MERITSOFT

STANDARD TERMS AND CONDITIONS

    1. Application
      1. These Standard Terms and Conditions shall apply to the provision of IT Services by Merit Software Limited to the Client.
      2. In the event of conflict between these Standard Terms and Conditions and any other terms and conditions (of the Client or otherwise), the former shall prevail unless expressly otherwise agreed by Merit in writing.
    1. Definitions and Interpretation
      1. In these Standard Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings, and the definitions and rules of interpretation in this clause applies in these Standard Terms and Conditions, which for clarity shall include the Service Specific Terms and any Schedules and Invoices.

        “Standard Terms and Conditions”

        means these terms and conditions, any Invoice supplied by Merit, any Schedule(s), and the Service Specific Terms;

        “Business Day”

        means, any day between 9a.m. and 5p.m. (other than Saturday and Sunday) on which ordinary banks are open for their full range of normal business in London;

        “Business Purpose and Implementation”

        means the purpose for which the software is authorised to support for and it is acknowledged that different implementations, normally separately invoiced require their own specific licence, as set out in a particular Invoice, Schedule and/or Appendix. Software Licences may not be swapped between implementations;

        “Commencement Date”

        means the commencement date as set out in these Standard Terms and Conditions;

        “Client”

        means the Client names on the Quotation and/or Invoice;

        “Merit”

        Merit Software Limited; a company incorporated in Ireland (company number 282606), whose registered office is at 10 Wilfield Park, Sandymount, Dublin 4 (including any of its subsidiaries or group companies);

        “Service(s)”

        means the Merit Software services, including Claim Manager Software service(s), and each and every additional Module provided, or to be provided by Merit to the Client as stated on an Invoice and more particularly set out in Annex 2, also including any Support Services and/or services provided under these Standard Terms and Conditions;

        “Service Specific Terms”

        means the terms and conditions SST MS1 at Annex 3 which relate to the Service(s) supplied to Client and which supplements these Standard Terms and Conditions;

        “Equipment”

        means the Equipment listed in the Invoice and shall include all updated or replacement parts and any additional equipment supplied by Merit;

        “Fees”

        means any and all fees Invoiced to Client, including fees payable under the relevant Fees Schedule(s) arising out of the continued performance of Merit’s obligations and the Clients uninterrupted receipt of the Services; and which shall accordingly be set out in an Invoice and include but not be limited to the Initial Term License Fee, Annual Recurring License Fee, Monthly Software Rental Fee, Renewal License Fee and any implementation, support and maintenance fee;

        “Invoice”

        means the invoice submitted by Merit in respect of the Service(s) including any additional services provided by Merit under these Standard Terms and Conditions, the invoice template of which is set out in Annex 1;

        “Initial Term License Fee”

        means the license Fee payable for the Initial Term of each and every Service as set out in these Standard Terms and Conditions and more particularly set out in an Invoice.

        “Annual Recurring License Fee”

        means the annual license Fee payable for each and every Service as set out in these Standard Terms and Conditions and more particularly set out in an Invoice.

        “Monthly Software Rental Fee”

        means the monthly rental Fee calculated as the (Initial Term Licence Fee +RPI for the previous Initial Term) + (Annual Recurring Licence Fee)) ÷ 12 as set out in these Standard Terms and Conditions and more particularly set out in an Invoice;

        “Implementation and Upgrade Fee”

        means the fees payable for services at the implementation of the Software or upgrade and bespoke changes to the configuration of the Software;

        ” Merit Software”

        means any software provided by Merit including Claim Manager Software and any associated Modules, any and all programs, applications, instructions or similar that may from time to time be installed, reinstalled or upgraded on the Clients computer systems; and

        Fee Schedule(s)

        means any and all schedules of Fees and/or payment schedule (or parts thereof) to any Prior Agreement which sets out the Fees payable by Client in respect of the Service(s) and which are set out in each and every Invoice and accordingly incorporated into these Standard Terms and Conditions;

        Support Services

        means any and all schedule(s) of Support Services (or parts thereof) to any Prior Agreement which is referred to in an Invoice and accordingly incorporated into these Standard Terms and Conditions;

        Schedule(s)

        means any schedule(s), including Fees Schedule(s) and/or Support Services Schedule(s) referred to in an Invoice which are accordingly incorporated into these Standard Terms and Conditions;

        “Prior Agreement”

        means any prior existing agreement, variation, change order or renewal (expired or not) made between Merit and Client under which Merit provides (or provided) the Service(s) and the Client continues (or continued) to receive the Service(s) without interruption;

        “Annex 2”

        describes the suite of Service Modules supplied to Client as described on a Quotation or any Invoice;

        “Annex 3”

        means the terms and conditions of the Service Specific Term(s) relating to each Service as also set out at http://www.merit-soft.com/terms which shall be subject to change from time to time;

        “User”

        means an employee of the Client, who has been granted access to the Service (or any part thereof) under a licence and whose details are logged and available on Merits User Administration Screen;#

        “User Administration Screen”

        means the administration screen for each Service provided to Client accessible by Client and Merit and which amongst other things, details the number of Users set up on the Merit Software.

