Last updated: 15/08/2018
Singer Instrument Co Ltd, registered office: Roadwater, Watchet, Somerset, TA23 0RE, ENGLAND, incorporated under the Companies Act in 1929 and as a Limited company on the 29th September 1934, with the company number 292564. Our VAT number is GB 199858670. In addition to the terms and conditions of sale, the following conditions shall apply relating to agreements offering the provision of support services:
1.1 In this agreement and the Recitals hereto, the following words and expressions shall have, except where the context otherwise requires, the respective meanings shown opposite them below:
“Additional Service” means a service and/or works (other than the Service and whether or not related to it) undertaken by SI at the Laboratory’s request;
(a) In relation to any company, any holding company or subsidiary of such company or a company which is a subsidiary of any holding company of that company, and the expressions “holding”, “company” and “subsidiary” have the meanings given to them in section 1159 of the Companies Act 2006, as amended from time to time; and
(b) In relation to any statutory body or any unincorporated association, any successor to which its powers and rights of authority are devolved;
“Agreement” means the agreement and the Statement of work hereto;
“Agreement period” means the initial support period in years agreed between SI and the Laboratory, as specified in Clause 2;
“Charges” means the Monthly/Yearly charge together with all other sums due under this Agreement;
“Commencement date” means the date set out at the head of this agreement;
“Company’s equipment” means, in relation to Support, the equipment which is made available by SI for use in provision of such Support;
“Consumables” means, in relation to Support, the parts, components and other replacement materials necessary for the operation of the equipment;
“Cost” means all costs, losses liabilities and/or expenses incurred by the Party in question;
“Data Protection license” means a Licence under the Data protection Act 1998, permitting activities
“Expiry Date” means the expiry date as specified in the Statement of work;
“Hardware” means in relation to a Service. All computer hardware, microprocessors (whether embedded in a computer or any other piece of equipment associated and peripheral equipment and firmware and any other items that connect with any or all of them together with technical documentation and all other computer equipment used by SI, in connection with the provision of the relevant Support Service, excluding software;
“Intellectual Property Rights” means SI’s patents, registered and unregistered designs, trademarks, utility models (whether registered or unregistered), applications for any of the foregoing and the right to apply therefore in any part in the world, copyrights, design rights, database rights, topography rights, know-how and all or any similar or equivalent rights arising or subsisting in any country of the world;
“Laboratory address” means the buyer’s address as specified in the Statement of work;
“Legislation” means any Act of Parliament or Subordinate Legislation within the meaning of section 21(1) of Interpretation Act 1978, any exercise of the Royal Prerogative and any enforceable community right with the meaning of section 2, European Communities Act 1972, and any other regulation, decision or authorisation having the force of law of any body having jurisdiction in relation to matters dealt with by this Agreement and “Legislative” shall be construed accordingly;
“Month” means a calendar month or part of a calendar month and “monthly” shall be construed accordingly;
“Performance Standards” SI shall perform the services and deliverable (the “Deliverables”) in accordance with the highest standard of care, skill and diligence as provided by a competent professional in performance of similar services and the deliverables shall be of good quality and free from faults and defects;
“Services” means the Singer Support Services as describes in the Statement of work;
“SI” means the ‘Seller’ as specified above;
“Software” means, in relation to a Service, all computer software, including programs held on silicon chips, disks and any other media, manuals and operator guides, all operating systems software and all application software used by SI in connection with the provision of the relevant service, excluding hardware;
“Working day” means a day (other than Sunday or Saturday) on which clearing banks in London are open for normal business;
“Writing” means any written communication, including facsimile transmission and/or electronic mail;
1.2 Terms defined in any of the Statements of work shall have the same meanings when used in the operative part of this Agreement in relation to the Service referred to;
2. AGREEMENT PERIOD
2.1 This Agreement shall be deemed to have taken effect from the Commencement Date (notwithstanding the date hereof) and shall continue, subject to the provisions of clause 17 below, until the Expiry Date.
3.1 For the term of this Agreement and subject to the terms and conditions hereunder, SI will provide to the Laboratory, and the Laboratory will obtain from SI the Singer Support Services as described on the attached Statement of work (Singer Support Agreement).
