1. STRUCTURE
1.1 These Support Terms should be read in conjunction with the Agreement with Experian and sets out the provisions relating to Software Services, where the Client is entitled to receive these under the terms of its Agreement. References to Schedules and Appendices are references to Schedules and Appendices of the Agreement.f
2. PROVISION OF SERVICES
2.1 Subject to the Client’s compliance with the terms of the Agreement, Experian shall provide the Software Services in accordance with the terms of this Agreement with effect from the date of delivery of the relevant Experian Software to the Client.
2.2 The Software Services shall not include any of the Excluded Services, except where Experian decides, at its sole discretion, to perform them on a chargeable basis. The Excluded Services are
2.2.1 remedying problems which result from the Client’s breach of the terms of this Agreement,
2.2.2 remedying problems which arise as a result of the improper use, improper operation, unauthorised modification or neglect of the Software, the Third Party Utility Software or the hardware not supplied by Experian;
2.2.3 remedying problems which arise as a result of the use of any part of the Software with an operating environment other than the Designated Operating Environment;
2.2.4 remedying problems which arise as a result of the use of the Software in conjunction with hardware other than the hardware approved by Experian;
2.2.5 remedying problems with or providing any repairs, modifications, information or technical advice relating to any hardware or software that is not part of the Software (including the Third Party Utility Software and hardware sourced by the Client) or a failure of the Client’s infrastructure;
2.2.6 remedying problems which arise as a result of the failure of the Client to follow the instructions or advice contained in the Documentation or failure of the Client to follow Experian’s reasonable instructions or advice (whether or not contained in the Documentation);
2.2.7 providing any Software Services other than during the Supported Hours and at a Supported Location applicable to such Services;
2.2.8 providing any services which reasonably fall within the scope of the Professional Services usually provided by Experian to its customers for an additional fee;
2.3 Experian may request that the Client performs diagnostic tests, and the Client shall not unreasonably refuse to do so. Where the Client unreasonably fails to comply with Experian’s requests, Experian shall be entitled to charge for any further Software Services.
2.4 Where Experian deems remote diagnostics necessary to enable it to provide any Software Services, the Client will be responsible for the provision and cost of a telecommunication link and appropriate hardware and software at the Supported Location, as specified by Experian. The cost of using such link, when initiated by the Client, is not refundable.
2.5 Software Services will be provided during the relevant Supported Hours and remotely for the benefit of the Supported Locations unless Experian consider that on site support is necessary in which case it will be provided at the relevant Supported Locations.
2.6 Experian may provide the Client with instructions and advice in relation to the use of the Experian Software, (including instructions included in the Documentation) and Software Services do not include remedying problems which arise as a result of the Client’s failure to follow such instructions or advice.
3. SOFTWARE SERVICES
3.1 Subject to any specific requirements of the Schedules, Software Services will comprise:
3.1.1 information and technical advice relating to the Software and Documentation to be given by telephone or e-mail via the help desk within a reasonable period of any request for such information or advice;
3.1.2 the provision of modified and new versions of the Software and Documentation (when Experian makes these generally commercially available) which do not provide additional functionality. The Client acknowledges that functionality added to new versions of the Software may, however, be provided as additional, licensable options and may therefore require additional payment;
3.1.3 the provision of updates to the Database Table Files within the Software including changes to data and, where appropriate, validation algorithms;
3.1.4 error correction services where the Software fails to materially comply with the Documentation. In such circumstances, the Client shall notify Experian of the defect or error and provide Experian (in so far as possible) with a documented example of it. Experian shall then use its reasonable endeavours to correct such defect or error. Error correction services shall be provided by such means as Experian considers appropriate; and
3.1.5 additional support services (whether by means of the Online Update Facility, the Experian Website or otherwise) at the discretion of Experian from time to time.
3.2 Subject to clause 3.3 of these Support Terms and any alternative terms contained in the Schedule or the Appendix relating to the relevant Software and Documentation, the following additional terms shall apply to the provision of modified and new versions of the Software and Documentation and updates to the Database Table Files under clauses 3.1.2 and 3.1.3 of these Support Terms:
3.2.1 versions of the Software shall be supplied to the Client by means of files for the Client to download from the Experian Website or the Online Update Facility or any alternative method agreed by the parties;
3.2.2 versions of the Documentation shall be supplied to the Client by means of files for the Client to download from the Experian Website or the Online Update Facility or any alternative method agreed by the parties;
3.2.3 updates to the Database Table Files shall be supplied to the Client by means of files for the Client to download from the Online Update Facility or any alternative method agreed by the parties; and
3.2.4 updates to Database Table Files available from the Online Update Facility will be made available not less than once every 12 days and not less than 50 times in any calendar year.
3.3 From time to time during the term of this Agreement Experian may, at its sole discretion, make any of the following available the Client via the Online Update Facility or the Experian Website:
3.3.1 Licence Keys;
3.3.2 updates to the Software and Documentation pursuant to clause 3.1.2 above; and
3.3.3 any of the Third Party Utility Software (including updates to and new versions of such software).
3.4 At any time during the term of this Agreement, Experian may require that the Client accesses the Online Update Facility or the Experian Website to obtain a revised version of any part of the Software and Documentation and that the Client then ceases to use, return and/or delete the previous version of such Software and Documentation within such timescale as Experian may reasonably specify in the circumstances.
