In this Agreement, unless inconsistent with or otherwise indicated by the context, the definitions set out hereunder shall bear the following meanings ascribed to them:
“Additional Charges” means the charges from time to time for work undertaken on a time and materials basis and agreed by the Customer prior to Coats Digital incurring such charges.
“Affiliate” means in respect of a party, any entity that from time to time, directly or indirectly, controls, is controlled by, or is under common control with that party.
“Agreement” means the Software Agreement (including the Schedule and Appendix (if any) and the Terms and Conditions set out in the End User Licensing Agreement (EULA) and, where applicable, the Appendix.
“Confidential Information” means in relation to each party (which in respect of Coats Digital, includes its Affiliates), all information relating to the business and/or operations of that party (whether such information is disclosed in writing, orally, by visual presentation, by means of providing access to such information or otherwise) including any such information subsisting in any Intellectual Property Rights of the relevant party or its Affiliates, any such information which is commercially sensitive or price sensitive, and the provisions and subject matter of this Agreement.
“CPIx” means the latest available year on year increase in the Consumer Prices Index (metropolitan areas, all items) as published by the official government department in the user’s country as at the effective date of increase, or, in the absence thereof, a similar index.
“Customer Data” means all data, including login details (username and password), all text, images, sound, software, image or video files, materials and all derivatives of such data that are uploaded to or stored by the Customer using the Licensed Software.
“Customer Support Case” means a unique reference logged in response to a Customer’s request for Technical Support with assigned Priority and Severity as defined in clause 5.
“Data Protection Laws” means (a) the General Data Protection Regulation (EU) 2016/679; and/or, (b) the laws concerning the processing of data relating to living persons applicable in the territory in which the Customer or Users are located.
“Delivery Date” means the estimated date on which the installation of the Licensed Software is completed as detailed in the Schedule. Installation of the Licensed Software shall be deemed to be complete when the Coats Digital Licensed Software is installed, and the Customer administrator can successfully log on to the Coats Digital Licensed Software. The parties agree that installation excludes the configuration and setting up of business processes in the solution.
“Designated Equipment” means the computer hardware and operating system requirements for on premise solutions as referenced in the Schedule and detailed in the Appendix as updated from time to time.
“Documentation” means such documentation describing the software, its functional specifications, guides and help files as may be made available from time to time during this Agreement by Coats Digital at its discretion in either printed or machine readable form to the Customer.
“Enhanced Service Level Support” means any additional support services as detailed in the “Schedule” of the Software Agreement.
“EULA” means this end user software license agreement.
“Fees” means the charges payable by the Customer to Coats Digital for the supply of implementation, consultancy and training services, technical support, access to and use of the Licensed Software.
“Intellectual Property Rights” means: (a) patents, inventions, designs, copyright and related rights, database rights, knowhow and Confidential Information, trademarks and related goodwill, trade names (whether registered or unregistered), and rights to apply for registration; (b) all other rights of a similar nature or having an equivalent effect anywhere in the world which currently exist or are recognised in the future; and (c) all applications, extensions and renewals in relation to any such rights.
“License Key” means the physical device or digital code used to permit access to Licensed Software.
“Licensed Software” means the software programs and any additional modules in object code form more fully described in the Schedule and including any variant of the same.
“Place of Use” means the physical address of the site where the Designated Equipment is situated as set out in the Schedule.
“Maintenance Charge” means the annual amount specified in the Schedule and subject to increase under Clause 3.11 hereof payable by the Customer for Technical Support and for the supply for any New Release of the Licenced Software made or issued by Coats Digital pursuant to Clause 5 below.
“New Release” means any improved, modified or corrected version of any of the Licensed Software or Documentation from time to time issued by Coats Digital.
“Priority” means the priority assigned to a Technical Support case as set out in clause 5.4.
“Resolution Time” means the resolution time for Technical Support as set out in clause 5.4.
“Response Time” means the time period to acknowledge receipt of a Technical Support request and to log a Customer Support Case as set out in Clause 5.3. Target response times for Technical Support are also set out in clause 5.3.
“Sales Tax” means any applicable national, federal, state and local sales, use, value added, services, goods and services, turnover, excise and other similar or corresponding taxes, fees and surcharges or equivalent indirect tax imposed in any other jurisdiction.
“Schedule” means the schedule to this Software Agreement setting out the key commercial terms applicable to the Licence granted to the Customer.
“Services” means the software configuration, implementation, consultancy and training services defined in the Schedule.
“Severity” means the severity level of a Technical Support request as set out in clause 5.3.
“Source Code” means the form of the latest version of the Licensed Software which the Customer is using which has been written by the programmers of the Licensed Software and comprising the listings of the various instructions and statements that the program contains in plain English or any programming language, including:
- the programmer’s individual comments in plain English juxtaposed with the listings of code amplifying and describing the design and the steps taken by the programmer to implement the function of the program;
- the program’s supporting Documentation in plain English; to the extent that same exist.
“Third-party Software” means any third-party software (if applicable) that is embedded or incorporated into the Licensed Software or as otherwise identified as third-party software in the Schedule including any third-party utility, database, development tool or product.
“Technical Support” means the provision of technical support as defined in clause 5 in respect of each of the Licensed Software in the Schedule.
“User” means those users nominated and authorised by the Customer to access and use the Licensed Software on either a named or concurrent user basis as specified and up to the maximum number of users identified in the Schedule.
