Terms and Conditions for the Provision of Services

(“These Terms and Conditions”)
Defined terms used herein shall have the meanings given to them in condition 18.
1. Application of Terms and Conditions
1.1 The Supplier shall supply the Services and/or Deliverables in accordance only with these Terms and Conditions. 1.2 For the avoidance of doubt, these Terms and Conditions shall: (i) apply to and be incorporated into the Contract between the parties; and (ii) prevail over any inconsistent terms or conditions contained, or referred to, in the Customer’s purchase order, confirmation of order, acceptance of a quotation, or specification or other document supplied or statement made by the Customer, or implied by law, trade custom, practice or course of dealing. 1.3 Any quotation is valid for a period of 30 days only from its date, provided that the Supplier has not previously withdrawn it.
2. Commencement and Duration
2.1 The Services and/or Deliverables supplied under the Contract shall be provided by the Supplier to the Customer from the date specified in Appendix 1.  2.2 Subject to condition 9, the Services and/or Deliverables supplied under the Contract shall continue to be supplied for the period set out in Appendix 1 and, after that, shall continue to be supplied unless the Contract is terminated by one of the parties giving to the other not less than 6 months’ notice or otherwise terminated in accordance with these Terms and Conditions.
3. Supplier’s Obligations
3.1 The Supplier shall use reasonable endeavours to provide the Services and/or the Deliverables to the Customer.  3.2 The Supplier shall use reasonable endeavours to meet any performance dates specified in Appendix 1 but any such dates shall be estimates only and time shall not be of the essence for performance of the Services or the supply of the Deliverables.
4. Customer’s Obligations
4.1 The Customer shall co-operate with the Supplier in all matters relating to the provision by the Supplier of the Services and/or the Deliverables.  4.2  If the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, the Supplier shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay. 4.3 The Customer shall be liable to pay to the Supplier, on demand, all reasonable costs, charges or losses sustained or incurred by the Supplier (including, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those losses arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Customer’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to the Supplier confirming such costs, charges and losses to the Customer in writing.
5. Charges and Payment
5.1 In consideration of the provision of the Services and/or the Deliverables by the Supplier, the Customer shall pay the charges as set out in Appendix 1. In respect of the Services Appendix 1 shall specify whether the Services provided shall be on a time and materials basis, a fixed price basis or a combination of both. Condition 5.2 shall apply if the Supplier provides Services on a time and materials basis. Condition 5.3 shall apply if the Supplier provides Services for a fixed price. The remainder of this Condition 5 shall apply in either case. 5.2 Where Services are provided on a time and materials basis:
5.2.1 the charges payable for the Services shall be calculated in accordance with the Supplier’s standard daily fee rates, as set out in the Supplier’s quotation or acknowledgement of order Appendix 1 and as amended from time to time; 5.2.2 the Supplier’s standard daily free rates for each individual person are calculated on the basis of an eighthour day, worked between 8.00 am and 5.00 pm on weekdays (excluding public holidays); 5.2.3 all charges quoted to the Customer shall be exclusive of VAT, which the Supplier shall add to its invoices at the appropriate rate; and 5.2.4 the Supplier shall invoice the Customer monthly in arrears for its charges for time, expenses and materials (together with VAT where appropriate) for the month concerned, calculated as provided in this condition 5.2.
5.3 Where Services and/or Deliverables are provided for a fixed price, the total price for the Services and/or Deliverables shall be the amount set out in Appendix 1. The total price shall be paid to the Supplier (without deduction or set-off). At the end of the period or each relevant period as specified in Appendix 1, the Supplier shall invoice the Customer for the charges that are then payable, together with expenses, the costs of materials and VAT, where appropriate. 5.4 Any fixed price contained in Appendix 1 excludes VAT, which the Supplier shall add to its invoices at the appropriate rate. 5.5 The parties agree that the Supplier may review and increase its standard daily fee rates and/or the charges set out in Appendix 1 in respect of the Deliverables and/or Services, provided that such charges cannot be increased more than once in any 12 month period. The Supplier will give the Customer written notice of any such increase 3 months before the proposed date of the increase.  5.6 The Customer shall pay each invoice submitted to it by the Supplier, in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise and in cleared funds, within 30 days of receipt to a bank account nominated in writing by the Supplier. 5.7 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier on the due date, the Supplier may:
5.7.1 charge interest on such sum from the due date for payment at the annual rate of 2% above the base lending rate from time to time of Barclays Bank PLC, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Customer shall pay the interest immediately on demand. Alternatively, the Supplier may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and 5.7.2 suspend all Services until payment has been made in full.
