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Atlas SoW Terms and Conditions

General Terms and Conditions for Professional Services

Last updated: 11th February 2019

The following General Terms and Conditions for Professional Services (Terms and Conditions) are applicable to all professional services engagements performed by Atlas Computer Systems Limited (Atlas) for any client (Client) pursuant to an Atlas Statement of Work (SoW). These Terms and Conditions together with the applicable SoW constitute the whole and complete agreement by and between Atlas and Client with respect to the subject matter thereof (Agreement) and shall come into effect on the earlier of (i) both Client and Atlas signing the SoW or (ii) the commencement of the provision of the Professional Services by Atlas to the Client.

1. Services: Atlas shall use reasonable endeavours to provide the services described in each SoW (Professional Services), either directly or through a subcontractor. Client shall provide Atlas in a timely manner, at no charge to Atlas, with:

(i) reasonable assistance and cooperation, and

(ii) all applicable software, equipment, documentation, content and other materials; necessary for the purpose of enabling Atlas to perform such services. The Client’s obligations set forth herein, including but not limited to all payment obligations, are independent of any obligations, including payment obligations that arise from other agreements between Atlas and Client.

2. Licence Grant and Restrictions: Atlas grants Client a limited, personal, non-exclusive, non-transferable perpetual (subject only to the provisions of clause 3 and 4) licence to install and use the Deliverables for its own internal business purposes. Except as expressly permitted by Atlas in writing or expressly permitted by mandatory provisions of applicable law, Client shall not:

(i) cause or permit any reverse engineering, decompilation, modification, translation or disassembly of the Deliverables;

(ii) sell, rent, sublicense, distribute, assign or otherwise transfer any rights in the Deliverables to any third party;

(iii) disclose results of any benchmark tests of any Deliverables to any third party; or

(iv) use the Deliverables for any website, internet or online service accessible by third parties, or as part of a bureau service or otherwise on behalf of a third party (unless this is a specific agreed feature of the Deliverable as set out in the SoW). Client shall not access or use any unexposed API (Application Programmer’s Interface) or other development tool or capability of the Deliverables which is not directly accessible. Atlas owns all right in and to all software, technology, information, data, documents, and other work product developed in connection with the Professional Services and provided by Atlas (Deliverables). Atlas reserves all rights not expressly granted herein to Client. In all circumstances, all software, technology, information, data, documents, and other work product owned by Atlas prior to the commencement of the SoW shall remain the sole property of Atlas.

3. Consideration: Client shall pay to Atlas the fees specified in, and in accordance with, the applicable SoW (the Fees). If any Fees payment is overdue, Atlas shall be entitled, without limiting its other remedies under this Agreement or otherwise, to suspend providing the Professional Services until such payment is made in full. Where a Fees payment is overdue Atlas shall be entitled, without limiting its other remedies under this Agreement or otherwise, to request the return of all Deliverables and the Client shall if so requested by Atlas forthwith return all Deliverables to Atlas and cease use of such Deliverables. Atlas may increase the Fee if:

(i) the content of the Professional Services increases beyond what is agreed to in the applicable SoW;

(ii) Client requires any change to the nature or scope of the Professional Services or any additional work not referred to in the SoW; or

(iii) any agreed timetable in which the Professional Services are to be performed is amended; the revised Fee being calculated on a time and materials basis at Atlas’ then standard time and materials rate for the additional Professional Services provided.

4. Termination: This Agreement shall come into force as provided above and (unless terminated early in accordance with this Clause 4 or any other term of this Agreement) shall continue in force until the Professional Services are completed. Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this Agreement without liability to the other if:

(i) the other party commits a material breach of this Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or

(ii) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding up order of the other party; or

(iii) an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or

(iv) a receiver is appointed of any of the other party’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets; or

(v) the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way, or becomes bankrupt; or (vi) the other party ceases, or threatens to cease, to trade; or

(vii) the other party takes or suffers any similar or analogous action to any of the foregoing in any jurisdiction in consequence of debt. Save as expressly provided in this Clause 4 or elsewhere in this Agreement, neither party may terminate this Agreement without the prior written consent of the other. Upon termination of this Agreement by Atlas pursuant to Clause 4(i) to (vii) (inclusive) above (i.e due to Client’s breach or insolvency) all rights granted to Client hereunder shall cease and Client shall immediately remove from its systems and destroy all copies of the Deliverables or any part thereof in its possession power or control.  Save as expressly provided in this Agreement, termination or expiry of this Agreement, however arising, shall not affect or prejudice the accrued rights of the parties as at termination or expiry, or the continuation of any provision expressly stated to survive, or implicitly surviving termination or expiry of this Agreement.