2. Grant of licence and provision of services
2.1. In consideration of payment of the Fees detailed in the Schedule and in accordance with clause 3 below, Coats Digital hereby:
2.1.1. grants the Customer a non-exclusive, non-transferable and non-assignable, license / right to access and use the software, data and associated documentation as described in, and during the term of, this Agreement, solely for the Customers own business operations, and on the Designated Equipment, at the designated Place of Use (the “Licence”); and
2.1.2. undertakes to the Customer to provide the Services and Technical Support upon the terms and conditions of this Agreement.
2.2. The Licence is limited to the maximum number of Users detailed in the Schedule.
2.3. Any increase in the required number of Users must be notified to Coats Digital and may be subject to a corresponding increase in Fees.
2.4. Any rights not expressly granted in terms of this Agreement are hereby reserved. Without derogating from the generality of the foregoing, Customer hereby undertakes not to:
2.4.1. save as provided in clause 2.6 below, make copies of the Licensed Software;
2.4.2. adapt, reverse engineer, decompile, disassemble, modify or create derivative works based on the whole or any part of the Licensed Software or otherwise attempt to derive the Source Code, underlying ideas, algorithms, file formats, programming of the Licensed Software or any files contained in or generated by the Licensed Software, nor shall it permit, whether directly or indirectly, any third-party to do any of the foregoing for any purpose including the attempted correction of issues within the Licensed Software;
2.4.3. use any information provided by Coats Digital or obtained by the Customer to create any software whose expression is substantially similar to that of the Licensed Software covered by this Agreement nor use such information in any manner which would be restricted by any copyright subsisting in it;
2.4.4. sell, rent, lease, sub-lease, loan, translate, merge, adapt, vary, modify or transfer the Licensed Software to any third party or otherwise relinquish possession of the Licensed Software for any purpose whatsoever.
2.5. The Customer shall maintain sufficiently trained personnel, (licensed and certified by Coats Digital where appropriate), to support the effective and efficient use of the Licensed Software.
2.6. The Customer shall be entitled to copy the Licensed Software for back up purposes and then only as part of its proper and normal archive and data security procedures.
2.7. Coats Digital shall have the right to inspect the Licensed Software and the Designated Equipment where applicable with reasonable notice and during the Customer’s normal business hours in order to verify the Customer’s compliance with the provisions of this Agreement.
3. Fees and payment
3.1. In consideration for the Licence granted to it by the terms of this Agreement, the Customer shall pay to Coats Digital the Fees detailed in the Schedule. The Fees shall include the cost of:
3.1.1. the Licensed Software;
3.1.2. the Services;
3.1.3. Technical Support
3.2. All Fees in this Agreement and any other amounts paid or payable pursuant to this Agreement are exclusive of Sales Tax (if applicable). If Sales Tax is so chargeable, the Customer must pay to Coats Digital or otherwise account for and pay to the relevant taxing authority (as the case may be) an amount equal to the Sales Tax chargeable in addition to the Fees or such other amounts due, subject (where applicable) to receipt of a valid Sales Tax invoice from Coats Digital for the amount of Sales Tax chargeable in addition.
3.3. The Customer shall (where applicable) account for acquisition Sales Tax in respect of the Fees or such other sums due and comply with (and/or co-operate with Coats Digital in connection therewith) any notifications, reporting and filing obligations related thereto.
3.4. The Customer shall pay all amounts due under the Agreement in full without any deduction or withholding except as required by law. Without limiting the foregoing, in the event that payment of any sums due to Coats Digital under the Agreement become subject to any deduction or withholding in respect of or on account of tax, the Customer shall pay to Coats Digital such additional sum as may be required in order that the net amount actually received and retained by Coats Digital under this Agreement (after such deduction or withholding has been made) shall be equal to the full amount that would have been received and retained by Coats Digital had no such deduction or withholding been required to be made.
3.5. The Customer agrees to pay (including pursuant to Clause 3), and to indemnify and hold Coats Digital harmless from, any tax levied upon the purchase, provision, importation, exportation and/or delivery of the Licensed Software or provision of Services and Technical Support related thereto and/or related to the performance of obligations or exercise of rights under this Agreement and the Customer shall take all necessary steps to comply with and/or co-operate with Coats Digital in respect of compliance with and/or completion of any administrative filing, record-keeping or reporting obligations in relation to the foregoing.
3.6. For the avoidance of doubt, if, as a result of any assignment of its rights or obligations in accordance with this Agreement, the Customer (including its assignees(s)) has an obligation to withhold or deduct any taxes on payments made to Coats Digital which would not otherwise have been the case, the Customer (including its assignees(s)) will pay to Coats Digital such additional sum as shall ensure that Coats Digital receives and retains a net sum equal to the full amount it would have received and retained in the absence of any such assignment.
3.7. The Customer shall pay Coats Digital by any payment method reasonably stipulated by Coats Digital. No payment shall be considered paid until it is received by Coats Digital in full and in cleared funds.
3.8. If the Customer is late in paying any part of any monies due under the Agreement Coats Digital may (without prejudice to any other right or remedy available whether under the Agreement) do any or all of the following: (i) charge interest on the amount due but unpaid at a rate of 5% above the base rate of the Bank of England in force at the due date for payment from the due date until payment (after as well as before judgment), such interest to run from day to day and to be compounded monthly; and/or (ii) suspend the performance of its obligations under the Agreement until payment in full has been made.