AND THE CLIENT’S PARTICULAR ATTENTION IS DRAWN TO CLAUSE 3.4
3.5 The Client agrees that its use of any material made available under this clause 3 (including Database Table Files, Software, Documentation and Licence Keys) shall be subject to the terms of this Agreement and any additional terms that Experian may specify when such material is made available.
1. STRUCTURE
1.1 These Support Terms should be read in conjunction with the Agreement with Experian and sets out the provisions relating to Software Services and Hardware Services, where the Client is entitled to receive these under the terms of its Agreement. References to Schedules and Appendices are references to Schedules and Appendices of the Agreement.
2. PROVISION OF SERVICES
2.1 Subject to the Client’s compliance with the terms of the Agreement, Experian shall provide the Software Services and Hardware Services in accordance with the terms of this Agreement with effect from the date of delivery of the relevant Experian Software or Supported Hardware to the Client.
2.2 The Software Services and Hardware Services shall not include any of the Excluded Services, except where Experian decides, at its sole discretion, to perform them on a chargeable basis. The Excluded Services are
2.2.1 remedying problems which result from the Client’s breach of the terms of this Agreement,
2.2.2 remedying problems which arise as a result of the improper use, improper operation, unauthorised modification or neglect of the Software, Hardware, the Third Party Utility Software or the hardware not supplied by Experian;
2.2.3 remedying problems which arise as a result of the use of any part of the Software or Hardware with an operating environment other than the Designated Operating Environment;
2.2.4 remedying problems which arise as a result of the use of the Software or Hardware in conjunction with hardware other than the hardware approved by Experian;
2.2.5 remedying problems with or providing any repairs, modifications, information or technical advice relating to any hardware or software that is not part of the Software or Hardware (including the Third Party Utility Software and hardware sourced by the Client) or a failure of the Client’s infrastructure;
2.2.6 remedying problems which arise as a result of the failure of the Client to follow the instructions or advice contained in the Documentation or failure of the Client to follow Experian’s reasonable instructions or advice (whether or not contained in the Documentation);
2.2.7 providing any Software Services or Hardware Services other than during the Supported Hours and at a Supported Location applicable to such Services;
2.2.8 providing any services which reasonably fall within the scope of the Professional Services usually provided by Experian to its customers for an additional fee;
2.3 Experian may request that the Client performs diagnostic tests, and the Client shall not unreasonably refuse to do so. Where the Client unreasonably fails to comply with Experian’s requests, Experian shall be entitled to charge for any further Software Services or Hardware Services.
2.4 Where Experian deems remote diagnostics necessary to enable it to provide any Software Services or any Hardware Services, the Client will be responsible for the provision and cost of a telecommunication link and appropriate hardware and software at the Supported Location, as specified by Experian. The cost of using such link, when initiated by the Client, is not refundable.
2.5 Software Services and Hardware Services will be provided during the relevant Supported Hours and remotely for the benefit of the Supported Locations unless Experian consider that on site support is necessary in which case it will be provided at the relevant Supported Locations.
2.6 Experian may provide the Client with instructions and advice in relation to the use of the Software and Supported Hardware, (including instructions included in the Documentation) and Software Services and Hardware Services do not include remedying problems which arise as a result of the Client’s failure to follow such instructions or advice.
3. SOFTWARE SERVICES
3.1 Subject to any specific requirements of the Schedules, Software Services will comprise:
3.1.1 information and technical advice relating to the Software and Documentation to be given by telephone or e-mail via the help desk within a reasonable period of any request for such information or advice;
3.1.2 the provision of modified and new versions of the Software and Documentation (when Experian makes these generally commercially available) which do not provide additional functionality. The Client acknowledges that functionality added to new versions of the Software may, however, be provided as additional, licensable options and may therefore require additional payment;
3.1.3 the provision of updates to the Database Table Files within the Software including changes to data and, where appropriate, validation algorithms;
3.1.4 error correction services where the Software fails to materially comply with the Documentation. In such circumstances, the Client shall notify Experian of the defect or error and provide Experian (in so far as possible) with a documented example of it. Experian shall then use its reasonable endeavours to correct such defect or error. Error correction services shall be provided by such means as Experian considers appropriate; and
3.1.5 additional support services (whether by means of the Online Update Facility, the Experian Website or otherwise) at the discretion of Experian from time to time.
3.2 Subject to clause 3.3 of these Support Terms and any alternative terms contained in the Schedule or the Appendix relating to the relevant Software and Documentation, the following additional terms shall apply to the provision of modified and new versions of the Software and Documentation and updates to the Database Table Files under clauses 3.1.2 and 3.1.3 of these Support Terms:
3.2.1 versions of the Software shall be supplied to the Client by means of files for the Client to download from the Experian Website or the Online Update Facility or any alternative method agreed by the parties;
3.2.2 versions of the Documentation shall be supplied to the Client by means of files for the Client to download from the Experian Website or the Online Update Facility or any alternative method agreed by the parties;
3.2.3 updates to the Database Table Files shall be supplied to the Client by means of files for the Client to download from the Online Update Facility or any alternative method agreed by the parties; and
3.2.4 updates to Database Table Files available from the Online Update Facility will be made available not less than once every 12 days and not less than 50 times in any calendar year.
3.3 From time to time during the term of this Agreement Experian may, at its sole discretion, make any of the following available the Client via the Online Update Facility or the Experian Website:
3.3.1 Licence Keys;
3.3.2 updates to the Software and Documentation pursuant to clause 3.1.2 above; and
3.3.3 any of the Third Party Utility Software (including updates to and new versions of such software).
