Terms & Conditions

INTRODUCTION

These are the Master Terms and Conditions (“Terms”) for Business Insight 3 Ltd, a company incorporated in England and Wales with company number 08946421 (“BI3”). They set out the standard basis on which BI3 is willing to enter into Contracts with its customers in a number of different scenarios.

Clause 1 to clause 23 of these Terms applies to all Contracts entered into by BI3, with the Customer’s specific attention is drawn to clauses 3, 4, 5, 7 and 10.

The remainder of these Terms are separated into the following Schedules:

Schedule 1, which governs the sale and purchase of Goods, with the Customer’s specific attention being drawn to paragraphs 3, 4 and 6 of that Schedule;
Schedule 2, which governs the provision of Hired Equipment, with the Customer’s specific attention being drawn to paragraphs 2, 3,5 and 7 of that Schedule;
Schedule 3, which governs the development and licensing of Software, with the Customer’s specific attention being drawn to paragraphs 4, 5, 6, 8, 9, 11 and 12 of that Schedule; and
Schedule 4, which governs the provision of Services, with the Customer’s specific attention being drawn to paragraphs 4, 6 and 7.

The applicability of each Schedule depends upon the nature of the Supply being provided by BI3 to the Customer. It is likely that in a number of scenarios more than one Schedule will apply to the Contract, and a specific reference to each aspect of the Supply that is being provided will be made in the Quotation or Project Agreement (as the case may be).

1. Definitions and Interpretation

1.1 In these Terms, the following definitions apply:

Additional Charges: the fees payable in consideration of the provision of any Additional Services, which shall be as set out in a Change Control Note or otherwise notified to the Customer in writing.

Additional Services: means and additional services that BI3 agrees to perform in accordance with clause 6 or otherwise in accordance with Schedule 4 (Services).

ADR Notice: has the meaning given to it in clause 21(f).

Affected Party: has the meaning given to it in clause 12.1.

Applicable Laws: all applicable laws, statutes and regulations and codes from time to time in force.

Authorised User: means those individuals that are authorised to use the Software on behalf of the Customer or any those authorised users of an applicable End User in accordance with Schedule 3.

BI3: Business Insight 3 Ltd, a company incorporated and registered in England and Wales with company number: 08946421 whose registered office as at BI3’s Premises.

BI3’s Premises: Preston Technology Centre, Marsh Lane, Preston, PR1 8UQ.

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

CEDR: has the meaning given to it in clause 21(d).

Charges: the fees payable for the Supply and such other fees payable by the Customer in accordance with the Contract, as particularised further in the applicable Schedules, the Quotation and any Project Agreement (as the case may be).

Confidential Information: means any and all confidential information (whether in oral, written or electronic form) imparted in confidence or disclosed by one party to the other or otherwise obtained by one party relating to the other’s business, finance or technology, know-how, Intellectual Property Rights, assets, strategy, services, software, products, solutions and customers, including without limitation information relating to manufacturing or other processes, management, financial, marketing, technical and other arrangements or operations of any person, firm, or organisation associated with that party.

Contract: the contract between BI3 and the Customer for the Supply in accordance with the Contract Documents.

Contract Documents: these Terms, the Quotation, the Order, any Project Brief and any Project Agreement (each to the extent applicable).

Customer: the person or firm to whom or which BI3 wishes to provide the Supply and which wishes to purchase the Supply from BI3 in accordance with the Contract Documents.

Customer Default: has the meaning given to it in clause 4.2.

Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR (as defined in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018 (DPA 2018); the DPA 2018 (and all regulations made thereunder); the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the Information Commissioner or other relevant regulatory authority and applicable to a party.

Excessive Use: means any use of the Goods and/or Services which is in excess of the parameters as set out in these Terms and the applicable Schedules or any Project Brief, Project Agreement or Quotation. For the avoidance of doubt, Excessive Use includes the use of the Services by the Customer’s or End User’s Authorised Users that exceeds the number of User Subscriptions purchased by the Customer.

Dispute: has the meaning given in clause 21.

Dispute Notice: has the meaning given in clause 21(a).

Documentation: the Operating Manuals, user instruction manuals, technical literature and all other related materials in human-readable or machine-readable forms supplied by BI3 in connection with the Supply (or any element thereof).

Effective Date: the date on which the Supply (or any element thereof) shall commence, as specified in the Quotation or Project Agreement (as the case may be).

End User: the ultimate end user of the Hired Equipment and/or the Software, being the customer of the Customer, whose details are set out in the Quotation, Project Agreement (as the case may be) or otherwise as may be agreed between the parties.

Force Majeure Event: means events, circumstances or causes beyond a party’s reasonable control including but not limited to, Acts of God, flood, drought, earthquake or other natural disaster, terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo or breaking off of diplomatic relations, nuclear, chemical, biological contamination or sonic boom, epidemic or pandemic or similar event, any law guidance restriction or other action taken by a Government or a public authority including without limitation imposing an export or import restriction quota or prohibition, the collapse of buildings, fire, explosion or accident, or failure of telecommunications, utilities or any supplier, subcontractor or third-party service provider.

Goods: the hardware, equipment and/or consumable goods (or any part of them) set out in the Quotation or Project Agreement (as the case may be) and particularised further within any applicable Project Brief, subject of the Supply.

Hired Equipment: the hardware, equipment and/or consumable goods (or any part of them) set out in the Quotation or Project Agreement (as the case may be) and particularised further within any applicable Project Brief, subject of the Supply.

Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

IPR Claim: has the meaning given to it in clause 8.3.

Literature: BI3’s catalogues, brochures, websites or such other applicable sales or promotional literature, materials or publications.

Loss: means actions, awards, charges, claims, compensation, costs, damages, demands, expenses, fees, fines, interest, liabilities, losses, penalties, proceedings and settlements, and Losses shall be construed accordingly.

Normal Business Hours: 9:00 am to 5:00 pm GMT on a Business Day.

Operating Manuals: all operating manuals, literature and specifications relating to the Supply which are provided to the Customer by BI3.

Order: the Customer’s order for the Supply, as set out in the Customer’s written acceptance of the Quotation.

Order Period: has the meaning given to it in clause 2.2.

Order Confirmation: means BI3’s written acceptance of the Order.

Privacy Policy: BI3’s privacy policy, which can be found at https://bi3.co.uk/privacy-policy/.

Project Agreement: means any covering agreement entered into between BI3 and the Customer which contains certain variables and Special Terms in connection with the Supply, and which incorporates these Terms.

Project Brief: any brief and/or specification for the Supply (or any part thereof), including any related plans and drawings, that is set out in the Quotation or Project Agreement (as the case may be) or otherwise as may be agreed by the Customer and BI3 in writing.

Quotation: means BI3’s quotation or proposal (whether in writing or given orally) to provide the Supply to the Customer in accordance with these Terms.

Services: the services set out in the Quotation or Project Agreement (as the case may be) and particularised further within any applicable Project Brief, subject of the Supply.

Special Terms: means any Special Terms which are intended to supplement or otherwise amend these Terms and the Schedules, as set out in the Project Agreement.

Software: the software (including, to the extent applicable, third-party software) set out in the Quotation or Project Agreement (as the case may be) and particularised further within any applicable Project Brief, subject of the Supply.

Supply: the provision and receipt of the:

1.1.1. the Goods in accordance with Schedule 1 of these Terms;

1.1.2. the Hired Equipment in accordance with Schedule 2 of these Terms;

1.1.3. the Software in accordance with Schedule 3 of these Terms; and

1.1.4. the Services in accordance with Schedule 4 of these Terms.

as more particularly described in the Quotation or any Project Agreement (as the case may be).

Terms: these terms and conditions.

Transfer: has the meaning given to it in clause 13.1.

VAT: value added tax chargeable in the UK.

Virus: any program which contains malicious code or infiltrates or damages a computer system without the owner’s informed consent or is designed to do so or which is hostile, intrusive or annoying to the owner or user and has no legitimate purpose.

Vulnerability: any weakness in the computational logic (for example, code) found in software and hardware components that, when exploited, results in a negative impact to confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.

1.2 In these Terms, the following rules of interpretation apply:

(a) a person includes a natural person, corporate or unincorporated body (whether or not having a separate legal personality);

(b) a reference to a party includes its personal representatives, successors and permitted assigns;

(i) is a reference to it as amended or re-enacted; and

(ii) shall include all subordinate legislation made under that legislation or legislative provision from time-to-time;

(d) any words following the terms including, include or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms;

(e) a reference to writing or written includes email but not fax;

(f) the Schedules form part of these Terms and shall have effect as if set out in full in the body of these Terms;

(g) any reference to these Terms includes the Schedules;

(h) references to clauses and Schedules are to the clauses and Schedules of these Terms and references to paragraphs are to paragraphs of the relevant Schedule in which they appear; and

(i) any party shall include that party’s personal representatives, successors and permitted assigns.

1.3 To the extent of any inconsistency or conflict between:

(a) the Project Agreement;

(b) any Quotation;

(d) any Order,

the terms set out in the respective document first set out in the list above will prevail.

2. Contract Formation

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

2.2 Any Quotation on behalf of BI3 shall not constitute an offer. A Quotation shall only be valid for a period of 30 Business Days from its date specified on it (Order Period). If the Customer accepts the position set out in the Quotation, it shall, unless the Quotation states the Contract will be entered into on the basis of a Project Agreement, be required to raise an Order within the Order Period.

2.3 The Order constitutes an offer by the Customer to purchase the Supply in accordance with these Terms. The Customer is responsible for ensuring and warrants that the terms of the Contract Documents (including any applicable Specification contained therein) are complete and accurate.

2.4 BI3 may reject the Order at its absolute discretion and for any reason whatsoever and the Order shall only be deemed to be accepted at the earlier of when BI3:

(a) commences the performance of its obligations in respect of the Supply; or

(b) issues the Order Confirmation,

at which point the Contract shall come into existence.