3.9. Any Fees or such other sums due and paid in accordance with this Clause 3 shall be non-refundable in any circumstance including, without limitation, upon early termination of the Agreement in accordance with its terms.
3.10. All amounts due under or in relation to this Agreement shall be paid in full without any deduction or withholding other than as required by law and the Customer shall not be entitled to assert any credit, set off or counterclaim against Coats Digital in order to justify withholding payment of any such amount in whole or in part.
3.11. The Annual Maintenance Charge shall on each anniversary of the Delivery Date, increase (and not decrease) by a percentage equal to CPIx.
4.1. The Delivery Date identified in the Schedule is the estimated date by which the installation of the Licensed Software will be completed. Installation of the Licensed Software shall be deemed to be complete when the Coats Digital Licensed Software is installed and the Customer administrator can successfully log on to the Coats Digital Licensed Software. The parties agree that installation excludes the configuration and setting up of business processes in the solution.
4.2. Coats Digital shall provide the Customer with the License Key to access the Licensed Software and one copy of each of the associated Documentation either on the Delivery Date or as soon thereafter as is possible.
4.3. Where practical and required, the Customer shall install the Licensed Software. The Customer’s signing of this Agreement shall authorise Coats Digital and its employees to install or access the Licensed Software from the Customer’s equipment but this shall be done entirely at the Customer’s risk and without any liability on the part of Coats Digital and its employees for any consequential damage caused to the existing equipment and system of the Customer.
5. Technical support
5.1. With effect from the Delivery Date and for the duration of this Agreement but subject always to payment of the Fees, Coats Digital shall provide in respect of each of the Licensed Software Technical Support within the Resolution Time set out in Clause 5.4 below. Technical Support shall also include the creation and despatch / access to the Customer from time to time at the sole discretion of Coats Digital of a New Release of the Licensed Software.
5.2. The Customer shall supply in writing (or by e-mail) to Coats Digital a detailed description of any issue requiring Technical Support and the circumstances in which it arose immediately upon becoming aware of the same. The Technical Support shall be provided by Coats Digital by e-mail, remote access, web meeting and telephone only. In exceptional circumstances Coats Digital will at its sole discretion provide on-site services at a price to be agreed in writing with the Customer for each site visit.
5.3. Coats Digital shall provide a unique case reference and assign a priority driven by the severity of the issue in response to a request for Technical Support, (“Customer Support Case”). Response Time shall be such that during the working hours for local Technical Support as specified in the Schedule, Coats Digital shall use its reasonable endeavours to respond to Technical Support requests in a timely manner commensurate with the severity of the issue as defined in the table below:
|Level||Severity||Severity Description||Target Response|
|1||Critical||Critical issue affecting all users.||2 working hours|
|2||Urgent||Major issue affecting many users.||4 working hours|
|3||Important||Important issue affecting some but not all users.||6 working hours|
|4||Normal||Issue affecting a small number of users or a request for information.||8 working hours|
5.4. Resolution Time shall be such that during the working hours for local Technical Support as specified in the Schedule, Coats Digital shall use its reasonable endeavours to reproduce reported issues and to provide a solution thereto in a timely manner commensurate with the severity of the issue as defined in the table below:
|Priority||Priority Description||Level||Severity||Target Resolution Time|
|P1||Critical||1||Critical||1 working day|
|P1D||Critical – Engineering Escalation||1||Critical||2 working days|
|P2||Urgent||2||Urgent||2 working days|
|P2D||Urgent – Engineering Escalation||2||Urgent||5 working days|
|P3||Important||3||Important||5 working days|
|P3D||Important – Engineering Escalation||3||Important||50 working days|
|P4||Normal||4||Normal||10 working days|
|P4D||Normal – Engineering Escalation||4||Normal||N/A – at the discretion of Coats Digital|
5.5. The ‘D’ suffix on the Priority indicates that the Customer Support Case has been passed to the Engineering team for analysis or resolution. By the nature of this escalation additional time may be required for software engineering to complete.
5.6. The type of solution provided shall be at the sole discretion of Coats Digital and may involve a New Release of the Licensed Software.
5.7. Secure methods of remote access may be required in order to support software held on a Customer’s own infrastructure (in the case of perpetual licensed software). Coats Digital use Microsoft Teams or TeamViewer as their approved tools. It is the customer’s responsibility to either allow use of the above tool by Coats Digital Technical Support or provide an equally secure method of remote access, which shall be agreed with Coats Digital ahead of contracting to ensure security policy compliance.
5.8. In the event of remote access onto Customer systems by Coats Digital Technical Support, the Customer shall supervise the activity and Coats Digital Technical Support shall only interact directly with the Licensed Software provided by Coats Digital. The Customer is responsible for all Third-party Software including Microsoft Applications such as Microsoft SQL Server and Microsoft IIS.
