Call Off Terms and Conditions for Software Development and Licensing
1. Background
The Supplier has agreed to develop <<insert description or function of software to be developed>> for the Company and to provide other services, all in accordance with the terms and conditions of the Call Off Contract.
- Definitions and Interpretation
2.1 In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
| “Acceptance Date” | means the date on which the New Software is accepted (or deemed to be accepted) by the Company pursuant to Clause 7; |
| “Acceptance Tests” | means the tests specified in the Call Off Contract and/or such other tests as may be agreed in writing between the Company and the Supplier; |
| “Additional Services” | means any additional services requested by the Company to be provided by the Supplier as set out in Annex 5; |
| “Annex” | means an annex attached to the Order for the Call Off Contract, completed as necessary, in the form of one of the annexes to these Terms and Conditions |
| “Framework Agreement” | means the Framework Agreement entered into by the Company and the Supplier pursuant to which the Call Off Contract is made; |
| “Business Day” | means, any day (other than Saturday or Sunday) on which ordinary banks are open for their full range of normal business in <<insert location>>; |
| “Call Off Contract” | means the agreement entered into by the Company and the Supplier (pursuant to the Ordering Procedure under the Framework Agreement) to which these Terms and Conditions apply and under which the Supplier is to provide the services which are the subject of these Terms and Conditions; |
| “Change Request” | means a request for a change to the New Software made by the Company or the Supplier; |
| “Confidential Information” | means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to or in connection with the Call Off Contract (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such), and, without in any way limiting the generality of the foregoing, “information” includes the Source Software and the New Software (and their object and source code); |
| “Company Group” | means, where the Company is a company or otherwise acting in the course of business, the Company’s parent company holding a majority interest in the Company, and such parent company’s majority-owned subsidiaries; |
| “Development Services” | means the software development, procurement, consulting and computer programming services required to produce the New Software; |
| “Documentation” | means the documentation as set out in Part 2 of Annex 1; |
| “Implementation Plan” | means the timing and sequence of events agreed between the Company and the Supplier for the performance of the Call Off Contract, as set out in Annex 2; |
| “Intellectual Property Rights” | means
(a) any and all rights in any patents, trade marks, service marks, registered designs, applications (and rights to apply for any of those rights) trade, business and company names, internet domain names and e-mail addresses, unregistered trade marks and service marks, copyrights, database rights, know-how, rights in designs and inventions; (b) rights under licences, consents, orders, statutes or otherwise in relation to a right in paragraph (a); (c) rights of the same or similar effect or nature as or to those in paragraphs (a) and (b) which now or in the future may subsist; and (d) the right to sue for past infringements of any of the foregoing rights; |
| “Licence” | means the licence to use the New Software granted by the Supplier to the Company pursuant to Clause 11; |
| “Payment Schedule” | means the payment details as set out in Annex 3; |
| “Planned Acceptance Date” | means the date specified in the Implementation Plan on which the New Software is intended to be accepted by the Company in accordance with the Call Off Contract; |
| “Price” | means the fixed, all-inclusive price for the provision of the New Software, the Licence and the Documentation; |
| “Project” | means, collectively, the development, delivery and testing of the New Software; |
| “Rates” | means the rates as set out in Annex 3; |
| “New Software” | means the software being developed or customised by the Supplier for the Company, preliminary details of which are set out in the Specification, including any enhancements and modifications made; |
| “Source Software” | means the software, details of which are as set out in Annex 4, being the software owned by the Company upon which the New Software is to be developed in accordance with the Call Off Contract; |
| “Specified Equipment” | means the computers and/or devices, including operating systems, on which the New Software is to function as specified in Part 3 of Annex 1; |
| “Specification” | means the specification of the New Software as set out in Part 1 of Annex 1; |
| “System” | means collectively the Specified Equipment and the New Software; and |
| “Warranty Period” | means the period of <<insert period>> after the Acceptance Date. |
2.2 The Call Off Contract shall be deemed to incorporate both these Terms and Conditions and the provisions of the Framework Agreement
- The Project
3.1 The Supplier shall:
3.1.1 provide the Company with Development Services for the purpose of creating the New Software as detailed in the Specification;
3.1.2 install and test the New Software on the Specified Equipment;
3.1.3 provide the Documentation; and
3.1.4 carry out any Additional Services as agreed by the Parties.