2.5 Notwithstanding the process set out in clause 2.2 to clause 2.4, above, BI3 may instead require that the Customer enters into a Project Agreement in respect of the Supply. Subject to any Special Terms contained therein, each Project Agreement shall incorporate these Terms and, once fully executed by both parties, a Contract for the purposes of these Terms shall commence.

2.6 Once formed in accordance with clause 2.4 or clause 2.5 (as the case may be), the:

(a) Contract shall continue in accordance with the provisions of the applicable Schedule(s) to which the Supply relates; and

(b) Supply may not be amended or cancelled by the Customer except with the prior agreement of BI3 in writing (such agreement to be provided in accordance with clause 16).

2.7 BI3 reserves the right to amend the Project Brief if required by Applicable Laws and BI3 shall notify the Customer in any such event.

2.8 Any samples, drawings, descriptive matter or advertising produced by BI3 and any descriptions or illustrations contained in the Literature are produced for the sole purpose of giving an approximate idea of the element of the Supply referred to therein (each to the extent applicable). They shall not form part of the Contract nor have any contractual force.

2.9 BI3’s entry into a Contract on the basis of these Terms shall not prevent BI3 from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided to the Customer.

3. GENERAL OBLIGATIONS OF BI3 – SPECIAL ATTENTION IS DRAWN TO THIS CLAUSE

3.1 BI3 shall use reasonable endeavours to manage and complete each element of the Supply in accordance with these Terms and any Project Brief in all material respects.

3.2 BI3 shall use reasonable endeavours to meet any performance dates specified in the Quotation, Project Agreement or otherwise those as may be agreed with the Customer (each as the case may be) but any such dates shall be estimates only and time for performance of the Supply (or any element thereof) by BI3 shall not be of the essence under the Contract.

3.3 BI3 shall appoint a manager for the Supply, such person as identified in the Quotation or Project Agreement (as the case may be). That person shall have authority to contractually bind BI3 on all matters relating to the Supply (including by signing Change Orders). BI3 shall use all reasonable endeavours to ensure that the same person acts as its manager throughout the term of the Contract, but may replace that person from time to time where reasonably necessary in the interests of BI3’s business.

4. general obligations of the customer – special attention is drawn to this clause

4.1 The Customer shall:

(a) to the extent that the Supply is being provided for the ultimate benefit of an End User, ensure that the relevant obligations of the Customer that contained in the Contract are brought to the attention of that End User which, for the avoidance of doubt, shall not limit or restrict the Customer’s direct responsibility to BI3 to comply with the terms of the Contract;

(b) co-operate, and procure that any End User cooperates, fully with BI3 in connection with any and all reasonable requests by BI3 that are connected with the Contract;

(c) provide BI3 in a timely manner with any information reasonably required by BI3 from time-to-time in connection with the performance of its obligations;

(d) obtain and maintain all necessary licences, consents, authorisations and permissions:

(i) as are required to enable BI3 to perform its obligations in respect of the Supply, in all cases prior to their commencement in accordance with the applicable Schedule; and

(ii) otherwise as may be required in order for it to receive the benefit of the Supply;

(e) comply with all Applicable Laws to enable BI3 to perform its obligations in respect of the Supply; and

(f) comply with any further obligations set out in the Contract Documents.

4.2 If BI3’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or any failure by the Customer to perform any relevant obligation (including, where the Supply is being provided for the ultimate benefit of an End User, and act or omission by that End User) (Customer Default):

(a) without limiting or affecting any other right or remedy available to it, BI3 shall have the right to suspend performance of the Supply (whether or not directly affected by the Customer Default) until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations under the Contract;

(b) BI3 shall not be liable for any Losses suffered or incurred by the Customer arising directly or indirectly from BI3’s failure or delay to perform any of its obligations under the Contract; and

(c) the Customer shall reimburse BI3 on written demand for any Losses sustained or incurred by BI3 arising directly or indirectly from the Customer Default.

5. Charges and payment – special attention is drawn to this clause

5.1 The Charges payable under the Contract shall be as set out in the Quotation or the Project Agreement (as the case may be).

5.2 The Customer shall pay all Charges due to BI3 in accordance with the payment terms detailed in the Quotation, Project Agreement or invoice (where raised pro-forma), as the case may be, or, if no such terms are specified, within thirty (30) days of the date of the invoice to which those Charges relate.

5.3 Time for payment of the Charges in accordance with these Terms shall be of the essence.

5.4 The Charges are exclusive of amounts in respect of VAT. The Customer shall on receipt of a valid VAT invoice from BI3, pay to BI3 such additional amounts in respect of VAT as are chargeable on the Supply.

5.5 If the Customer fails to make any payment due to BI3 under the Contract by the due date for payment, then:

(a) the Customer shall pay interest on the overdue amount at the rate of 8% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until the actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount; and

- BI3 may suspend all or part of the Supply (including any part that is unaffected by the Customer’s failure to make payment) until payment has been made in full.

5.6 BI3 shall, at its sole discretion, be entitled to increase the Charges:

(a) on an annual basis in line with increases in the Consumer Prices Index during the previous year;

(b) with effect following the final day of the Initial Period (as defined and catered for in the Schedules); and

(i) increases in the cost of BI3 providing the Goods and/or Services to the Customer; and

(ii) increases due to the Excessive Use of the Services.

5.7 The Customer shall pay all amounts due under the Contract in full and without any set-off counterclaim, deduction or withholding (except for any deduction or withholding required by law).

5.8 BI3 may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable (or any other liability) on behalf of BI3 to the Customer.

6. CHANGE CONTROL

6.1 Either party may propose changes to the scope or execution of the Supply (or any element thereof) but no proposed changes shall come into effect until a Change Order has been signed by both parties. A Change Order shall be a document setting out the proposed changes and the effect that those changes will have on:

(a) the Supply (and whether any Additional Services are required);

(b) the Charges;

(d) any Project Brief; and

(e) any other terms contained in the Contract Documents.

6.2 If BI3 wishes to make a change to the Supply and it is not otherwise entitled to do so in accordance with these Terms, it shall provide a draft Change Order to the Customer.

6.3 If the Customer wishes to make a change to the Supply:

(a) it shall notify BI3 and provide as much detail as BI3 reasonably requires of the proposed changes, including the timing of the proposed changes; and

(b) BI3 shall, as soon as reasonably practicable after receiving the information at clause 6.3(a), provide a draft Change Order to the Customer.

6.4 If the parties:

(a) agree to a Change Order, they shall sign it and that Change Order shall amend the Contract; or

(b) are unable to agree a Change Order, either party may require the disagreement to be dealt with in accordance with the dispute resolution procedure in clause 21 (Multi-tiered Dispute Resolution Procedure).

6.5 BI3 may charge for the time it spends on preparing and negotiating Change Orders which implement changes proposed by the Customer pursuant to clause 6.3 on a time and materials basis at BI3’s then daily rates in force.

6.6 The Customer acknowledges that it has entered into the Contract on the basis that it will require BI3 to provide the Supply throughout the applicable term of the Contract (as determined in accordance with its Schedules). On the basis of that requirement, BI3 has in turn made allowance in capacity, together with financial and resource investments in its business in order for it to be able to provide the Supply throughout the term. The parties therefore agree that the Customer shall not, without the written consent of BI3, be entitled to request a reduction in the Charges or otherwise cancel any element of the Supply before the end of their applicable term (as determined in accordance with the applicable Schedules to these Terms).

7. Liability AND INDEMNITY – special attention is drawn to this clause

7.1 Neither party excludes or limits liability to the other party for:

(a) fraud or fraudulent misrepresentation;

(b) death or personal injury caused by negligence; or

7.2 Subject to clause 7.1:

(a) BI3 shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any:

(i) loss of profit;

(ii) loss of goodwill;

(iii) loss of business;

(iv) loss of business opportunity;

(v) loss of anticipated saving;

(vi) loss or corruption of data or information; or

(vii) any indirect, special or consequential Loss,

that arises under or in connection with the Contract; and

(b) BI3’s total liability to the Customer in respect of all other Losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the total Charges actually paid by the Customer to BI3 in the preceding 12 months in connection with the applicable element of the Supply to which those Losses relate.

7.3 In light of the commitments provided by BI3 to the Customer in respect of the Supply under these Terms, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and section 3, 4 and 5 of the Supply of Goods and Services Act 1982 and all other express or implied warranties or conditions, including implied warranties or conditions of satisfactory quality and fitness for a particular purpose (each subject to the Supply being provided under the Contract) are, to the fullest extent permitted by law, excluded from the Contract.

7.4 The Customer shall indemnify BI3, keep BI3 indemnified and hold BI3 harmless for and against any and all Losses suffered or incurred by BI3 howsoever arising out of or in connection with the:

(a) the Customer’s performance, or failure to perform, its obligations under this Contract; and

(b) actions or omissions of any End User,

in each case whether in contract, tort (including negligence and breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise and whether the same are direct, indirect, special or consequential including any loss of profits, contract, business, revenue, goodwill or reputation or any other pure economic loss, loss or corruption of data or information.

8. Intellectual property rights

8.1 The parties agree that any and all Intellectual Property Rights in or arising out of or in connection with the Supply (or any part thereof), shall be owned by BI3 (or its licensors) and that for the avoidance of doubt any and all Intellectual Property Rights remain in the possession of BI3 (or its licensors) at all times, do not transfer to the Customer under the Contract.

8.2 The Customer shall use reasonable endeavours to prevent any infringement of BI3’s Intellectual Property Rights and shall promptly report to BI3 any such infringement that comes to its attention. In particular, the Customer shall:

ensure that each Authorised User, before starting to use the Supply, is made aware that it is proprietary to BI3 and that it may only be used and copied in accordance with the Contract;
implement suitable disciplinary procedures for employees who make unauthorised use or copies of BI3’s Intellectual Property Rights, save to the extent provided for by the Contract; and
not permit third parties other than End Users to have access to the Supply without the prior written consent of BI3, who may require that such third party executes a written confidentiality agreement before being given access to the Supply.