3.2 SI shall also provide to the Laboratory any additional services as requested by the Laboratory and upon terms as mutually agreed upon.
4. PERFORMANCE STANDARDS
4.1 SI shall perform the Services hereunder and deliver the Deliverables (as defined below). In the event the Services are found to be erroneous or defective, SI shall have the option, at its election, of re-performing the Services at no additional cost to the Laboratory.
5. MUTUAL COOPERATION
5.1 The Laboratory and SI shall provide mutual cooperation and assistance as reasonably requested by the other Party. Such cooperation and assistance shall include providing to SI in a timely manner answers to questions, information, technical consultation, and, acceptances.
6.1 SI will, on request, furnish to the Laboratory a 6 monthly report detailing the performance of instrument, projected service intervals, consumables used, milestones achieved, any reported problem and resolution to the problem, and any other information as the Laboratory may reasonably request.
6.2 This Report is dependant on the customer providing SI with/ or allowing SI access to the instrument to download the necessary files to create such a report.
6.3 The provision of the report is on the assumption that the instrument is being controlled by a computer.
6.4 SI shall provide the Laboratory with any such information as may be reasonably requested by the Laboratory from time to time to verify SI performance of Services.
7. PRICING AND PAYMENTS
7.1 The Laboratory will pay SI a fee in the amount agreed, subject to invoicing.
7.2 Prices fluctuate due to currency variations so the price of this agreement is on request. Large discounts are given for the longer terms and for continued payment. The Laboratory agrees to reimburse SI for any pre-approved expenses incurred by SI in connection with, and only to the extent necessary for, performance of Services.
7.3 In the event if the Laboratory chooses to obtain any additional services, the Laboratory will pay SI at the rates set forth in the ‘Estimated costs’ listed in the Singer Lab Support Brochure (available on request).
8.1 In accordance with the ‘Statement of Work’, SI shall deliver to the Laboratory the data, documents and deliverables (“Deliverables”).
8.2 The Laboratory reserves the right to inspect the Services and the Deliverables during the term of this Agreement.
8.3 If any of the Services or Deliverables does not conform to the Laboratory’s requirements, the Laboratory may require SI to promptly re-perform the Services or provide the Deliverables again in conformity with requirements of the Laboratory at no additional cost to the Laboratory.
8.4 In the event if any defects in the quality or standard of Services and Deliverables cannot be corrected by re-performance, the Laboratory may terminate this Agreement or equitably reduce the payment due to SI to reflect the reduced value of the Services or the Deliverables.
8.5 Upon completion of performance of Services hereunder, the Laboratory shall within thirty (30) days from the date of receipt of notice of completion, provide either notice of acceptance or notice of rejection of the Deliverables.
9. OWNERSHIP AND COPYRIGHT
9.1 The Intellectual Property Rights in all products and materials provided by SI whether developed pursuant to this Agreement or otherwise belong to and are deemed to be the absolute property of SI.
9.2 All Services, Deliverables and other materials developed by SI pursuant to this Agreement shall belong to and be the absolute property of SI unless otherwise agreed in writing.
9.3 The provisions of this Clause 9 shall survive the expiry or termination of this Agreement howsoever arising.
10.1 Each Party acknowledges that any information supplied to it by the other pursuant to this Agreement as well as any other confidential information relating to the business, finances, affairs and customers of the other party to which it may have access to during the Agreement Period shall be confidential (“Confidential Information”). Each party undertakes:
10.2 SI agrees that it will hold in strict confidence and shall not disclose any confidential information of the Laboratory to any third party and to use the confidential information of the Laboratory for no purpose other than the purposes expressly permitted by this Agreement.
10.3 SI shall only permit access to the Laboratory’s confidential information to those of its employees having a need to have access to perform their duties under this agreement.
10.4 SI shall maintain the confidentiality and prevent accidental or other loss or disclosure of any confidential information of the Laboratory with at least the same degree of care as it uses to protect its own confidential information but in no event with less than reasonable care.