5.9. Technical Support shall not include the diagnosis and rectification of any issue resulting from:
5.9.1. the improper use operation or neglect of the Licensed Software;
5.9.2. the modification of the Licensed Software or their merger (in whole or in part) with any other software;
5.9.3. the use of the Licensed Software on equipment other than the Designated Equipment;
5.9.4. the failure by the Customer to implement recommendations in respect of or solutions to issues previously advised by Coats Digital;
5.9.5. any repair adjustment alteration or modification of the Licensed Software by any person other than Coats Digital;
5.9.6. any breach by the Customer of any of its obligations under any agreement in respect of the operating equipment;
5.9.7. the Customer’s failure to install and use in substitution for the previous release any New Release of the Licensed Software within three days of receipt of the same;
5.9.8. the use of the Licensed Software for a purpose for which it was not designed:
5.9.9. data supplied by the Customer or any User which does not comply with the agreed formats;
5.9.10. external factors including insufficient internet bandwidth or incorrect Customer setup.
5.10. Coats Digital shall upon request by the Customer provide Technical Support notwithstanding that the issue results from any of the circumstances described in clause 5.9 above. Coats Digital shall in such circumstances be entitled to levy Additional Charges in the manner set out in clause 5.12 below. The following exclusions also apply to Technical Support unless overridden by Enhanced Service Level Support as detailed in the Schedule of the Software Agreement);
5.10.1. Application upgrades are not performed by the Support Desk. In the event of a Customer requiring assistance to resolve an issue during an upgrade, additional charges may be incurred.
5.10.2. The Support Desk should not be regarded as a substitute for end user training beyond occasional help and guidance.
5.10.3. A dedicated test system should be maintained by the Customer for the purpose of testing new software releases away from the live environment. The Customer should contact their Customer Success Manager (via local Technical Support if required) should they require additional consultancy services to assist in this process.
5.10.4. Coats Digital Support Desks do not support the technical infrastructure of a Customer beyond the delivered Coats Digital software applications. This includes the configuration or trouble-shooting for the following non-exhaustive list; general hardware, Network/Sharing, Remote Desktop (RDP), Virtual Private Network (VPN), Email, Active Directory, User Policies, 3rd party applications, MS SQL Server installation, MS SQL Database Backup and Maintenance, Internet Information Services (IIS), MS SQL Reporting Services (SSRS).
5.11. Without prejudice to clause 5.10 above Coats Digital shall be entitled to levy reasonable Additional Charges in the manner set out in clause 5.12 below if Technical Support is provided in circumstances where any reasonably skilled and competent data processing operator would have judged the Customer’s request to have been unnecessary. The Customer Success Manager should be contacted to discuss requirements in the event of a Customer considering changes to the existing software configuration, including any changes to live interface files, import pre-processing or SQL scripts/exports to ensure the correct approach is agreed.
5.12. Additional Charges shall be levied by Coats Digital monthly in arrears and shall be payable by the Customer (together with value added tax thereon) within 20 days of receipt of such invoice.
5.13. Local Technical Support is outlined in the Schedule of the Software Agreement referencing the nearest/nominated Support Desk, however the working hours of each local Support Desk are specified in the table below:
|EMEA & North America||UK||Mon-Fri||08:30 – 17:00|
|Russia||Mon-Fri||09:00 – 18:00|
|South Africa||Mon-Fri||08:30 – 17:00|
|Central America||Mexico||Mon-Fri||08:00 – 17:00|
|South Asia||Bangladesh||Sun-Thurs||09:00 – 18:00|
|India||Mon-Fri||10:00 – 18:00|
|Sri Lanka||Mon-Fri||08:30 – 17:30|
|South East Asia||Indonesia||Mon-Fri||08:30 – 17:30|
|South Korea||Mon-Fri||08:30 – 17:30|
|Thailand||Mon-Fri||08:30 – 17:30|
|Vietnam||Mon-Fri||08:00 – 17:00|
|Greater China||China||Mon-Fri||09:00 – 18:00|
|Hong Kong||Mon-Fri||09:00 – 18:00|
|Taiwan||Mon-Fri||09:00 – 18:00|
5.14. Service Availability in 5.13 excludes Bank/Public Holidays, however during Public Holidays that fall on normal working days, the Support Desk in each region will provide cover limited to those cases categorised as severity 1 (Critical) and 2 (Urgent). All other Customer Support Cases logged during the holiday period will be responded to on the next working day.
5.15. Definition of Customer Support Case severity and priority is defined in the table below:
|P1||1 Critical||Critical issue affecting all users of the software and requires Support Desk resource to resolve.|
|P1D||1 Critical||Critical issue affecting all users of the software and requires Engineering resource to resolve.|
|P2||2 Urgent||Urgent issue affecting many users of the software and/or an issue which could have a financial implication on the Customer’s business requiring Support Desk resource to resolve.|
|P2D||2 Urgent||Urgent issue affecting many users of the software and/or an issue which could have a financial implication on the Customer’s business, with no effective workaround and requires Engineering resource to resolve.|
|P3||3 Important||Important issue affecting some but not all users of the software in their key activities and requires Support Desk resource to resolve.|
|P3D||3 Important||Important issue affecting some but not all users of the software in their key activities and requires Engineering resource to resolve in addition to any short-term, reasonable workaround.|
|P4||4 Normal||Normal issue including requests for information requiring Support Desk resource to resolve.|
|P4D||4 Normal||Normal issue including cosmetic or minor software issues which may have a reasonable and long-term workaround. Engineering resource is required to resolve; however, the resolution is not time-sensitive and therefore will be completed at the sole discretion of Coats Digital.|
6. Customer data
6.1. Coats Digital and its authorised agents will treat all Customer Data as confidential and will only process the data to the extent and in such a manner as is necessary for the analysis, provision or improvement of existing and/or new Coats Digital software.