3.2 The Supplier shall carry out the obligations set out in sub-Clause 3.1 in accordance with the Implementation Plan.
3.3 The Supplier shall supply to the Company the object and source code of the New Software when requested by the Company.
3.4 The Supplier shall license the New Software to the Company in accordance with Clause 11.
3.5 Where the Company requires the Supplier to provide training, support and maintenance in relation to the New Software, both Parties shall negotiate and enter into a separate support and maintenance agreement, the terms of which shall be agreed between the Parties.
- Personnel
The Supplier shall ensure that all of its personnel engaged in the Project:
4.1 have the necessary skills, expertise and diligence to undertake such work and will conform to the professional standards generally observed in the software development industry for similar services; and
4.2 comply with the provisions in these Terms and Conditions relating to Confidential Information and Non-Solicitation.
- Company’s Obligations
The Company shall:
5.1 deliver the Source Software to the Supplier in a form suitable for the Supplier to carry out the Development Work;
5.2 make available to the Supplier, free of charge, such computer facilities (including but not limited to unhindered access to the Specified Equipment), office and secretarial services as are necessary to enable the Supplier to carry out its obligations under the Call Off Contract;
5.3 ensure that its employees and other independent contractors co-operate reasonably with the Supplier and its employees in carrying out the Project;
5.4 promptly furnish the Supplier with such information and documents as it may reasonably request for the proper performance of its obligations under the Call Off Contract; and
5.5 ensure that any and all representatives appointed by it are available as reasonably required by the Supplier.
- Change Requests
6.1 If either Party identifies a requirement for a change, a Change Request will be sent to the other Party detailing the change requirements. If sent by the Supplier, the Change Request shall state the effect such a change shall have on the New Software, the Implementation Plan and the Price. If sent by the Company, the receipt of the Change Request by the Supplier will constitute a request to the Supplier to state in writing the effect such a change shall have on the New Software, the Implementation Plan and the Price. The Supplier shall use all reasonable endeavours to supply the necessary details within <<insert period>> Business Days from receipt of the Change Request or such other period as may be agreed.
6.2 Where a change to the Price is required, the rates used as the basis for the additional cost for the Change Request shall be the Rates as detailed in Annex 3. The Parties will then decide whether or not to implement the change. If the change is implemented, the amended New Software, Implementation Plan or Price shall then become the New Software, Implementation Plan and Price for the purpose of the Call Off Contract.
6.3 The Supplier shall not implement any changes unless instructed to do so by the Company.
- Acceptance Tests and Liquidated Damages
7.1 The Acceptance Tests shall be agreed by the Parties in accordance with the Implementation Plan.
7.2 The Supplier shall ensure that the New Software is ready for acceptance testing by the Planned Acceptance Date. In any event, the Supplier shall give the Company <<insert period>> Business Days’ prior notice in writing of the date when it will be ready to commence the Acceptance Tests. Unless otherwise agreed, the Acceptance Tests shall take place on the <<insert day, e.g. sixth>> Business Day after such notice has been given.
7.3 The Company shall accept the New Software immediately after the New Software has passed the Acceptance Tests.
7.4 If the New Software fails to pass the Acceptance Tests, repeat tests shall be carried out until the earlier of the following occurs:
7.4.1 the New Software passes the Acceptance Tests;
7.4.2 the Acceptance Tests have been repeated 3 times; or
7.4.3 a 30-day period from the Planned Acceptance Date has expired.
7.5 If at any time the Company shall commence live running of the whole or any part of the New Software (other than in the Acceptance Tests) then the Company shall be deemed to have accepted the New Software.
7.6 If the New Software has not been accepted by the Company on or after the occurrence of the events specified in sub-Clauses 7.4.2 or 7.4.3, then the Company shall be entitled, without prejudice to any other rights or remedies it may have under the Call Off Contract or at law, to terminate the Call Off Contract immediately by written notice upon the Supplier. Notwithstanding the liquidated damages in sub-Clause 7.7 below, the Company shall be entitled to damages or compensation for material breach.