10.5 SI’s undertakings as to confidentiality shall not apply to Confidential Information which:
a) at the date of disclosure was in the public domain, otherwise as a consequence of any unauthorised disclosure, act or omission by either party; or
b) was known to SI prior to the date of disclosure,
c) was independently developed by SI prior to receiving such confidential information without reference to any confidential information,
d) was required to be disclosed pursuant to a judicial order, a requirement of a governmental agency or by operation of law, provided that SI gives the Laboratory a written notice of any such requirement immediately after learning of any such requirement, and takes all reasonable measures to avoid or limit disclosure under such requirements and to obtain confidential treatment or a protective order and has allowed the Laboratory to participate in the proceedings.
10.6 Upon written request by the Laboratory, SI shall promptly return all documents and other tangible materials representing the Laboratory’s confidential information and all copies thereof. The obligations under this clause shall survive termination of the agreement.
10.7 The provisions of Clause 10 shall survive the expiry or termination of this Agreement howsoever arising.
11. RESPONSIBILITIES OF THE LABORATORY
The Laboratory undertakes and agrees with SI at all times during the term of this Agreement:
11.1 The Laboratory shall, throughout the agreement period, at no cost to SI and in such a manner as will not prevent, interfere with or delay SI carrying out its obligations under this agreement do the following:
a) Co-operate to the extent reasonably requested by SI in the performance of the Service;
b) Ensure that the Laboratory’s employees, agents, suppliers, subcontractors co-operate to the extent required by SI to perform its obligations under this agreement.
12. DISCLAIMER AND LIMITATIONS OF LIABILITY
12.1 Except as otherwise expressly provided under this agreement, the services provided are provided “as is.” Except as otherwise expressly provided, neither party makes any representations or warranties under this agreement, and each party disclaims any and all other representations or warranties, express or implied, including warranties of merchantability, fitness for a particular purpose, title, and non-infringement.
12.2 In no event shall either party be liable for any loss of profit, indirect, incidental, special, punitive, or consequential damages arising out of or relating to this agreement, even if advised of the possibility of such damages occurring. In no event will the aggregate liability of either party under this agreement exceed an amount equal to three times the aggregate monthly compensation payable by the Laboratory to SI.
SI warrants that:
13.1 The Services and the Deliverables provided under this Agreement shall meet the specifications mentioned in the attached Statement of Work.
13.2 There are no pending or threatened suits, claims, or actions of any type with respect to the Services or Deliverables to be provided under this Agreement.
13.3 The Services and Deliverables hereunder shall be free and clear of any liens, encumbrances, or claims arising by or through SI or any party related to SI.
13.4 SI shall comply with the Laboratory’s policies, procedures, requirements, and restrictions with respect to providing of Services hereunder.
13.5 SI shall strictly comply with the descriptions, specifications and standards as set forth in the attached Statement of Work.
13.6 SI shall perform the Services hereunder in a workmanlike manner, subject to the supervision and instructions provided by the Laboratory, and that all work performed pursuant to this contract shall be performed in a manner consistent with that level of care and skill ordinarily exercised by other professionals providing similar services under similar circumstances.
13.7 The Services and the Deliverables hereunder shall not be in violation of any applicable law, rule or regulation and SI shall be responsible to obtain all permits and licenses required under applicable rules and regulations.
13.8 The Services shall not violate or in any way infringe upon the rights of third parties, including proprietary information and non-disclosure rights, or any intellectual property rights of third parties.
In the event if SI is under default of any of the warranties or is in breach of any terms of this Agreement, the Laboratory in addition to any other remedies provided in this Agreement, and without limiting any other remedies otherwise available under law or in equity, may having given reasonable notice of the breach in writing to SI and afforded SI an opportunity to remedy the said breach:
a) suspend SI Services either wholly or a part thereof without any adjustment-in price/cost or schedule. Further the Laboratory shall not be liable to SI for costs incurred by SI after such suspension and SI shall promptly cease performing Services hereunder.
b) withhold all or any part of the payments due to SI until the necessary Services or corrections of the Services are satisfactorily completed.
c) withhold payment for those Services, which have not been provided or if performed would be of no value to the Laboratory.
d) terminate this Agreement for default by providing SI notice of any defect, deficiency or default and provide SI with thirty (30) days, to correct or cure the claim of a defect or deficiency.
e) the above remedies are cumulative and the Laboratory, in its sole discretion may exercise any or all of the remedies hereunder either individually or simultaneously.
f) without prejudice to any other remedies which may exist, if the Laboratory fails to pay any sum due in respect of sums due by their due date, SI may at its option suspend the performance of any of its obligations under this Agreement until such time as the failure is remedied.