8.3 Provided that BI3 makes no warranty that the Supply (or any part thereof) does not breach the Intellectual Property Rights of any third party, if the Supply (or any part thereof) is found to breach a third party’s Intellectual Property Rights and such breach is found to be at the fault of BI3 (IPR Claim), BI3 shall at its absolute discretion:

use all reasonable endeavours to obtain the right for the Customer to continue to use the Supply (or applicable part thereof); or
replace or modify the Supply (or applicable part thereof) so that it becomes non-infringing without materially affecting its functionality.

8.4 Where BI3 replaces or modifies the Supply (or any part thereof) in accordance with this clause 8, the Supply shall be deemed to take the form of the replaced or modified Supply and the Customer agrees to accept any minor amendments to the Project Brief for the Supply which do not materially affect its receipt of the Supply.

8.5 BI3 shall have no liability under this clause to the extent that any IPR Claim arises from any modification of the Supply undertaken by the Customer or any Authorised User or End User without BI3’s prior written consent or from any use of the Supply by the Customer in breach of the terms of this Agreement or otherwise in a manner which would knowingly infringe third-party Intellectual Property Rights.

9. Confidentiality

9.1 Each party agrees and undertakes that it shall maintain the confidentiality of and will not use for its own purposes nor without the prior written consent of the other party disclose to any third party the other party’s Confidential Information and shall not, without the prior written consent of the other party, use, disclose, copy or modify such Confidential Information or permit others to do so other than as necessary for the performance of its right and obligations under the Contract.

9.2 Each party shall:

disclose the other party’s Confidential Information only to those of its officers, employees, agents and contractors to whom and to the extent to which such disclosure is necessary for the purposes contemplated under the Contract, and
to procure that such persons are made aware of and agree in writing to observe the obligations in this clause.

9.3 Each party shall:

give notice to the other party of any unauthorised misuse, disclosure, theft or loss of its Confidential Information immediately upon becoming aware of the same;
take all reasonable steps to maintain the confidentiality of the Confidential Information;
maintain adequate security measures to safeguard the Confidential Information from theft, and from access by any person other than as permitted by the Contract; and
promptly bring to the other party’s attention any infringement of its rights in, or any unauthorised use of, the Confidential Information, which it becomes aware of.

9.4 The provisions of this clause shall not apply to information which is:

or comes into the public domain through no fault of the recipient, its officers, employees, agents or contractors;
lawfully received by the other party from a third party free of any obligation of confidence at the time of its disclosure;
independently developed by the recipient, without access to or use of such information; or
required by Applicable Law, by court or governmental or regulatory order to be disclosed provided that the other party is, where possible, notified at the earliest opportunity.

9.5 Whilst BI3 may publicly announce that a business relationship has been entered into with the Customer, BI3 shall not, without the prior written consent of the Customer not to be unreasonably withheld or delayed publicise the details or terms of this Agreement or use the Customer’s name or brand in the context of endorsing the quality of its work.

10. termination – special attention is drawn to this clause

10.1 Without limiting its other rights or remedies, BI3 may terminate this Contract (in whole or any part of it) with immediate effect by giving written notice to the Customer if:

(a) the Customer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 5 Business Days after being notified to make such payment;

(b) the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 10 Business Days of that party being notified in writing to do so;

(c) the Customer repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to perform the Contract;

(d) the Customer 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), obtaining a memorandum, 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 or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

(e) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or

(f) the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.

10.2 Without limiting its other rights or remedies, BI3 may suspend provision of the Supply or its obligations under any other contract between the Customer and BI3 if any of the events listed in clause 10.1(a) to clause 10.1(f) take place, or BI3 reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment, without liability to the Customer.

10.3 On termination or expiry of the Contract for any reason:

(a) the Customer shall immediately pay to BI3 all of BI3’s outstanding unpaid invoices and interest and, in respect of the Supply but for which no invoice has been submitted, BI3 shall submit an invoice, which shall be payable by the Customer immediately on receipt;

(b) any provision of the Contract that 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; and

(c) any licence granted by BI3 to the Customer to use BI3’s Intellectual Property Rights under the Contract shall immediately terminate.

10.4 Termination (howsoever arising) or expiry of the Contract, shall not affect any of the parties’ rights and remedies that have accrued at termination, including the right to claim damages in respect of any breach of the Contract which excited at or before the date of termination or expiry.

11. Data Protection

In performing its respective obligations under the Contract, each party shall comply with the Data Protection Legislation. Without limiting its rights under the Data Protection Legislation, BI3 shall process personal data relating to the Customer in accordance with the Privacy Policy.

12. Force majeure

12.1 If a party is prevented, hindered or delayed in or from performing any of its obligations (except a payment obligation) under the Contract by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of the Contract or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.

12.2 The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.

12.3 If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than 8 weeks the party not affected by the Force Majeure Event may terminate the Contract by giving 4 weeks’ written notice to the Affected Party.

12.4 This clause 12 shall not apply in respect of the Customer’s obligation to pay the Charges to BI3 in connection with the Supply.

13. Assignment

13.1 BI3 may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with (Transfer) all or any of its rights or obligations under the Contract.

13.2 The Customer may not Transfer any or all of its rights or obligations under the Contract without the prior written consent of BI3.

14. Notice

14.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:

(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or

(b) sent by email to contact details specified in the Contract Documents or otherwise as notified previously by that party.

14.2 Any notice shall be deemed to have been received:

(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;

(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or

14.3 This clause does not apply to service of any proceedings or other documents in any legal action, or where applicable, any arbitration or other method of dispute resolution.

15. Entire agreement

15.1 The Contract constitutes the entire agreement between the parties and to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or dealing and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

15.2 Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract.

15.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Contract.

16. Variation

No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

17. WAIVER

No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

18. Severance

18.1 If any provision or part-provision of the Contract 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 the Contract.

18.2 If any provision or part-provision of the Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

19. No partnership or agency

19.1 Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.

19.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.

20. Third-party rights

20.1 The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

20.2 The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

21. Multi-tiered dispute resolution procedure

If a dispute arises out of or in connection with this Contract or the performance, validity of enforceability of it (Dispute) then, except as expressly provided in this Contract, the parties may at their discretion follow the procedure set out in this clause:

(a) either party shall give the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with the relevant supporting documents. On service of the Dispute Notice, employees at management level (or the nearest equivalent) of the parties shall attempt in good faith to resolve the Dispute;

(b) if the management level employees are for any reason unable to resolve the Dispute within 30 days of service of the Dispute Notice, the Dispute shall be referred to the directors of the parties who shall attempt in good faith to resolve it;

(c) if the directors of the parties are for any reason unable to resolve the Dispute within 30 days of it being referred to them and the Customer is not registered in the United Kingdom, the parties will attempt to settle by mediation;

(d) unless otherwise agreed between the parties within 30 days of service of the Dispute Notice, either party may request a recommendation for the nomination of a mediator from the Centre for Effective Dispute Resolution (CEDR);

(e) the parties shall have recourse to mediation in accordance with the International Chamber of Commerce’s Mediation Rules, which are deemed to be incorporated by reference into this clause;

(f) to initiate the mediation, a party must give notice in writing (ADR Notice) to the other party to the Dispute, referring the Dispute to mediation. A copy of the ADR Notice shall be sent to the CEDR; and

(g) if the directors of the parties are for any reason unable to resolve the Dispute within 30 days of it being referred to them and the Customer is registered in the United Kingdom, the parties may commence court proceedings under clause 23.

22. Governing law

The 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 the law of England and Wales.

23. Jurisdiction

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).

SCHEDULE 1 – SUPPLY OF GOODS

1. definitions

Defined words and expressions used in this Schedule shall take the meaning given to them in the main body of these Terms, unless otherwise defined below:

Inspection Period: has the meaning given to it in paragraph 4.1.

Delivery Location: has the meaning given to it in paragraph 3.2.

2. GOODS

2.1 The Goods are described in the Quotation or Project Agreement (as the case may be), as modified by any applicable specification that is contained in the Project Brief.

2.2 The Customer shall indemnify, keep fully indemnified and hold BI3 harmless at all times against all Losses (including any direct, indirect or consequential Losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by BI3 in connection with any claim against BI3 for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with BI3’s use of any specification that is provided by the Customer. This paragraph 2.2 shall survive the termination of the Contract.

2.3 If, due to a Force Majeure Event, BI3 is unable to supply a particular item of Goods, BI3 will notify the Customer of such. BI3 will use reasonable endeavours to replace it with an item of equivalent standard and value.

3. Delivery– special attention is drawn to this Paragraph

3.1 BI3 shall ensure that each delivery of the Goods is accompanied by a delivery note that shows all relevant Customer and BI3 reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered.

3.2 BI3 shall deliver the Goods to the location set out in the Quotation or Project Agreement (as the case may be) or such other location as the parties may agree (Delivery Location) at any time after BI3 notifies the Customer that the Goods are ready to be delivered.

3.3 As set out in clause 3.2, any dates quoted for delivery of the Goods are estimates only, and the time of the delivery is not of the essence under the Contract. BI3 shall not be liable for any delay in delivery of the Goods that is caused by:

(a) a Force Majeure Event; or

(b) any Customer Default.

3.4 If BI3 fails to deliver the Goods (and such failure does not arise due to the events set out in paragraph 3.3), BI3’s total liability to the Customer shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods.

3.5 If the Customer fails to accept delivery of the Goods within three (3) Business Days of BI3 notifying the Customer that the Goods are ready to be delivered, then, except where such failure or delay is caused by a Force Majeure Event or BI3’s failure to comply with its obligations under the Contract in respect of the Goods:

(a) delivery of the Goods shall be deemed to have been completed at 9:00 am on the third Business Day after the day on which BI3 notified the Customer that the Goods were ready; and

(b) BI3 shall store the Goods until actual delivery takes place and charge the Customer for all related costs and expenses (including insurance, which BI3 may take out at its absolute discretion).

3.6 If ten (10) Business Days after the day on which BI3 notified the Customer that the goods were ready for Delivery the Customer has not accepted actual delivery of them, BI3 may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.