3.4 At any time during the term of this Agreement, Experian may require that the Client accesses the Online Update Facility or the Experian Website to obtain a revised version of any part of the Software and Documentation and that the Client then ceases to use, return and/or delete the previous version of such Software and Documentation within such timescale as Experian may reasonably specify in the circumstances.
AND THE CLIENT’S PARTICULAR ATTENTION IS DRAWN TO CLAUSE 3.43.5 The Client agrees that its use of any material made available under this clause 3 (including Database Table Files, Software, Documentation and Licence Keys) shall be subject to the terms of this Agreement and any additional terms that Experian may specify when such material is made available.
4. HARDWARE SERVICES
4.1 Subject to clauses 4.2 and 4.3, and any specific requirements of the Schedule or the Hardware Terms, Hardware Services will comprise:
4.1.1 information and technical advice relating to the Supported Hardware to be given by telephone or e-mail via the help desk within a reasonable period of any request for such information or advice;
4.1.2 repair services where any part of the Supported Hardware fails to perform in all material respects in accordance with the Documentation. Experian shall use its reasonable endeavours to repair (or arrange for the repair of) such defect and shall return the repaired item to the Client;
4.1.3 (in relation to any defective items falling under clause 4.1.2 that cannot be repaired on those terms) replacement of defective items of Supported Hardware with items providing the equivalent level of performance and functionality to those being replaced.
4.2 Due to the time required to repair certain parts of the Supported Hardware and the possible disruption that the removal of such hardware could cause to the Client’s business, the Client agrees that:
4.2.1 The Client shall be responsible for purchasing additional Supported Hardware for the Client to hold in stock for back-up use from the date that the Client begins use of such Hardware; and
4.2.2 The Client shall operate a hardware rotation system in order to minimise such disruption in accordance with clause 4.3 below and Experian’s reasonable requirements from time to time.
4.2.3 The Client shall be responsible for maintaining its stock levels and for monitoring the number of items of Supported Hardware held in stock against the number of items under repair and shall keep Experian informed of the relative levels upon request.
4.3 Experian recommends that, as a minimum from the relevant Agreement Commencement Date, the Client purchases the quantities of each item of Supported Hardware specified in the Schedule as being for “back-up” use (as shown in the Schedule) throughout the term of this Agreement. If any malfunction occurs in the Supported Hardware, the Client agrees to replace the defective item with an item from its stock for the duration of any repair or replacement services by Experian under clauses 4.1.2 or 4.1.3 above. If the Client does not follow the recommendations listed in the Schedule and is unable to replace a defective item in this way, Experian shall be entitled to take the following action:
4.3.1 when providing Hardware Services for the item in question, the Supported Hours shall be 0900 to 1700 hours (UK time), Monday to Friday, excluding English bank/public holidays; and
4.3.2 Experian may at its sole discretion decide whether to provide any interim solution to assist the Client and, if so, Experian shall be entitled to make a charge for such work on a time and materials basis at its standard rates for such services and raise an invoice for such charge.
4.3.3 Experian shall be entitled to revise its recommendations listed in the Agreement from time to time by giving at least 90 days’ notice to the Client.
4.4 Where clause 4.1.2 applies, the Client shall notify Experian in writing of the defect as soon as possible, immediately cease use of the defective item and provide Experian (in so far as possible) with a documented example of the defect. The Client shall then return the defective item to Experian within 7 calendar days of its notification, failing which, if Experian has made an item available to the Client that provides an equivalent level of performance to those being replaced without the defective item being returned, Experian shall be entitled to raise an invoice for a Charge equal to the full replacement value of such item for payment by the Client upon receipt.
4.5 If any defective items of Supported Hardware are replaced under clause 4.1.3 above, the replacement item shall become the Client’s property upon receipt by the Client and, at the same time, the replaced item shall become the property of Experian PROVIDED THAT if Experian has not yet received payment from the Client for the defective item being replaced, the replacement item shall not become the Client’s property until the requirements of the relevant Hardware Terms relating to title have been satisfied.
4.6 The terms of this Agreement shall apply to all replacements and renewals of any part of the Supported Hardware.
5. THE CLIENT’S ADDITIONAL OBLIGATIONS RELATING TO HARDWARE SERVICES
5.1 For the period that it remains Supported Hardware, the Client shall:
5.1.1 keep and operate the Supported Hardware in a proper and prudent manner in accordance with the Documentation and ensure that only competent trained employees (or persons under their supervision) are allowed to operate the Supported Hardware; [employ best practice in HSM device management and take care of smartcards/security credentials]
5.1.2 ensure that proper environmental conditions are maintained for the Supported Hardware and maintain in good condition the accommodation of the Supported Hardware, the cables and fittings associated with it and the electricity supply to it;
5.1.3 ensure that the external surfaces of the Supported Hardware are kept clean and in good condition as advised by the manufacturer in any documentation relating to the Supported Hardware or by Experian from time to time;save as set out above, not attempt to adjust, repair, modify, enhance or maintain the Supported Hardware without Experian’s prior written consent and shall not request, permit or authorise anyone other than Experian or its authorised sub-contractors to carry out any adjustments, repairs, modifications, enhancements or maintenance of the Supported Hardware; and
5.1.4 use with the Supported Hardware only such interoperable devices, operating supplies and media as recommended by the manufacturer in any documentation relating to the Supported Hardware or by Experian from time to time.