      1. Unless the context otherwise requires, each reference in these Standard Terms and Conditions to:
          1. “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
          1. a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
          1. “these Standard Terms and Conditions” is a reference to these Standard Terms and Conditions and each of the Schedules and Service Specific Terms as amended or supplemented at the relevant time;
          1. a Schedule is a schedule to any Prior Agreement duly incorporated in to these Standard Terms and Conditions; and
          1. a Clause or paragraph is a reference to a Clause of these Standard Terms and Conditions or a paragraph of the relevant Schedule.
          1. a “Party” or the “Parties” refer to the parties to these Standard Terms and Conditions.
      1. The headings used in these Standard Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Standard Terms and Conditions.
      1. Words imparting the singular number shall include the plural and vice versa.
      1. References to any gender shall include the other gender.
      1. Where a conflict arises between any term of these Standard Terms and Conditions, these Standard Terms and Conditions shall take precedence.
    1. Merit’s Obligations
      1. With effect from the Commencement Date or any date of Renewal, Merit shall, in consideration of the Fees being paid in accordance with the terms of payment, provide the Service(s) expressly identified in Annex 2 or any Service Specific Term(s).
      1. Merit will use reasonable care and skill to perform the Service(s) identified in Annex 2 or otherwise agreed in writing under these Standard Terms and Conditions.
      1. Merit will, subject to Clause 5, use reasonable endeavours to maintain the functionality of any Merit Software which may be installed or otherwise operative on the Client’s Equipment and undertakes to re-install any Merit Software which may have been corrupted or otherwise made unavailable due to hardware failure and to render such technical assistance as may be necessary to secure the satisfactory operation of the Equipment and Merit Software.
      1. Upon receipt of the Client’s request for support or rectification of a defect, Merit shall (subject to its then current commitments) normally begin work on such support or defect not later than 24hrs thereafter and shall carry out all Service(s) as specified in Annex 2 or any Service Specific Term(s) during a Business Day until all required work is completed to the reasonable satisfaction of the Client.
      1. Merit will not guarantee the performance of any Merit Software which Merit has undertaken to re-install under sub-Clause 3.3.
      1. Merit shall use all reasonable endeavours to complete its obligations under Annex 2 or any Service Specific Term(s). The Parties agree that time will not be of the essence in the performance of these obligations.
      1. Merit will not be responsible for any Merit Software complying with any regulatory or compliance regulations that relate to the specific business purpose and implementation that the Merit Software or Service has been implemented for. Confirmation of compliance is the responsibility of the Client
      1. Any and all intellectual property rights relating to the Merit Software will be owned by Merit Software or it’s successors unless specifically agreed in writing otherwise
    1. Training and User Access
      1. Merit shall when requested provide training in accordance with the software program specified in Annex 2 or any Service Specific Term(s) to all staff that require it at the Client’s cost based on Merit’s then applicable rates.
      1. The cost of all training materials including, but not limited to, books, hand-outs and interactive resources which may be required shall not be included in the training Fees and will be billed by Merit to the client separately.
      1. Prior to the date of the Quotation, the Client shall determine the number of staff requiring training and shall inform Merit.
      1. All training Fees, unless specified otherwise in Annex 2 or any Service Specific Term(s), shall be paid by the Client at the same time as the first instalment of Fees payable under Clause 6. In the event that subsequent training of new staff is required, additional training Fees shall be charged on an ad-hoc basis with payment due prior to the commencement of such training.
      1. Further training may be required in the event of significant alterations or upgrades to the application software and the network Infrastructure. Merit shall inform the Client of such recommended training in advance and shall supply details of all required training Fees.
      1. Notwithstanding the provisions of this Clause 4, the Client is not bound to utilise Merit’s training services and is free to procure training from alternative sources.
      1. Client acknowledges that it uses the Merit Software as a stand-alone product installed on the Clients local server. In addition, Client confirms that although the modules may be accessed by a User on a stand-alone basis, some functions of each module may require a combination of modules before a User may access the full functionality of a module (e.g. SX1 calculation requires the SX1 module and the UK Tax Account documentation module).
      1. Client further acknowledges that in order to access the Implementation, each of its Users must be set up on the Clients system, and that each User must be granted their own Merit Software licence;
      1. The Merit Software licence shall allow Users to access the core Claim Manager Software, and additionally provide User access to the Modules associated with the particular Business Purpose and Implementation as set out in a relevant Annex 2.