6.2. The Customer shall comply with Data Protection Laws and provide Coats Digital with all reasonable assistance to ensure it complies with its obligations under the Data Protection Laws.
6.3. The Customer hereby grants to Coats Digital a non-exclusive license to the Customer Data to the extent reasonably required for the performance of Coats Digital’s obligations and the exercise of Coats Digital rights under this Agreement, together with the right to assign these rights to its hosting, connectivity and telecommunications service providers, to the extent reasonably required for the performance of Coats Digital obligations and the exercise of the Coats Digital’s rights under the Agreement.
6.4. The Customer warrants and represents that, in each case in any jurisdiction and under any applicable law, the Customer Data / the use of the Customer Data by Coats Digital in accordance with this Agreement will not:
6.4.1. breach the provisions of any law, statute or regulation, including the Data Protection Laws;
6.4.2. infringe the Intellectual Property Rights or other legal rights of any person; or
6.4.3. give rise to any cause of action against Coats Digital
6.5. The Customer will defend, indemnify and hold harmless Coats Digital from and against any loss, cost, liability or damage, including legal fees, for which Coats Digital becomes liable arising from or relating to any Claim relating to Customer Data, including but not limited to any Claim brought by a third party alleging that Customer Data is in breach of this Agreement, infringes or misappropriates the Intellectual Property Rights of a third party or violates applicable law.
6.6. Coats Digital has no obligation to monitor any content uploaded to the Licensed Software
6.7. Coats Digital implements appropriate technological and organisational security measure and procedures to help protect Customer Data from security attacks. However, you understand that where access to the Licensed Software involves transmission of Customer Data over networks that are not owned, operated or controlled by us, and we are not responsible for any of Customer Data lost, altered, intercepted or stored across such networks. We cannot guarantee that transmissions of Customer Data will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third party service providers.
6.8. Other than its security obligations under clause 6.7 Coats Digital assumes no responsibility or liability for Customer Data, and the Customer shall be solely responsible for Customer Data and the consequences of using, disclosing, storing, or transmitting it.
6.9. We will remove or delete Customer Data (to the extent that it is technically possible to do so) held by Coats Digital within a reasonable period of time after the resolution of a Customer Support Case and on termination of the Agreement.
7. Intellectual property
7.1. The Customer acknowledges that it does not, by virtue of this Agreement obtain or claim any right, title or interest in or to any Intellectual Property Rights in the Licensed Software or Documentation provided by Coats Digital. The Customer shall not grant, nor purport to grant, any right or licence to use such Intellectual Property Rights to any third party unless it has obtained the prior written consent of Coats Digital.
7.2. If applicable, Coats Digital hereby grants to the Customer a time limited, non-exclusive, non-transferable, non-sublicensable, royalty-free, revocable, licence to use (but not copy or modify) the Intellectual Property Rights contained in any Licensed Software or other materials provided by Coats Digital strictly to the extent necessary to receive the Licensed Software.
7.3. Coats Digital undertakes at its own expense to defend the Customer or, at its option, settle any claim or action brought against the Customer alleging that the possession or use of the Licensed Software (or any part thereof) in accordance with the terms of clause 7 infringes the Intellectual Property Rights of a third party and shall be responsible for any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against the Customer as a result of or in connection with any such claim. For the avoidance of doubt, Clause 8.3 shall not apply where the claim in question is attributable to possession or use of the Licensed Software (or any part thereof) by the Customer other than in accordance with the terms of this licence, use of the Licensed Software in combination with any hardware or software not supplied or specified by Coats Digital if the infringement would have been avoided by the use of the Licensed Software not so combined, or use of a non-current release of the Licensed Software.
7.4. Coats Digital’s obligations under Clause 7.3 are subject to the Customer:
7.4.1. as soon as reasonably practicable and without undue delay, giving written notice of the claim to Coats Digital, specifying the nature of the claim in reasonable detail;
7.4.2. not making any admission of liability, agreement or compromise in relation to the claim without the prior written consent of Coats Digital (such consent not to be unreasonably conditioned, withheld or delayed);
7.4.3. giving Coats Digital and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Customer, so as to enable Coats Digital and its professional advisers to examine them and to take copies (at Coats Digitals expense) for the purpose of assessing the claim; and
7.4.4. subject to Coats Digital providing security to the Customer to the Customer’s reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, taking such action as Coats Digital may reasonably request to avoid, dispute, compromise or defend the claim.
7.5. This Clause 7 constitutes the Customer’s exclusive remedy and Coats Digitals’ only liability in respect of claims and is subject to the limitations on liability set out at clause 10.
8. Intellectual property rights indemnity
8.1. Coats Digital will indemnify and hold harmless the Customer against any damages (including costs) that may be awarded or agreed to be paid to any third party in respect of any claim or action that the normal operation possession or use of the Licensed Software by the Customer infringes the patent copyright registered design or trade mark rights of said third party (an ‘Intellectual Property Infringement’) provided that the Customer:
8.1.1. gives notice to Coats Digital of any Intellectual Property Infringement immediately upon becoming aware of the same;
8.1.2. gives Coats Digital the sole conduct of the defence to any claim or action in respect of an Intellectual Property Infringement and does not at any time admit liability or otherwise settle or compromise or attempt to settle or compromise the said claim or action except upon the express instructions of Coats Digital; and
8.1.3. acts in accordance with the reasonable instructions of Coats Digital and gives to Coats Digital such assistance as it shall reasonably require in respect of the conduct of the said defense including without prejudice to the generality of the foregoing the filing of all pleadings, statements of case and other court process and the provision of all relevant documents.