3.7 If BI3 delivers up to and including 5% more or less than the quantity of the Goods ordered the Customer may not reject them, but on receipt of notice from the Customer that the wrong quantity of Goods was delivered, BI3 shall make pro rata adjustment to the invoice for the Goods.

3.8 BI3 may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in instalments shall not entitle the Customer to cancel any other instalment.

3.9 Delivery is completed on the completion of the unloading of the Goods at the Delivery Location and the risk in the Goods shall pass to the Customer at that point.

3.10 For the purposes of making delivery and carrying out Installation of the Goods, the Customer shall provide BI3 and all of its employees, contractors and agents with adequate, safe and unobstructed access to, egress from and movement around the Delivery Location and any telecommunications facilities as are reasonably required.

4. QUALITY, inspection and acceptance – special attention is drawn to this Paragraph

4.1 The Customer shall, on completion of delivery in accordance with paragraph 3.9, be required to inspect the Goods that have been delivered. In the event that:

(a) there are any apparent damages or defects in the Goods;

(b) an incorrect quantity of the Goods; or

the Customer shall be required to notify BI3 within three (3) Business Days of delivery (Inspection Period). Where no such notification is made by the Customer to BI3 in accordance with this paragraph, the Goods shall be deemed to be accepted in all material respects by the Customer.

4.2 Without prejudice to paragraph 4.1, BI3 warrants that on delivery the Goods shall:

(a) conform in all material respects with their description and any applicable specification;

(b) be free from material defects in design, material and workmanship;

(d) be fit for any purpose held out by BI3.

4.3 Subject to paragraph 4.4, if:

(a) the Customer gives notice in writing to BI3 during the Inspection Period that some or all of the Goods do not comply with the warranties contained in paragraph 4.2;

(b) BI3 is given reasonable opportunity of examining such Goods; and

BI3 shall, at its option, repair or replace the defective Goods, or refund the Charges paid for the defective Goods in full.

4.4 BI3 shall not be liable for the Goods failure to comply with the warranties contained in paragraph 4.2 if the:

(a) Customer makes any further use of such Goods after giving notice in accordance with paragraph 4.3(a);

(b) defect arises because the Customer failed to follow BI3’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;

(d) Customer alters or repairs such Goods without the written consent of BI3;

(e) defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions;

(f) Goods differ from the specification as a result of changes made to ensure they comply with Applicable Laws in accordance with clause 2.7; or

(g) defect arises due to any other Customer Default.

4.5 Except as provided in this paragraph 4, BI3 shall have no liability to the Customer in respect of the Goods failure to comply with any warranties provided under the Contract.

4.6 This Schedule (together with any applicable further obligations in the main body of these Terms and other Schedules) shall apply to any repaired or replacement Goods supplied by BI3.

5. Manufacturer Warranties

Notwithstanding the provisions contained in paragraph 4 the Goods may, in some circumstances, benefit from a manufacturer warranty. In such circumstances, BI3 shall use reasonable endeavours to ensure that the Customer receives the benefit of that warranty in place of BI3. Alternatively, the Customer may be required to register the Goods with the manufacturer in order to obtain the benefit of any manufacturer warranty. Whilst BI3 shall provide reasonable assistance with the registration of any manufacturer warranty, it shall be the Customer’s sole responsibility to investigate whether such warranty exists.

6. TITLE AND RISK – special attention is drawn to this Paragraph

6.1 The risk in the Goods shall pass to the Customer in accordance with paragraph 3.9.

6.2 Title to the Goods shall not pass to the Customer until BI3 receives payment in full (in cash or cleared funds) for the Goods and any other element of the Supply in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums.

6.3 Until title to the Goods has passed to the Customer, the Customer shall:

(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the BI3’s property;

(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;

(d) notify the BI3 immediately if it becomes subject to any of the events listed in clause 10.1(a) to clause 10.1(f) of the Terms; and

(e) give BI3 such information as BI3 may reasonably require from time to time relating to:

(i) the Goods; and

(ii) the ongoing financial position of the Customer.

SCHEDULE 2 – HIRE OF EQUIPMENT

1. DEFINITIONS

Defined words and expressions used in this Schedule shall take the meaning given to them in the main body of these Terms, unless otherwise defined below:

Hire Term: means the Initial Period and such further period as determined in accordance with paragraph 2 of this Schedule.

Initial Period: the initial period during which the Hired Equipment shall be hired to the Customer in accordance with this Schedule, as set out in the Quotation or Project Agreement (as the case may be).

Recommendations: has the meaning given to it in paragraph 3.3.

Re-Hire: means the Customer entering into a Re-Hire Agreement with a third party or otherwise separate person or entity for the hiring out of the Hired Equipment and/or Upgraded Equipment (as the case may be).

Site: means the site(s) at which the Equipment shall be delivered to by BI3 in accordance with this Schedule.

Substances: has the meaning given to it in paragraph 5.2.

Upgrade: has the meaning given to it in paragraph 3.2 and Upgrading shall be construed accordingly.

Upgraded Equipment: the Hired Equipment in respect of which the Customer exercises the right to an Upgrade where the same has been made available by BI3 by notice to the Customer in place of the Hired Equipment.

2. HIRE Term – SPECIAL ATTENTION IS DRAWN TO THIS PARAGRAPH

2.1 The Hire Term shall commence on the Effective Date and shall continue, unless otherwise terminated in accordance with clause 10.1, until either party gives to the other party no less than 1 months’ written notice to terminate the Hire Term, expiring on or after the final day of the Initial Period.

2.2 In the event that the Hire Term is terminated for any reason during the Initial Period, any and all Charges which would have become due and payable to BI3 for the remainder of the Initial Period shall be come immediately due and payable.

3. HIRE AND UPGRADE OF THE EQUIPMENT – SPECIAL ATTENTION IS DRAWN TO THIS Paragraph

3.1 The Customer agrees and understands that this is a contract for hire and that title to the Hired Equipment shall not pass from BI3 to the Customer.

3.2 Where BI3 notifies the Customer that Upgraded Equipment has become available for hire the Customer may at any time exercise its right to hire the Upgraded Equipment in place of the Equipment (Upgrade). In advance of the Customer Upgrading, BI3 shall notify the Customer as to the effect on the applicable Charges. The new Charges shall take effect from the date on which the Upgraded Equipment is delivered in place of the Equipment and provided that the Customer shall not be entitled to a refund of any Charges already paid for beyond that date.

3.3 Risk in the Hired Equipment shall transfer to the Customer in accordance with paragraph 4.3, and the Customer shall be responsible for its safe keeping, its use in a workmanlike manner within the manufacturer’s rated capacity and in accordance with any recommendations issued by BI3 or the manufacturer from time to time (Recommendations) and, subject to its exercise of other rights made available in these Terms, its return at the end of the Hire Period in equal good order (fair wear and tear excepted).

3.4 The Customer must ensure that everyone (including, without limitation, any End User and all Authorised Users) who uses the Equipment has been properly instructed in its safe and proper operation and has read any applicable Recommendations.

3.5 At all times throughout the Hire Term, the Customer shall:

(a) only use the Hired Equipment in conjunction with the End User;

(b) store the Hired Equipment separately from all other goods held by the Customer so that it remains readily identifiable as BI3’s property;

(d) maintain the Hired Equipment in satisfactory condition;

(e) notify BI3 immediately if it or any End User becomes subject to any of the events listed in clause 10.1(a) to clause 10.1(f); and

(f) give BI3 such information relating to the Hired Equipment as BI3 may require from time to time.

3.6 The Customer may not, unless permitted to do so in writing by BI3, re-hire (subject to permitted re-hiring pursuant to paragraph 7), sell, mortgage, charge, pledge, part with possession of or otherwise deal with the Hired Equipment or any part thereof and shall protect the same against distress, execution or seizure unless and until title to it has passed to the Customer.

3.7 If, during the Hire Term, the Customer or any End User becomes subject to any of the events listed in clause 10.1 or the Customer fails to make payment of any sums due to BI3 in connection with the Supply in accordance with the Contract, then, without limiting any other right or remedy BI3 may have, BI3 may at any time:

(a) require the Customer to deliver up all Hired Equipment in its possession; and

(b) if the Customer fails to do so promptly, enter the Site(s) without obstruction in order to recover it.

3.8 Without prejudice to any other right or remedy available to BI3 under the Contract or otherwise, in the event that the Customer fails to perform any of its obligations in accordance with paragraph 3.5, the Customer shall indemnify BI3, keep BI3 indemnified and hold BI3 harmless in respect any and all Losses (which for the purpose of this paragraph shall include the cost of labour and materials, damages, charges, expenses, loss of profit, loss of business, loss of goodwill, loss of business opportunity, loss of anticipated saving and any other indirect, special or consequential Loss) that are suffered or incurred by BI3.

4. DELIVERY OF THE hiRED EQUIPMENT

4.1 BI3 shall use reasonable endeavours to deliver Hired Equipment at the Site(s) on date(s) to be mutually agreed between the parties. Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence.

4.2 If BI3 cannot make delivery on the estimated date then it shall notify the Customer and an alternative date shall be rearranged. Where such failure to make delivery is caused by the Customer or the End User, BI3 shall be entitled to charge the Customer an administration charge to compensate it for its reasonable expenses incurred. Until such time as delivery can be carried out BI3 shall store the Hired Equipment until delivery takes place, and charge the Customer for all related costs and expenses (including insurance and the cost of redelivery).

4.3 Delivery is completed on the completion of unloading of the Hired Equipment at the Site(s) and risk in the Hired Equipment shall pass to the Customer at that point. Risk in the Hired Equipment shall only pass back to BI3 on its safe return to BI3’s premises or on collection of the Hired Equipment by BI3, each in accordance with paragraph 7.1.

4.4 For the purposes of making delivery of the Hired Equipment, the Customer shall provide BI3 and all of its employees, contractors and agents with adequate, safe and unobstructed access to, egress from and movement around the Site(s).

4.5 BI3 shall not be obliged to install the Hired Equipment unless otherwise agreed in writing between the parties (and subject to the payment of further Charges by the Customer).

