ASSETMINDER TERMS & CONDITIONS
These terms and conditions are made up of the following:
(a) these Terms and Conditions, and
(b) any additional Statement of Work (“SoW”), and
(c) any Schedules specified in or annexed to the MSA or any SoW.
In the event of any conflict between (a), (b) and (c), the order of precedence shall be (a) then (b) then (c).
Agreement: the MSA signed by the Customer and Konektio for the supply of the Services in accordance with these Conditions and any Schedules referred to, and any SoW.
Charges: the charges payable by the Customer for access to the Modules and the supply of the Goods or Services by Konektio, as set out in the MSA or an SOW.
Conditions: these terms and conditions.
Commencement date: means the date of last signature of the MSA
Completion Date: means the date by which a Deliverable or stage is estimated to be completed, as set out in the MSA or SoW
Customer: means the firm or company identified in the MSA.
Customer Materials: all materials, equipment, tools, drawings and data supplied by Customer to Konektio.
Deliverables: the documents, products and materials produced by Konektio in relation to the Services, including any proposals, reports or specifications prepared by Konektio.
Goods: goods and hardware ordered by the Customer under the MSA, or any order or SOW
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, 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 rights, topography rights, rights in confidential information, know-how, trade secrets, derivative rights 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.
Modules: the modules on the AssetMinder Platform as set out in the MSA or SOW (if any)
Services: the services, including any Deliverables, to be provided by Konektio pursuant to the MSA or any additional SoW
Services Start Date: the day on which Konektio is to start provision of the Services, as set out in the MSA or SoW
SoW or Statement of Work: means a written statement of work setting out the scope of work and describing the Deliverables, in scope/out of scope details, assumptions and dependencies, pricing as well as the time for the work to be completed.
Term: the term of the Agreement as set out in the MSA.
AssetMinder Platform: the platform, applications, Modules, and advice automation platform of Konektio (including without limitation the software code, algorithms, formulas, written copy, user experience designs and user journeys), and any updates, amendments and modifications made by Konektio, whether prior to or after the Services Start Date.
Konektio: means InVMA Limited (company number 08123484) whose registered office is at Unit 120 Coney Green Business Centre, Wingfield View Clay Cross, Chesterfield, Derbyshire, S45 9JW.
Konektio IPR’s: all Intellectual Property Rights subsisting in the AssetMinder® Platform, the Services and the Deliverables, but excluding any Customer Materials incorporated in the Deliverables.
A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted. Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms. A reference to writing or written includes email.
- SUPPLY OF GOODS AND SERVICES AND ACCESS TO MODULES
2.1 Konektio shall supply the Services to Customer from the Services Start Date in accordance with the MSA or any SoW.
2.2 In supplying the Services, Konektio shall:
(a) perform the Services with reasonable care and skill and in accordance with good industry practice.
(b) use reasonable endeavors to perform the Services in accordance with the service description set out in the MSA or any SoW.
(c) comply with all applicable laws and regulations concerning the supply of the Services including all applicable health and safety rules and regulations and security requirements that apply at any of the Customer’s premises and have been communicated to Konektio, provided that Konektio shall not be liable under this agreement if, as a result of such observation, it is in breach of any of its obligations under these Conditions; and
(d) take reasonable care of all Customer Materials in its possession and make them available for collection by the Customer on reasonable notice and request, always provided that Konektio may destroy the Customer Materials if Customer fails to collect Customer Materials within a reasonable period after termination of this Agreement.
2.3 Konektio shall provide access to the Modules (if any) for the Term and subject to the Customers compliance with these Conditions.
2.4 Konektio shall use commercially reasonable endeavours to make the AssetMinder Platform and any Modules available 24 hours a day, seven days a week, and except for reasonable and regular planned maintenance, and any unavailability caused by circumstance beyond Konektio’s reasonable control.
2.5 The Goods shall be delivered to the location agreed between the Parties, and may be delivered in instalments. Risk in the Goods shall pass on delivery. The Supplier shall retain ownership of the Goods until they are paid for. Goods shall conform to the specification agreed in writing between the Parties. The Customer shall inspect the Goods delivery and may reject them if notice of any defect apparent on visual inspection is provide to the Supplier within 5 days of delivery; any failure to give notice will be deemed acceptance of the Goods.
2.6 The Supplier shall not be liable under any warranty to the extent the defect arises through fair wear and tear, or the Customer (a) using the Goods after rejecting them, (b) failing to follow any oral or written instructions regarding installation and use of the Goods, (c) requesting changes to the specification of the Goods, or (d) damaging the Goods.