7.7 If the New Software is not ready for acceptance testing by the Planned Acceptance Date in accordance with sub-Clause 7.2 above then, save where such failure results from the default by the Company of its obligations under the Call Off Contract, the Supplier acknowledges that the Company has a legitimate commercial interest in the New Software being ready for testing by the Planned Acceptance Date and that the Company should have an appropriate remedy if it is not so ready, and the Supplier shall accordingly pay to the Company by way of liquidated damages the sum of £<<insert sum>> per day commencing on the day after the Planned Acceptance Date and expiring on the Acceptance Date subject to a maximum of £<<insert sum>> representing a maximum of <<insert number of days>> days’ delay. Payment of such liquidated damages for those days shall be the Company’s sole remedy for the delay of the Supplier for those days. Such payment shall be without prejudice to the Supplier’s obligation to complete the New Software as soon after the Planned Acceptance Date as shall be reasonably possible, and without prejudice to any claim in respect of any days of delay in addition to the said maximum for which this clause provides liquidated damages.
- Representatives and Progress Meetings
8.1 Each Party shall nominate in writing upon the signing of the Call Off Contract, the person who will act as its representative for the purposes of the Call Off Contract. Representatives will be responsible for providing any information which may be required by the other Party to perform its obligations under the Call Off Contract.
8.2 The Parties shall procure that their respective representatives will meet at least <<insert frequency>> between the date of the Call Off Contract and the Planned Acceptance Date to discuss and minute the progress of the Project.
- Warranties
9.1 The Supplier warrants that:
9.1.1 it is entitled to enter into the Call Off Contract and that it is entitled to grant the Licence in accordance with the Call Off Contract;
9.1.2 the New Software shall perform substantially in accordance with the Specification on the Specified Equipment, minor interruptions and errors excluded;
9.1.3 the Documentation will provide users with adequate instructions to enable them effectively to operate and use the New Software; and
9.1.4 the development of the New Software will be carried out in a professional manner conforming to best industry practices.
9.2 The Supplier shall not be liable under sub-Clause 9.1.2 if a failure to meet the warranty set out in it is caused by:
9.2.1 software other than the New Software running on the Specified Equipment; or
9.2.2 modifications or customisation made by or on behalf of the Company to the New Software, without the authorisation of the Supplier.
9.3 If the Supplier receives a written notice from the Company identifying a breach of the warranties set out in sub-Clause 9.1, or otherwise becomes aware of its failure to comply with the warranties set out in sub-Clause 9.1, then the Supplier shall, at its own expense, promptly remedy such breach or failure. Notwithstanding the first part of this sub-Clause 9.3, the Supplier shall have no liability or obligations under the warranties unless it shall have received written notice of the defect or error within the Warranty Period.
- Undertakings
10.1 The Supplier shall:
10.1.1 observe and obey all directions and regulations as may from time to time be reasonably given to or imposed on the Supplier by or on behalf of the Company for the purposes of the Call Off Contract;
10.1.2 [not either during nor after the end of the engagement under the Call Off Contract create any product all or part of which relies directly or indirectly on any idea, style, production method, gimmick, character or other information relating to the Company or the Source Software, of which the Supplier may become aware as a result of the engagement under the Call Off Contract, regardless of whether such material is confidential or not;]
10.1.3 hold the Source Software strictly in accordance with the proprietary rights provisions of Clause 12 and, on completion of the Project, return to the Company the Source Software, all related materials and documentation and any Confidential Information belonging to the Company and all copies of the whole or any part thereof or, if requested by the Company, shall destroy the same and certify in writing to the Company that it has been destroyed;
10.1.4 not incur unauthorised expenditure or costs on behalf of the Company without the Company’s prior written consent;
10.1.5 ensure that it and its servants, agents and sub-contractors take all reasonable precautions to ensure that no known viruses or other malware for which detection and antidote software is generally available are coded or introduced into the New Software.
10.2 If the Supplier wishes to use material (in any medium) owned by third parties as part of the New Software, he shall (having first obtained the Company’s prior written agreement), obtain from those third parties such written assignments, releases, waivers, permissions and licences as necessary to permit such use and to enable the Company to exploit any program containing that material in the New Software in all present and future media. The Supplier shall deliver copies of any documentation relevant to third party clearances to the Company upon request.