6. SHRINKWRAP SOFTWARE
6.1 The Client acknowledges that, in order for it to use certain parts of the Software it may be necessary to load Shrinkwrap Software onto its computer system beforehand. This software may be provided with the Software or made available from time to time by Experian whether by means of CD-ROMs, the Online Update Service, the Experian Website or otherwise. The use of the Shrinkwrap Software shall be subject to licence terms provided by the third party licensor of such Shrinkwrap Software.
6.2 The Client shall ensure that the use of the Software and Hardware in conjunction with the Shrinkwrap Software is at all times in accordance with the terms of this Agreement and the applicable licence terms.
6.3 Subject to clause 6.4, the Client acknowledges and agrees that it (and not Experian) shall be responsible for:
6.3.1 installing the Shrinkwrap Software;
6.3.2 updating, maintaining and supporting the Shrinkwrap Software;
6.3.3 removing the Shrinkwrap Software from its computer system and other equipment when necessary;
6.3.4 obtaining an appropriate licence to allow use of the Shrinkwrap Software and complying with the licence terms.
6.4 Unless stated in the Schedule to the contrary, Experian will not be responsible for any of the services listed in clause 6.3
6.5. Software Support for Management Information may require remote access. If the Client is unable to grant remote access, Experian will use reasonable endeavours to reproduce any issues on an internal database. If this does not resolve the issue, further support is available on site in accordance with the Professional Services terms.
INITIAL SERVICES TO BE PROVIDED TO THE CLIENT
The Initial Services as detailed within the Agreement shall be provided before the end of the Initial Term on days and times to be agreed between the Parties. Where the Client does not call the Initial Services off before such date or uses all the Initial Services purchased, the Client shall obtain any further Professional Services under the provisions relating to Additional Services.
ADDITIONAL SERVICES AVAILABLE TO THE CLIENT |
|
Service Description |
Charge Per Day |
Installation |
£1,195 |
Project Management |
£1,295 |
Consultancy |
£1,495 |
Training |
£1,295 |
1. If, during the term of this Agreement, the Client wishes Experian to provide any Additional Services (of the types listed above), the Client shall issue a purchase order to Experian giving the details reasonably required by Experian for such request, including details of the services to be provided.
2. Experian and the Client shall then agree in writing the delivery dates (“Delivery Dates”) and the delivery locations (“Delivery Locations”) for particular Additional Services. If not agreed, the Delivery Location shall be the Designated Site.
3. Subject to staff availability to provide the Additional Services, Experian shall provide the Additional Services to the Client in accordance with this Agreement.
4. The Charges set out above are valid until the end of the Initial Term. After that time, the price will be subject to change in accordance with [clause 3.6 of the Terms and Conditions]
5. Experian may advise the Client of changes to the list of available Additional Services and the applicable day rates for new Additional Services from time to time.
TERMS APPLICABLE TO PROFESSIONAL SERVICES
1. PROVISION OF PROFESSIONAL SERVICES
1.1 Experian shall provide the Professional Services in accordance with the terms of this Agreement at the relevant Delivery Location and on Delivery Dates agreed with the Client.
1.2 Unless otherwise agreed in writing, the Professional Services shall only be provided between 0900 hours and 1800 hours (UK time) on Working Days.
2. DRAW DOWN OF PROFESSIONAL SERVICES
2.1 Professional Services invoiced by Experian will be available for draw down by the Client at any time during the 12 months from the date of the relevant invoice and may be utilised on Delivery Dates to be agreed with Experian. Any Professional Services not drawn down by that date (other than due to delays caused by Experian) will expire and no refund will be due.
3. CANCELLATION AND CANCELLATION CHARGES
3.1 If the Client wishes to cancel any Professional Services for which a Delivery Date has been agreed, it shall give not less than 5 Working Days’ notice to Experian before the date upon which performance was due to start.
3.2 If the Client fails to give notice in accordance with paragraph 3.1, OR If Experian is unable to carry out the Professional Services due to the Client’s breach of this Agreement including any failure to provide personnel or resources reasonably required by Experian. Experian shall be entitled (without prejudice to Experian’s rights and remedies under this Agreement or at law) to recover liquidated damages equal to the Professional Services Charge that would have been payable if such Professional Services had not been cancelled.
3.3 The parties agree that such liquidated damages are a genuine pre-estimate of Experian’s likely loss in the event of cancellation of Professional Services without sufficient notice to allow redeployment of the Service Team and such charges do not constitute a penalty. Should Experian be able to mitigate its loss, Experian shall reduce the amount of the liquidated damages to such sum that it considers reasonable in the circumstances.
AND THE CLIENT’S PARTICULAR ATTENTION IS DRAWN TO PARAGRAPH 3
4. TERMINATION AND EFFECT OF TERMINATION
4.1 If the Professional Services (or any part of them) are terminated in accordance with the terms of this Agreement during provision of any Professional Services, Experian shall be entitled to receive payment of a reasonable share of the relevant Charges for such services that have already been provided where no pre-payment has been received by Experian. 1.1 Hardware to be supplied by Experian under these Terms shall be delivered (together with any associated Documentation) to its Delivery Location.
1.2 Risk in the Hardware and in the media containing any associated Documentation shall pass to the Client at the time of delivery to its Delivery Location.
1. DELIVERY AND RISK
1.1 Hardware to be supplied by Experian under these Terms shall be delivered (together with any associated Documentation) to its Delivery Location.
1.2 Risk in the Hardware and in the media containing any associated Documentation shall pass to the Client at the time of delivery to its Delivery Location.