      1. The Client shall provide monthly audits in respect of the number of Users which have been set up on the User Administration Screen. For the avoidance of doubt, upon a request by Merit, Client shall be obliged to provide a report generated by the Merit Software which shall list every User which has been set up on the system.
    1. Client’s Obligations
      1. The Client shall:
          1. Allow Merit access to the Equipment and all relevant Merit Software for investigation purposes;
          1. Provide adequate working space and facilities for Merit’s staff; and
          1. Co-operate with them in the diagnosis of any defect or malfunction in the Equipment or Merit Software.
          1. Provide a User list detailing all the Users list as more specifically set out in this agreement.
      1. The Client shall allow Merit the use of any Equipment, computer systems, peripherals or other hardware necessary to enable it to provide the Service(s) and shall be responsible for procuring, installing and maintaining all communications media not supplied by Merit.
      1. The Client will not allow any changes or modifications to the Merit Software to be made by any party other than those authorised by Merit. If such changes or modifications are carried out without authorisation or appropriate notification, Merit reserves the right to review these Standard Terms and Conditions and make adjustments accordingly.
      1. The Client will make freely available to Merit all documentation associated with the Equipment, working documents, original Merit Software installation media, current data backups, Equipment and any other relevant hardware for the efficient maintenance of the Equipment and the Merit Software.
      1. The Client shall create regular data backups in such a manner as to minimise any potential data loss and to ensure that these are made available to Merit as required.
      1. The Client shall take all reasonable precautions to ensure the safety and health of Merit’s personnel while such personnel are at the Client’s premises.
      1. The Client will not in any circumstances seek to obtain the source code of the Merit Software or Services. In the event that such obligation is breached, the liability of the client for remedy will be unlimited
    1.   Price
      1. The Client agrees to pay the Fees, as set out in each Invoice, in accordance with Clause 7 and/or the Service Specific Term(s).
      1. Merit shall be entitled to recover from the Client his reasonable incidental expenses for materials used and for third party goods and services supplied in connection with the provision of the Service(s).
      1. The Client shall pay Merit for any additional services provided by Merit that are not specified in Annex 2 or any Service Specific Term(s) or any Service Specific Term(s) in accordance with Merit’s hourly rate in effect at the time of the performance or such other rate as may be agreed. Any such charge for additional services shall be invoiced separately from any Fees due under these Standard Terms and Conditions.
      1. All sums payable by Client pursuant to these Standard Terms and Conditions are exclusive of any value added or other sales tax or or other taxes or other taxes on profit, for which that Party shall be additionally liable.
    1. Payment
      1. All payments required to be made pursuant to these Standard Terms and Conditions by the Client shall be made within 30 days of the date of the relevant Invoice, without any set-off, withholding or deduction.
      1. The time of payment shall be of the essence of these Standard Terms and Conditions. If the Client fails to make any payment on the due date in respect of any sum due under these Standard Terms and Conditions then Merit shall have the right to charge the Client interest on any sum outstanding at the rate of 8% above the base rate of Barclays Bank PLC from the due date for payment until the date on which the payment is received.
      1. Unless otherwise set out in the relevant Service Specific Terms, the Initial Term License Fee shall automatically become payable upon the earlier of (a) commencement of the Initial Term; (b) the initial date on which the Service is delivered to the client for testing or (c) the date agreed that the term should start, whichever comes sooner. For the avoidance of doubt, Merit shall be entitled to retrospectively demand payment of an Initial Term License Fee at any time after the same becomes payable in accordance with this Clause 7.3.
      1. Payments in respect of the Annual Recurring License Fee, Renewal Fee, Initial Term License Fee and/or any other Fee as Invoiced by Merit shall be payable upon the receipt by Client of an Invoice in accordance with Clause 7.1 above. Furthermore, and for clarity, where Merit has not Invoiced the Annual Recurring License Fee, Renewal Fee or any other Fee for over two or more consecutive years, Merit may in its sole discretion Invoice multiple Fees’ retrospectively and concurrently, whereupon interest of 8% above Barclays Bank plc base rate shall also be charged at Merits sole discretion.
    1. Variation and Amendments
      1. Subject to Clause 8.3, if the Client wishes to vary any details of Annex 2 or any Service Specific Term(s) it must notify Merit in writing as soon as is reasonably possible. Merit shall use all reasonable endeavours to make any required changes and any additional costs thereby incurred shall be separately invoiced to the Client.
      1. If, due to circumstances beyond Merit’s control, it has to make any change in the arrangements relating to the provision of the Service(s) it shall notify the Client forthwith. Merit shall endeavour to keep such changes to a minimum and shall seek to offer the Client arrangements as close to the original arrangements as is reasonably possible in the circumstances.