- Licence
11.1 On payment in full of the Price, the Supplier grants to the Company [(and to all members of the Company Group who agree to the terms of this Licence)] [a non-exclusive][an exclusive], perpetual, non-transferrable right to use the New Software and the Documentation on any processor owned or controlled by the Company [or a member of the Company Group].
11.2 The Company may not disclose or make available the New Software to any entity other than members of the Company Group (where applicable) who have agreed to these licence terms nor permit others to use it except the Company’s employees and agents who may use it only on the Company’s behalf within the limits of the application licence and who are deemed to have agreed to such terms.
- Proprietary Rights
12.1 The Intellectual Property Rights in the Source Software (including the source and object code) together with any related materials or documentation are and shall remain the property of the Company. The Supplier shall notify the Company immediately if the Supplier becomes aware of any unauthorised use of the whole or any part of the Source Software by any person.
12.2 The Intellectual Property Rights in the New Software (including the source and object code) and the Documentation shall be and remain vested in the Supplier apart from any elements which do not form part of the generic functionality of the New Software and which implement visual features or layouts created at the specific request of the Company. All Intellectual Property Rights in such distinctive Company features (including the source and object code) shall be and remain vested in the Company.
12.3 The Supplier will indemnify the Company on demand against all costs, claims, demands, expenses and liabilities of whatsoever nature arising out of or in connection with any claim that the use or possession of the New Software infringes the Intellectual Property Rights of any third party subject to the following conditions:
12.3.1 The Company shall promptly notify the Supplier in writing of any allegations of infringement of which it is aware and shall not make any admissions without the Supplier’s prior written consent;
12.3.2 The Company, at the Supplier’s request and expense, shall allow the Supplier to conduct and/or settle all negotiations and litigation resulting from any such claim subject to the Supplier taking over such conduct within <<insert period>> Business Days after being notified of the claim and provided that the Supplier diligently pursues the settlement of any such claim; and
12.3.3 The Company shall, at the request of the Supplier, afford all reasonable assistance with such negotiations or litigation, and shall be reimbursed by the Supplier on demand for all expenses incurred in doing so.
12.4 If the Company’s use or possession of the New Software or any part of the New Software in accordance with the Call Off Contract is held by a court of competent jurisdiction to constitute an infringement of a third party’s Intellectual Property Rights, then the Supplier shall promptly and at its own expense:
12.4.1 procure for the Company the right to continue using and possessing the New Software or the infringing part; or
12.4.2 modify or replace the New Software (or part thereof) without detracting from the overall performance of the New Software, so as to avoid the infringement.
12.5 If the remedies set out in sub-Clause 12.4 above are not in the Supplier’s opinion reasonably available, then the Company shall return the New Software which is the subject of the intellectual property claim and the Supplier shall refund to the Company the corresponding portion of the Price, as normally depreciated, whereupon the Call Off Contract shall immediately terminate.
- Charges and Expenses
13.1 In consideration of the Supplier carrying out the Project, the Company shall pay to the Supplier the Price which shall be invoiced to the Company in the specified proportions to be set out in Annex 3 and subject to the terms set out in Clause 14.
13.2 In consideration of any Additional Services, the Company shall pay to the Supplier the amounts invoiced by the Supplier to the Company based on the Rates as set out in Part 2 of Annex 3.
13.3 The Company shall also pay or procure the payment to the Supplier of all reasonable travelling and other out-of-pocket expenses incurred in the course of the Project subject to a maximum amount of £<<insert sum>> per day excluding all travel costs.
- Terms of Payment
14.1 Payment of sums due by the Company to the Supplier shall be made within <<insert period>> of the receipt of an invoice from the Supplier. All payments under the Call Off Contract shall be made in <<insert currency>>.
14.2 With effect from the beginning of each year commencing on the Acceptance Date, the Supplier may increase the Rates in effect during the previous year [by no more than <<insert percentage>>%] provided that not less than <<insert period>> Business Days’ prior written notice has been given to the Company by the Supplier.
14.3 [A one-off bonus of £<<insert sum>> shall be payable by the Company to the Supplier in the event that the Supplier completes [Phases 1 and 2 (as specified in Annex 2] OR [in accordance with the Specification and within the timeframes specified in Annex 2.]]