2. ACCEPTANCE OF HARDWARE
2.1 The Client shall be deemed to accept an item of Hardware upon delivery.
2.2 If any part of the Hardware should malfunction or otherwise require maintenance after acceptance under this clause 2 then:
2.2.1 the Client acknowledges that it shall not be entitled to withhold payment of all or any part of the Charges which are due for payment pending any repair or replacement of defective items.
2.2.2 the warranties set out in clause 5 of these Terms shall apply.
3. OWNERSHIP OF HARDWARE
3.1 The legal and beneficial ownership of the Hardware shall not pass to the Client until Experian has received in full (in cleared funds) all the Charges that relate to such Hardware.
3.2 Except to the extent permitted by law, the Client shall not during the term of this Agreement change, remove or obscure any labels, plates, insignia, lettering or other markings which are on the Hardware at the time of delivery to its Delivery Location.
4. UTILITY SOFTWARE
4.1 The Client acknowledges that, in order for it to use certain parts of the Hardware or any equipment sourced by the Client for use with the Software, it may be necessary to load Third Party Utility Software onto its computer system beforehand. This software may be provided with the Hardware or Customer Equipment, sourced by the Client, or made available from time to time by Experian.
4.2 The Client shall ensure that the use of the Software in conjunction with the Third Party Utility Software is at all times in accordance with the terms of this Agreement.
4.3 The Client acknowledges and agrees that it (and not Experian) shall be responsible for:
4.3.1 installing, maintaining, updating and supporting the Third Party Utility Software, as well as removing it from the Client’s computer system and other equipment when necessary;
4.3.2 obtaining an appropriate licence to allow use of the Third Party Utility Software and complying with the licence terms. The Client therefore acknowledges that it may have the benefit of warranties under such licence and that Experian therefore gives no warranties in respect of the Third Party Utility Software.
5. ADDITIONAL WARRANTIES
5.1 Experian warrants that it has the right to supply the Hardware to the Client on the terms of this Agreement.
5.2 From the Delivery Date for a period of 12 months thereafter, upon receipt by Experian of the faulty item, Experian shall replace the defective item with hardware providing an equivalent level of performance and functionality to those being replaced, provided the Client keeps and operates the Supported Hardware in a proper and prudent manner in accordance with the Documentation and ensures that only competent trained employees (or persons under their supervision) are allowed to operate the Supported Hardware;
5.3 Experian reserves the right to test the Hardware to confirm the fault prior to agreeing to replace under this warranty.
5.4 Any unused portion of the warranty shall transfer to the replacement item.
5.5 Experian recommends that, as a minimum from the Agreement Commencement Date, the Client purchases the quantities of each item of Supported Hardware specified in the Hardware section of the Schedule as being for “back-up” use and maintain the “Recommended Ratio” (as shown in the Hardware section of the Schedule) of items in primary use to items for back-up use throughout the term of this Agreement. If any malfunction occurs in the Supported Hardware, the Client agrees to replace the defective item with an item from its stock for the duration of any warranty services to be carried out by Experian under these Hardware Terms.
5.6 For the purposes of this Agreement, the Hardware is ‘Supported Hardware’, the support being the warranty provisions contained in these Hardware Terms.
AND THE CLIENT’S PARTICULAR ATTENTION IS DRAWN TO CLAUSE 5.2
1. DELIVERY AND RISK
1.1 Hardware to be supplied by Experian under these terms shall be delivered (together with any associated Documentation) to its Delivery Location. The Hardware shall be supplied with associated software materials (the “Thales Software”)
1.2 Up to the time of delivery of any Hardware, if Experian wishes to substitute other hardware then Experian may do so provided that such substitute hardware can be expected to achieve the same standards of functionality, performance and compatibility as the original hardware and will not result in any increase to the Hardware Supply Charges. Following such substitution, the Schedule shall be deemed amended to list the actual items delivered.
1.3 Risk in the Hardware, the Thales Software and in the media containing any associated Documentation shall pass to the Client at the time of delivery to its Delivery Location.
2. ACCEPTANCE OF HARDWARE
2.1 The Client shall be deemed to accept an item of Hardware and the associated Thales Software upon delivery.
2.2 If any part of the Hardware should malfunction or otherwise require maintenance after acceptance under this clause 2 then:
2.2.1 (unless the Client is not entitled to receive such services under this Agreement) Experian shall provide the Hardware Services in relation to such Hardware and each party agrees to comply with the Support Terms; and
2.2.2 the Client acknowledges that it shall not be entitled to withhold payment of all or any part of the Charges which are due for payment pending any repair or replacement of defective items.
2.2.3 the warranties set out in clause 5 of these terms shall apply.
3. OWNERSHIP OF HARDWARE
3.1 The legal and beneficial ownership of the Hardware shall not pass to the Client until Experian has received in full (in cleared funds) all the Charges that relate to such Hardware.
3.2 Until ownership of the Hardware has passed to the Client, the Client must hold the Hardware as if it were doing so for safe-keeping on behalf of Experian.
3.3 The Client agrees:
3.3.1 not to resell the Hardware before ownership has passed to it under the terms of this Agreement; and
3.3.2 to comply with any terms that apply to particular items of Hardware, as detailed in these terms.