      1. In accordance with Clause 10.2.1, upon such Renewal or anytime thereafter, Merit shall Invoice the Client for the Initial Term License Fee together with the Annual Recurring License Fee, or alternatively and in accordance with 10.2.2, Merit shall Invoice the Client the Monthly Software Rental Fee.
      1. From the date of issue of Invoice by Merit, Client shall have 3 working days to dispute the Invoice in writing and which must set out the particulars of the dispute. After the expiration of 3 working days, where no notice has been received, such Invoice shall be deemed valid and accepted by the Client.
      1. In accordance with Clause 8.4 above, Clients failure to notify Merit and set out its particulars of the disputed Invoice shall render any notice of dispute as invalid.
    1. Termination and Renewal
      1. Merit may terminate these Standard Terms and Conditions forthwith if:
          1. The Client is in breach of any of its obligations hereunder;
          1. The Client has entered into liquidation (other than for the purposes of a bona fide amalgamation or reconstruction) whether compulsory or voluntarily or compounds with its creditors generally or has an administrator, administrative receiver or receiver appointed over all or a substantial part of its undertaking or assets;
          1. The Client has become bankrupt or shall be deemed unable to pay its debts by virtue of Section 123 of the Insolvency Act 1986;
          1. The Client ceases or threatens to cease to carry on business; or
          1. Any circumstances whatsoever beyond the reasonable control of Merit necessitate and justify the Termination of the Service(s).
      1. In the event of Termination or breach of contract by Client, Merit shall retain any sums already paid by the Client without prejudice to any other rights may have whether at law or otherwise; and
          1. All amounts due from the Client under Merits Standard Terms and Conditions shall be paid immediately by the Client; and
          1. All Fees and Charges which will become due and payable under the current Term for each and every Service and/or Module (including Support Services) shall automatically be due and immediately payable to Merit.
    1. Renewal
      1. Upon the expiry of any Prior Agreement, and provided Merit supplies (or supplied) the Service(s) and Client continues (or continued) to receive the Service(s) without interruption, the terms of any aforesaid Prior Agreement shall automatically be superseded by these Standard Terms and Conditions save for the Fees Schedule(s) and Support Schedule(s), or any Schedule referred to on an Invoice, and which accordingly shall be substituted and incorporated into these Standard Terms and Conditions and shall continue to apply to the respective Service(s) and/or Module(s) to which they originally relate and which for the avoidance of doubt shall be set out in each and every Invoice (“Renewal”).
      1. The Client acknowledges that at Merits sole option, a Renewal shall be;
          1. For an Initial Term of ONE, THREE or FIVE years (“Initial Term”); or
          1. On a monthly basis which shall be set out in the first Invoice submitted to Client following Renewal; or
          1. Automatically for an Initial Term of THREE years where the Invoice does not stipulate an Initial Term as in 10.2.1 or 10.2.2 above.
      1. The Client acknowledges that its receipt of Merits Invoice in respect of the continued provision of the Service(s) for a specific Business Purpose or Implementation shall serve as sufficient notice of Clause 9.3 above, and as such these Standard Terms and Conditions shall be duly incorporated forthwith.
      1. For the avoidance of doubt, the Merit Software shall amongst other things comprise of the core Claim Manager Software licences and any additional Modules utilised in the particular Business Purpose and Implementation. Modules cannot be utilised without core Claim Manager Software licences, nor can any other licences for such Modules exceed the term of the core Claim Manager Software licences, unless specifically agreed in writing.
      1. Merit Software may only be used in the locations as agreed in writing between Merit and Client. In the event that no such agreement is made, then Merit may at its option, terminate these Standard Terms and Conditions for a particular Module or set of Modules, and / or charge Client for a separate Business Purpose and Implementation.
    1. Liability
      1. The Client shall indemnify and hold Merit harmless against all damages, costs, claims and expenses suffered by Merit arising from loss or damage to any equipment (including that of third parties) caused by the Client, or its agents or employees.
      1. Where the Client consists of two or more persons such expression throughout shall mean and include such two or more persons and each or any of them. All obligations on the part of such a Client shall be joint and several obligations of such persons.
      1. Merit shall not be liable to the Client or be deemed to be in breach of these Standard Terms and Conditions by reason of any delay in performing, or any failure to perform, any of Merit’s obligations if the delay or failure was due to any cause beyond Merit’s reasonable control.
      1. Save for death or personal injury caused by Merits negligence, including fraud or wilful misconduct Merit shall not be liable to the Client for any damages, or loss including loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with these Standard Terms and Conditions.
      1. If Merit fails to perform the Service(s) with care and skill it will at its sole option carry out remedial action at no extra cost to the Client.