14.4 All payments under the Call Off Contract are exclusive of VAT, which shall be payable by the Company at the rate and in the same manner for the time being prescribed by law against submission of a valid tax invoice.
- Liability and Insurance
15.1 The Supplier shall, during the term of the Call Off Contract, maintain employer’s liability, third party liability, product liability and professional negligence insurance cover in respect of its liabilities arising out of or connected with the Call Off Contract, such cover to be to a minimum value of £<<insert sum>> and with an insurance company of repute. The Supplier shall on request supply copies of the relevant certificates of insurance to the Company as evidence that such policies remain in force. The Supplier undertakes to use reasonable commercial efforts to pursue claims under such insurance policies.
15.2 The Supplier shall indemnify the Company for personal injury or death caused by the negligence of its employees in connection with the performance of their duties under the Call Off Contract or by defects in any product supplied pursuant to the Call Off Contract.
15.3 The Supplier will indemnify the Company for direct damage to tangible property caused by the negligence of its employees in connection with the performance of their duties under the Call Off Contract or by defects in any product supplied pursuant to the Call Off Contract. The Supplier’s total liability under this Clause shall be limited to £<<insert sum>> for any one event or series of connected events.
15.4 Save in respect of claims for death or personal injury arising from the Supplier’s negligence, in no event will the Supplier be liable for any damages resulting from loss of data or use, lost profits, loss of anticipated savings, nor for any damages that are an indirect or secondary consequence of any act or omission of the Supplier whether such damages were reasonably foreseeable or actually foreseen.
15.5 Except as provided above in the case of personal injury, death and damage to tangible property, the Supplier’s maximum liability to the Company under the Call Off Contract or otherwise for any cause whatsoever (whether in the form of the additional cost of remedial services or otherwise) will be for direct costs and damages only and will be limited to the greater of:
15.5.1 the sum for which the Supplier carries comprehensive insurance cover pursuant to sub-Clause 15.1 above; or
15.5.2 a sum equivalent to the price paid to the Supplier for the products or services that are the subject of the Company’s claim, plus damages limited to <<insert percentage>>% of the same amount for any additional costs directly, reasonably and necessarily incurred by the Company in obtaining alternative products and/or services.
15.6 Nothing in this Clause 15 shall affect or limit the liquidated damages provisions in sub-Clause 7.7.
15.7 The Parties acknowledge and agree that the limitations contained in this Clause 15 are reasonable in the light of all the circumstances.
15.8 The Company’s statutory rights as a consumer (where the Licensee is a consumer and not acting in the course of business) are not affected.
15.9 All liability that is not expressly assumed in the Call Off Contract is excluded.
15.10 These limitations will apply regardless of the form of action, whether under statute, in contract or tort including negligence or any other form of action.
15.11 For the purposes of this clause, “the Supplier” includes its employees, sub-contractors and suppliers who shall all have the benefit of the limits and exclusions of liability set out above in terms of the Contracts (Rights of Third Parties) Act 1999.
15.12 Nothing in the Call Off Contract shall exclude or limit liability for fraudulent misrepresentation.
- Confidentiality
16.1 Each Party undertakes that, except as provided by sub-Clause 16.2 or as authorised in writing by the other Party, it shall, at all times during the continuance of the Call Off Contract and [for <<insert period>> years] after its termination:
16.1.1 keep confidential all Confidential Information;
16.1.2 not disclose any Confidential Information to any other party;
16.1.3 not use any Confidential Information for any purpose other than as contemplated by and subject to the terms of the Call Off Contract;
16.1.4 not make any copies of, record in any way or part with possession of any Confidential Information; and
16.1.5 ensure that none of its directors, officers, employees, agents, sub-contractors or advisers does any act which, if done by that Party, would be a breach of the provisions of sub-Clauses 16.1.1 to 16.1.4 above.