5. Customer’s obligations – SPECIAL ATTENTION IS DRAWN TO THIS Paragraph

5.1 The Customer shall:

(a) ensure that the Hired Equipment is kept at the specific location at the Site(s) at which it was delivered, under suitable conditions, as specified in the Operating Manuals, and permit only trained and competent personnel to use it and follow any operating instructions as BI3 may give from time to time;

(b) notify BI3 promptly if the Hired Equipment is discovered to be operating incorrectly;

(d) not allow any person other than BI3 to maintain, alter, modify or adjust the Hired Equipment without the prior written approval of BI3;

(e) not move the Hired Equipment from the Site(s) (or it is located within the Site(s)) without the prior written approval of BI3 (such approval not to be unreasonably withheld or delayed);

(f) store any reserve equipment only in conditions approved by BI3, and make this equipment available for periodic maintenance, as with all other Hired Equipment; and

(g) only use supplies or materials supplied or approved by BI3 in conjunction with the Hired Equipment (such approval not to be unreasonably withheld or delayed).

5.2 The Customer warrants, represents and undertakes that each Site is free from all substances which could reasonably be deemed to be hazardous, noxious, poisonous or otherwise dangerous (Substances) including but not limited to asbestos and that BI3 or any of its employees, contractors and agents shall not come into contact with any Substances in performing its obligations in accordance with the Contract.

5.3 The Customer is responsible for the protection of, and liable for any damage to, any underground, surface or above ground services and utilities including, but not limited to Substances, cables, ducts, water pipes and gas lines, and any pavements, bridges, tunnels and roadways on or adjacent to a Site and the Customer shall liaise as necessary and comply with all requirements of the relevant statutory authority or similar body.

6. Warranty

6.1 BI3 warrants that the Hired Equipment shall substantially conform to its specification (as made available by BI3), be of a satisfactory quality and fit for any purpose held out by BI3 and that it will remain so throughout the Hire Term. BI3 shall use reasonable endeavours to remedy (either via a repair, spare part or replacement), free of charge, any material defect in the Hired Equipment which manifests itself during the Hire Term, provided that:

(a) the Customer notifies BI3 of any defect in writing within 10 Business Days of the defect occurring or, where the defect is of a material nature, as soon as practicable following the defect occurring;

(b) BI3 is permitted to make a full examination of the defect;

(c) the defect did not materialise as a result of misuse, neglect, alteration (other than as permitted by BI3), mishandling or unauthorised manipulation by any person other than BI3’s authorised personnel;

(d) the defect did not arise out of any information, design or any other assistance supplied or furnished by the Customer or on its behalf; and

(e) the defect is directly attributable to defective material, workmanship or design.

6.2 Insofar as the Hired Equipment contains equipment or components which were not manufactured or produced by BI3, the warranty contained in paragraph 6.1 may be subject to such other terms and conditions which are imposed upon BI3 by the manufacturer, which BI3 shall notify or otherwise make available to the Customer.

6.3 If BI3 fails or is otherwise unable to remedy any material defect in the Hired Equipment in accordance with paragraph 6.1, BI3 shall, at the Customer’s request, accept the return of part or all of the Hired Equipment and make an appropriate reduction to the Charges payable during the remaining Hire Term.

7. RE-HIRING THE HIRED EQUIPMENT

7.1 Subject to paragraph 7.2, the Customer shall be granted the option to Re-Hire the Hired Equipment to a third party or otherwise separate person or entity (Re-Hiring Party) via an agreement between the Customer and the Re-Hiring Party (Re-Hire Agreement).

7.2 The Customer shall ensure that the terms of each Re-Hire Agreement:

(a) impose obligations upon the Re-Hiring Party no less onerous than those which are imposed upon the Customer under this Schedule and other elements of these Terms which are relevant to the Hired Equipment; and

(b) expressly allow BI3 to enforce the terms of the Re-Hire Agreement pursuant to the Contracts (Rights of Third Parties) Act 1999.

7.3 Notwithstanding paragraph 7.2, the Customer shall remain directly responsible to BI3 for the acts and/or omissions of the Re-Hiring Party, and shall not be entitled to rely upon any such acts and/or omission of the Re-Hiring Party or any breach by the Re-Hire Agreement by the Re-Hiring Party as grounds for relieving the Customer of its own obligations under the Contract.

8. Obligations At End of Hire Term – the customer’s specific attention is drawn to this paragraph

8.1 At the end of the Hire Term or on termination or expiry of the Contract (each as applicable) the Customer shall, at the election of BI3:

(a) deliver up the Equipment to such address as BI3 requires; or

(b) allow BI3 or its representatives to access the Site or any premises where the Hired Equipment is located for the purpose of removing the Hired Equipment.

8.2 The Customer expressly agrees and acknowledges that BI3 makes the Hired Equipment available for hire to third parties following the end of the Hire Term. Where the Customer fails to comply with its obligations under paragraph 7.1 on time, it expressly acknowledges that BI3 will be unable to re-hire the Hired Equipment, which will cause BI3 to suffer or incur Losses. The Customer shall therefore indemnify BI3, keep BI3 indemnified and hold BI3 harmless in respect of any and all Losses (which for the purpose of this paragraph shall include the cost of labour and materials, damages, charges, expenses, loss of profit, loss of business, loss of goodwill, loss of business opportunity, loss of anticipated saving and any other indirect, special or consequential Loss) suffered or incurred by BI3 as a consequence of the Customer’s failure to comply with its obligations under paragraph 7.1.

SCHEDULE 3 – SOFTWARE DEVELOPMENT AND LICENCE

1. DEFINTIONS

Defined words and expressions used in this Schedule shall take the meaning given to them in the main body of these Terms, unless otherwise defined below:

Acceptance Date: has the meaning given to it in paragraph 5.5.

Acceptance Tests: the tests of the Software after installation to be agreed in accordance with paragraph 5 to determine the Software as Ready for Service.

Actual Installation Date: the date by which BI3 completes the installation of the Software.

Actual Software Delivery Date: the date on which BI3 delivers the Software to the Site(s).

Applicable Export Control Laws: has the meaning given to it in paragraph 14.1.

Completion Date: the estimated date specified in the Programme (as varied in accordance with the Contract) by which BI3 is to provide the Software as being Ready for Service.

End User Licence Agreement: means any end user licence agreement or terms and conditions that govern access to and use of the Software.

Initial Subscription Period: the initial subscription period of the licence granted pursuant to paragraph 7.1, which shall be the period specified in the Quotation or Project Agreement (as the case may be).

Installation Date: the estimated date by which BI3 will complete installation of the Software as specified in the Programme.

Permitted Hardware: any Goods and/or Hired Equipment provided by BI3 to the Customer in connection with the Supply or such other goods and/or equipment as BI3 notifies the Customer as being compatible with the Software.

Programme: the schedule and sequence of events for the performance of the Works under this Schedule, as specified in the Quotation, Project Agreement or otherwise as may be notified by BI3 to the Customer (as the case may be).

Ready for Service: the Software has been installed, tested and has passed or deemed to have passed the Acceptance Tests.

Site(s): the location(s) at which the Software is to be used, as agreed between the parties.

Subscription Period: has the meaning given to it in paragraph 8.1.

Third-Party Software: any third-party software that is procured by BI3 for use with the Software and/or the Permitted Hardware.

Third-Party Terms: any third-party licence terms and conditions that apply in connection with the Third-Party Software.

Technical Specification: the specification of the Software, as outlined in the Quotation, Project Agreement or otherwise as may be agreed between the parties (as the case may be).

User Subscription: the user subscriptions purchased by the Customer under the Contract which entitle Authorised Users to access and use the Software and Documentation in accordance with this Schedule.

Warranty Defect: an error in the Software that causes it to fail to operate substantially in accordance with the Technical Specification during the warranty period specified in paragraph 12.1.

Works: the obligations carried out by BI3 under this Schedule.

2. SCOPE

Where the provision of Software is specified as being included in the Supply in the Quotation or the Project Agreement (as the case may be), BI3 shall, following the Effective Date, develop, install and supply the Software and the Documentation to the Customer in accordance with the applicable part(s) of this Schedule.

PART 1 – DEVELOPMENT AND SUPPLY OF THE SOFTWARE

3. Software Development

3.1 BI3 shall develop the Software in accordance with the requirements of the Technical Specification in all material respects.

3.2 BI3 agrees:

(a) to deliver and install the Software at the Site(s);

(b) to carry out, in conjunction with the Customer, the Acceptance Tests; and

(c) subject to paragraph 6.2, to use its reasonable endeavours to provide the Software Ready for Service by the Completion Date,

each in accordance with the terms and conditions of this Schedule.

3.3 Before delivering any item of Software to the Site(s), BI3 shall carry out reasonable tests to ensure that it is in operable condition and is capable of meeting the requirements of the Technical Specification once properly installed. These tests shall be repeated until BI3 is satisfied that the Software meets the relevant requirements of the Technical Specification.

4. Software Delivery, Installation and Tests – special attention is drawn to this paragraph

4.1 Subject to paragraph 6.2, BI3 shall use its reasonable endeavours to deliver the Software to the Site(s) by the applicable Software Delivery Date.

4.2 BI3 shall supply to the Customer, within a reasonable time before any relevant Actual Software Delivery Date, such information and assistance as may be reasonably necessary to enable the Customer to prepare the Site(s) for the installation of the Software.

4.3 The Customer shall, at its own expense, prepare the Site(s) in accordance with the information provided by BI3 under paragraph 4.2 in advance of each Actual Software Delivery Date. On completion of such preparation, BI3 shall be entitled to inspect the Site(s) and shall specify, within a reasonable period of time before the Actual Software Delivery Date, any corrections or modifications required in order to install and use the Software at such Site(s).

4.4 Subject to paragraph 6.2, BI3 shall use its reasonable endeavours to complete installation of the Software at the Site(s) by the Installation Date.