15.1 SI hereby agrees that it will defend, at its own expense, any claim or suit brought against the Laboratory by third parties arising from or related to any act or omission of SI. SI further agrees to indemnify the Laboratory against any award of damages and costs (including reasonable legal fees) made against the Laboratory arising from or related to any act or omission of SI.
15.2 The Laboratory shall give SI a prompt written notice of all claims, providing reasonable cooperation in their investigation and defence, and permitting SI to defend the Laboratory at SI’s expense with legal representation of SI’s choice. However, SI will not be required to defend or indemnify the Laboratory with respect to losses or expenses caused by the Laboratory’s own negligence or wilful misconduct.
16.1 This Agreement shall commence on the Commencement date and will continue for a period terminating on the Expiry Date unless earlier terminated as provided herein or extended by mutual agreement.
17.1 Either party (the “Terminating Party”) may terminate this Agreement forthwith by written notice to the other at any time if:
a) the other (“Defaulting party”) is in material breach of its obligations under this agreement and fails to remedy the same within twenty-eight 28 days after receiving notice of the failure from the Terminating Party, requiring the failure to be remedied and notifying the Defaulting Party of the Terminating Party’s intention to exercise the right of termination under this Clause 17.
b) the other ceases to trade or is wound up or enters into liquidation whether voluntarily or compulsorily (other than for the purposes of solvent amalgamation or reconstruction) or compounds with its creditors or has a receiver appointed over all or any of its assets or its undertaking or any part thereof or, if a statutory body or an unincorporated or incorporated association, is dissolved, deconstituted or reconstituted other than in circumstances in which its power or rights of authority shall be reconstituted in or devolved upon a corporate body or some other statutory or other successor acceptable to the other party to this agreement or causes any steps to be taken by a third party for any diligence or causes any form of diligence to be threatened against it or if any action, petition, application or proceedings is initiated or resolution passed relating to any of the aforementioned matters.
c) In any event by mutual consent.
17.2 Any termination of the Agreement shall be without prejudice to any rights or remedies of either Party to, or as a result of, termination.
17.3 In the event of termination, all finished or unfinished Deliverables and other materials prepared by SI, or materials of the Laboratory in the possession of SI shall be returned immediately to the Laboratory.
18.1 All notices, correspondence, writings, statements or other communication required or permitted to be given hereunder by either of the parties to the other of them shall be given, made or communicated, as the case may be, by personally delivering the same, by e-mail, telex, telegram or electronic facsimile transfer, or by registered or certified mail, first-class, postage prepaid, return receipt requested, addressed to the laboratory address, or the seller as follows:
TO: Singer Instrument Co. Ltd
Roadwater, Watchet, Somerset.
England TA23 0RE
18.2 Both parties reserve the right to change the address of service at any time, with notice being given in writing to the receiving party.
19. GOVERNING LAW AND JURISDICTION
19.1 This Agreement shall be construed and governed by the Laws of England & Wales.
19.2 The prevailing party in such proceeding shall be entitled to receive its reasonable legal fees, expert witness fees, and out-of-pocket costs incurred in connection with such proceedings, in addition to any other relief to which it may be entitled.
20. FORCE MAJEURE
20.1 If a party (“the Affected Party”) is prevented, hindered or delayed from or in performing any of its obligations under this Agreement by a Force Majeure Event:
a) the affected party’s obligations under this Agreement are suspended while the Force Majeure Event continues and to the extent that it is prevented, hindered or delayed;
b) immediately after the start of the Force Majeure Event the Affected Party shall notify the other party in writing of the Force majeure Event, the date on which the Force Majeure Event started and the effect of the Force Majeure Event in its ability to perform its obligations under this agreement;
c) the Affected Party shall make all reasonable efforts to mitigate the effects of the Force Majeure Event on the performance of its obligations under the agreement; and
d) immediately after the end of the Force majeure Event the Affected Party shall notify the other party in writing that the Force majeure event has ended and resume performance of its obligations under this Agreement.