    1. Confidentiality
      1. During the term of these Standard Terms and Conditions, the following obligations shall apply to the Party disclosing Confidential Information (‘the Disclosing Party’) to the other Party (‘the Receiving Party’).
      1. Subject to sub-Clause 11.3, the Receiving Party:
          1. May not use any Confidential Information for any purpose other than the performance of his obligations under these Standard Terms and Conditions;
          1. May not disclose any Confidential Information to any person except with the prior written consent of the Disclosing Party; and
          1. Shall make every effort to prevent the use or disclosure of the Confidential Information.
      1. The obligations of confidence referred to in the provisions of this Clause shall not apply to any Confidential Information that:
          1. Is in the possession of and is at the free disposal of the Receiving Party or is published or is otherwise in the public domain before its receipt by the Receiving Party;
          1. Is or becomes publicly available on a non-confidential basis through no fault of the Receiving Party;
          1. Is required to be disclosed by any applicable law or regulation;
          1. Is received in good faith by the Receiving Party from a third party who, on reasonable enquiry by the Receiving Party claims to have no obligations of confidence to the other Party to these Standard Terms and Conditions in respect of it and who imposes no obligations of confidence upon the Receiving Party.
      1. Without prejudice to any other rights or remedies the Disclosing Party may have, the Receiving Party acknowledges and agrees that in the event of breach of this clause the Disclosing Party shall, without proof of special damage, be entitled to an injunction or other equitable remedy for any threatened or actual breach of the provisions of this clause in addition to any damages or other remedies to which he may be entitled.
      1. The obligations of the Parties under the provisions of this clause shall survive the expiry or the termination of these Standard Terms and Conditions for whatever reason.
    1. Sub-Contracting and Assignment
      1. Merit may sub-contract to third parties all or any part of the work to be performed hereunder.
      1. The Client shall not assign to a third party any or all of its rights or obligations under these Standard Terms and Conditions without the prior written consent of Merit.
      1. Client shall not allow Merit Software to be used by third party service providers without the express written permission of Merit.
    1. Force Majeure
      Neither Party to these Standard Terms and Conditions shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
    1. Waiver
      1. No waiver by Merit of any breach of these Standard Terms and Conditions by the Client shall be considered as a waiver of any subsequent breach of the same or any other provision. A waiver of any term, provision or condition of these Standard Terms and Conditions shall be effective only if given in writing and signed by the waiving party and then only in the instance and for the purpose for which any waiver is given.
      1. No failure or delay on the part of any Party in exercising any right, power or privilege under these Standard Terms and Conditions shall operate as a waiver of, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise of or the exercise of any other right, power or privilege.
    1. Severance
      If any provision of these Standard Terms and Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Standard Terms and Conditions and the remainder of the provision in question shall not be affected thereby.
    1. Notices
      1. All notices under these Standard Terms and Conditions shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
      1. Notices shall be deemed to have been duly given:
          1. When delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
          1. When sent, if transmitted by fax or e-mail and a successful transmission report or return receipt is generated; or
          1. On the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
          1. On the tenth business day following mailing, if mailed by airmail, postage prepaid.
          1. in each case addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.
      1. Service of any document for the purposes of any legal proceedings concerning or arising out of these Standard Terms and Conditions shall be effected by either Party by causing such document to be delivered to the other Party at its registered or principal office, or to such other address as may be notified to one Party by the other Party in writing from time to time.
    1. Law and Jurisdiction
      1. These Standard Terms and Conditions shall be governed by the laws of England and Wales.
      1. Any dispute between the Parties relating to these Standard Terms and Conditions where the quantum of any claim is below £5,001 shall fall within the jurisdiction of the courts of England and Wales.
    1. ARBITRATION
      Any dispute or difference arising out of or in connection with these Standard Terms and Conditions, where the quantum of any claim is above £5,000 including, shall be finally resolved by arbitration under the UNCITRAL Rules in force at the date of these Standard Terms and Conditions. It is agreed that:
      1. The tribunal shall consist of one arbitrator (who is to be a Solicitor or Barrister);
      1. In default of the parties’ agreement as to the arbitrator(s), the appointing authority shall be the Chartered Institute of Arbitrators in London;
      1. The seat of the arbitration shall be London; and
      1. The language of the arbitration shall be English.