4.5 Save where otherwise agreed in writing with BI3 or where BI3 provides any Goods and/or Hired Equipment in connection with the Supply, the Customer shall be responsible for ensuring that each item of hardware and/or equipment is installed and is in working order and available to BI3 no later than the relevant date specified in the Programme.

4.6 If any delivery or installation is delayed at the request of the Customer, or because of its acts or omissions (inclusive of any Customer Default), the Programme shall be amended to take account of such delay in accordance with paragraph 6.2. If BI3 can demonstrate that the delay has resulted in an increase in cost to BI3 of carrying out its obligations under the Contract, BI3 may, at its sole discretion, notify the Customer that it wishes to increase the Charges by an amount not exceeding any such demonstrable cost. BI3 may invoice the Customer for any additional Charges that become payable in this way, within 30 days of demonstrating any such increase.

5. Acceptance Tests – special attention is drawn tothis paragraph

5.1 No later than 30 days from the Effective Date or such other date as may be specified in the Programme or agreed in writing between the parties, the Customer shall deliver proposed user acceptance criteria to BI3 and test data for the Acceptance Tests for the Software. These criteria and data shall be such as are reasonably required to show that the Software complies with the Technical Specification. BI3 shall provide the Customer with reasonable assistance to prepare such user acceptance criteria and test data at the Customer’s request and at BI3’s standard rates then in force. The parties shall use all reasonable endeavours to agree the Acceptance Tests for the Software within ten (10) Business Days from the date of delivery to BI3 of the proposed criteria and data.

5.2 BI3 shall carry out the agreed Acceptance Tests for the Software within ten (10) Business Days of its Actual Installation Date. The Acceptance Tests shall be started as soon as reasonably possible after installation and shall be run continuously during Business Hours. BI3 shall give the Customer at least one (1) Business Days’ notice of the start of the Acceptance Tests and permit the Customer to observe all or any part of the testing.

5.3 If any element of the Software fails to pass the Acceptance Tests, the Customer shall, within one (1) Business Day from the completion of the Acceptance Tests or any part of these tests, provide a written notice to this effect, giving details of such failure(s). BI3 shall remedy the defects and/or deficiencies and the relevant test(s) shall be repeated within a reasonable time.

5.4 If any element of the Software fails in some material respect to pass any repeated Acceptance Tests within one (1) month from the date of its second submission to the Acceptance Tests, then the Customer may, by written notice to BI3 following consultation between the parties, choose:

(a) to fix a new date for carrying out further tests on the applicable element of the Software on the same terms and conditions. If the applicable element of the Software fails such further tests then the Customer may request a repeat test under this paragraph;

(b) to permit installation of the Software subject to such change of acceptance criteria and/or reduction in the Charges as, after taking into account all the relevant circumstances, is reasonable;

(c) if BI3 is unable to correct material defects within a period of three (3) months from the commencement of Acceptance Tests, to reject the Software as not being in conformity with the Contract, in which event the Customer may terminate the element of the Supply relating to the Software and claim a refund of any Charges paid; or

(d) to remedy such failure in another manner as may be agreed in writing between the parties.

5.5 Acceptance of the Software shall be deemed to have occurred on whichever is the earliest of:

(a) the Customer signifying its acceptance of the Software in writing;

(b) the expiry of five (5) Business Days after the completion of all the Acceptance Tests, unless the Customer has given any written notice under this paragraph;

(c) the expiry of ten (10) Business Days after the Actual Installation Date of the Software if the Acceptance Tests have not started, or have not been pursued with due diligence; or

(d) the use of the Software by the Customer in the normal course of the Business

(Acceptance Date).

6. TIMESCALES – special attention is drawn to this paragraph

6.1 Subject paragraph 6.2, BI3 shall use its reasonable endeavours to complete each element of the Works in each stage of the Programme by the date specified in the Programme, provided always that any dates specified in the Programme are estimates only and compliance with the Programme by BI3 shall not be of the essence under the Contract.

6.2 BI3 shall be given an extension of time for completion of any one or more of the stages in the Programme, or any of its other performance obligations in connection with the Services, if one of more of the following events occurs:

(a) a Change takes place;

(b) a delay is caused in whole or in part by a Customer Default; or

6.3 If BI3 is entitled to an extension of time under paragraph 6.2, it shall use its reasonable endeavours to give written notice to the Customer as soon as reasonably practicable after the beginning of the event. Such notice shall specify the event relied on and, where and to the extent practicable, shall estimate the probable extent of the delay.

PART 2 – LICENCE OF THE SOFTWARE

7. Licence

Subject to paragraph 2, the Customer purchasing the User Subscriptions in accordance with paragraph 9, the restrictions set out in this Schedule and the Customer’s compliance with the other terms and conditions of the Contract, BI3 hereby grants to the Customer a non-exclusive, non-transferable right and licence during the Subscription Term, without the right to grant sublicences (except where the Customer is a permitted integrator, in which case it shall be authorised to grant a sub-licence to the End User), to permit the Authorised Users to use the Software and the Documentation on or in conjunction with any Permitted Hardware solely in connection with the purpose for which the Software and Documentation has been developed by BI3.

8. duration – special attention is drawn to this paragraph

8.1 The Customer’s licence to use the Software under paragraph 7 shall commence on the Acceptance Date and shall continue, unless otherwise terminated in accordance with clause 10.1, until either party gives to the other party no less than 1 months’ written notice to terminate the Subscription Period, expiring on or after the final day of the Initial Subscription Period.

8.2 In the event that the licence of the Software is terminated for any reason prior to the end of the Initial Subscription Period, any and all Charges which would have become due and payable to BI3 for the remainder of the Initial Subscription Period shall become immediately due and payable.

9. Authorised Users – special attention is drawn to this paragraph

9.1 In relation to the Authorised Users (including, for the avoidance of doubt, any Authorised User on behalf of the End User), the Customer undertakes that:

(a) the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;

(b) it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Documentation;

(c) each Authorised User shall keep a secure password for their use of the Software and Documentation, and that each Authorised User shall keep their password confidential;

(d) it shall maintain a written, up to date list of current Authorised Users and provide such list to BI3 within 5 Business Days of BI3’s written request at any time or times;

(e) it shall permit BI3 or BI3’s designated auditor to audit usage of the Software and the Documentation and compliance with this Schedule in order to establish the name and password of each Authorised User and the Customer’s data processing facilities to audit compliance with this Schedule. Each such audit may be conducted no more than once per quarter, at BI3’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business;

(f) if any of the audits referred to in paragraph 9.1(e) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to BI3’s other rights, the Customer shall promptly disable such passwords and BI3 shall not issue any new passwords to any such individual; and

(g) if any of the audits referred to in paragraph 9.1(e) reveal that the Customer has underpaid Charges to BI3, then without prejudice to BI3’s other rights, the Customer shall pay to BI3 an amount equal to such underpayment as calculated in accordance with the prices set out in Schedule 1 within 10 Business Days of the date of the relevant audit.

9.2 The Customer shall take all reasonable steps to ensure that the Authorised Users are aware of an accept the terms and conditions of any applicable End User Licence Agreement before accessing and using the Software.

10. Transfer or reproduction of licensed software

10.1 The Customer may make such copies of the Software as are reasonably necessary for use in accordance with the Contract and for the purposes of backup and security. The Customer has no right to make, or authorise the making of, any other copies of the Software.

10.2 BI3 shall at all times own all copies of all or any part of the Software. For copies recorded on a tangible medium, the Customer shall place on each copy of all or any part of the Software a clearly visible label indicating that the copy is the property of BI3, and reproducing BI3’s proprietary rights notice. For electronic copies, the Customer shall ensure that all proprietary notices contained in the 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 Software as supplied by BI3. The Customer shall keep all copies of the Software in a secure place when not in use and shall, at all times, keep all such copies in its possession or control.

10.3 The Customer shall not:

(a) sub-license, rent, lend, assign or transfer in any other way the Contract or the Software to any person; and

(b) give access to the Software through any network of computers to users who are not employees or agents of the Customer,

except as permitted by the Contract without the written consent of BI3.

11. Customer Obligations – special attention is drawn to this paragraph

11.1 Provided that it complies with its obligations under the Contract, the Customer may use the Software with other software (including any Third-Party Software).

11.2 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Software (including, for the purpose of this paragraph 11.1 and paragraph 11.3 to paragraph 11.5, Third-Party Software) and the Documentation that:

(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

(b) facilitates illegal activity;

(d) promotes unlawful violence;

(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

(f) is otherwise illegal or causes damage or injury to any person or property;

(g) and BI3 reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this paragraph.

11.3 The Customer shall not:

(a) except as may be allowed by any Applicable Law which is incapable of exclusion by Contract between the parties and except to the extent expressly permitted under this Contract:

(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software or Documentation (as applicable) in any form or media or by any means; or

(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software or Documentation;

(b) access all or any part of the Software or Documentation in order to build a product or service which competes with the Software, Documentation or wider Supply under the Contract;

(c) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Software or Documentation available to any third party except the Authorised Users, or

(d) attempt to obtain, or assist third parties in obtaining, access to the Software or Documentation, other than as permitted by BI3

(e) introduce or permit the introduction of, any Virus or Vulnerability into BI3’s network and information systems or the network and information systems of any third party involved in connection with the Supply.

11.4 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software and Documentation and, in the event of any such unauthorised access or use, promptly notify BI3.

11.5 The rights provided under this paragraph 11 are granted to the Customer only and shall not, unless otherwise agreed by BI3 in writing, be considered granted to any subsidiary or holding company of the Customer.

12. BI3’s warranties – special attention is drawn to this paragraph

12.1 BI3 warrants and represents that:

(a) the Software shall, as at the commencement of the Subscription Term, and for a period of six months after that date, perform in all material respects in accordance with the Technical Specification;

(b) no Viruses are knowingly contained in the Software; and

(c) the Software incorporates encryption technology of commercially reasonable and appropriate standards, consistent with its intended use.

12.2 The sole remedy for breach of the warranty under paragraph 12.1 shall be correction of Warranty Defects by BI3 within a reasonable time from notification by the Customer of the Warranty Defect that constitutes such breach.