5.8 Time for payment shall be of the essence of the Contract. 5.9 All sums payable to the Supplier under the Contract shall become due immediately on its termination, despite any other provision. This condition 5.9 is without prejudice to any right to claim for interest under the law, or any such right under the Contract. 5.10 The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.
6. Intellectual Property Rights
6.1 As between the Customer and the Supplier, all Intellectual Property Rights and all other rights in the Supplier’s Materials shall be owned by the Supplier. Subject to condition 6.2, the Supplier licenses all such rights to the Customer free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Supplier’s Materials and the Services. If the Contract terminates, this licence shall automatically terminate.  6.2 The Customer acknowledges that, where the Supplier does not own any Supplier’s Materials, the Customer’s use of rights in the Supplier’s Materials is conditional on the Supplier obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle the Supplier to license such rights to the Customer.
7. Confidentiality and the Supplier’s Property
7.1 The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by the Supplier, its employees, agents, consultants or subcontractors and any other confidential information concerning the Supplier’s business or its products which the Customer may obtain. 7.2 The Customer may disclose such information:
7.2.1 to its employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out the Customer’s obligations under the Contract; and  7.2.2 as may be required by law, court order or any governmental or regulatory authority.
7.3 The Customer shall ensure that its employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such information comply with this condition 7. 7.4 The Customer shall not use any such information for any purpose other than to perform its obligations under the Contract.
8. Limitation of Liability – The Customer’s attention is particularly drawn to this Condition
8.1 This condition 8 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the Customer in respect of: (i) any breach of the Contract and/or these Terms and Conditions; (ii) any use made by the Customer of the Services and/or the Supplier’s Materials (or any part of them) and/or the Deliverables (or any part of them); (iii) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract. 8.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract. 8.3 Nothing in these Terms and Conditions limits or excludes the liability of the Supplier: (i) for death or personal injury resulting from negligence; (ii) for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by the Supplier; or (iii) for any liability incurred by the Customer as a result of any breach by the Supplier of the condition as to title or the warranty as to quiet possession implied by section 2 of the Supply of Goods and Services Act 1982. 8.4 Subject to condition 8.3 the Supplier shall not be liable for loss of profits, loss of business, depletion of goodwill and/or similar losses, loss of anticipated savings, loss of Deliverables, loss of contract, loss of use, loss of or corruption of data or information, any special, indirect, consequential or pure economic loss, cost, damage, charge or expense.  8.5 The Supplier’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the Contract shall be limited to #500,000.
9. Termination
9.1 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other on giving the other not less than 6 months written notice or immediately on giving notice to the other if:
9.1.1 the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment; or 9.1.2 the other party commits a material breach of any of the terms of the Contract 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 9.1.3 the other party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract; or 9.1.4 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; or 9.1.5 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or
9.1.6 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; 9.1.7 an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party; or 9.1.8 a floating charge holder over the assets of that other party has become entitled to appoint or has appointed an administrative receiver; or 9.1.9 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; or 9.1.10 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or 9.1.11 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 9.1.4 to condition 9.1.10 (inclusive); or 9.1.12  the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or 9.1.13 there is a change of control of the other party (as defined in section 574 of the Capital Allowances Act 2001).
9.2 The parties acknowledge and agree that any breach of conditions 5, 6, or 7 shall constitute a material breach for the purposes of this condition 9. 9.3 On termination of the Contract for any reason:
9.3.1 the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services and/or Deliverables supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt; 9.3.2 the Customer shall return all of the Supplier’s Equipment and Supplier’s Materials. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned or repossessed, the Customer shall be solely responsible for their safe keeping; and  9.3.3 the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
9.4 On termination of the Contract (however arising), the following conditions shall survive and continue in full force and effect: (i) condition 6; (ii) condition 7; (iii) condition 8; (iv) condition 9; (v) condition 16.1; and (vi) condition 18.