Annex 1

Invoice Template

Description of Services and Modules Qty Rate Amount VAT
As per mail to name@client.com sent [date & time]

Re: [details]

(Code XXXXXXX)

XXXXX Module initial cost re term licence for

Period [date – date]

[XXXXXXXXXXXX.00] EC

Payment module implementation [No. Licenses] [Cost/License] [Total Cost] EC

Payments Module – Initial term discount –[XXXX] -[XXXXX] EC (if any)

Minimum XXXXX and Payments Annual recurring

Licence cost [XXXXXX] EC

XXXXXXX Module initial cost re term licence for

Period [date – date]

[XXXXXXXXXXXX.00] EC

Payment module implementation [No. Licenses] [Cost/License] [Total Cost] EC

Payments Module – Initial term discount –[XXXX] -[XXXXX] EC (if any)

Minimum XXXXX and Payments Annual recurring

Licence cost [XXXXXX] EC

ATTENTION client@email.com contact reference was XXX ref was XXXX

AS THIS IS AN INTRA EU SUPPLY, CUSTOMER IS

RESPONSIBLE FOR VAT

SST MS1 applies to Modules and/or Services described above unless otherwise agreed. Merit Software Limited Standard Terms and Conditions apply and may be viewed at www.merit-soft.com/terms

Annex 2

Service Specific Terms for Merit Software

Applicable Service Specific Terms

Merit Software and Modules

SST MS1

Claim Manager

(“Modules”)

Payments

Posting

Equilend

        Appendix C/P/F tracking

DPP – Dividend Profit Predictor

P&L

SX1 – UK AUKI required processing

SSI repository

Brokerage Manager (Core) including Futures)

Invoicing

Exception management & Workflow

Advanced Reporting

Interest claim calculation

Case Management

UK Tax document module

US Tax document module

FATCA and Securities of interest (US)

Client Money Manager

TMPG and JGB Fail charge

Workflow

Claim Manager-Money differences

French Transaction Tax Manager

Collateral Interest Manager

Annex 3

Service Specific Terms

SST MS1

 

Background

Merit has supplied and licensed certain software products to the Client under the terms of the Licence (defined below) and has agreed to provide support and maintenance for such Software (and other software products) on the terms set out in the Standard Terms and Conditions.

Agreed terms

    1. Interpretation
        1. The definitions and rules of interpretation in this clause apply in these Service Specific Terms and including Merits Standard Terms and Conditions.

      Affiliate:

      includes, in relation to either party, each and any subsidiary or holding company of that party and each and any subsidiary of a holding company of that party.

      Charges:

      the charges payable for the Support Services under these Service Specific Terms, being (where the context so requires) each or any of the following:

       

      a. the charges for the Support Service (which charges may also include the Updating Service);

       

      b. the charges for any additional support service set out in a relevant Support Schedule or Invoice, unless otherwise notified to Client by Merit in writing.

       

      c. any charges agreed for Optional Services;

       

      d. any charges agreed for New Versions;

       

      in each case as the same may be amended from time to time in accordance with the provisions of clause 7.7.

      Critical Fault:

      a reproducible fault which substantially hinders or prevents the Client from using a material part of the functionality of the software in question.

      Deliverables:

      any Documentation, software, documents, know-how or other works created or supplied by Merit (whether alone or jointly) in the course of providing the Services.

      Documentation:

      the documentation provided by Merit for the Software, in either printed text or machine readable form, including but not limited to the technical documentation, program specification and operations manual.

      Intellectual Property Rights:

      all patents, copyrights, design rights, trade marks, service marks, trade secrets, know-how, database rights and other rights in the nature of intellectual property rights (whether registered or unregistered) and all applications for the same, anywhere in the world.

      Licence:

      a Licence of even date made between Merit and the Client.

      Maintenance Release:

      a release of the Software which corrects faults, adds functionality or otherwise amends or upgrades the Software, but which does not constitute a New Version.

      Manager:

      the person appointed by the Client from time to time in order to fulfil the role described in clause 10.3.

      Modification:

      any Maintenance Release or New Version which is acquired by the Client.

      New Version:

      any new version of the Software which from time to time is publicly marketed and offered for purchase by Merit in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product.

      Non-Critical Fault:

      any reproducible fault in the Software other than a Critical Fault.

      Optional Service:

      any of the services that the Client and Merit may from time to time agree shall be supplied to the Client by Merit under the terms of these Service Specific Terms.

