability to the other Party in connection with performance or non-performance of this Agreement shall be limited to £1,000,000.
23.1. Should any provision of this Agreement be found illegal or unenforceable in any respect, such illegality or unenforceability shall not affect any other provision of this Agreement, all of which shall remain enforceable in accordance with their terms, so long as the overall intent of this Agreement is met.
24.1. A waiver of any right under this Agreement is only effective if it is in writing and signed by or on behalf of the waiving party, and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.
24.2. Failure by either Party to exercise or enforce any right or benefit conferred by this Agreement will not be deemed to be a waiver of any such right or benefit nor operate so as to bar the exercise or enforcement thereof or of any other right or benefit on any later occasion.
25. Press Releases and Publicity
25.1. After execution of this Agreement, the Parties will agree upon an appropriate joint press release regarding the creation and general nature of their business relationship under this Agreement. The Parties each also authorizes the other Party to add its name and logo to the relevant section on the other Party’s web site. Prior to the release of any press release pursuant to this paragraph or the use by Siphon of the Customer’s name and logo Siphon will obtain the Customer’s prior written consent to the intended use and content which must be signed by a statutory director of the Customer.
25.2. Notwithstanding anything else contained in this Agreement, Siphon grants to the Customer a non-exclusive, irrevocable, non-terminable, perpetual, royalty free, license to use any present and future trademarks, trade names and designs (registered or unregistered) associated with the Products solely for the purpose of exploiting the rights granted to it pursuant to this Agreement.
26.1. Neither party shall (except with the prior written consent of the other) during the term of this Agreement, and for a period of one year thereafter, solicit the services of any senior staff of the other Party who have been engaged in the provision of the Services or the management of this Agreement or any significant part thereof either as principal, agent, employee, independent contractor or in any other form of employment or engagement other than by means of a national advertising campaign open to all-comers and not specifically targeted at such staff of the other Party.
27. Entire Agreement
27.1. This Agreement incorporates all oral and written representations between the Parties and constitutes the entire Agreement and understandings of the Parties with respect to the subject matter hereof and supersedes any and all other agreements either oral or written between the Parties with respect to such subject matter. No amendment or modification may be made to this document unless in writing and duly executed by an authorized representative of each of the Parties.
28. Conflict of Terms
28.1. In the event of a conflict between the terms of this Agreement and any attachments, Addenda or other documents, the conflict shall be resolved in the following order of precedence: (a) the terms of any Addenda or Scope of Works; (b) the terms of this Agreement
29. Applicable Law and Jurisdiction
29.1. 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. The Parties agree to submit to the exclusive jurisdiction of the English courts.
30. Disputes and Arbitration
30.1. If, during the term of this Agreement, a dispute arises relating to this Agreement or any related matter and the parties cannot reach Agreement, the unresolved matter will be escalated between the parties in accordance with this paragraph.
30.2. A dispute referred for determination under this paragraph shall be escalated internally for resolution as follows:
(a) by referral in writing in the first instance to the persons designated as the stage one representative by each party below;
(b) if a dispute is not resolved within 5 working days of its referral under part (a) above or such longer period as agreed between the parties, either party may refer the dispute in the next instance to the persons designated by each party as the next stage representative below;
(c) where a next stage is provided for in the Agreement and if a dispute is not resolved within 5 working days of its referral pursuant to part (b) above or such longer period as agreed between the parties, either party may refer the dispute to the person designated by each party as the next stage below.
30.3. The representatives appointed by each party must not have been previously involved in resolving the dispute or part of the dispute. If this occurs, the dispute will be escalated to the next stage representative of both parties.
30.4. The representatives appointed by each party for the purposes of this paragraph shall be:
30.4.1. For Siphon:
18.104.22.168. Stage 1: Account Manager
22.214.171.124. Stage 2: Sales Director
126.96.36.199. Stage 3: Company Director
30.4.2. For the Customer:
188.8.131.52. Stage 1: Account Manager;
184.108.40.206. Stage 2: Service Manager;
220.127.116.11. Stage 3: Company Director.
30.5. Any dispute arising in respect of this Agreement shall be referred to arbitration conducted in London, England. The award rendered in such arbitration will be final and binding and may be enforced in any court of competent jurisdiction. Each Party shall bear its own costs incurred in the arbitration action. Notwithstanding the provisions of this section, any Party may seek injunctive relief in any court of competent jurisdiction in order to protect its proprietary and Confidential Information and to enforce or obtain compliance with the provisions relating to data protection and the scope of rights and licenses granted under this Agreement without first submitting such claim to arbitration.
31.1. All notices, requests, demands, and other communications provided for under or in relation to this Agreement shall be in writing and in English and shall be delivered or sent to the recipient at its address as set out at the head of this Agreement or such other address as may be notified from time to time by either Party to the other in writing.
32. Third Parties
32.1. The parties do not intend any term of this Agreement to be enforceable under the Contracts (Rights of Third Parties) Act 1999.
33. Miscellaneous Terms
33.1. Headings are inserted for the convenience of the parties only and are not to be considered when interpreting this Agreement. Words in the singular mean and include the plural and vice versa.
Exhibit A – License Terms
The provisions contained in this Exhibit A (“License”) apply to all Product purchases that include Software, and supplement the terms of the Customer Purchase Agreement. Siphon warrants that it has the ability to resell this.