5. Acceptance: Unless otherwise stated in the SoW (a) completion of a Deliverable (Completion) shall be deemed to be upon Atlas notifying the Client that the Deliverable is completed and (b) Client shall be deemed to have accepted the Deliverable  (Acceptance) if it has not notified Atlas of any material defect or fault in the Deliverable within 7 days following Completion, or (if earlier) it puts the Deliverable into operational use. For the avoidance of doubt, an Atlas invoice for the SoW or Deliverable shall be deemed to be notification that the Deliverable or SoW is completed.

6. Independent Contractor: Nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties. The relationship between the parties shall be that of independent contractors. Neither party has the right to assume or create any obligation or responsibility on behalf of the other. Atlas may prepare a press release related to this Agreement which, subject to Client approval not to be unreasonably withheld or delayed, may include an appropriate quote from Client designated senior executive.

7. Warranty: Atlas warrants that it will perform the Professional Services using reasonable skill and care. EXCEPT FOR THE FOREGOING EXPRESS WARRANTY SET FORTH IN THIS CLAUSE, ATLAS MAKES NO OTHER WARRANTIES UNDER THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, ANY SoW), AND ALL WARRANTIES AND CONDITIONS AND OTHER TERMS WHICH MAY BE IMPLIED BY STATUTE OR COMMON LAW, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY NON-INFRINGEMENT AND QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW.

8. Confidentiality: The parties have imparted and may from time to time impart to each other certain Confidential Information (as defined below) and the parties may otherwise obtain Confidential Information concerning the business and affairs of the other pursuant to this Agreement, including information marked or identified by the disclosing party as confidential or information which may be reasonably regarded as the Confidential Information of the disclosing party. Each party agrees that it will use such Confidential Information solely for the purposes of this Agreement, and that it shall be held in confidence by the receiving party to the same extent and in at least the same manner as such party protects its own confidential or proprietary information. Each party shall not disclose, publish, release, transfer or otherwise make available such Confidential Information, whether directly or indirectly to any third party without the disclosing party’s consent. For the purposes of this Agreement, “Confidential Information” shall mean all information and documentation of a party, whether disclosed to or accessed by the other party in connection with this Agreement, which the receiving party knows or should know is confidential or proprietary, including without limitation:

(a) all information of a party that is not permitted to be disclosed to third parties under local laws or regulations;

(b) information relating to a party’s customers, employees, technology, operations, facilities, consumer markets, products, capacities, systems, procedures, security practices, research, development, business affairs and finances, ideas, concepts, innovations, inventions, designs, business methodologies, improvements, trade secrets, copyrightable subject matter, patents and other intellectual property and proprietary information;

(c) the terms of this Agreement; and

(d) any information developed by a party by reference to the other party’s information. Except to the extent that any applicable law provides otherwise, Confidential Information shall not include information that:

(i) is independently developed by the receiving party without violating the disclosing party’s proprietary rights or using or accessing any Confidential Information, as shown by the receiving party’s written records;

(ii) is or becomes publicly known (other than through unauthorised disclosure);

(iii) is disclosed by a third party free of any obligation of confidentiality to a party;

(iv) is already known by the receiving party (free from any obligations of confidentiality owned to the disclosing party) at the time of its disclosure to the receiving party by the disclosing party, as shown by the receiving party’s written records; or

(v) must be disclosed by the disclosing party in the discharge of its obligations to supply information for parliamentary, governmental, or judicial purpose provided that the disclosing party will inform the other as soon as practicable of any such obligation to disclose. This provision shall survive the expiry or prior termination of this Agreement howsoever arising.

9. Limitation of Liability: ATLAS SHALL NOT IN ANY CIRCUMSTANCES BE LIABLE WHETHER IN TORT (INCLUDING WITHOUT LIMITATION FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY HOWESOEVER ARISING), CONTRACT, MISREPRESENTATION (WHETHER INNOCENT OR NEGLIGENT) OR OTHERWISE FOR (i) LOSS OF PROFITS; OR (ii) LOSS OF BUSINESS; OR (iii) DEPLETION OF GOODWILL OR SIMILAR LOSSES; OR (iv) LOSS OF ANTICIPATED SAVINGS; OR (v) LOSS OF GOODS; OR (vi) LOSS OF CONTRACT; OR (vii) LOSS OF USE; OR (viii) LOSS OR CORRUPTION OF DATA OR INFORMATION; OR (ix) ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR PURE ECONOMIC LOSS, COSTS, DAMAGES, CHARGES OR EXPENSES;  (IN EACH CASE) EVEN IF IT IS REASONABLY FORESEEABLE THAT SUCH LOSSES OR DAMAGES MAY ARISE, OR ATLAS IS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES ARISING. IN NO EVENT SHALL ATLAS’ AGGREGATE LIABILITY UNDER ANY AND ALL CLAIMS ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE OR BREACH OF STATUTORY DUTY HOWSOEVER ARISING), MISREPRESENTATION (WHETHER INNOCENT OR NEGLIGENT), RESTITUTION OR ANY OTHER THEORY, EXCEED THE SERVICES FEES PAID BY CLIENT TO ATLAS UNDER THE APPLICABLE SoW. In no circumstances shall Atlas be liable for any failure of the Deliverables to perform in accordance with the documentation, or at all, resulting from a failure by the Client to comply with the minimum requirements or from: (a) modifications or alterations to the Deliverables or the supporting data or systems made by the Client; (b) use of the Deliverables by the Client other than as contemplated herein; (c) Deliverables, products or services not provided by Atlas; (d) the negligence or wilful misconduct of Client; (e) the Client’s implementation and installation of the Deliverables other than in accordance with instructions furnished by Atlas; or (f) electrical malfunction. Atlas shall have no liability to the Client under this agreement, or otherwise, by reason of content supplied by the Client, content owners, end users or other third parties.  Additionally, Client acknowledges that whilst the Deliverables may be used in combination with third party software, Atlas bears no liability, howsoever arising, for any loss, damage or cost that arises from a failure of the products to integrate with Client or third-party software not supplied by Atlas under this Agreement.  Nothing in this Clause 9, or this Agreement generally, shall exclude or limit the liability of Atlas for death or personal injury caused by Atlas’ negligence, or for fraud or fraudulent misrepresentation. Any intention to claim must be notified to Atlas within 6 months of Acceptance date.