16.2 Either Party may:
16.2.1 disclose any Confidential Information to:
16.2.1.1 any sub-contractor or supplier of that Party;
16.2.1.2 any governmental or other authority or regulatory body; or
16.2.1.3 any employee or officer of that Party or of any of the aforementioned persons, parties or bodies;
- to such extent only as is necessary for the purposes contemplated by the Call Off Contract (including, but not limited to, the provision of the Services), or as required by law. In each case that Party shall first inform the person, party or body in question that the Confidential Information is confidential and (except where the disclosure is to any such body under sub-Clause 16.2.1.2 or any employee or officer of any such body) obtaining and submitting to the other Party a written confidentiality undertaking from the party in question. Such undertaking should be as nearly as practicable in the terms of this Clause 16, to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made; and
16.2.2 use any Confidential Information for any purpose, or disclose it to any other person, to the extent only that it is at the date of the Call Off Contract, or at any time after that date becomes, public knowledge through no fault of that Party. In making such use or disclosure, that Party must not disclose any part of the Confidential Information which is not public knowledge.
16.3 The provisions of this Clause 16 shall continue in force in accordance with their terms, notwithstanding the termination of the Call Off Contract for any reason.
17 [Force Majeure – termination
In the event that either Party cannot perform their obligations hereunder as a result of a Force Majeure Cause (as defined in the Framework Agreement) for a continuous period of <<insert period>>, the other Party may at its discretion terminate the Call Off Contract by written notice at the end of that period. In the event of such termination, the Parties shall agree upon a fair and reasonable payment for all work on the Project completed up to the date of termination. Such payment shall take into account any prior contractual commitments entered into in reliance on the performance of the Call Off Contract.]
- Term and Termination
18.1 The Call Off Contract shall come into force on <<insert Commencement Date>> and shall continue until the completion of the Project, subject to the provisions of this Clause 18 and other relevant Clauses of the Call Off Contract.
18.2 Either Party may terminate the Call Off Contract by giving to the other not less than <<insert notice period>> written notice[, to expire on or at any time after <<insert minimum term of Call Off Contract>>].
18.3 Either Party may immediately terminate the Call Off Contract by giving written notice to the other Party if:
18.3.1 any sum owing to that Party by the other Party under any of the provisions of the Call Off Contract is not paid within <<insert period>> Business Days of the due date for payment;
18.3.2 the other Party commits any other breach of any of the provisions of the Call Off Contract and, if the breach is capable of remedy, fails to remedy it within <<insert period>> Business Days after being given written notice giving full particulars of the breach and requiring it to be remedied;
18.3.3 an encumbrancer takes possession, or where the other Party is a company, a receiver is appointed, of any of the property or assets of that other Party;
18.3.4 the other Party makes any voluntary arrangement with its creditors or, being a company, becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
18.3.5 the other Party, being an individual or firm, has a bankruptcy order made against it or, being a company, goes into liquidation (except for the purposes of bona fide amalgamation or re-construction and in such a manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on that other Party under the Call Off Contract);
18.3.6 anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the other Party;
18.3.7 that other Party ceases, or threatens to cease, to carry on business; or
18.3.8 control of that other Party is acquired by any person or connected persons not having control of that other Party on the date of the Call Off Contract. For the purposes of this Clause 18, “control” and “connected persons” shall have the meanings ascribed thereto by Sections 1124 and 1122 respectively of the Corporation Tax Act 2010.
18.4 For the purposes of sub-Clause 18.3.2, a breach shall be considered capable of remedy if the Party in breach can comply with the provision in question in all respects.
18.5 The rights to terminate the Call Off Contract given by this Clause 18 shall not prejudice any other right or remedy of either Party in respect of the breach concerned (if any) or any other breach.
- Effects of Termination
Upon the termination of the Call Off Contract for any reason:
19.1 any sum owing by either Party to the other under any of the provisions of the Call Off Contract shall become immediately due and payable;
19.2 the Supplier shall immediately return to the Company the Source Software, all related materials and documentation and any Confidential Information belonging to the Company and all copies of the whole or any part thereof or, if requested by the Company, shall destroy the same and certify in writing to the Company that it has been destroyed.