      Service Levels:

      those standards of performance to be achieved by Merit in performing the Support Service.

      Support Service(s):

      the support service which is to be provided by Merit to the Client pursuant to clause 3.2 and which includes but is not limited to the support and maintenance service, any Updating Service, any enhanced support service and any optional services which are set out (or referred to as a Support Schedule) in an Invoice and accordingly duly incorporated into these Terms and Conditions.

      Software:

      has the same meaning as in the Deliverables.

      Standard Support Hours:

      9.00 am to 5.30 pm Monday to Friday, except on days which are bank holidays in England.

      Support Staff:

      those individuals who perform Merit´s obligations under these Service Specific Terms.

      Updating Service:

      the service to be supplied by Merit to the Client pursuant to clause 3.3.
      1. The headings in these Service Specific Terms do not affect its interpretation. Save where the context otherwise requires, references to clauses and schedules are to clauses and schedules of these Service Specific Terms.
      1. Unless the context otherwise so require:
        1. references to Merit and the Client include their permitted successors and assigns;
        1. references to statutory provisions include those statutory provisions as amended or re-enacted; and
        1. references to any gender include all genders.
      1. In the event of any conflict between these Service Specific Terms and Merits Standard Terms and Conditions, the latter shall prevail.
      1. Words in the singular include the plural and in the plural include the singular.
      1. Holding company shall be construed in accordance with sections 736 and 736A of the Companies Act 1985.
      1. Subsidiary shall be construed in accordance with sections 736 and 736A of the Companies Act 1985 as amended from time to time
    1. Licence and term
      1. In consideration of Client agreeing to abide by the terms of this Licence, Merit hereby grants to Client a non-exclusive, non-transferable licence to use the Software and the Documentation in the UK on the terms of this Licence for a Term of 3 [THREE] years, or where any prior agreement with the Client has expired and the Client continues to utilise the Software and/or Documentation uninterrupted, the Term shall automatically renew on a 3 [THREE] year recurring basis forthwith;
      1. Merit will not be responsible for any Software complying with any regulatory or compliance regulations that relate to the specific business purpose and implementation that the Software or Service has been implemented for. Confirmation of compliance is the responsibility of the Client
      1. License shall entitle Client to;
          1.  install and use the Software for internal business purposes only, either (as agreed between the parties):
              1. on one CPU if the Licence is a single-User licence or the Software is for single use; or
              1. if the Licence is a multi-User or network licence, for the number of Users agreed between the parties, save that each User set up on the system must have a license. User licence numbers will be based on the number of Users set up on the User administration screen;
          1.  make up to two copies of the Software for back-up purposes only
          1.  at Merits sole discretion, Client to receive and use any free supplementary software code or update of the Software incorporating “patches” and corrections of errors as may be provided by Merit from time to time
      1.    Except as expressly set out in this Licence or as permitted by any local law, Client undertakes
          1. not to copy the Software or Documentation except where such copying is incidental to normal use of the Software or where it is necessary for the purpose of back-up or operational security
          1. not to make alterations to, or modifications of, the whole or any part of the Software nor permit the Software or any part of it to be combined with, or become incorporated in, any other programs
          1. not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Software or Documentation
          1.  not to disassemble, de-compile, reverse engineer or create derivative works based on the whole or any part of the Software nor attempt to do any such things except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988) such    actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Software with another software program, and provided that the information obtained by Client during such activities:
              1. is used only for the purpose of achieving inter-operability of the Software with another software program;
              1. is not disclosed or communicated without Merit’s prior written consent to any third party to whom it is not necessary to disclose or communicate it; and
              1. is not used to create any software which is substantially similar to the Software;
          1. to keep all copies of the Software secure and to maintain accurate and up-to-date records of the number and locations of all copies of the Software;
          1. to supervise and control use of the Software and ensure that the Software is used by Client’s employees and representatives in accordance with the terms of this Licence
          1. to replace the current version of the Software with any updated or upgraded version or new release provided by Merit under the terms of this Licence immediately on receipt of such version or release;
          1. to include the copyright notice of Merit on all entire and partial copies of the Software in any form;
          1. not to provide, or otherwise make available, the Software in any form, in whole or in part (including, but not limited to, program listings, object and source program listings, object code and source code) to any person other than Client’s employees without prior written consent from Merit;
          1. not to use the Software via any communications network or by means of remote access
      1. You must permit Merit and his representatives, at all reasonable times and on reasonable advance notice, to inspect and have access to any premises, and to the computer equipment located there, at which the Software or the Documentation is being kept or used, and any records kept pursuant to this Licence, for the purpose of ensuring that Client is complying with the terms of this Licence.