8.2. Coats Digital shall reimburse the Customer its reasonable costs incurred in complying with the provisions of clause 8.1 above.
8.3. Coats Digital shall have no liability to the Customer in respect of an Intellectual Property Infringement if the same results from any breach of the Customer’s obligations under this Agreement.
8.4. In the event of an Intellectual Property Infringement Coats Digital shall be entitled at its own expense and option either to:
8.4.1. procure the right for the Customer to continue using the Licensed Software; or
8.4.2. make such alterations modifications or adjustments to the Licensed Software so that they become non‑infringing without incurring a material diminution in performance or function; or
8.4.3. replace the Licensed Software with non‑infringing substitutes provided that such substitutes do not entail a material diminution in performance or function.
8.5. If Coats Digital in its reasonable judgment is not able to exercise any of the options set out at clauses 8.4.1, 8.4.2 or 8.4.3 above within 180 days of the date it received notice of the Intellectual Property Infringement then the Customer without prejudice to any other rights or remedies it may have hereunder or at law shall be entitled to terminate this Agreement by 30 days’ notice to Coats Digital. Upon any such termination Coats Digital shall have no liability to the Customer in respect of the termination of this Agreement as a result of the aforesaid.
9.1. Subject to the exceptions set out in clause 9.4 below and the limitations upon its liability in clause 10 below Coats Digital warrants that:
9.1.1. its title to and property in the Licensed Software is free and unencumbered and that it has the right power and authority to license the same upon the terms and conditions of this Agreement; and
9.1.2. it will perform the Services and Technical Support with reasonable care and skill.
9.2. The Customer shall give notice to Coats Digital as soon as it is reasonably able upon becoming aware of a breach of the warranty under clause 9.1.
9.3. Subject to clause 9.4 below, Coats Digital shall remedy any breach of warranty set out in clause 9.1 above by the provision of Technical Support.
9.4. Coats Digital shall have no liability to remedy a breach of warranty where such breach arises as a result of any of the circumstances described in clause 5.9 above.
9.5. Without prejudice to the foregoing Coats Digital does not warrant that the use of the Licensed Software will meet the Customer’s requirements or that the operation of the Licensed Software (including where in machine‑readable form the Documentation) will be uninterrupted or error free.
9.6. Except for provisions that may not be excluded by law, all conditions, warranties, terms and undertakings express or implied statutory or otherwise in respect of the Licensed Software and the provision of the Services are hereby excluded.
9.7. The Customer accepts that the Licensed Software was not designed and produced to its individual requirements and that it was responsible for their selection.
10. Limitation of liability
10.1. Nothing in this Agreement shall limit or exclude the liability of either party for: (i) death or personal injury resulting from negligence; (ii) fraud or fraudulent misrepresentation; or (iii) any liability which cannot be limited or excluded by applicable law.
10.2. Subject to clause 1, the total aggregate liability (whether in contract, misrepresentation (whether tortious or statutory), tort (including negligence), restitution, breach of statutory duty or otherwise) of Coats Digital arising out of or in connection with any loss or damage suffered by the Customer under or in connection with this Agreement shall be limited to the total sums payable by the Customer under this Agreement.
10.3. Subject to clause 1, neither party shall have any liability (whether in contract, misrepresentation (whether tortious or statutory), tort (including negligence), restitution, breach of statutory duty or otherwise) under or in connection with this Agreement in respect of any: (i) indirect or consequential losses, damages, costs or expenses; (ii) loss of actual or anticipated profits; (iii) loss of contracts, loss of business or loss of opportunity; (iv) loss of use of money; (v) loss of anticipated savings; (vi) loss of revenue or ex gratia payments; (vii) loss of goodwill or reputation; (viii) loss of operation time; or (ix) loss of, damage to or corruption of, data (in each case, except (i), whether such losses are direct, indirect, consequential or otherwise, and, in each case, regardless of whether or not the party has been notified of the possibility of such loss, damage, cost or expense).
11.1. Each party undertakes to keep confidential any Confidential Information relating to the other party which it obtains under or in connection with this Agreement and not to use such information or disclose it to any other person, other than as permitted under this Clause 11.
11.2. Coats Digital may disclose Confidential Information which relates to the Customer to an Affiliate or any relevant Affiliate’s directors, employees, advisers and agents; or where necessary for the provision of the Licensed Software and Services, any subcontractor of Coats Digital or its Affiliates, provided that such information is disclosed solely for the purposes of this Agreement.
11.3. Clause 11.1 shall not apply to the disclosure of Confidential Information with the prior written consent of the disclosing party or if and to the extent: (i) required by applicable law, any competent regulatory authority or recognised stock exchange; (ii) any information is independently developed by the recipient without the use of the Confidential Information; (iii) any information is already known by the recipient at the time of its receipt (as evidenced by its written records); (iv) any information is acquired from a third party owing no obligation of confidence to the disclosing party in respect of that information; or (v) that such information is in the public domain other than through breach of this Clause 11 provided that any Confidential Information shall only be disclosed pursuant to (i) above by either party after notification to the party to which the information relates if such notification is reasonably practicable and lawful in the circumstances.