1. License Terms
1.1. Subject to the provisions of this License, Siphon grants to Customer a non-exclusive, non-transferable (except in accordance with this Agreement) irrevocable, non-terminable (except in accordance with this Agreement), perpetual, royalty free except in respect of any royalties contained in each Quotation, right to use the object code form of the Software solely for Customer business purposes (including, without limitation, in conjunction with Customer’s provision of services to its customers) on or in conjunction with the Product with which it was originally delivered but not including the commercial exploitation of the Software not forming part of the Customer’s service offered to its customers.
1.2. This License is subject to the usage restrictions as set forth in each Quotation.
1.3. Siphon may suspend the license granted pursuant to clause 1.1 above if payment of any undisputed Product fees (as set out in each Quotation) are overdue provided that Siphon has first provided the Customer with at least 15 days written notice of such non-payment and its intention to suspend.
1.4. Siphon and its supplier partners are the sole owners of all rights, title and interest, including all copyrights, patents, trademarks, industrial designs, trade names, trade secrets and other intellectual property rights in the Software and Siphon agrees to indemnify and keep the Customer indemnified against all costs, claims, damages and expenses suffered or incurred by the Customer arising out of or in connection with the Software infringing any third party’s rights. The Software is copyrighted, and Customer is only authorized to reproduce any copies of the Software solely for back-up purposes and for re-installation on the same computer as the Software was originally installed. Siphon and its licensors retain all right, title and interest in and to the backup software. Customer is hereby prohibited from otherwise copying or translating, modifying or adapting the Software or, incorporating in whole or any part in any other product or creating derivative works based on all or any part of the Software. Customer is not authorized to license others to reproduce any copies of the Software, except as expressly provided in this License.
1.5. Subject to the remaining provisions hereof, the Customer agrees to ensure that all copyright, trademark and other proprietary notices of Siphon and/or it’s licensors affixed to or displayed on the Software will not be removed or modified. Siphon and the Customer agree that the Customer shall be entitled to brand and/or re-brand all Software that will be accessed or used by its customers with the Customer’s own brand. Siphon warrants and represents that it has all necessary licenses and consents in place to enable it to grant such rights to the Customer. For the avoidance of doubt any such branding or re-branding shall not constitute a modification of the Software for the purposes of this Agreement. Customer shall not decompile, disassemble or reverse engineer, the licensed Software or any component thereof, except as may be permitted by applicable law in which case Customer must notify Siphon in writing and Siphon may provide review and assistance itself or through its licensors.
2. US Export Administration
2.1. For all Software that is of United States origin provided by Siphon the Customer agrees to comply with all international laws that apply to the software, including the U.S Export Administration Regulations. Siphon will provide the Customer with all reasonable assistance to allow the Customer to comply with the export control laws and regulations of the United States Government.
3.1. For any support after the warranty period set out in this Agreement or for any technical support provided over and above standard warranty the Customer should purchase Annual Support Contracts from Siphon in connection with the Products which will be provided in accordance with the terms and conditions set out in this Agreement.
4. Limited Software/Firmware Warranty
4.1. Siphon warrants that:
(a) it has the right to enter into this License and to grant to the Customer a license or sub-license to use the Software as contemplated by this license;
(b) the Software will conform in all material respects to the specification set out in each Quotation and be free from defects for a period of 90 days from the Software being successfully commissioned on to the Customer’s IT system (Warranty Period);
(c) the Software and the media on which the Software is delivered are free from known viruses and other malicious code;
(d) the media on which the Software is delivered under this license will be free from defects;
(e) it has not included or used any Open-Source Software or any libraries or code licensed from time to time under the General Public License (as those terms are defined by the Open Source Initiative or the Free Software Foundation) or anything similar in, or in the development of, the Software, nor does the Software operate in such a way that it is compiled with or linked to any of the foregoing.
4.2. The warranties in this License shall apply to any release of the Software made by Siphon that is acquired by the Customer during the course of this License as though the references to the date of this License were references to the date on which such release was acquired.
4.3. Siphon’s liability, and Customer’s sole and exclusive remedy, shall be limited to the express remedies set forth in this Agreement.
4.4. Siphon makes no other warranties, express, implied or statutory, regarding Software. All other warranties as to the quality, condition, merchantability, fitness for a particular purpose, or non-infringement are expressly disclaimed.
5. Intellectual Property Rights
5.1. Except as described in this License, Siphon does not grant and Customer acknowledges that it shall have no right, license or interest in any of the patents, copyrights, trademarks, or trade secrets owned, used or claimed now by Siphon and its supplier partners. All applicable rights to such patents, copyrights, trademarks, and trade secrets are and will remain the exclusive property of Siphon and it’s supplier partners, subject to the rights expressly granted to Customer by this License, title to and ownership of the intellectual property rights contained in the Software or any part thereof shall remain Siphon’s and it’s supplier partners and licensors property.
6. Delivery and Acceptance
6.1. For a period of ninety (90) days commencing on delivery of the Software, the Customer may discontinue this License in respect of all or any part of the Software that does not perform in accordance with the specification set out in each Quotation or as per standard specifications of manufacturer.
7.1. This Agreement shall apply equally to any upgrades, updates, bug fixes or modifications licensed to the Customer under the Software License Agreement or any related software maintenance and support agreement.
8.1. Customer’s acceptance of the terms, conditions and requirements included in this software license are expressly implied by the opening, installing, copying or using the Software.
Siphon Networks Ltd. (t/a Nuvias Unified Communications) is a company registered in England and Wales, Company Registration No. 06853109
SIPHON Networks Ltd, Brecon House, William Brown Close, Llantarnam Park, Cwmbran NP44 3AB. VAT Number GB 970 6423 15