20.2 Neither SI nor the Laboratory shall be liable to the other for any delay in, or failure of performance of, any covenant or promise contained in this contract, nor shall any delay or failure constitute default or give rise to any liability for damages if, and only to the extent that, such delay or failure is caused by force majeure. Force Majeure shall means acts of God; acts of the public enemy; acts of terrorism; public health/safety emergency acts of any governmental entity in its sovereign capacity; fires; floods, epidemics; quarantine restrictions; strikes or other labour disputes; freight embargoes; or unusually severe weather.
21. DISPOSAL OF INTEREST IN THE AGREEMENT
21.1 Neither Party to this Agreement shall be permitted to assign or transfer any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the other Party except that (i) the Laboratory may assign all rights and obligations to any affiliate (ii) SI may, assign all rights and obligations to any affiliate and (iii) any Party may assign all rights and obligations to any person who acquires, directly or indirectly, all or any substantial portion of the assets or securities of such Party provided that no such assignment shall relieve the assigning party from its obligations hereunder.
21.2 SI may at its discretion sub-contract to any reputable specialist any part of the Service or procure that any reputable specialist perform any part of the Service. SI will not by reason of sub-contracting or procurement be relieved of any of its obligations under this Agreement. If so required, SI shall inform the Laboratory of any such sub-contracting or procurement.
22. ENTIRE AGREEMENT & AMENDMENT
22.1 This Agreement shall constitute the entire Agreement between the Parties pertaining to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the Parties.
22.2 Each party acknowledges and confirms that it does not enter into this agreement in reliance on any representation or warranty or other undertaking not fully reflected in the terms of this Agreement. Each party irrevocably waives all claims, rights and remedies in relation to any representation made to it before entering into this agreement.
22.3 No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision hereof, nor shall such waiver constitute a continuing waiver unless otherwise expressly provided.
22.4 This clause does not exclude or restrict any liability for fraudulent misrepresentation or fraudulent concealment.
22.5 No supplement, modification or waiver of this Agreement shall be binding unless executed in writing by the Party to be bound thereby.
23.1 In the event that any one or more of the provisions contained in this Agreement or in any other instrument referred to herein, is, for any reason, held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement or any other such instrument and the invalid, illegal or unenforceable provision shall be deemed modified so as to be valid, legal and enforceable to the maximum extent allowed under applicable law.
24. SUCCESSORS & ASSIGNS
24.1 This Agreement will be binding upon the Parties hereto and their respective permitted assigns and successors in interest and will inure solely to the benefit of such Parties and their respective permitted assigns and successors in interest, and no other Person.
25.1 Nothing in this Agreement shall be deemed or construed as creating a joint venture or partnership between the Parties.
25.2 Neither Party is by virtue of this Agreement authorised as an agent, employee, or legal representative of the other Party, and the relationship of the Parties is, and at all times will continue to be, that of independent SI.
26.1 If any provisions or part of a provision of this Agreement shall be or shall become unenforceable, void or invalid (as the case may be) such provision or part thereof shall not affect and shall be deemed to be severed from the remainder of the Agreement to the extent that the remainder of this Agreement shall be or shall continue to be fully enforceable and valid.
26.2 In respect of the supply of parts and equipment SI’s standard Terms and Conditions of Sale are deemed to apply. The Terms and Conditions can be downloaded from the firm’s web site or are available on demand from SI’s registered office.
26.3 A person who is not a party to this Agreement shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to rely upon or enforce any term of this Agreement provided that this does not affect any right or remedy of the third party, which exists or is available apart from that Act. No Party may declare itself a trustee of the rights under this Agreement for the benefit of any third party save as expressly provided in this Agreement.
26.4 Unless the context otherwise required:
a) words importing the plural shall include the singular and vice versa and words importing anyone gender shall include the other genders;
b) words importing persons shall include firms, companies and other business entity;
c) headings are inserted for convenience only and neither the headings nor punctuation (which is included as an aid to reading) shall affect the interpretation and/or construction of this Agreement.
27.1 This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original but all of which will constitute one and the same agreement.