11.4. Nothing in this Clause 11 shall prevent Coats Digital or its Affiliates from referring publicly to the fact that it has provided the Licensed Software to the Customer for the purposes of any tenders, pitches or other promotional activities.
11.5. The Customer shall return, destroy or erase all Confidential Information upon termination of this Agreement.
11.6. This Clause 11 shall survive the termination of this Agreement and operate until such information no longer qualifies as Confidential Information.
12. Term and termination
12.1. This Agreement shall continue from the Delivery Date until terminated in accordance with the provisions of this clause 12.
12.2. This Agreement may be terminated:
12.2.1. by either party upon giving not less than 90 days’ notice to expire on or after the first anniversary of the Delivery Date;
12.2.2. immediately by Coats Digital if the Customer either fails to pay any material sum due hereunder within 30 days of the due date therefore or commits a substantial breach of clause 3;
12.2.3. immediately by Coats Digital if there is any change in the ownership or control of the Customer; or
12.2.4. immediately by Coats Digital if the Customer makes any composition or arrangement with its creditors; has a proposal for a voluntary arrangement or a composition of debts or a scheme or arrangement approved; has an application made in respect of itself to the Court for the appointment of an administrator; has a winding up order made or a resolution for a voluntary winding up passed or a receiver or manager of its business or undertaking is duly appointed; has an administrative receiver appointed; possession is taken by or on behalf of any creditor of any property the subject of a charge or ceases for any reason to carry on business.
13. Consequences of termination
13.1. Following termination of this Agreement, all invoices shall become immediately due and payable by the Customer.
13.2. The rights and obligations of the parties under this Agreement which are intended to continue beyond the termination or expiry of this Agreement shall survive the termination or expiry of this Agreement.
13.3. All other rights and obligations under this Agreement shall immediately cease upon termination or expiry of this Agreement, without prejudice to any rights, obligations, claims (including claims for damages for breach) and liabilities which have accrued prior to termination or expiry.
13.4. In the event of either party terminating the Agreement pursuant to clause 13, Coats Digital shall be entitled to terminate access to the Licensed Software in accordance with the required notice period defined above.
13.5. The Customer shall within 7 (seven) days of the date of termination, deliver up to Coats Digital or at Coats Digital option destroy, all copies of the Licensed Software and other Confidential Information/Documentation in its possession, in which event an authorised officer of the Customer shall certify that same has been done.
14. Force majeure
14.1. A “Force Majeure Event” means an event the occurrence of which is beyond the reasonable control of either party, including an Act of God, national viruses, epidemics and pandemics (both as defined by the World Health Organisation), government intervention, war, explosions, fires, floods, tempests, earthquake, insurrection, acts of terrorism, riot, civil disturbance, rebellion, strike, lock-out or labour dispute but not a strike, lock-out or labour dispute involving the Customer.
14.2. If either party is affected by Force Majeure Event it shall as soon as reasonably practicable and without undue delay notify the other party of the nature and extent of the event.
14.3. If a Force Majeure Event prevents a party (the “Affected Party”) from performing any of its obligations (other than for the payment of amounts due under this Agreement), to the other (the “Other Party”) the Affected Party shall not be liable to the Other Party and shall be released from its obligations to the extent that its ability to perform such obligations has been affected by the Force Majeure Event.
14.4. If the impact of the Force Majeure Event upon the Affected Party prevents it from performing a substantial part of its obligations under this Agreement for a period of 60 consecutive days, the Other Party may, by giving no less than 30 days’ written notice, terminate this Agreement either in whole or in part (in respect of all or some of the Licensed Software which have been affected by the Force Majeure Event) subject to Clause 13, without liability to the Affected Party.
15.1. Except as otherwise expressly provided, any notice or other communication from any party to the other party which is required to be given under this Agreement (“Notice”) must be in writing, and sent by or on behalf of the sender, addressed to the registered office address set out in the Schedule, marked: “FOR THE ATTENTION OF THE LEGAL DEPARTMENT OR GENERAL COUNSEL”.
15.2 Any Notice shall be deemed to have been served if delivered by hand, at the time and date of delivery, or if sent by courier, at the time and date of delivery (such date as evidenced by the courier’s records).
16. Entire agreement
16.1. This Agreement shall constitute the entire agreement between the parties in relation to its respective subject matter, and replaces and extinguishes all prior agreements, draft agreements, arrangements, undertakings or collateral contracts of any nature made by the parties, whether oral or written, in relation to such subject matter.
16.2. Each party acknowledges that in entering into this Agreement it is not relying on, and shall have no rights or remedies whether in tort (including negligence), under statute or otherwise, in respect of any statements, collateral or other warranties, assurances, undertakings or representations made by the other party whether made innocently or negligently.
16.3. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement and nothing in this Clause 16 shall exclude or restrict the liability of either party arising out of fraud, fraudulent misrepresentation or fraudulent concealment.
17. Anti-corruption and human rights warranties
17.1. Both Parties represent that they shall comply with all applicable anti-bribery laws and regulations, including the US Foreign Corrupt Practices Act and the UK Bribery Act 2010.
17.2. Both parties warrant that they shall not give, offer or pay (either directly or through a third party) the payment of any financial or other advantage to any third parties, which would cause the other party to be in violation of any applicable anti-corruption laws, including the US Foreign Corrupt Practices Act and the UK Bribery Act 2010.