10. Personnel: Client shall not, without the prior written consent of Atlas, at any time during the continuance of this Agreement and for a  period of nine (9) months following termination or expiry of this Agreement, either directly or indirectly, solicit or entice away from Atlas, or employ or attempt to employ, or engage as a contractor or attempt to engage as a contractor, any person who is, or has been, engaged as an officer, employee or sub-contractor of Atlas and who has been involved in the Professional Services provided under this Agreement.

11. Third Party Software and Materials: Notwithstanding Clause 2 above and any other term of this Agreement, the Client acknowledges that the Services may involve the supply of proprietary software and materials belonging to third parties and/or open-source software and materials (collectively Third Party Software) and that the copyright and intellectual property rights in such Third Party Software will belong to the relevant third party software supplier(s). The Client also acknowledges and agrees that Third Party Software may be subject to separate licence terms and terms and conditions (Third Party Licence Terms).  Accordingly, (i) the Client shall, if reasonably requested to do so by Atlas, enter into any third party licence agreements which Atlas is required by any relevant licensor of any Third Party Software to require its clients to enter into; and (ii) the Client agrees to comply with any applicable Third Party Licence Terms relating to any Third Party Software, including but not limited to any Third Party Licence Terms which are referred to in the applicable SOW.  In the event and to the extent only of any conflict or inconsistency between any applicable Third-Party Licence Terms and the provisions of this Agreement the relevant Third-Party Licence Terms shall take precedence. In particular (but without limitation) any open-source software provided by Atlas may be used according to the terms and conditions of the specific licence under which it is distributed but is provided “as is” and expressly subject to the warranty disclaimer in Clause 7.

12. Miscellaneous: (i) Except as may be amended by a mutually executed amendment, these Terms and Conditions and the applicable SoW are the complete and exclusive statement of the mutual understanding of the parties and supersede any other agreement or pre-printed terms and conditions that may appear on any purchase order relating to the terms hereof and no offer to supply the Services in a SoW shall be deemed to have been made on terms other than as set out herein; (ii) neither the rights nor the obligations arising under this Agreement are assignable or transferable by Client, and any such attempted assignment or transfer shall be void and without effect; (iii) the waiver by either party of a breach of the Agreement or any right hereunder shall not constitute a waiver of any subsequent breach of the Agreement; nor shall any delay by either party to exercise any right under this Agreement operate as a waiver of any such right; (iv) any notice, report, approval or consent required or permitted hereunder shall be in writing and shall be deemed to have been effectively given: (a) immediately upon personal delivery or facsimile transmission (receipt confirmed and with a confirmation copy sent by post) to the parties to be notified, (b) one day after deposit with a commercial overnight courier with tracking capabilities, or (c) on the fifth day following posting, if posted by international first class or recorded post postage pre-paid, in each case addressed at such address as set forth in the SoW; (v) if any provision of the Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that the Agreement shall otherwise remain in full force and effect and be enforceable; (vi) the parties agree that a material breach of the Agreement adversely affecting Atlas’ proprietary rights in the Deliverables would cause irreparable injury to Atlas for which monetary damages would not be an adequate remedy and that Atlas shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law; (vii) the parties do not intend any term of this Agreement to be enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999; (viii) both parties will comply with their obligations under the Data Protection Act 1998; (ix) Atlas may use Client’s name and logo on its website and in marketing materials. Atlas may put together a press release for Client’s approval, such approval not to be unreasonably withheld; (x) this Agreement shall be governed and construed in accordance with English law and the parties submit to the exclusive jurisdiction of the English courts.

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