19.3 all Clauses which, either expressly or by their nature, relate to the period after the expiry or termination of the Call Off Contract shall remain In full force and effect;
19.4 termination shall not affect or prejudice any right to damages or other remedy which the terminating Party may have in respect of the event giving rise to the termination or any other right to damages or other remedy which any Party may have in respect of any breach of the Call Off Contract which existed at or before the date of termination;
19.5 subject as provided in this Clause 19 and except in respect of any accrued rights neither Party shall be under any further obligation to the other; and
19.6 each Party shall (except to the extent referred to in Clause 16 immediately cease to use, either directly or indirectly, any Confidential Information, and shall immediately return to the other Party any documents in its possession or control which contain or record any Confidential Information.
- Further Assurance
Each Party shall execute and do all such further deeds, documents and things as may be necessary to carry the provisions of the Call Off Contract into full force and effect.
21 Costs
Subject to any provisions to the contrary each Party to the Call Off Contract shall pay its own costs of and incidental to the negotiation, preparation, execution and carrying into effect of the Call Off Contract.
- Set-Off
Either Party shall be entitled to set-off any sums in any manner from payments due or sums received in respect of any claim under the Call Off Contract or any other agreement at any time.
- Time
The Parties agree that all times and dates referred to in the Call Off Contract shall be of the essence of the Call Off Contract.
- Non-Solicitation
24.1 Neither Party shall, for the term of the Call Off Contract and for a period of <<insert period>> after its termination or expiry, employ or contract the services of any person who is or was employed or otherwise engaged by the other Party at any time in relation to the Call Off Contract [without the express written consent of that Party].
24.2 Neither Party shall, for the term of the Call Off Contract and for a period of <<insert period>> after its termination or expiry, solicit or entice away from the other Party any Company or client where any such solicitation or enticement would cause damage to the business of that Party [without the express written consent of that Party].
- Counterparts
The Call Off Contract may be entered into in any number of counterparts and by the Parties to it on separate counterparts each of which when so executed and delivered shall be an original, but all the counterparts together shall constitute one and the same instrument.
- Dispute Resolution
26.1 The Parties shall attempt to resolve any dispute arising out of or relating to the Call Off Contract through negotiations between their appointed representatives who have the authority to settle such disputes.
26.2 [If negotiations under sub-Clause 26.1 do not resolve the matter within <<insert period>> of receipt of a written invitation to negotiate, the parties will attempt to resolve the dispute in good faith through an agreed Alternative Dispute Resolution (“ADR”) procedure.]
26.3 [If the ADR procedure under sub-Clause 26.2 does not resolve the matter within <<insert period>> of the initiation of that procedure, or if either Party will not participate in the ADR procedure, the dispute may be referred to arbitration by either Party.
26.4 The seat of the arbitration under sub-Clause 26.3 shall be England and Wales. The arbitration shall be governed by the Arbitration Act 1996 and Rules for Arbitration as agreed between the Parties. In the event that the Parties are unable to agree on the arbitrator(s) or the Rules for Arbitration, either Party may, upon giving written notice to the other Party, apply to the President or Deputy President for the time being of the Chartered Institute of Arbitrators for the appointment of an arbitrator or arbitrators and for any decision on rules that may be required.]
26.5 Nothing in this Clause 26 shall prohibit either Party or its affiliates from applying to a court for interim injunctive relief.
26.6 The Parties hereby agree that the decision and outcome of the final method of dispute resolution under this Clause 26 shall [not] be final and binding on both Parties.
ANNEXES
Note on the Annexes
These Annexes are included as part of these Terms and Conditions so that the format of them is agreed as part of the framework arrangements. When each Order Form is completed, a copy of each of these annexes should be attached to the Order From and completed in full before they are attached to the Order Form and accepted by the Supplier
ANNEX 1
New Software Specification
PART 1: Specification
<<Insert Details>>
PART 2: Documentation
<<Insert Details>>
PART 3: Specified Equipment
Company’s Hardware
<<Insert Details>>
Company’s Operating System
<<Insert Details>>
PART 4: Licence Restriction
ANNEX 2
Implementation Plan
<<Insert Details>>
ANNEX 3
Payment Annex
PART 1: The Price
The Price shall be £<<insert sum>> and shall be payable in the following instalments:
PART 2: Additional Services Rates
<<e.g. <..>% of List Price>>
ANNEX 4
Source Software Specification
<<Insert Details>>
ANNEX 5
Additional Services
<<Insert Details>>