Byte22 Terms and Conditions

The Customer's attention is particularly drawn to the provisions of clauses 14 and 20.

INTERPRETATION

Definitions. In these Conditions, the following definitions apply:

Application: the application software comprised of Supplier Software developed by Byte22 for the Operating System(s).

Application Delivery Date: the estimated delivery date specified in the Project Plan on which Byte22 will deliver a module of the Application to the Customer.

Acceptance: the acceptance or deemed acceptance of the Site by the Customer pursuant to clause 4.6.

Acceptance Certificate: the certificate to be signed by the Customer under clause 4.8(a)

Acceptance Tests: the tests to be carried out on the Site as set out in clause 4.

Bespoke Software: the software programs developed by Byte22 specifically for the Customer as part of the Application.

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

Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 7.

Commencement Date: has the meaning set out in clause 2.2.

Byte22: Henhurst Consulting Limited trading as Byte 22 registered in England and Wales with company number 04564260 and with registered office 6 Lichfield Street, Burton on Trent, Staffordshire DE14 3RD.

Conditions: these terms and conditions as amended from time to time in accordance with clause 25.8.

Byte22 Materials: has the meaning set out in clause 11.1(g).

Completion Date: the estimated date specified in the Proposal by which the Byte22s to provide the Supplier Software Ready for Service.

Contract: the contract between Byte22 and the Customer for the supply of Services for each Project in accordance with these Conditions including these Conditions and the Proposal.

Customer: the person or firm who purchases Services from Byte22.

Deliverables: the deliverables set out in the Proposal produced by Byte22 for the Customer, including but not limited to the Application and the Documents.

Documents: the operating manuals, user instruction manuals, technical literature and all other related materials in human-readable or machine-readable forms supplied by Byte22.

Escrow: the deposit with, and retention by the Escrow Agent of, the Source Code Materials.

Escrow Agent: The NCC Group.

Escrow Agreement: an escrow agreement in the applicable standard form then in force by the Escrow Agent at the time of the request to provide the Supplier Software in Escrow as required under clause 24.

Final Design Stage: the Services indicated in the Proposal commencing on the Stage Sign-off for Production Design Stage and up to completion of the Services.

Go-Live Date: the estimated date by which Byte22 will complete the design, build and test of the Application or a module of it as specified in the Project Plan.

Hosting Services: the hosting and related services of websites developed by Byte22 or a third party, as shall be further set out in the Proposal, Project Plan and clause 5.

Initial Design Stage: the Services indicated in the Proposal between the commencement of the Services and immediately before the Stage Sign-off for Production Design Stage.

Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, typography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

Licence: the licence granted under clause 8.

Licensed Software: Supplier Software (except the Open-Source Software and the Third-Party Software).

Licensed Software (Supplier): the Bespoke Software, Supplier Standard Software and the Modified Software (Supplier).

Licensed Users: anyone who is given access to the Application by the Customer.

Modified Software: the standard software programs proprietary to Byte22 and/or third parties listed in the Proposal, modified or to be modified by Byte22 under this agreement.

Modified Software (Supplier): those elements of the Modified Software listed in the Proposal and identified as such.

Modified Software (Third Party): those elements of the Modified Software listed in the Proposal and identified as such.

Open-Source Software: any software licensed under any form of open-source licence meeting the Open Source Initiative's Open Source Definition (set out at www.opensource.org) or any libraries or code licensed from time to time under the General Public Licence (as described by the Free Software Foundation and set out at www.gnu.org), or anything similar, included or used in, or in the development of, the Application (Current), or with which the Supplier Software is compiled or to which it is linked.

Operating System: the operating system(s) set out in the Proposal.

Order: in the Customer's purchase order form, or the Customer's written acceptance of a quotation by Byte22, or overleaf, as the case may be.

Price: the aggregate price for the Work (excluding, for clarity, any training and any other services) and the Licence, as specified in the Proposal.

Pre-existing Materials: materials which existed before the commencement of the Services, including but not limited to the Intellectual Property Rights held in such materials by third parties.

Production Design Stage: the Services indicated in the Proposal commencing on the Stage Sign-off for Initial Design Stage.

Project: the unique identifier for the Services or Deliverables provided by Byte22 to the Customer and as set out in the Proposal.

Project Manager: shall be such individual as shall be identified in the Proposal.

Project Plan: the timetable for setting up the Site and performing the Services as set out in the Proposal.

Proposal: the description or specification of the Services provided in writing by Byte22 to the Customer, including the Project Plan.

Purpose: the purpose for the Application set out in the Proposal.

Ready for Service: installed, tested and having passed or deemed to have passed the Acceptance Tests under clause 4 as appropriate to Software Development Services.

Services: the services, including the Deliverables, supplied by Byte22 to the Customer as set out in the Proposal which shall include but not be limited to design and consultancy services in respect of website design, Software Development Services and Hosting Services but excluding the Work.

Site: where applicable the website to be designed and developed as part of the Services.

Site Materials: the content provided to Byte22 by the Customer from time to time for incorporation in the Site.

Site Software: the software for the Site commissioned by the Customer as described in the Proposal.

Site Specification: the specification for the Site set out in the Proposal.

Software Development Services: such Services as are required to design and/or develop the Application and as are set out in the Proposal.

Software Module: any one of the individual software programs in the Application.

Stage: the Initial Design Stage, Final Design Stage, or Production Design Stage.

Stage Sign-off: the wording, in the form prescribed in the Schedule to these Conditions, to be provided by the Client’s authorised representative at the completion of each Stage and for progression to the next stage, or production of final design.

Source Code Materials: the source code of the Supplier Software, and all technical information and Documents required to enable the Customer to modify and operate it.

Supplier Software: the Supplier Standard Software, the Third-Party Software, the Modified Software, the Open-Source Software, the Tools and the Bespoke Software.

Supplier Standard Software: the software programs proprietary to the Supplier, listed in the Proposal, which are to be provided to the Customer without modification.

Technical Specification: the specification of the Application contained in the Proposal and agreed between Byte22 and the Customer to meet the requirements of the Customer.

Third-Party Licences: all licences relating to Third Party Software and all licences relating to any Open-Source Software.

Third-Party Software: the software programs proprietary to third parties, listed in the Proposal, which are to be provided to the Customer without modification.

Tools: any tools and know-how developed, and methods invented, by the Supplier in the course of or as a result of carrying out the Work, whether or not developed or invented specifically or used exclusively to carry out the Work.

Trigger Event: an event, the occurrence of which shall entitle the Customer to apply to the Escrow Agent for release of the Source Code Materials from Escrow in accordance with the provisions of the Escrow Agreement.

Virus: any thing or device (including any software, code, file or programme) which may:

Work: all the works, duties and obligations to be carried out by Byte22 under this agreement.

Construction. In these Conditions, the following rules apply:

BASIS OF CONTRACT

The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.

The Order shall only be deemed to be accepted when Byte22 issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date). The Contract subject to these Conditions, shall continue, unless terminated earlier in accordance with these Conditions;

The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Byte22 which is not set out in the Contract.

Any samples, drawings, descriptive matter or advertising issued by Byte22, and any descriptions or illustrations contained in Byte22's catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.

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

Any quotation given by Byte22 shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.

SUPPLY OF SERVICES AND STAGE SIGN-OFF

Byte22 shall supply the Services to the Customer in accordance with the Proposal in all material respects.

Except for Hosting Services, performance of the Services shall be split into three Stages for each Project, unless otherwise agreed in writing:

Except for Hosting Services, once Byte22 believe they have completed the Services and/or Deliverables required for each Stage they shall present the Services and/or Deliverables to the Customer.

Stage Sign-off shall be completed and returned by the Customer no later than three Business Days from the day Byte22 presented the Services and/or Deliverables to the Customer, unless any adjustments, amendments or other changes are required in accordance with clause 3.5, or there are defects in the Services and/or Deliverables (as set out in clause 3.8(a)). Time shall be of the essence for the purpose of this clause 3.4.

Byte22 shall not accept any responsibility for any delay caused by the Customer’s failure to complete and return a Stage Sign-off.

If the Customer requires any adjustments, amendments or other changes to be made following presentation of the Services and/or Deliverables such changes shall be notified in writing to Byte22. Where the changes are outside the scope of the Services and/or Deliverables (to be determined by Byte22) as detailed in the Proposal and in relation to that Stage, then the adjustments, amendments or other changes will be treated in accordance with clause 6.

Byte22 will be entitled to charge additional fees, such fees to be on a time and materials basis (in accordance with clause 9.5), for any adjustments, amendments or other changes

The Services shall only proceed from one Stage to the next Stage on receipt of a Stage Sign-off in the form provided in the Schedule to these Conditions.

Byte22 shall not accept any responsibility for:

In the event that the Customer fails to provide Stage Sign Off in accordance with Clause 3.4, the Customer or Byte22 may terminate the Contract immediately on notice and clause 22 shall apply. Byte22 shall refund any advance payment made in accordance with clause 14 on a pro rata basis.

For the avoidance of doubt, Stage Sign Off confirms that the Customer is completely satisfied with the Services up to the Stage at which Stage Sign Off is provided.

Byte22 shall use reasonable endeavours to meet any performance dates 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.

Byte22 shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and Byte22 shall notify the Customer in any such event.

ACCEPTANCE TESTING

The following clauses 4.2 to 4.5 shall apply where the Services include website design and development.

Byte22 shall run the Acceptance Tests for the Site at the Production Design Stage and prior to the Final Design Stage. The procedure set out in this clause 4 shall apply to any further development works agreed by the parties as part of the Production Design Stage.

The Acceptance Tests shall test compliance of the Site with the Proposal for the Site. The form and detail of such tests is set out in the Proposal.

Acceptance of the Site shall occur when the Site has passed the Acceptance Tests at the Production Design Stage and prior to Final Design Stage. Byte22 shall notify the customer when the tests have been passed and provide the results of the Acceptance Tests to the Customer in writing.

If any failure to pass the Acceptance Tests results from a Non-Byte22 Defect, the Site shall be deemed to have passed the Acceptance Tests notwithstanding such Non-Byte22 Defect. Byte22 shall provide assistance reasonably requested by the Customer in remedying any Non-Byte22 Defect by supplying additional services. The Customer shall pay Byte22 in full for all such additional services at Byte22's then current fees and prices.

As regards the Software Development Services:

Acceptance of the Site shall be deemed to have taken place upon the occurrence of any of the following events:

Acceptance of the Supplier Software shall be deemed to have occurred on whichever is the earlier of:

SITE CONTENT

Byte22 shall update the Site with Materials provided from time to time by the Customer, but no more than once in any month during the term of this Contract in respect of Hosting Services. The Customer shall ensure that the Site Materials do not infringe any applicable laws, regulations or third party rights (such as material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous or in breach of any third party Intellectual Property Rights) (Inappropriate Content).

Byte22 shall include only the Site Materials on the Site. The Customer acknowledges that Byte22 has no control over any content placed on the Site by Visitors and does not purport to monitor the content of the Site, unless otherwise agreed by Byte22 (in which case Byte22 shall perform such Services in accordance with the Warranty set out in clause 12.2.

Byte22 reserves the right to remove content from the Site where it reasonably suspects such content is Inappropriate Content. Byte22 shall notify the Customer if it becomes aware of any allegation that content on the Site may be Inappropriate Content.

The Customer shall indemnify Byte22 against all damages, losses and expenses arising as a result of any action or claim that the Site Materials or any other material posted to, or linked to, the Site constitutes Inappropriate Content.

Byte22 may include a statement identifying each page of the Site as created by Byte 22.

WEBSITE HOSTING SERVICES

Clause 6.2 shall apply where the Services include Hosting Services

In respect of Hosting Services, Byte22 shall perform its obligations in accordance with the Project Plan. In particular:

SOFTWARE APPLICATION DEVELOPMENT

Byte22 grants the Licence and shall supply the Application, the Documents, the Work and the Services to the Customer in accordance with the Contracts.

The supply under clause 7.1 and Price are subject to the terms and conditions set out in the Contract.

Byte22 agrees:

Byte22 shall carry out the Work with reasonable diligence and despatch, and with reasonable skill and expertise, to provide the Application in accordance with the Technical Specification by the Completion Date.

Byte22 shall provide the Third-Party Software and any Modified Software (Third Party) to the Customer under the standard licence terms provided by the relevant third parties, copies of which shall be provided to the Customer, and the Customer agrees to be bound by such licence terms.

Byte22 shall provide Supplier Standard Software, the Bespoke Software and any Modified Software (Supplier) under the terms of these Conditions.

If agreed in writing between the parties, or otherwise set out in the Proposal, Byte22 shall provide to the Customer, from time to time, copies of the Documents containing sufficient up-to-date information for the proper use of the Application (Current). These Documents may be supplied in electronic form.

The Customer may make such further copies of the Documents as are reasonably necessary for the use of the Application (Current). The Customer shall ensure that all of Byte22's proprietary notices are reproduced in any such copy.

The Customer may provide copies of the Documents to any third party who needs to know the information contained in it, provided that such third party first enters into confidentiality obligations to the same extent as set out in these Conditions.

Byte22 shall deliver each module of the Application to the Customer by the applicable Application Delivery Date.

Byte22 shall supply to the Customer, within a reasonable time before any Application Delivery Date, such information and assistance as the Customer may reasonably request.

If any delivery is delayed at the request of the Customer, or because of his acts or omissions, the Proposal shall be amended to take account of such delay in accordance with clause 11.5. If Byte22 can demonstrate that the delay has resulted in an increase in cost to Byte22 of carrying out its obligations under this agreement, Byte22 may, at its sole discretion, notify the Customer that it wishes to increase the Price by an amount not exceeding any such demonstrable cost. Byte22 may invoice the Customer for any additional monies that become payable in this way, within 30 days of demonstrating the increase in costs.

SOFTWARE LICENCE AND DOCUMENTS

Byte22 grants, subject to the terms of the Contract, the Customer the non-exclusive, non-transferable right:

8.2.The Customer shall comply with the Third-Party Licences and shall indemnify and hold Byte22 harmless against any loss of damage that it may suffer or incur as a result of the Customer's breach of such terms.

Byte22 may treat the Customer's breach of any Third-Party Licence as a breach of the Contract.

TRANSFER OR REPRODUCTION OF LICENSED SOFTWARE

The Customer may make such copies of the Licensed Software as are reasonably necessary for use in accordance with this agreement and for the purposes of backup and security but such copies shall not exceed a total of one electronic and one hard copy. The Customer has no right to make, or authorise the making of, any other copies of the Licensed Software.

Byte22 shall at all times own all copies of all or any part of the Licensed Software. For copies recorded on a tangible medium, the Customer shall place on each copy of all or any part of the Licensed Software a clearly visible label indicating that the copy is the property of Byte22, and reproducing Byte22's proprietary rights notice. For electronic copies, the Customer shall ensure that all proprietary notices contained in the Licensed Software shall be maintained in such copies and shall display, when the software is run, in the same way as in the case of the Licensed Software as supplied by Byte22. The Customer shall keep all copies of the Licensed Software in a secure place when not in use and shall, at all times, keep all such copies in its possession or control.

Except as permitted under clause 8.1(b), the Customer shall not:

USE AND ADAPTATION OF LICENSED SOFTWARE

The Customer may use the Licensed Software with other software.

The Customer may not make adaptations or variations of the Licensed Software without the prior consent of Byte22.

The Customer may not disassemble, decompile, reverse translate or in any other manner decode the Licensed Software, except as permitted by law.

CUSTOMER'S OBLIGATIONS

The Customer shall:

If Byte22's performance of any of its obligations under the Contract is prevented or delayed by any Non-Byte22 Defect:

Byte22 shall be given an extension of the timetable of any one or more of the stages in the Project Plan if one of more of the following events occurs:

If Byte22 is entitled to an extension of time under clause 11.3, it shall give written notice to the Customer not later than seven days after the beginning of the event. Such notice shall specify the event relied on and, in the case of a Force Majeure Event under clause 25, shall estimate the probable extent of the delay.

The Project Managers shall use all reasonable commercial endeavours to agree in writing, what extension of time is reasonable in the circumstances. The Project Plan and the Proposal shall be deemed amended accordingly.

PROJECT MANAGERS

Each party shall appoint a Project Manager who shall:

The Project Managers shall meet at such appropriate time agreed in writing until the passing of the Acceptance Test, and then at least once every month.

CHANGE CONTROL

If either party wishes to change the scope of the Services, it shall submit details of the requested change to the other in writing.

If either party requests a change to the scope or execution of the Services, Byte22 shall, within a reasonable time, provide a written estimate to the Customer of:

If Byte22 requests a change to the scope of the Services, the Customer shall not unreasonably withhold or delay consent to it.

If the Customer wishes Byte22 to proceed with the change, Byte22 has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges, the Proposal and any other relevant terms of the Contract to take account of the change.

Byte22 undertakes to offer to the Customer, and the Customer may at any time before the relevant Application Delivery Date and at its sole discretion choose to obtain from Byte22, any item of software in substitution for any corresponding item of Licensed Software where the substitute item contains new technology or has better performance characteristics than such Licensed Software. As part of the offer, Byte22 shall notify the Customer of any change in the Price which would result from such substitution. If the Customer chooses to obtain any such substitute item, the parties shall use best endeavours to agree a change to the Proposal and Services in accordance with this clause 13.

CHARGES AND PAYMENT

The Charges for the Services shall be set out in the Proposal, except for Hosting Services, and shall relate to each Stage of the Services.

Where indicated in the Proposal, the Customer shall make an advance payment for Services. Such advance payment shall be payable immediately on receipt of the Proposal and the Services shall not commence until the advance payment has been received in full and in cleared funds to a bank account nominated in writing by Byte22.

Unless otherwise agreed in writing, the Hosting Services shall be on a fixed fee basis and Byte22 shall issue a VAT invoice annually in advance in respect of the Charges for Hosting Services.

Where Charges are on a fixed fee basis, the fixed fee shall be set out in the Proposal.

The Price shall be payable in such amounts, in such frequency and by such methods as shall be set out in the Proposal.

Where Charges are on a time and materials basis:

Byte22 reserves the right to increase its standard daily fee rates, provided that such charges cannot be increased more than once in any six month period. Byte22 reserves the right to increase the fixed fee for the Services and/or Deliverables in the event that the costs payable by Byte22 in relation to the Services and/or Deliverables are increased.

Byte22 will give the Customer written notice of any such increase one month before the proposed date of the increase. If such increase is not acceptable to the Customer, it shall notify Byte22 in writing within two weeks of the date of Byte22's notice and Byte22 shall have the right without limiting its other rights or remedies to terminate the Contract by giving one weeks' written notice to the Customer.

Unless otherwise agreed in the Proposal, or in writing by Byte22, Byte22 shall invoice the Customer on completion of the services associated with each Stage of the Services.

Unless otherwise set out in the Proposal or otherwise agreed in writing, the Customer shall pay each invoice submitted by Byte22:

All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by Byte22 to the Customer, the Customer shall, on receipt of a valid VAT invoice from Byte22, pay to Byte22 such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.

Without limiting any other right or remedy of Byte22, if the Customer fails to make any payment due to Byte22 under the Contract by the due date for payment (Due Date):

The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against Byte22 in order to justify withholding payment of any such amount in whole or in part. Byte22 may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by Byte22 to the Customer.

OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS

Subject to clauses 8 and 16, all Intellectual Property Rights and all other rights in the Deliverables shall be owned by Byte22. In consideration for payment of the Charges in full and cleared funds, Byte22 hereby licenses all such rights to the Customer on a non-exclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Deliverables and the Services as is envisaged by the parties. If the Contract is terminated in accordance with clause 20.2, this licence will automatically terminate.

The Customer acknowledges that Byte22's use of rights in Pre-existing Materials is conditional on the Customer obtaining a written end-user licence (or sub-licence) of such rights from the relevant licensor or licensors on such terms as will entitle Byte22 to license such rights to the Customer.

The Customer agrees to indemnify Byte22 and keep it indemnified at all times against all or any costs, claims, damages or expenses incurred by Byte22, or for which Byte22 may become liable, with respect to any intellectual property infringement claim or other claim relating to the Services or Deliverables supplied by Byte22 to the Customer arising out of the Customers failure to act in accordance with clause 8.2.

Byte22 reserves the right to use any Deliverables provided by Byte22 to the Customer for promotional purposes, in accordance with any reasonable instructions of the Customer.

All Byte22 Materials are the exclusive property of Byte22.

OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS IN THE SOFTWARE

The following clauses are subject to the licence provisions in clause 8.

The Intellectual Property Rights in the Application (Current) are, and shall remain, the property of Byte22 (or the appropriate third-party rights-owner(s), if any).

The Customer acquires no rights in or to the Licensed Software or the Documents other than those expressly granted by this Contract.

The Customer shall do, and execute or arrange for the doing and executing of, each necessary act, document and thing that Byte22 may consider necessary or desirable to perfect the right, title and interest of Byte22 in and to the Intellectual Property Rights in the Licensed Software and the Documents.

The Customer shall use reasonable endeavours to prevent any infringement of the Intellectual Property Rights in the Licensed Software and shall promptly report to Byte22 any such infringement that comes to its attention. In particular, the Customer shall:

Nothing in this agreement shall prevent either party from using any Tools, knowledge of which is contained in the unaided memory of such party's personnel developed or disclosed under the Contract, provided that in doing so such party does not breach its obligations of confidentiality under this clause 15 or breach any Intellectual Property Rights of the other party. An individual's memory is only "unaided" with respect to any information if the individual has not retained a copy of the information and has not intentionally memorised that information other than is required to perform the Services.

WARRANTIES

Each of the parties warrants to the other that it has full power and authority to enter into and perform this agreement.

Byte22 shall perform the Services with reasonable care and skill.

Byte22 warrants that the Site will perform substantially in accordance with the Site Specification for period of 90 days from Acceptance. If the Site does not so perform, Byte22 shall, for no additional charge, carry out any work necessary in order to ensure that the Site substantially complies with the Site Specification.

The warranty set out in clause 17.3 shall not apply to the extent that any failure of the Site to perform substantially in accordance with the Site Specification is caused by the Site Software or any Site Materials.

The Contract sets out the full extent of Byte22’s obligations and liabilities in respect of the supply of the Services. All conditions, warranties or other terms concerning the Services which might otherwise be implied into the Contract or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.

Byte22 warrants and represents that:

The sole remedies for breach of the warranties in clause 17.6(a) and 17.6(b) are set out below.

If use of the Application (Current) or where in the opinion of qualified legal counsel is likely to become, the subject of any such claim, Byte22 may:

The sole remedy for breach of the warranty under clause 17.6(c) shall be correction of Defects by Byte22 within a reasonable time from notification by the Customer of the Defect that constitutes such breach.

The warranties set out in clause 17.6 are in lieu of all other express or implied warranties or conditions, including implied warranties or conditions of satisfactory quality and fitness for a particular purpose, in relation to this agreement. Without limitation, Byte22 specifically denies any implied or express representation that Supplier Software will be fit:

Byte22 does not warrant or guarantee that it will be able to rectify all Defects.

Any unauthorised modifications, use or improper installation of the Application (Current) by, or on behalf of, the Customer shall render all Byte22's warranties and obligations under the Contract null and void.

Byte22 shall not be obliged to rectify any particular Defect if attempts to rectify such Defect other than by normal recovery or diagnostic procedures have been made by the Customer's personnel or third parties without the permission of Byte22.

Any Open-Source Software provided by Byte22 may be used according to the terms and conditions of the specific licence under which the relevant Open-Source Software is distributed, but is provided "as is" and expressly subject to the disclaimer in clause 17.8.

The Customer:

Each party warrants that it has full capacity and authority, and all necessary licences, permits and consents to enter into and perform this agreement and that those signing this agreement are duly authorised to bind the party for whom they sign.

CONFIDENTIALITY

A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party's business or its products or its services which the Receiving Party may obtain (Confidential Information). The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party's obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 17 shall survive termination of the Contract.

DATA PROTECTION

In this clause 19, Personal Data, data controller, data processor and data subject bear the same meanings given them in the Data Protection Act 1998.

Byte22 warrants that, to the extent it processes any Personal Data on behalf of the Customer:

The Customer acknowledges that Byte22 will be acting as a data processor, rather than as a data controller, in respect of all such data processing activities which Byte22 carries out under this agreement.

Except as expressly provided otherwise, this agreement does not transfer ownership of, or create any licences (implied or otherwise) in, any Intellectual Property Rights in any data.

LIMITATION OF LIABILITY: THE CUSTOMERS'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE

Nothing in these Conditions shall limit or exclude Byte22's liability for:

Subject to clause 20.1, the Supplier shall not in any circumstances be liable whether in contract, tort (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for:

Clause 20.2 shall not prevent claims that fall within the scope of clause 20.4 for:

Subject to clause 20.1, Byte22’s total aggregate liability to the Customer in respect of all claims based on events in any calendar year arising out of or in connection with the Contract or any collateral contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise,

Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.

Any dates quoted for delivery of the Work or the Services are approximate only, and the time of delivery is not of the essence. Byte22 shall not be liable for any delay in delivery of the Work or the Services that is caused by an event, circumstance or cause within the scope of clause 25.1 or the Customer's failure to provide Byte22 with adequate delivery instructions.

This clause 20 shall survive termination of the Contract.

TERMINATION

Byte22 may terminate the Contract immediately on written notice in accordance with clause 3.10 of these Conditions.

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

Without limiting its other rights or remedies, Byte22 may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.

Without limiting its other rights or remedies, each party shall have the right to terminate the Contract by giving the other party one months' written notice.

Any provision of the Contract which expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect including:

CONSEQUENCES OF TERMINATION

On termination of the Contract for any reason and as soon as reasonably practicable:

On termination of the Licence, the Customer shall either return to Byte22 or, at Byte22's option, destroy all material copies of the Licensed Software and Documents, and shall ensure that any copies of the Licensed Software on hard discs or other storage means associated with any computer equipment owned or controlled by the Customer are permanently deleted.

The Contract shall automatically terminate, in whole or in part, on termination or expiry of the Licence, but expiry or any termination of the Contract (however caused) shall have no effect on the Licence.

On termination of this agreement for any reason, Byte22 shall:

RESTRICTIONS

During the term of the Contract and for a period of six months after its termination the Customer shall, without the prior written consent of the other, directly or indirectly solicit, or permit any others on their behalf to solicit, the employment of any person who is employed or engaged by Byte22 in the course of developing, supplying, maintaining or supporting Supplier Software or any part of it.

ESCROW

If required by the Customer and at the sole cost of the Customer, Byte22 and the Customer shall sign an Escrow Agreement. The Customer undertakes to procure that the Escrow Agent signs the Escrow Agreement.

Byte22 and the Customer mutually undertake to abide by the terms of the Escrow Agreement and acknowledge that for the purposes of the Escrow Agreement:

The Trigger Events are:

GENERAL

Force majeure:

Assignment and subcontracting:

Notices:

Waiver:

Severance:

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

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

Variation: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing and signed by Byte22.

Governing law and jurisdiction: This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.