10. Force Majeure
10.1 The Supplier shall have no liability to the Customer under the Contract if it is prevented from, or delayed in performing, its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including but not limited to any of the following:
10.1.1 Acts of God, including but not limited to fire, flood, earthquake, windstorm or other natural disaster; extreme adverse weather conditions; explosion or accidental damage; loss at sea; collapse of building structures, failure of machinery, computers or vehicles; 10.1.2 war, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions; terrorist attack, civil war, civil commotion or riots; pandemic; declaration of a state of emergency; nuclear, chemical or biological contamination or sonic boom or the threat of or preparation for any such events or acts; or 10.1.3 voluntary or mandatory compliance with any law (including any change in the law or interpretation of the law); any labour dispute, including but not limited to strikes, industrial action or lockouts; non-performance by suppliers or subcontractors; and interruption or failure of a utility service, including but not limited to electric power, gas or water.
11. Variation
11.1 No variation of the Contract or these Terms and Conditions or of any of the documents referred to in them shall be valid unless it is in writing and signed by or on behalf of each of the parties.
12. Waiver
12.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy. 12.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
13. Entire Agreement
13.1 The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter. 13.2 Each party acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than for breach of contract.  13.3 Nothing in this condition shall limit or exclude any liability for fraud.
14. No Partnership or Agency
Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
15. Rights of Third Parties
15.1 The Contracts (Rights of Third Parties) Act 1999 shall not apply to these Terms and Conditions or the Contract and no person other than the Supplier and the Customer shall have any rights under the Contract.
16. Notices
16.1 Any notice given under these Terms and Conditions shall be in writing and signed by or on behalf of the party giving it and shall be served by delivering it personally, or sending it by pre-paid recorded delivery or registered post to the relevant party at its registered office for the time being or by sending it by fax to the fax number notified by the relevant party to the other party. Any such notice shall be deemed to have been received:
16.1.1 if delivered personally, at the time of delivery; 16.1.2 in the case of pre-paid recorded delivery or registered post sent to another country within the same continent, 48 hours from the date of posting; 16.1.3 in the case of pre-paid recorded delivery or registered post sent to another country in a different continent, 7 days from the date of posting; 16.1.4 in the case of fax, at the time of transmission.
17. Governing Law And Jurisdiction
17.1 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, the law of England and Wales. 17.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the Contract or its subject matter or formation (including non-contractual disputes or claims).
18. Interpretation
18.1 In these Terms and Conditions the following definitions and rules of interpretation apply (unless the context requires otherwise): Contract: the contract between the Customer and the Supplier which shall comprise these Terms and Conditions and Appendix 1. Customer: the person, firm or company who or which purchases Services from the Supplier. Deliverables: the deliverables to be supplied by the Supplier to the Customer as part of or as a result of the Services, further detail of which is set out in Appendix 1. Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.  Services: the services to be provided by the Supplier under the Contract as set out in Appendix 1, together with any other services which the Supplier provides, or agrees to provide, to the Customer. Supplier: DLRS (NI) Limited, registered number 19111, Lissue Industrial Estate East, Lissue Road, Lisburn, Co. Antrim, BT28 2RB. Supplier’s Equipment: any equipment, including tools, systems, cabling or facilities, provided by the Supplier or its subcontractors and used directly or indirectly in the supply of the Services which are not the subject of a separate agreement between the parties under which title passes to the Customer. Supplier’s Materials : all documents, products and materials developed by the Supplier or its agents, subcontractors, consultants and employees in relation to the Services in any form, including computer programs, data, reports and specifications (including drafts) and all documents, information and materials provided by the Supplier relating to the Services which existed prior to the commencement of the Contract and including the Deliverables. VAT: value added tax chargeable under English law for the time being and any similar additional tax. 18.2 The headings in these Terms and Terms and Conditions are inserted for convenience only and shall not affect its construction. 18.3 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it. Where the context permits it, words in the singular include the plural and words in the plural include the singular.

6326336.08 24/08/2009