12.3 The warranties set out in paragraph 12.1 and elsewhere in the Contract 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 the Contract. Without limitation, BI3 specifically denies any implied or express representation that the Software will be fit to operate:

(a) in conjunction with any hardware items or software products other than the Permitted Hardware or otherwise such items as notified by BI3 to the Customer as being compatible with the Software; or

(b) uninterrupted or error-free.

12.4 BI3 does not warrant or guarantee that it will be able to rectify all Warranty Defects, nor that any Warranty Defect which does not materially affect the Customer’s operations using the Software will be corrected before the end of the Warranty Period.

12.5 Subject to paragraph 12.1, the Software is furnished on an “as is” basis and without warranty as to the results the Customer may obtain by using the Software. The Customer assumes the entire risk as to the results and performance of the Software.

12.6 Any unauthorised modifications, use or improper installation of the Software by, or on behalf of, the Customer, or any other breach of the Contract by the Customer shall render all BI3’s warranties and obligations under the Contract in respect of the Software null and void.

12.7 BI3 shall not be obliged to rectify any particular Warranty Defect if attempts to rectify such Warranty Defect other than normal recovery or diagnostic procedures have been made by the Customer’s personnel or third parties without the permission of BI3.

13. Third-Party Software

13.1 Where the provision of Third-Party Software is specified as being included in the Supply in the Quotation or the Project Agreement (as the case may be), BI3 shall supply the Third-Party Software to the Customer under any applicable Third-Party Terms, copies of which shall be provided other otherwise made available to the Customer.

13.2 In addition to its obligations under this Schedule, the Customer agrees to comply with all Third-Party Terms and shall use all reasonable endeavours to ensure that third party that it allows (in accordance with the Contract) to use the Third-Party Software complies with the Third-Party Terms.

13.3 The Customer agrees and acknowledges that the only warranties provided in relation to the Third-Party Software are those contained in the applicable Third-Party Terms relating to that Third-Party Software (or otherwise as may be provided by the third-party licensor). To the extent that any such warranties in respect of the Third-Party Software are given to BI3, BI3 will pass on the benefit of those warranties to the Customer.

13.4 The Customer shall indemnify BI3, keep BI3 indemnified and hold BI3 harmless in respect of any Losses suffered or incurred by BI3 as a consequence of any breach of the Third-Party Terms by the Customer howsoever arising.

13.5 BI3 may treat the Customer’s breach of any Third-Party Terms as a breach of the Contract.

13.6 If, for any reason whatsoever, the Third-Party Software becomes unavailable or it is no longer provided by the applicable third-party licensor, BI3 shall use reasonable endeavours to procure an alternative product that is reasonably suitable for the Customer’s desired purpose.

14. Export Compliance

14.1 Neither party shall in any circumstances export, directly or indirectly, any technical data acquired from the other party under the Contract (or any products, including software, incorporating any such data) in breach of any Applicable Laws (Applicable Export Control Laws), including United States export laws and regulations, to any country for which the United States or any other government or any agency thereof at the time of export requires an export licence or other governmental approval without first obtaining such licence or approval.

14.2 Each party undertakes:

(a) contractually to oblige any third party to whom it discloses or transfers any such data or products to make an undertaking to it in similar terms to the one set out above; and

(b) if requested, to provide the other party with any reasonable assistance, at the reasonable cost of the other party, to enable it to perform any activity required by any competent government or agency in any relevant jurisdiction for the purpose of compliance with any Applicable Export Control Laws.

14.3

SCHEDULE 4 – SERVICES

1. DEFINITIONS

Defined words and expressions used in this Schedule shall take the meaning given to them in the main body of these Terms, unless otherwise defined below:

Additional Services: any Emergency Maintenance or Excluded Maintenance performed by BI3 under this Contract.

Corrective Maintenance: means

(a) making any adjustments to the Maintained Equipment; and

(b) replacing any parts or components of the Maintained Equipment,

in each case, which are required to restore the Maintained Equipment to Good Working Order.

Emergency Maintenance:

(a) making any adjustments to the Maintained Equipment; and

(b) replacing any parts or components of the Maintained Equipment,

in each case, which are required to restore the Maintained Equipment to Good Working Order.

Excluded Causes:

(a) use of the Maintained Equipment with computer equipment or materials not supplied or approved in writing by BI3;

(b) any maintenance, alteration, modification or adjustment performed by persons other than BI3 or its employees or agents unless such maintenance, alteration, modification or adjustment is approved by BI3 (such approval not to be unreasonably withheld or delayed);

(c) a failure, interruption or surge in the electrical power or its related infrastructure connected to the Maintained Equipment;

(d) the neglect or misuse of the Maintained Equipment; and

(e) use of Unsupported Software.

Excluded Maintenance: any maintenance required to restore any malfunctioning or failed Maintained Equipment or Supported Software to Good Working Order where the malfunction or failure results from or is caused by any of the Excluded Causes.

Equipment Maintenance Services: means the Preventative Maintenance, Corrective Maintenance, together with any Additional Services.

Fault: has the meaning given to it in paragraph 4.2.

Good Working Order: the Maintained Equipment operates in accordance with the Project Brief (which shall, for the purpose of this Schedule, include applicable Operating Manuals notified to the Customer in writing).

Initial Period: the initial period during which the Maintenance Services (or any element thereof) shall be provided by BI3 to the Customer in accordance with this Schedule, as set out in the Quotation or Project Agreement (as the case may be).

Known Vulnerabilities: any Vulnerability that has either:

(a) been assigned a Common Vulnerabilities and Exposures (CVE) number;

(b) been disclosed on the National Vulnerability Database available at the website operated by the US National Institute of Standards and Technology (NIST) from to time to time; or

(c) been disclosed on the internet, or any open public database, such that it would be revealed by reasonable searches conducted in accordance with good industry practice.

Latent Vulnerabilities: any instances of typical classes of Vulnerability. For example, buffer overflows, cross-site scripting (XSS) and Structure Query Language (SQL) injection.

Maintained Equipment: means the hardware and such other equipment or consumable goods (including, where applicable, the Supported Software) to be maintained by BI3, as detailed in the Quotation or Project Agreement (each to the extent applicable) and particularised further with any applicable Project Brief.

Maintenance Release: a release of Supported Software which corrects faults, adds functionality or otherwise amends or upgrades the Supported Software, but which does not constitute a New Version.

Maintenance Services: means the Equipment Maintenance Services, together with the Software Maintenance Services.

Modification: any Maintenance Release or New Version which is acquired by the Customer.

New Version: any new version of the Supported Software which from time to time is publicly marketed and offered for purchase by BI3 in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product.

Optional Services: any other services that BI3 and the Customer may from time to time agree shall be supplied to the Customer by BI3 in connection with the Supported Software under the Contract.

Preventative Maintenance:

(a) testing the Maintained Equipment is functional; and

(a) making any adjustments as may be required to ensure the Maintained Equipment remains in Good Working Order

Site: means the site(s) at which the Maintained Equipment and/or Supported Software is situated.

Software Maintenance Services: means the software maintenance services to be provided by BI3, as more particularly described in paragraph 6.1.

Standard Support Service: the support service more particularly described in the Quotation or Project Agreement (as the case may be) and paragraph 6.1 of this Schedule.

Supported Software: has the meaning given to it in paragraph 5.

Unsupported Software: software that is not Supported Software.

Updating Service: the service to be supplied by BI3 to the Customer under paragraph 6.5.

2. COMMENCEMENT

2.1 Where Maintenance Services (or any individual element thereof) are specified as being included in the Supply in the Quotation or Project Agreement, BI3’s provision of the Maintenance Services shall commence on the Effective Date and shall continue, unless otherwise terminated in accordance with clause 10.1, until either party gives to the other party no less than 1 months’ written notice to terminate the Maintenance Services, expiring on or after the final day of the Initial Period.

2.2 In the event that the provision of the Maintenance Services is terminated for any reason prior to the end of the Initial Period, any and all Charges which would have become due and payable to BI3 for the remainder of the Initial Period shall become immediately due and payable.

3. GENERAL OBLIGATIONS OF BI3

3.1 BI3 shall provide the Customer with the Maintenance Services in respect of the Maintained Equipment and Supported Software (as the case may be).

3.2 The Maintenance Services shall be performed by BI3 in accordance with this Schedule in all material respects using reasonable care and skill and in accordance with good industry practice and may be carried out in any number of stages.

4. Equiupment MAINTENANCE Services – SPECIAL ATTENTION IS DRAWN TO THIS PARAGRAPH

4.1 BI3 shall, at a frequency as is agreed in writing between the parties from time-to-time, perform Preventative Maintenance to the Maintained Equipment.

4.2 On the Customer informing BI3 that the Maintained Equipment is malfunctioning or has failed or is otherwise not in Good Working Order (Fault), BI3 shall perform Corrective Maintenance of the Maintained Equipment as soon as reasonably practicable and in accordance with the relative severity of the malfunction or Fault as determined by BI3’s absolute and professional discretion. Estimated timescales for performance of the Corrective Maintenance shall be notified to the Customer and BI3 shall use reasonable endeavours to meet any estimated timescales and deadlines but for the avoidance of doubt time for completion of the Maintenance Services (or any particular part of them) shall not be of the essence.

4.3 In the first instance, all Preventative Maintenance and Corrective Maintenance shall be carried out remotely and only where BI3 is unable to resolve an issue remotely it shall attend the applicable Site(s) to perform the Preventative Maintenance and Corrective Maintenance. Where BI3 wishes to attend the Site(s) in order to perform the Preventative Maintenance and Corrective Maintenance, it shall do so during Normal Business Hours.

4.4 In performing the Preventative Maintenance, Corrective Maintenance and any Additional Services, BI3 shall use reasonable endeavours to source spare parts and/or replacements required to restore the Maintained Equipment to Good Working Order. All spare parts and/or replacements provided by BI3 to the Customer shall become part of the Maintained Equipment and the property of the Customer subject to the Customer’s compliance with its obligations (in particular, payment obligations) under the Contract. All parts and components removed from the Maintained Equipment by BI3 in the course of performing the Maintenance Services and/or the Additional Services shall no longer constitute part of the Maintained Equipment and will be the property of BI3.

4.5 In performing any Equipment Maintenance Services, BI3 shall use reasonable endeavours to restore any malfunctioning or failed Maintained Equipment to Good Working Order either remotely or while in attendance at the Site(s). Where this is not reasonably practicable, or not reasonably practicable within Normal Business Hours (in the case of Preventative Maintenance or Corrective Maintenance), BI3 shall either arrange for a further visit to the Site(s) within Normal Business Hours to complete the repair or remove the Maintained Equipment or part of the Maintained Equipment for repair off-site.

4.6 BI3 shall perform Emergency Maintenance as and when determined to be reasonably practicable and in accordance with BI3’s absolute and professional discretion. Additional Charges shall apply in respect of any Emergency Maintenance that is performed.

4.7 BI3 shall procure that its personnel shall, whilst on site at the Site(s), comply with the Customer’s reasonable health and safety and security policies provided that these policies have been brought to the attention of its personnel in advance of the commencement of the Maintenance Services.

5. supported software

For this purposes of this Schedule, Supported Software means:

(a) the Software (but not including any Third-Party Software, unless stated in writing by BI3);

(b) any Modification which is acquired by the Customer (whether under the Contract or any other agreement between BI3 and the Customer); and

6. software maintenance services – SPECIAL ATTENTION IS DRAWN TO THIS PARAGRAPH

6.1 In respect of the Supported Software, BI3 shall supply and the Customer shall take and pay for, the following services:

(a) the Standard Support Service;

(b) the Maintenance Release;

(d) such of the Optional Services as are agreed between BI3 and the Customer,

the charges of which shall be detailed within the Quotation, Project Agreement or otherwise as may be notified by BI3 to the Customer in writing (each as the case may be).

6.2 In relation to the Standard Support Service, it shall be provided during Normal Business Hours and shall comprise:

(a) a telephone helpdesk to provide first-line technical support to users of the Supported Software; and

(b) remote diagnosis and where possible, correction of faults using the software management software,

each as more particularly defined in the Quotation or Project Agreement (as the case may be).

6.3 If additional on-site support is required in any month, it may be provided by BI3 as its option, subject to payment of Additional Charges.

6.4 In relation to Maintenance Releases, BI3 will:

(a) upon development, make Maintenance Releases available to the Customer without charge; and

(b) ensure that each Maintenance Release shall:

(i) comply with applicable Data Protection Legislation; and

(ii) mitigate against Viruses or Known Vulnerabilities or Latent Vulnerabilities affecting the Supported Software since the last Maintenance Release provided in accordance with this Schedule.

6.5 In relation to the Updating Service:

(a) BI3 shall issue Modifications of the Supported Software as and when required and in whatever form by way of local fix or patch of the Supported Software or temporary by-pass solution in the absolute discretion of BI3;

(b) BI3 shall include the supply to the Customer of all revisions to the Operating Manual (or other Documentation) which are necessary in order to reflect any Modification acquired by the Customer; and

(c) once any Modification has been installed by the Customer, the Customer shall return all copies of the Supported Software or any part of the Supported Software which is superseded by that Modification.

6.6 For the duration of the Contract, BI3 may upon development, make the New Versions available to the Customer for installation.

6.7 The Customer shall be deemed to have accepted the New Version if BI3 does not receive any notice from the Customer within 7 days of the New Version becoming available for installation or the Customer commences operational use of the New Version, whichever is sooner.

6.8 If the Customer decides not to acquire and install such New Version, that decision shall not give rise to any right to terminate the Contract nor shall it have any adverse effect on the Software Maintenance Services or the performance of BI3’s obligations under the Contract.

6.9 Whenever a Modification is to be provided by BI3 (either by way of a Maintenance Release or the Updating Service):

(a) before issuing any Modification, BI3 shall test the same in order to ensure that it performs fully in accordance with its specification and the Operating Manual (which, in the case of a New Version, shall be the Project Brief and Operating Manual relevant to that New Version).

(b) BI3 shall (as appropriate) install the Modification, replace the Supported Software with the Modification, or integrate the Modification with the Supported Software, at the Site(s) and test any such installed or integrated Modification in order to ensure that it performs fully in accordance with its Project Brief and the Operating Manual (which, in the case of a New Version, shall be the Project Brief and the Operating Manual relevant to that New Version) and if so required by BI3, the Customer shall assist BI3 in testing the same.

6.10 BI3 may, on prior notice to the Customer, make changes to the Software Maintenance Services, provided such changes do not have material adverse effect on the Customer’s business operations.

7. customer’s obligations – special attention is drawn to this PARAGRAPH

7.1 The Customer warrants and undertakes that it shall and that (to the extent applicable) the End User shall:

(a) ensure that the Maintained Equipment and Supported Software is kept at the specific location at the Site(s) at which it was delivered, under suitable conditions, as specified in the Operating Manuals, and permit only trained and competent personnel to use it and follow any operating instructions as BI3 may give from time to time;

(b) notify BI3 promptly if the Maintained Equipment or Supported Software is discovered to be operating incorrectly;

(c) ensure that BI3’s employees, servants, agents or contractors shall at all reasonable times have remote access to the Maintained Equipment and Supported Software to facilitate any support;

(d) at all reasonable times permit full and free access to the Site(s) and to the Maintained Equipment and Supported Software to BI3, its employees, contractors and agents, and provide them with the adequate, safe and unobstructed working space, and any telecommunications facilities (including any SIM cards used by the Maintained Equipment) as are reasonably required to enable BI3 to perform the Maintenance Services whilst at the Site(s) and to enable the Maintained Equipment and Supported Software to integrate with such third party systems as are required and permitted under the Contract;

(e) provide BI3 with any information that is reasonably requested in the performance of the Maintenance Services;

(f) take any steps reasonably necessary to ensure the safety of BI3’s personnel when attending the Site(s);

(g) not allow any person other than BI3 to maintain, alter, modify or adjust the Maintained Equipment or Supported Software without prior written approval of BI3;

(h) not move the Maintained Equipment from the Site(s) (or within the Site(s)) without the prior written approval of BI3 (such approval not to be unreasonably withheld or delayed);

(i) store any reserve Maintained Equipment only in conditions approved by BI3, and make this Maintained Equipment available for periodic maintenance, as with all other Maintained Equipment; and

(j) only use supplies or materials supplied or approved by BI3 (such approval not be to unreasonably withheld or delayed).

7.2 The Customer shall notify BI3 where any of the above obligations are breached or are likely to be breached such that the same would affect, prevent, hinder or impinge BI3’s ability to provide the Maintenance Services to it. For the avoidance of doubt, this includes an obligation on the Customer to notify BI3 in the event that any telecommunication facilities being used by the Maintained Equipment has been damaged, breached, removed, lost or stolen.

8. warranties

BI3 represents and warrants to the Customer that the Maintenance Services shall be performed by an appropriate number of suitably qualified and experienced personnel, using all reasonable skill and care, and in accordance with all Applicable Laws.

9. Excluded maintenance

9.1 BI3 is not obliged to perform any Excluded Services and shall not be required to perform any Maintenance Services in relation to either;

(a) Unsupported Software;

(b) Supported Software where the Customer is in breach of this Contract;

(d) Maintained Equipment that is not in Good Working Order due to any of the Excluded Clauses.

9.2 Where BI3 is performing or has performed the Maintenance Services in circumstances where it has established that any event described in paragraph 9.1 applies, BI3 may charge, and the Customer shall pay, the Additional Services Fees in respect of that work.

Terms & Conditions

INTRODUCTION

1. Definitions and Interpretation

2. Contract Formation

3. GENERAL OBLIGATIONS OF BI3 – SPECIAL ATTENTION IS DRAWN TO THIS CLAUSE

5. Charges and payment – special attention is drawn to this clause

6. CHANGE CONTROL

7. Liability AND INDEMNITY – special attention is drawn to this clause

8. Intellectual property rights

9. Confidentiality

10. termination – special attention is drawn to this clause

11. Data Protection

12. Force majeure

13. Assignment

14. Notice

15. Entire agreement

16. Variation

17. WAIVER

18. Severance

19. No partnership or agency

20. Third-party rights

21. Multi-tiered dispute resolution procedure

22. Governing law

23. Jurisdiction

SCHEDULE 1 – SUPPLY OF GOODS

2. GOODS

3. Delivery– special attention is drawn to this Paragraph

4. QUALITY, inspection and acceptance – special attention is drawn to this Paragraph

5. Manufacturer Warranties

6. TITLE AND RISK – special attention is drawn to this Paragraph

SCHEDULE 2 – HIRE OF EQUIPMENT

1. DEFINITIONS

Head Office

Contact Details

Social Media

Quick Links

Useful links

Services

INTRODUCTION

1. Definitions and Interpretation

2. Contract Formation

3. GENERAL OBLIGATIONS OF BI3 – SPECIAL ATTENTION IS DRAWN TO THIS CLAUSE

5. Charges and payment – special attention is drawn to this clause

6. CHANGE CONTROL

7. Liability AND INDEMNITY – special attention is drawn to this clause

8. Intellectual property rights

9. Confidentiality

10. termination – special attention is drawn to this clause

11. Data Protection

12. Force majeure

13. Assignment

14. Notice

15. Entire agreement

16. Variation

17. WAIVER

18. Severance

19. No partnership or agency

20. Third-party rights

21. Multi-tiered dispute resolution procedure

22. Governing law

23. Jurisdiction

SCHEDULE 1 – SUPPLY OF GOODS

2. GOODS

3. Delivery– special attention is drawn to this Paragraph

4. QUALITY, inspection and acceptance – special attention is drawn to this Paragraph

5. Manufacturer Warranties

6. TITLE AND RISK – special attention is drawn to this Paragraph

SCHEDULE 2 – HIRE OF EQUIPMENT

1. DEFINITIONS

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