2.6 All Goods are sold to the Customer with the benefit of any warranties and guarantees provided by suppliers to Konektio, and Konektio agrees pass on the benefit of any warranties and guarantees provided by suppliers. Konektio does not provide any additional warranty or guarantee on any Goods supplied under the MSA or any SOW, unless expressly agreed in writing.
- CUSTOMER’S OBLIGATIONS
3.1 Customer shall:
(a) provide reasonable co-operation to Konektio in all matters relating to the Services.
(b) provide, in a timely manner, such information as Konektio may reasonably require, and ensure that it is accurate in all material respects; and
(c) provide approvals, or reasons why approvals are not being provided, in a timely manner; and,
(f) be responsible for maintaining appropriate and sufficient records to comply with regulatory requirements and obligations.
3.2 If Konektio’s performance of its obligations under this agreement is prevented by any act or omission of Customer, its agents, subcontractors, consultants or employees, Konektio shall:
(a) not be liable for any costs, charges or losses sustained or incurred by Customer that arise directly from such prevention or delay; and
(b) be entitled to payment of the Charges up to the date of prevention.
- INTELLECTUAL PROPERTY
4.1 Customer acknowledges that Konektio owns or licenses all Intellectual Property Rights in the AssetMinder Platform and the Deliverables (but excluding any Customer Materials incorporated in the Deliverables).
4.2 Konektio grants Customer a limited right of access to Modules on the AssetMinder Platform by way of a non-exclusive, non-transferable, license of Konektio’s and its licensors Intellectual Property Rights to enable use of the Services and the Deliverables during the Term of the Agreement and for all purposes contemplated by the Agreement. Save as provided for in this Agreement no right or license, express or implied, is granted to the Customer to any Konektio IPR.
4.3 All Intellectual Property Rights in Customer Materials are and shall remain vested in Customer. Customer grants Konektio a non-exclusive, non-transferable license to use the Customer Materials for the term of this Agreement for the purpose of providing the Services to Customer in accordance with this Agreement.
4.5 Where the Customer is to own modifications or enhancements to the Customer Materials or to a bespoke customer interface created or developed by Konektio it shall be expressly set out in writing in the MSA or any SoW
4.6 Customer agrees to ensure that its customers and users accept and comply with the terms of Konektio’s end user license agreement, including compliance with third party licensor terms, as the same may be amended and updated from time to time.
4.7 Konektio shall indemnify the Customer against all reasonable costs (including the reasonable cost of defending any legal action), damages, losses and expenses suffered or incurred by the Customer arising out of or in connection with any claim made or threatened alleging that use of the AssetMinder Platform and/or the Deliverables in accordance with the terms of this Agreement constitutes an infringement or other violation of any UK Intellectual Property Rights of any third party, provided always that (a) the Customer has used the AssetMinder Platform and Deliverables in accordance with this Agreement, (b) Konektio is given prompt notice of any such claim and does not make any admission or statement to the third party without the consent of Konektio, (c) the Customer provides reasonable co-operation to Konektio in the defence and settlement of such claim; and (d) Konektio shall have sole conduct of the action and shall have authority to defend or settle the claim.
4.8 Customer shall indemnify Konektio against all reasonable costs (including the reasonable cost of defending any legal action), damages, losses and expenses suffered or incurred by the Customer arising out of or in connection with any claim made or threatened against Konektio alleging that products, sensors or monitoring points connected to the AssetMinder Platform, or use by Konketio of the Customer Materials, constitute an infringement or other violation of any Intellectual Property Rights of any third party, provided always that (a) the Customer is given prompt notice of any such claim and does not make any admission or statement to the third party without the consent of the Customer, (c) Konektio provides reasonable co-operation to Konektio in the defence and settlement of such claim; and (d) Customer shall have sole conduct of the action and shall have authority to defend or settle the claim.
- CHARGES AND PAYMENT
5.1 In consideration for the provision of the Services, the Customer shall pay Konektio the Charges set out in clause 6 of the MSA or SoW. Subject to prior agreement of the Customer, the Customer shall pay Konektio’s reasonable out of pocket expenses (at cost) incurred in the delivery of the Services. In consideration for the supply of Goods, the Customer shall pay Konektio the Charges set out in clause the MSA or SoW.
5.2 All amounts payable by the Customer exclude amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to Konektio at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.