17.3. Each party shall disclose to the other party all payments it (and/or its affiliates, representatives, agents, sub-contractors, suppliers and employees) has made, is obligated to make or intends to make to any agents, brokers, intermediaries or other third parties in connection with the awarding of or maintenance of this Agreement.
17.4. Clauses 1 to 17.3 shall survive termination of this Agreement.
17.5. Each party shall comply with all applicable child labour and human rights laws, including the UK’s Modern Slavery Act 2015, all conventions or guidelines in relation to the prevention of child labour adopted by the International Labour Organisation (or a similar or replacement body), including the Minimum Age Convention, and the European Convention on Human Rights (or similar conventions for the protection of human rights adopted anywhere in the world).
17.6. If either party breaches the relevant provisions of this clause 17, or otherwise acts in contravention of anti-corruption legislation or human rights law, then the other party shall have the right to terminate this Agreement without notice and with immediate effect.
18. Export and sanctions regulations
18.1. Neither party shall export, directly or indirectly, any technical data acquired from the other party under this Agreement (or any products, including software incorporating any such data) in breach of any applicable laws or regulations (Export Control Laws) including United States export laws and regulations and Indian export laws and regulations, to any country for which the government or any agency thereof at the time of export requires an export licence.
18.2. The customer represents and warrants that it, nor any of its Affiliates, principals, officers, directors, or any person or entity involved in this Agreement at any point during the term of this Agreement are an entity or individual designated on any government restricted parties lists or other such sanction restrictions.
19.1. The Customer shall not assign or transfer or subcontract any of its rights, benefits or obligations under this Agreement without the prior written consent of Coats Digital.
19.2. Coats Digital may assign or transfer (by operation of law or otherwise) its rights and obligations under this Agreement to an Affiliate. Coats Digital may sub-contract any of its rights or obligations under this Agreement to a third party (including any Coats Affiliate) and Coats Digital accepts liability for the acts and omissions of any sub-contractors as if they were acts or omissions of Coats Digital itself.
19.3. No variation of this Agreement by the parties shall be effective unless made in writing and signed by their duly authorised representatives.
19.4. The Customer shall at all times observe and comply with any and all applicable laws, ordinances, codes and regulations of relevant governments or, where applicable, authorities, agencies or other bodies having jurisdiction over this Agreement.
19.5. The rights, powers and remedies provided in this Agreement to Coats Digital are (except as expressly provided) cumulative and not exclusive of any rights, powers and remedies provided by applicable law, or otherwise.
19.6. Nothing in this Agreement shall be deemed to constitute a partnership or create a relationship of principal and agent for any purpose between the parties.
19.7. The failure to exercise, or delay in exercising, a right, power or remedy provided by this Agreement, or by applicable law shall not constitute a waiver of that right, power or remedy. If a party waives a breach of any provision of this Agreement it shall not operate as a waiver of a subsequent breach of that provision, or as a waiver of a breach of any other provision. Any waiver must be given in writing and signed by an authorised representative of the party providing the waiver.
19.8. This Agreement may be entered into by the parties in any number of counterparts. Each counterpart shall, when executed and delivered, be regarded as an original, and all the counterparts shall together constitute one and the same instrument. This Agreement shall not take effect until it has been executed by both parties.
19.9. A person who is not a party to this Agreement may not enforce any of its provisions under any legislation otherwise entitling it to do so.
19.10. If any provision, or part of a provision, of this Agreement, is found by any court or authority of competent jurisdiction to be illegal, invalid or unenforceable, that provision or part-provision shall be deemed not to form part of this Agreement and the legality, validity or enforceability of the remainder of the provisions of this Agreement shall not be affected, unless otherwise stipulated under applicable law.
19.11. Headings to clauses in this Agreement are for the purpose of information and identification only and shall not be construed as forming part of this Agreement.
19.12. Any phrase introduced by the expressions “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
19.13. The Customer agrees not to encourage, entreat or otherwise entice away personnel working for or on behalf of Coats Digital, either for its own benefit or for the benefit of a third party.
20. Governing law and jurisdiction
20.1. This Agreement and any dispute or claim arising out of or in connection with either this Agreement or its subject matter or formation (including any dispute or claim relating to non-contractual obligations) shall be governed by and construed in accordance with English law.
20.2. If any dispute arises between the parties under or in relation to this Agreement or the performance, validity or enforceability of either then it shall first be referred to the Customer representative and the Coats Digital representative. If it cannot be resolved to the satisfaction of both parties within 10 business days of such referral, the parties will attempt to settle it by mediation in accordance with the Centre for Effective Dispute Resolution’s (CEDR) Model Mediation Procedure. If, following proper use of the procedures set out in this Clause 2 any dispute is not resolved, then the parties may commence proceedings in accordance with the remainder of this Clause 20.
20.3. Nothing contained in this Agreement shall limit a party’s right to obtain any provisional remedy, including an injunction, an order for possession, an order for specific performance or any other non-monetary relief from any court of competent jurisdiction as may be necessary in such party’s sole judgment to protect its Intellectual Property Rights or any other of its proprietary interests (including its Confidential Information) or its good name, goodwill, reputation or image.
20.4. Subject to Clause 2, the parties agree to submit any dispute arising out of or in connection with this Agreement to the exclusive jurisdiction of the courts of England and Wales (including any dispute or claim relating to non-contractual obligations).