3.4 The Client’s right to possession of the Hardware before ownership has passed to it shall terminate immediately if the Client has passed a resolution for its winding up (save for a voluntary winding-up for the purpose of a voluntary reconstruction or amalgamation), is subject to a petition presented to any court for its winding-up (save for a voluntary winding-up for the purpose of a voluntary reconstruction or amalgamation), is the subject of an application for administration filed at any court or a notice of appointment of an administrator filed at any court or a notice of intention to appoint an administrator given by any person, or is the subject of a notice to strike off the register at Companies House, or is dissolved or declared bankrupt, or has a receiver, administrator or administrative receiver appointed over all or part of its assets, or enters into an arrangement with its creditors, or is unable to pay its debts within the meaning of section 123 Insolvency Act 1986, or ceases to trade or takes or suffers any similar action.
3.5 Experian shall be entitled to recover payment of any Charges for the Hardware notwithstanding that ownership of any of the Hardware has not passed from Experian or its third party hardware supplier.
3.6 Except to the extent permitted by law, the Client shall not during the term of this Agreement change, remove or obscure any labels, plates, insignia, lettering or other markings which are on the Hardware at the time of delivery to its Delivery Location. The Client shall not remove or alter (or attempt to remove or alter) any notice in any part of the Thales Software indicating the ownership of any trade mark, copyright or other Intellectual Property in such materials.
3.7 The Client shall indemnify Experian and keep it indemnified against any costs, claims, demands, liabilities, expenses, damages or losses (including consequential losses, loss of profit and loss of reputation, and all interest, penalties and legal and other professional obligations) that may arise from loss or damage to the Hardware (arising from the time risk passes under clause 1.3 of these terms until payment in full of the relevant Charges), except where such loss or damage is caused by any act or omission of the Service Team or upon the instruction of the Service Team.
4. UTILITY SOFTWARE
4.1 The Client acknowledges that, in order for it to use certain parts of the Hardware or any equipment sourced by the Client for use with the Software, it may be necessary to load Third Party Utility Software onto its computer system beforehand. This software may be provided with the Hardware or any hardware, sourced by the Client, or made available from time to time by Experian and includes but is not limited to the Thales Software.
4.2 The Client shall ensure that the use of the Software in conjunction with the Third Party Utility Software is at all times in accordance with the terms of this Agreement.
4.3 The Client acknowledges and agrees that it (and not Experian) shall be responsible for:
4.3.1 installing the Third Party Utility Software (other than the Thales Software which Experian shall install);
4.3.2 updating, maintaining and supporting the Third Party Utility Software (other than the Thales Software which shall be updated, maintained and supported as part of the Hardware Services where the Thales Software relates to Supported Hardware);
4.3.3 removing the Third Party Utility Software from its computer system and other equipment when necessary;
4.3.4 obtaining an appropriate licence to allow use of the Third Party Utility Software and complying with the licence terms. The Client therefore acknowledges that it may have the benefit of warranties under such licence and that Experian therefore gives no warranties in respect of the Third Party Utility Software. The licence agreement in respect of the Thales Software is set out in these terms.
5. ADDITIONAL WARRANTIES AND EXCLUSIONS
5.1 Experian warrants that:
5.1.1 it has the right to supply the Hardware to the Client on the terms of this Agreement.
5.1.2 at the time of delivery to its Delivery Location the relevant Hardware will inter-operate with BACSTEL-IP in accordance in all material respects with the Documentation. For the avoidance of doubt, Experian does not warrant that the Hardware and the Thales Software will operate with any other service or software.
5.2 For the avoidance of doubt, no warranty is given in respect of the performance of the Hardware after its delivery. The Client’s sole remedy under this Agreement after delivery shall be to seek Hardware Services in accordance with its terms unless otherwise stated elsewhere in this Agreement.
5.3 Notwithstanding clause 5.1, Experian does not warrant the absence of hidden defects, that the use of the Hardware will meet the Client’s data processing requirements or that the operation of the Software will be error free.
5.4 If an item of Hardware is not or is no longer Supported Hardware, the Client acknowledges that it may have the benefit of separate warranties from the manufacturer of such Hardware. Details of the existence of such warranties are available from Experian upon request.
5.5 Clause 5.1 shall not apply to any of the Hardware to the extent that it has been altered by someone other than Experian, its employees or permitted sub-contractors.
AND THE CLIENT’S PARTICULAR ATTENTION IS DRAWN TO CLAUSES 5.2, 5.3, 5.4 AND 5.5
6. FURTHER RESTRICTIONS
6.1 The Client acknowledges that the licence agreement set out below contains restrictions on its ability to transfer its licence to the Thales Software and the Client therefore agrees not to resell any of the Hardware until it has complied with any requirements of the licence agreement below (in respect of the Thales Software) and obtained the prior written consent of Experian (such consent not to be unreasonably withheld).
6.2 Without prejudice to any other restrictions contained within this Agreement, the Client agrees that it shall gain any export licence or other governmental approval required prior to any sale, licensing or export directly or indirectly of the Hardware or any technical data relating to the Software or the direct product of such technical data or software materials to any country for which the UK government (or the government of the country of origin of the Hardware), at the time of such sale, licensing or export, requires an export licence or other governmental approval.
6.3 The Client agrees and accepts that the terms of this Agreement in respect of the limitations on, and exclusions of, the liability of Thales e-Security Ltd to Experian, the Client and any other third party (including any third party on whose behalf it uses the Hardware or Thales Software), are expressed to be for the benefit of, and fully enforceable by, Thales e-Security Ltd (and its permitted assigns, if any). This clause is an express derivation from clause 12.13 of the Terms and Conditions (exclusion of third party rights).