5.3 Unless otherwise provided in the MSA or SoW, Konektio shall submit invoices for the fees plus VAT if applicable to the Customer monthly as set out in clause 6. Each invoice shall include all reasonable supporting information required by the Customer.
5.4 The Customer shall pay each invoice due and submitted to it by Konektio, within 14 days of receipt, to a bank account nominated in writing by Konektio.
5.5 If the Customer fails to make any payment due to Konektio under this Agreement by the due date for payment, then, without limiting Konektio’s remedies under Clause 7 and Konektio serves at least 14 days’ notice on the Customer of its failure to pay such amount then: (a) Customer shall pay interest on the overdue amount at the rate of 4% per annum above HSBC’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. Customer shall pay the interest together with the overdue amount, and (b) Konektio may suspend all Services until payment has been made in full.
5.6 All amounts due under this Agreement shall be paid by Customer to the Konektio in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
- LIMITATION OF LIABILITY
6.1 Nothing in the Agreement shall limit or exclude either party’s liability for (a) death or personal injury caused by its negligence, or the negligence of its personnel, agents or subcontractors, (b) fraud or fraudulent misrepresentation, or (c) infringing or copying of the other party’s Intellectual Property Rights.
6.2 Save for any liability arising under clause 6.1, neither party shall be liable to the other, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement for any indirect or consequential loss, indirect loss of profits, loss of agreements or contracts, loss of anticipated savings, loss of use or corruption of software, data or information, loss of or damage to goodwill.
6.3 Save for any liability arising under clause 6.1, the Supplier’s total liability to the other, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this Agreement shall be limited to the greater of £10,000 and one hundred per cent (100%) of the fees paid or payable by Customer under this Agreement.
6.4 The conditions implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this Agreement.
7.1 Without affecting any other right or remedy available to it, either party to the Agreement may terminate it with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of ten (10) working days after being notified in writing to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
7.2 Without affecting any other right or remedy available to it, Konektio may terminate the Agreement with immediate effect by giving written notice to Customer if Customer fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment.
7.3 On termination of this Agreement for whatever reason:
(a) Customer shall pay to Konektio all of Konektio’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Konektio may submit an invoice for the same;
(b) termination of the Agreement shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination; and
(c) any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
- DATA PROTECTION AND CONFIDENTIALITY
(a) Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group to which the other party belongs, except as permitted by clause 8.1 (b). For the purposes of this clause, group means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.
(b) Each party may disclose the other party’s confidential information:
- to its employees, officers, group companies, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under this Agreement. Each party shall ensure that its employees, officers, group companies, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 8.1; and
- as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) No party shall use any other party’s confidential information for any purpose other than to perform its obligations under this Agreement.
(d) The parties agree to continue to be bound by the terms of any NDA agreed between the parties.
8.2 Data Protection and anti-bribery
The parties agree to comply with and abide by the principles and requirements of all applicable UK data protection legislation and anti-bribery legislation in force from time to time, in particular the Bribery Act 2010, the Data Protection Act 2018, and the General Data Protection Regulation (EU 2016/679) (“GDPR”) (“Data Protection Legislation”) for so long as it is in force in the UK.
9.1 Force majeure. Except for the obligation to make payments, the non-performance of either party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, epidemic or pandemic, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing party (“Force Majeure Event”). The Supplier shall not be entitled to receive the Charges for any Services not performed during the period of a Force Majeure Event affecting the Supplier.
9.2 Assignment and other dealings.
Neither party shall assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Agreement other than in the event of a bona fide trade sale or business sale, or a bona fide solvent restructuring, or corporate re-organisation.
9.3 Entire agreement.
(a) The Agreement (and any non-disclosure agreement (“NDA”) signed by the parties) shall constitute the entire agreement between the parties and shall supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
9.4 Variation. No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives). Additional work to be undertaken by Konektio under this Agreement shall be agreed in a SoW and signed by the parties.
9.5 Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not (a) waive that or any other right or remedy; or (b) prevent or restrict the further exercise of that or any other right or remedy.
9.6 Severance. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
(a) Any notice or other communication given to a party under or in connection with this Agreement shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, or commercial courier.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 8.8 (a); if sent by pre-paid first class post or other next working day delivery service, at on the second business day after posting; or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
9.8 Third party rights. No one other than a party to this Agreement shall have any right to enforce any of its terms.
9.9 Governing law. This Agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with the law of England and Wales.
9.10 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation