BlueSky Systems Solutions Limited - Standard Terms and Conditions

For BlueSky customers who acquired licenses before December 1, 2013

***IMPORTANT: Please read the following terms and conditions carefully as they govern Customer’s use of Software and Hardware provided by BlueSky Systems Solutions Limited (“BlueSky”) and Services and Support Services performed by BlueSky in connection therewith.  Customer’s use or continued use of the Software and/or Services shall constitute its acceptance of these Conditions and the Agreement.***

1. DEFINITIONS

 Capitalised terms used in these Conditions shall have the following meanings:

“Agreement” means the agreement between BlueSky and Customer for the sale, installation and support of Software and Hardware and for the provision of Services, consisting of these Conditions (as may be updated by BlueSky from time to time) and their associated Schedule(s).

“Anniversary Date” means the anniversary of the Delivery Date;

“Annual Licence Fee” means the annual licence fee for the use of the Software and the right to receive the Support Services;

“BlueSky” means BlueSky Systems Solutions Limited, a company organized under the laws of England and Wales, company registration number 05601479;

“BlueSky Personnel” mean the personnel of BlueSky and/or any of its sub-contractors;

“Customer” means the customer of BlueSky identified in the Schedule(s);

“Conditions” means these terms and conditions;

“Custom Software” means any software programs developed by BlueSky specifically for Customer as part of the Services;

“Delivery Date” means the date BlueSky completes the Installation of the Software and delivers the Software and Hardware to Customer for use;

“Documentation” means the manuals and other operating instructions, if any, for the Software;

“Estimated Delivery Date” means the estimated Delivery Date of the Software as set out in the Schedule(s);

“Fees” means all of the fees due and payable by Customer for the Software, Hardware and Services provided pursuant to this Agreement as set out in the Schedule(s), including without limitation the Upfront Fee, the Annual Licence Fee, and the Monthly Licence and Support Fee;

“Hardware” means the equipment listed in the Schedule(s) and shall include any operating system of such Hardware and any related manuals;

“Initial Period” means one (1) year from the Delivery Date;

“Installation” means delivery of the Software and/or any Third Party Software on media or installed on Hardware provided by BlueSky;

“Licensed Users” means the number of employees and agents of Customer authorized to use the Software as specified in the Schedule(s);

“Monthly Licence and Support Fee” means the monthly fee for the ongoing use of the Software and the right to receive the Support Services;

Schedule(s)” means the ordering documents setting forth the Hardware, Software and Services to be licensed by or provided to Customer by BlueSky and the Fees associated therewith;

“Services” means the installation, consultancy, project management, training and/or other services, if any, to be provided by BlueSky to Customer as set out in the Schedule(s);

“Software” means the BlueSky proprietary software products set forth in the Schedule(s) and any Custom Software, in each case in object code only, together and/or any part thereof as may be amended, updated or added to from time to time under the Support Services;

“Support Services” means the support services to be provided to Customer as set out in the Schedule(s);

 “Third Party Software” means the software to be supplied or supported as part of the Agreement but which is under a licence agreement directly between a third party licensor and Customer and not BlueSky proprietary Software;

“Upfront Fee” means the upfront fee to be paid for the Services as set out in the Schedule(s).

2. APPLICATION AND SCOPE OF CONDITIONS

These Conditions, as updated from time to time by BlueSky as provided herein, shall supersede and replace all previous versions of these Conditions and shall apply to and are incorporated into the Agreement. These Conditions set out the basis upon which BlueSky shall, as applicable, supply Hardware, Software, Documentation, and Third Party Software to, and perform the Services for, Customer and provide the Support Services as described in the Schedule(s). These Conditions prevail over any inconsistent terms or conditions contained or referred to in Customer’s purchase order, confirmation of order, or specification or implied by law, trade, custom, practice or course of dealing. Customer’s use or continued use of the Software or Services shall be deemed to be acceptance of these Conditions and the Agreement.

3. SOFTWARE, THIRD PARTY SOFTWARE AND EQUIPMENT

3.1 The Software and Third Party Software to be provided are detailed in the Schedule(s). The licence conditions for use of the Software are set out in these Conditions. The licence conditions for Third Party Software will be supplied with the Third Party Software and Customer agrees to be bound by such licence conditions.

3.2 Unless otherwise specified in a separate written agreement, Custom Software (if any) is licenced to Customer according to these Conditions.

3.3 No source code for any Software or Third Party Software is provided under these Conditions and Customer shall not be entitled to receive, access or use any source code for any Software or Third Party Software provided under these Condition(s).

4. CUSTOMER’S OBLIGATIONS

4.1 Customer shall:

(a) Co-operate with BlueSky in all matters relating to the Services and appoint a project manager, who shall have the authority to legally bind Customer on matters relating to the Services;

(b) Provide in a timely manner such access to Customer's premises and data, and such office accommodation and other facilities, as is requested by BlueSky;

(c) Provide in a timely manner such information as BlueSky may request, and ensure that such information is accurate in all material respects; and

(d) Be responsible (at its own cost) for preparing the relevant premises for the supply of the Services.

4.2 If BlueSky’s performance of its obligations under the Agreement is prevented or delayed by any act or omission of Customer or Customer's agents, sub-contractors or employees, Customer shall be liable to pay to BlueSky on demand all reasonable costs, charges or losses sustained or incurred by it (including, without limitation, any direct or indirect consequential losses, loss of profit and loss of reputation, loss or damage to property, injury to or death of any person and loss of opportunity to deploy resources elsewhere), subject to BlueSky confirming such costs, charges and losses to Customer in writing.

4.3 Customer shall not, without the prior written consent of BlueSky, at any time from the Delivery Date to the expiry of one (1) year after the Agreement is terminated, solicit or entice away from BlueSky or employ or attempt to employ any person who is, or has been, engaged as an employee or sub-contractor of BlueSky.

4.4 Any consent given by BlueSky in accordance with clause 4.3 shall be subject to Customer paying to BlueSky a sum equivalent to 20% of the then current annual remuneration of the BlueSky employee or sub-contractor so solicited or 20% of the annual remuneration to be paid by Customer to such employee or sub-contractor, whichever is greater.

 4.5 Customer shall operate supported Software and Hardware in accordance with instructions issued by BlueSky and/or the manufacturer and retain sufficient trained staff to operate it in a proper manner.

4.6 Customer shall have a reasonable broadband connection over the internet at each location where the Software is resident to enable BlueSky to directly link to any CPU upon which any Software covered by this Agreement resides. BlueSky recommends that Customer use an uninterruptible power supply (UPS) at each location where the Software is resident.

4.7 Customer shall be responsible for carrying out regular back-ups to removable media stored separately from the supported items and carrying out other normal system housekeeping routines. BlueSky shall not be liable for any loss or damage sustained or incurred by Customer or any third party through loss or spoiling of data resulting from any maintenance activity by BlueSky required or performed under these Conditions. BlueSky will use reasonable endeavours to assist Customer in remedying any such loss of data or programs caused by Customer, but reserves the right to charge for such at its then-current fees.

4.8 Customer shall be responsible for having adequate virus protection to all parts of its business, including the Software and Hardware.

4.9 Customer acknowledges and agrees that a valid log number issued by BlueSky is the only acceptable and recognised method of logging support calls.

4.10 Customer is solely responsible for securing and keeping safe all Software and Third Party Software licence media and documentation.

5. SOFTWARE - LICENCE CONDITIONS, TERM

5.1 The licence to use Software granted pursuant to this Agreement becomes effective from the Delivery Date and is for the Initial Period, subject to Customer paying all Fees set forth in the Schedule(s). The Agreement shall automatically continue from year to year thereafter until or unless terminated in accordance with this Agreement. Customer’s right to continue to use the Software is subject to Customer continuing to pay all Fees set forth in the Schedule(s) and complying with these Conditions, as updated from time to time, and the Agreement.

5.2 Subject to sub-clause 5.1 and the other provisions of this Agreement, BlueSky hereby grants to Customer a non-exclusive, non-transferrable licence to use the Software on the CPU listed in the Schedule(s) for up to the maximum number of Licensed Users and at the locations set out in the Schedule(s) for the Initial Period and for any renewal thereof. Customer shall not permit any third party to use or have access to the Software or the Documentation supplied to the Customer. Use of the Software and Documentation is restricted to use for the Customer’s own internal purposes and Customer; (i) may not reverse engineer, disassemble, translate or in any way decode the Software, except as permitted by law; or (ii). may not modify or adapt the whole or any part of the Software or Documentation in any way whatsoever nor permit the whole or any part thereof to be combined with or become incorporated in any other programs without BlueSky’s prior written consent.

5.3 Customer may make such copies of the Software as is reasonably necessary for operational security and use, subject to the terms of the Agreement. Such copies and the media on which they are stored shall be the property of BlueSky and/or its licensors and Customer shall ensure that all such media is kept safe.

5.4 Customer shall use all reasonable endeavours to prevent any violation of BlueSky’s proprietary rights in the Software and shall promptly report to BlueSky any such violation that comes to its attention. In particular, Customer shall:

(a) Ensure that each Licensed User, before starting to use the Software, is made aware that the Software is proprietary to BlueSky and that it may only be used and copied in accordance with the licence contained in this Agreement;

(b) Provide suitable disciplinary procedures for employees who make unauthorised use or copies of the Software; and

(c) Not permit third parties to have access to the Software without the prior written consent of BlueSky, who may require, among other things, that such third party executes a written confidentiality agreement before being given access to the Software.

6. THIRD PARTY SOFTWARE

BlueSky shall provide the Third Party Software (if any) according to the standard licence terms provided by such third parties, copies of which shall be provided to Customer, and Customer agrees to be bound by such terms. It is Customer’s sole and exclusive responsibility to ensure that the correct licences are in place in respect of the Third Party Software. Save for BlueSky’s obligations to supply, and where necessary install, such Third Party Software, Customer acknowledges and agrees that BlueSky shall have no other liability in respect thereof. BlueSky does not warrant that the Third Party Software will necessarily meet the functionality which it claims to or which may be required by Customer, and Customer shall be solely responsible for satisfying itself that Third Party Software meets such requirements. Third Party Software to be supported (if any) is as detailed in the Schedule(s); BlueSky will not provide support for other Third Party Software. Changes, updates and releases in respect of the Third Party Software shall be covered by the licence agreement directly between Customer and the relevant licensor.

 

7. TITLE AND RISK

7.1 The Hardware shall be at the risk of BlueSky until delivery to Customer at the place of delivery specified in BlueSky's acknowledgement of order. BlueSky shall off-load the Hardware at Customer's risk.

7.2 Ownership of the Hardware remains in BlueSky and shall only pass to Customer on the date BlueSky has received all amounts due and payable for said Hardware as set out in the applicable Schedule(s).

7.3 Until ownership of the Hardware has passed to Customer under condition 7.2, the Customer shall:

(a) Hold the Hardware on a fiduciary basis as BlueSky's bailee;

(b) Store the Hardware (at no cost to the BlueSky) in satisfactory conditions and separately from all of Customer's other equipment or that of a third party, so that it remains readily identifiable as BlueSky's property;

(c) Not destroy, deface or obscure any identifying mark or packaging on or relating to the Hardware; and

(d) Keep the Hardware insured on BlueSky's behalf for its full price against all risks to the reasonable satisfaction of BlueSky, and hold the proceeds of such insurance on trust for BlueSky and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.

7.4 Customer's right to possession of the Hardware before ownership has passed to it shall terminate immediately if any of the circumstances set out in clause 10.3 arise or if Customer encumbers or in any way charges the Hardware, or if Customer fails to make any payment to BlueSky on the due date.

7.5 Customer grants BlueSky, its agents and employees an irrevocable licence at any time to enter any premises where the Hardware is or may be stored in order to inspect it, or where Customer's right to possession has terminated, to remove it. All costs incurred by BlueSky in repossessing the Hardware shall be borne by Customer.

7.6 On termination of the Agreement for any reason, BlueSky's (but not Customer's) rights in this clause 7 shall remain in effect.

7.7 BlueSky may appropriate payments by Customer to such Hardware as it thinks fit, notwithstanding any purported appropriation by Customer to the contrary, and may make such appropriation at any time.

8. PRICING AND PAYMENTS

8.1 The Fees and any other charges arising under this Agreement shall be payable as set out in the Schedule(s). The Fees do not include any fees for the use of applicable Third Party Software, which additional sums will be included as part of the Support Services.

8.2 Customer shall pay to BlueSky all Fees and charges arising hereunder on the due date as set out in the Schedule(s). Payment of the Annual Licence Fee or the first instalment of the Monthly Licence and Support Fee, as the case may be, shall be made on or before the Delivery Date. Thereafter BlueSky shall be entitled to issue invoices up to thirty days prior to the commencement of the next payment due date, with payment being due to BlueSky by the applicable payment due date.

8.3 If payment is overdue BlueSky reserves the right, in addition to any other rights it may have, to suspend its obligations under the Agreement until such payment is received.

8.4 Customer will bear the cost of all travelling time and expenses of BlueSky’s personnel based on BlueSky’s rates prevailing at the time. The mileage rate shall be the then current HMRC approved rate. Flights, rail fares and overnight accommodation will be re-charged net. Such costs will be additional to the Fees unless expressly stated otherwise in the Schedule(s).

8.5 Training days booked by Customer and subsequently cancelled by Customer without at least fourteen days’ written notice will be charged for and payable in full. Days are supplied on an “as consumed basis” with BlueSky making no commitment as to what can be achieved in the day, other than that the BlueSky personnel supplied will have the requisite skills to perform the tasks assigned to them.

8.6 BlueSky reserves the right to increase the Monthly Licence and Support Fee on each Anniversary Date. However, BlueSky will not increase such Monthly Licence and Support Fees by more than five percent (5%) annually or the percentage increase in the Retail Price Index (as published by the Office of National Statistics) over the preceding year, whichever is greater.

8.7 If any sum payable under this Agreement is in arrears then in addition to any other remedies which may be available, BlueSky reserves the right to charge interest on any and all such sums on a day to day basis from the original due date at the maximum rate allowed by applicable law until paid.

 

9. INTELLECTUAL PROPERTY RIGHTS AND INDEMNITY FOR SOFTWARE

9.1 The copyright and all other intellectual property rights of whatever nature in the Software, Custom Software and Documentation and in any modifications or changes thereto made under this Agreement are and shall remain the sole and exclusive property of BlueSky and/or its licensors, and any rights in any other work prepared or carried out by BlueSky hereunder shall vest in BlueSky, on creation thereof. Customer shall notify BlueSky as soon as reasonably possible if it becomes aware of any unauthorised use of the whole or any part thereof by any third party.

9.2 Subject to clause 9.5, BlueSky shall indemnify Customer against all loss, damage, claims, liabilities, fees, costs and expenses arising out of any action brought against Customer based on a claim that the Software or Documentation infringes any UK patent or other intellectual property right of any third party, provided that:

(a) BlueSky is notified promptly in writing of any such claim;

(b) Customer makes no admission or settlement of such claim without BlueSky's prior written consent;

(c) BlueSky has sole control of the defence and any negotiations for compromise; and

(d) Customer provides, at BlueSky's expense, such assistance as BlueSky reasonably requires.

9.3 If the Software or Documentation becomes or, in the opinion of BlueSky’s legal counsel, is likely to become, the subject of any such claim, Customer will permit BlueSky to:

(a) replace all or part of the Software or Documentation with functionally equivalent hardware, software or documentation without any charge to Customer; and/or

(b) modify the Software or Documentation as necessary to avoid such claim, provided that the Software (as amended) functions in substantially the same way as the Software before modification; and/or

(c) procure for Customer a licence from the owner thereof to continue using the Software and Documentation.

9.4 If the Software or Documentation is determined in a court of law to be infringing and BlueSky is unable after commercially reasonable efforts to procure for Customer the right to continue using the Software and Documentation, or to provide Customer, with functionally equivalent non-infringing Software and Documentation, the Agreement and any licence to use the Software shall be terminated.

9.5 BlueSky shall have no liability for any claim of intellectual property infringement or indemnification therefor:

(a) Caused by Customer's use of the Software in combination with software not supplied or approved in writing by BlueSky (other than the operating system of any Customer hardware, provided that BlueSky was notified of the identity of this operating system before this Agreement was entered into); or

(b) Resulting from any modification of the Software or Documentation by Customer or any third party commissioned by Customer; or

(c) Based on use of any version of the Software and Documentation other than the latest version supplied by BlueSky, if such claim could have been avoided by the use of such supplied version; or

(d) Where the claim for infringement arises in respect of a feature of the Software which was specified by Customer.

10. TERMINATION

10.1 Customer may terminate this Agreement and the licence to use the Software granted hereunder by giving at least 180 days’ notice in writing to BlueSky. In the event that Customer gives notice to terminate during the Initial Period, Customer shall promptly pay BlueSky the total amount which Customer would have paid BlueSky during the whole of the Initial Period, including any price increases as detailed in clause 8.7. In the event that Customer gives notice to terminate at any time following the Initial Period, Customer shall be obligated to pay BlueSky all Fees due and owing during such 180 day notice period.  Termination of the licences for Third Party Software is governed by the licence agreements provided with such Third Party Software.

10.2 BlueSky may terminate this Agreement and the licence to use the Software granted hereunder forthwith on giving written notice to Customer if: (i) Customer commits any breach of any term of the licence or the Agreement and, in the case of a breach capable of being remedied, fails to remedy such breach within thirty days after receipt of a request in writing from BlueSky; and/or (ii) Customer fails to pay any Fees due and owing under the Agreement by the due date.

10.3 This Agreement may be terminated with immediate effect by written notice to Customer if:

(a) a petition for a bankruptcy order to be made against Customer has been presented to the court;

(b) Customer (where it is a company) becomes insolvent or unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), enters into liquidation, whether voluntary or compulsory (other than for reasons of bona fide amalgamation or reconstruction), passes a resolution for its winding-up, has a receiver or administrator manager, trustee, liquidator or similar officer appointed over the whole or any part of its assets, makes any composition or arrangement with its creditors or takes or suffers any similar action in consequence of its debt; or

(c) Customer ceases to carry on business.

10.4 Upon termination of this Agreement and the licence to use the Software granted to Customer hereunder, howsoever occasioned, Customer shall immediately cease use the Software and return all copies of the Software to BlueSky within 7 days of the termination date and destroy all copies thereof. This provision shall survive any termination whether of the licence to use the Software or of the Agreement as a whole.

10.5  The following clauses in these Conditions shall survive any termination or expiration hereof: 1, 4.3, 4.4, 7, 9, 10.4, 10.5, 12, 14.6 and all obligations to pay Fees that have accrued up to the effective date of termination or expiration.

11. DESCRIPTION OF SUPPORT SERVICES

11.1. Unless otherwise expressly agreed in writing by BlueSky, Support Services will be provided during normal UK business hours of 9.00 a.m. to 5.00 p.m. Monday to Friday, excluding nationally recognized UK public holidays.

11.2. BlueSky shall use all reasonable endeavours to carry out the Support Services described herein in a professional manner and shall at all times use reasonable endeavours to maintain the items supported in good working order and to supply all component spares necessary for supported Hardware. The periodic updates provided under support for the Software may include legislative updates the scope of which can vary considerably. Where major legislative changes take place, BlueSky reserves the right to make an additional charge which shall be spread evenly over all its customers for the Software in order to cover the updates dealing with such legislative changes. Such updates are deemed to be outside of the Monthly Licence and Support Fee.

11.3 Supported software:

BlueSky will use all reasonable endeavours to respond to any request by Customer within eight working hours of receiving notification of such need from Customer. Error correction is provided on a reasonable effort basis, and BlueSky cannot guarantee to correct any error within any given timescale. Customer shall endeavour to provide written notification and appropriate examples supporting any error found. As part of the Support Service BlueSky shall provide updates and releases from time to time to the Software supported pursuant to the Agreement. It is Customer’s responsibility to install corrections, updates and releases to the Software and for ensuring that its staff have the capability of doing so. BlueSky shall have the right to make additional charges for services that are required due to Customer failing to install such items correctly. Where BlueSky has to carry out site visits for Support Services, it reserves the right to charge over and above the Monthly Licence and Support Fee. BlueSky reserves the right not to deal with, or to make additional charges for, reported errors in such Software which are: (i) the result of failure of equipment or other software not covered by the Agreement; (ii) faults in mains, electrical supplies or operator error; (iii). resulting from a lack of knowledge of the Software; (iv) caused by air conditioning, humidity or other environmental conditions; (v) caused by the accident, neglect, misuse or default of Customer or any third party; (vi) due to acts of God, war, acts of violence or any similar occurrence; (vii) the result of any attempt by any person, other than BlueSky, to modify or maintain the Software; or (viii) caused by cable or connector malfunctions.

The provisions of this clause 11.3 shall also apply to the extent Customer is supplied with beta versions of the Software.

11.4 Supported Hardware:

Support Services are provided during the hours set out in 11.1 and for the items listed in the Schedule(s) other than Third Party Software. On receipt of a telephone request for Support Services for an item, BlueSky will log the call and endeavour to identify the problem as either an engineering problem or a Software problem or a system operating software problem. BlueSky will, if appropriate to the problem reported, despatch an engineer to Customer’s site. BlueSky will use reasonable endeavours to ensure that BlueSky’s engineer will respond within 8 hours. Where the problem encountered relates to a CPU and the terms of this Agreement provide that temporary replacement equipment will be provided to Customer, the engineer will endeavour to load the hard disc of the CPU, if unaffected, onto a loaned CPU and thus leave Customer with a working system, but Customer acknowledges that such may not always be possible. If, on attendance at Customer’s site, the engineer believes the Monthly Licence and Support Fee does not cover the fault, Customer will be advised, and in such event, any corrective activity, spare parts and the cost of the visit itself, shall be charged. The Support Services provided assume normal use of the Hardware and relates to normal wear and tear. BlueSky reserves the right to make additional charges at its standard rates for the time being in force where its engineers are called out because of faults which are the result of accident, unauthorised transportation, alteration, neglect or misuse or is the result of failure of Customer to provide and maintain a suitable operating environment as recommended by BlueSky and/or the manufacturer. BlueSky shall not be liable for any Hardware that fails due to manufacturers design or inherent defects nor shall BlueSky be liable to perform any work, which is in the opinion of BlueSky impractical to perform owing to any non-standard use or location. BlueSky shall provide all necessary tools and test equipment together with all spares, which in the opinion of BlueSky’s engineer are required to ensure the operational efficiency of the Hardware. Customer shall be responsible for all operating materials and of all consumables, including but not limited to print heads, laser cartridges, ribbons, toners, fuser and developer kits all of which are outside the scope of the Monthly Licence and Support Fee. BlueSky reserves the right to make additional charges to Customer to cover all of the cost of repairing Hardware more than five years old.

11.5. Additional Services:

The Monthly Licence and Support Fee does not include, and additional charges shall be made for:

(i) Repair or support in respect of any data corruption and in respect of Software support arising from such data corruption;

(ii) All costs for any calls made to fit supplies;

(iii) As a result of Customer allowing access by a third party to a supported item where BlueSky has agreed to perform corrective activities and not to terminate the Agreement and not to delete the item concerned from the list of items being supported;

(iv) Providing new or updated versions of an operating system of an item of Hardware;

(vi) Programs transferred via an internet connection will be charged to Customer at BlueSky’s prevailing rates. Any on-site visits carried out by BlueSky in respect of support outside that covered by the Monthly Licence and Support Fee are carried out at BlueSky’s discretion and may be chargeable at BlueSky’s current daily rate for such service together with the reasonable costs of accommodation, travelling time and travelling expenses ,all of which shall be over and above the Monthly Licence and Support Fee covered by the Agreement.

11.6 The Support Services shall commence on the Delivery Date and shall be for the Initial Period and thereafter extend automatically for further one-year periods unless or until the Agreement is terminated by either party in accordance with the terms of the Agreement.

11.7. Customer shall not move any supported item either from one location to another location or within the same or between different buildings without the prior written consent of BlueSky, as such can affect the ability of BlueSky to support it. BlueSky shall have the right to vary the Monthly Licence and Support Fee or to terminate Support Services in respect of such item or items.

12. LIABILITY

12.1 The following provisions set out the entire financial liability of BlueSky (including any liability for the acts or omissions of its employees, agents and sub-contractors) to Customer in respect of:

(a) any breach of the Agreement;

(b) any use made by Customer of the Services, the Software, the Hardware and the Support Services or any part of them; and

(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement.

12.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement.

12.3 Nothing in these conditions excludes the liability of BlueSky:

(a) for death or personal injury caused by BlueSky's negligence; or

(b) for fraud or fraudulent misrepresentation.

12.4 Subject to clause 12.3, neither BlueSky nor any of its officers, directors, employees, agents, shareholders or affiliates shall be liable, whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation 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.

12.5 BlueSky’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with these Conditions and the Agreement shall be limited to the Fees paid by Customer during the one (1) year period immediately preceding the date on which the claim arose.

13. FORCE MAJEURE

BlueSky shall have no liability to Customer under these Conditions and the Agreement if it is prevented from, or delayed in, performing its obligations under the Agreement or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of BlueSky or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.

14. GENERAL

14.1 The failure by either party to enforce at any time any provision of the Agreement shall not affect its rights to later require complete performance by the other party hereto, nor shall any waiver of a breach of a provision be taken or held to affect its rights in the event of any subsequent or additional breach of the same or any other provision.

14.2 Customer shall neither assign the Agreement nor part with any rights or obligations hereunder in any way whatsoever, whether in whole or in part, without the prior written agreement of BlueSky. BlueSky shall be entitled to sub-contract, sub-let or assign the whole or any part of this Agreement but such shall not adversely affect the Customer’s rights hereunder.

14.3 Except as expressly provided in these Conditions, no warranty, condition, undertaking or term, express or implied, statutory or otherwise as to the condition, quality, performance, merchantability or fitness for purpose of the items supplied or any part thereof shall be assumed by BlueSky, and except as expressly provided for in these Conditions all such warranties, conditions, undertakings and terms are hereby excluded to the extent permitted by law.

14.4 BlueSky reserves the right to update these Conditions from time to time and in such event will post the revised Conditions on its website.

14.5 Any notice of termination, breach or other notice of a legal nature required to be given to either party under the Agreement shall be given by first class delivery post to the appropriate address of the party concerned set out in the Agreement.

14.6 The construction, validity and performance of the Agreement (including non-contractual disputes or claims) shall be governed by English law and the parties hereby agree to the exclusive jurisdiction of the English courts.

14.7 The Agreement and these Conditions is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns, and is not intended to benefit, or be enforceable by, anyone else.