7. LICENCE
7.1 Thales e-Security Ltd, in consideration of the payment by the Client to Experian of the Hardware Supply Charges relating to the Hardware, hereby grants to the Client a revocable, non exclusive licence to use the Thales Software in accordance with and subject to the restrictions of the licence agreement set out below in accordance with the terms of this Agreement.
THIRD PARTY LICENCE TERMS – THALES SOFTWARE
“Agreement” means the Thales Computer Program License Agreement set out below;
“authorized reseller” and “authorised THALES reseller” includes Experian;
THALES e-SECURITY LTD. ("THALES") COMPUTER PROGRAM LICENSE AGREEMENT
YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT (the "AGREEMENT"). FOR PURPOSES OF THIS AGREEMENT, “SOFTWARE” IS DEFINED TO INCLUDE COMPUTER PROGRAMS INTENDED TO BE RUN ON A WORK STATION, PC, OR SIMILAR MACHINE, AND INCLUDES THE CD-ROM OR OTHER MEDIA ON WHICH THE SOFTWARE IS CONTAINED. “FIRMWARE” IS DEFINED TO INCLUDE COMPUTER PROGRAMS WHICH ARE INTENDED TO BE RUN SOLELY ON OR WITHIN A HARDWARE MACHINE (“MACHINE”) PROVIDED BY THALES, INCLUDING, WITHOUT LIMITATION, FPGA BITSTREAMS. THE SOFTWARE AND FIRMWARE AND THE ACCOMPANYING USER DOCUMENTATION (THE “DOCUMENTATION”) ARE LICENSED (NOT SOLD) TO YOU BY THALES DIRECTLY OR THROUGH AUTHORIZED RESELLERS OF THALES. OPENING OR INSTALLING ANY OF THE CONTENTS OF THIS CD-ROM OR OTHER PROVIDED MEDIA PACKAGE INDICATES YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS LICENSE. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS, PROMPTLY RETURN THE PACKAGE, THE MACHINE WHICH CONTAINS A COPY OF THE LICENSED FIRMWARE, AND ALL OTHER ENCLOSED ITEMS, IF ANY, TO THE PLACE WHERE YOU OBTAINED THEM, AND YOU WILL RECEIVE A REFUND.
LICENSE GRANT
A. In consideration of the license fee paid to THALES or to an authorized THALES reseller, THALES hereby grants you, and you accept a nonexclusive license to use the Software on a single machine (if a “single license” is purchased) or multiple machines (if an “organizational license” is purchased) owned, leased, or otherwise controlled by you, and to use the Firmware solely on the Machine sold to you by THALES or its dealers, if any, but only to operate or engage those features and/or applications for which a charge appears on your order and invoice under the terms stated in this Agreement. If a software or Firmware enabling key or other similar access device (the “Key”) is provided, you agree to use same solely for accessing the Software on a single PC or Firmware on a single Machine. Title and ownership of the Software, Firmware, Documentation and/or Key remain in THALES or its suppliers. If an organizational license is purchased, then you may use the Software or Firmware on multiple Machines in your organization regardless of quantity, provided all Machines are located within a single country. A separate single or organizational license will be required in each country.
B. You may not decompile, reverse engineer, modify, or copy the Software, Firmware, or Documentation for any purpose, except you may copy the Software into machine-readable or printed form for backup purposes in the event the CD-ROM or other provided media is damaged or destroyed. You may combine the Software with other programs. Any portion of the Software merged into or used in conjunction with another program will continue to be the property of THALES and is subject to the terms and conditions of this Agreement.
C. The Software, Firmware, and the Documentation are copyrighted by THALES and/or its suppliers. You agree to respect and not to remove or conceal from view any copyright or trademark notice appearing on the Software, Firmware, or Documentation, and to reproduce any such copyright or trademark notice on all copies of the Software, Firmware, and Documentation or any portion thereof made by you as permitted hereunder and on all portions contained in or merged into other programs and documentation.
D. You may transfer the Software, Firmware, and this license to another party if the other party agrees to accept the terms and conditions of this Agreement. If you transfer the Software and/or Firmware, you must at the same time either transfer all copies whether in printed or machine-readable form, and the Machine, if any, on which the Firmware is licensed for use, to the same party or destroy any copies not transferred; this includes all modifi¬cations and portions of the Software and/or contained or merged into other programs.
YOU MAY NOT USE, COPY, MODIFY, OR TRANSFER THE SOFTWARE, FIRMWARE, DOCUMENTATION OR KEY, OR ANY COPY, MODIFICATION OR MERGED PORTION, IN WHOLE OR IN PART, EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS LICENSE.
IF YOU TRANSFER POSSESSION OF ANY COPY, MODIFICATION OR MERGED PORTION OF THE SOFTWARE, FIRMWARE, OR DOCUMENTATION OR KEY TO ANOTHER PARTY, EXCEPT AS PROVIDED IN THIS SECTION D, YOUR LICENSE IS AUTOMATICALLY TERMINATED.
TERM
This Agreement is effective upon your acceptance (as set forth above) and shall continue until terminated. You may terminate this license at any time by destroying the Software, Key, and Documentation along with all copies, modifications and merged portions in any form, and return the Machine (including Firmware) to THALES or its authorized resellers. It will also terminate upon conditions set forth elsewhere in this Agreement if you fail to comply with any term or condition of this Agreement. You agree upon such termination to destroy the Software, Documentation, and Key together with all copies, modifications and merged portions in any form, and to return the Machine (including Firmware) to THALES or its authorized resellers.
LIMITED WARRANTY
The following limited warranty applies only to the Software and/or Firmware licensed hereunder. The hardware Machine is warranted pursuant to a separate Warranty set forth in the Machine documentation. The Machine documentation is contained on the CD-ROM, if any.
During the first 90 days after receipt of the Software and/or Firmware by you, as evidenced by a copy of your receipt, invoice or other proof of purchase (the "Warranty Period"), THALES warrants, for your benefit alone, that the Software and Firmware when properly installed, will perform substantially in conformance with the Documentation provided by THALES at the time you obtained the Software and/or Firmware from THALES or its authorized resellers, and that the media on which the Software and/or Firmware is furnished will be free from defects in materials and workmanship under normal use.
EXCEPT AS SPECIFICALLY PROVIDED ABOVE, THE WARRANTIES PROVIDED HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. WHEREVER SUCH EXCLUSION IS NOT PERMITTED BY LAW, ALL IMPLIED WARRANTIES, INCLUDING THOSE OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE, SHALL BE LIMITED TO THE WARRANTY PERIOD. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH MAY VARY FROM JURISDICTION TO JURISDICTION.
THALES does not warrant that the functions contained in the Software or Firmware will meet your requirements or that their operation will be uninterrupted or error free.
LIMITATIONS OF REMEDIES
THALES, its authorized resellers’, and/or its suppliers' entire liability and your exclusive remedies under this Agreement are as follows:
(1) THALES shall use commercially reasonable efforts to correct any defect in the Software or Firmware which is reported by you during the Warranty Period in writing to THALES, provided such defect can be recreated by THALES in an unmodi¬fied version of the Software or Firmware. However, if THALES is unable to correct such defect within a reasonable amount of time, you may terminate this Agreement by returning the Software, Machine including Firmware, Documen¬tation, and Key to the place where you obtained them either for replacement or, if so elected by THALES, a refund of the amount paid by you for the subject item.
(2) THALES shall replace any media not meeting THALES’ "Limited Warranty" and which is returned to THALES with a copy of your receipt, invoice or other proof of purchase or, if THALES is unable to deliver replace¬ment media which is free from defects in materials or workmanship, you may terminate this Agreement by returning the Software, Firmware, Documen¬tation, and Key to the place where you obtained them for a refund of the amount paid by you for the subject item.
IN NO EVENT WILL THALES, ITS AUTHORIZED RESELLERS, OR ITS SUPPLIERS BE LIABLE FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND OR TYPE, INCLUDING, BUT NOT LIMITED TO LOSS OF PROFITS OR REVENUE, LOSS OF USE OF THE PRODUCT(S) OR ANY ASSOCIATED PRODUCT(S), OR COST OF SUBSTITUTED FACILITIES, PRODUCTS OR SERVICES WHICH ARISE OUT OF THALES’ PERFORMANCE OR FAILURE TO PERFORM ANY OBLIGATION CONTAINED WITHIN THIS AGREEMENT OR WITH USE, OR INABILITY TO USE, SOFTWARE AND/OR FIRMWARE, WHETHER THE CLAIM FOR DAMAGES IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. EXCEPT FOR CLAIMS FOR PERSONAL INJURY OR FOR DAMAGE TO REAL OR TANGIBLE PROPERTY TO THE EXTENT CAUSED BY THALES’ FAULT OR NEGLIGENCE, THALES’ MAXIMUM LIABILITY FOR ANY CLAIM FOR DAMAGES RELATING TO THALES’ PERFORMANCE OR NON-PERFORMANCE UNDER THIS AGREEMENT SHALL BE LIMITED TO THE LESSER OF (a) YOUR ACTUAL DAMAGES OR (b) THE COST OF THE PRODUCT GIVING RISE TO THE LIABILITY.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
EXPORT AUTHORIZATIONS
You shall assume all responsibility for obtaining any required export authorizations necessary to export any Software and/or Firmware and Documentation purchased hereunder. You shall not re-export Software and/or Documentation directly or through others, or the product of such data, to the prescribed countries for which such prohibition exists pursuant to the U.S. or U.K. export regulations unless properly authorized by the appropriate government.
GENERAL
You may not sublicense, assign or transfer this license, Software, Firmware, Documentation or Key, except as expressly provided in this Agreement. Any attempt otherwise to sublicense, assign or transfer any of the rights, duties or obligations hereunder is void.
This Agreement will be governed by the laws of England or in the event that the Product was delivered in the United States, Latin America or Canada, the laws of the State of Virginia.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS LICENSE AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND THALES WHICH SUPERSEDES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING (ORAL OR WRITTEN) BETWEEN US RELATING TO THE SOFTWARE OR FIRMWARE.
NOTWITHSTANDING THE ABOVE, THE PROVISIONS OF THE REST OF THE EXPERIAN CUSTOMER AGREEMENT (FOR USE WITH HARDWARE SECURITY MODULES) TO WHICH THIS AGREEMENT IS A SCHEDULE, WHILST IT REMAINS IN FORCE, SHALL TAKE PRECEDENCE OVER ALL CONFLICTING TERMS AND CONDITIONS, IF ANY, CONTAINED IN THIS LICENSE AGREEMENT. OTHERWISE, ANY ADDITIONAL TERMS AND CONDITIONS SET FORTH IN THIS LICENSE AGREEMENT SHALL SUPPLEMENT AND BE READ IN CONJUNCTION WITH THE PROVISIONS CONTAINED IN THE EXPERIAN CUSTOMER AGREEMENT