      1. At Merits request, Client must produce and provide an up to date User list based on the Users set up in the User Administration Screen set up. List should include the entire User list without deduction or amendment from the time the list was requested by Merit.
    1. The services
          1. Merit shall supply and the Client shall take and pay for the following Services:
              1. the Support Service; and
              1.  any such optional support services as are included from time to time within an Invoice or an order for Optional Services agreed between Merit and the Client pursuant to clause 4.
          1. In relation to the Support Service, unless otherwise specified in a relevant Support Schedule:
              1. the Support Service shall be provided during the Standard Support Hours and shall comprise:
                  1. a telephone help desk to provide first-line technical support to Users of the supported Software;
                  1. remote diagnosis and, where possible, correction of faults using the software management software; and
                  1. up to 5 hours in any month of second-line on-site technical support.
              1. if additional on-site support is required in any month it may be provided by Merit at its option at the rates set out in the relevant Support Schedule, unless otherwise notified to Client by Merit in writing (as varied from time to time in accordance with the Standard Terms and Conditions).
              1. where a Non-Critical Fault is to be corrected in a forthcoming Maintenance Release, then for a reasonable period prior to the issue of such Maintenance Release Merit shall be entitled to decline to provide assistance in respect of that Non-Critical Fault.
              1. the Support Service shall meet the Service Levels set out in a relevant Support Schedule, unless otherwise notified to Client by Merit in writing.
          1. In relation to the Updating Service:
              1. Merit shall issue Modifications of the Software as and when required in the absolute discretion of Merit;
              1. the Updating Service shall include the supply to the Client of all revisions to the Documentation which are necessary in order to reflect any Modification acquired by the Client;
              1. the cost of the Updating Service may, at Merit’s discretion, be included in the Charges payable for the Support Service and shall not be included in respect of the licence of a New Version; and
              1. once any Modification has been installed by the Client, the Client shall return all copies of the Software or any Part of the Software which is superseded by that Modification.
          1. Merit shall be entitled, on prior notice to the Client, to make changes to the Services, provided such changes do not have a material adverse affect on the Client´s business operations.
          1. Merit shall have no obligation to provide the Services where faults arise from:
              1. misuse, incorrect use of or damage to the Software; or
              1.  failure to maintain the necessary environmental conditions for use of the Software; or
              1. use of the Software in combination with any equipment or software not provided by Merit, or any fault in any such equipment or software; or
              1.  relocation or installation of the Software by any person other than Merit or a person acting under Merit´s instructions; or
              1.  any breach of the Client´s obligations under these Service Specific Terms;
              1. clients infrastructure or use of any third party software.
          1. In the event that Merit is required by Client to investigate faults or issues that arise under Clause 3.5 above or in any event outside of the Support Services, Client shall consequently be responsible for Merits Fees as set out in any later Invoice.
    1. Orders for optional services
        1. The Client may from time to time request Merit to supply Optional Services of the type either set out in a Support Schedule or advised by Merit in writing and at the rates set out in clause 7.2. Merit shall use its reasonable endeavours to comply with the Client´s request, but the Client acknowledges that Merit´s ability to supply the Optional Services shall depend on the availability of appropriate resources at the time in question.
        1. Where Merit agrees to provide Optional Services, such agreement shall be embodied in an order for Optional Services. Each order for Optional Services shall be made under, and shall incorporate, the terms of the Standard Terms and Conditions.
    1. Support staff
        1. All communications, documentation and materials relating to the Standard Terms and Conditions shall be sent as appropriate by Merit to the Client representative. Client shall notify Merit in writing promptly in the event of any proposed change to those appointments.
    1. Further terms relating to the services
        1. Merit´s obligation to provide on-site services shall extend to the sites of the Client situated within London.
        1. Merit shall ensure that, while on the Client´s premises, the Support Staff and all other persons who enter such premises with the authority of Merit for the purpose of, or in connection with, the Standard Terms and Conditions or the provision of the Services adhere to the Client´s security procedures and health and safety regulations, as from time to time notified to Merit or otherwise brought to the notice of Merit or such persons. The Client shall be entitled to remove or to refuse admission to any person who is, or has been, in material breach of such procedures and regulations. However, Merit shall incur no liability for any delay in performing or failure to perform its obligations under the Standard Terms and Conditions as a result of compliance with the terms of this clause 6.2.
    1. Charges
        1. In consideration of the Services (excluding for this purpose any Optional Services), the Client shall pay the Charges set out in a relevant Fees Schedule or Support Schedule. Such Charges shall be paid as directed in the Invoice within 30 days of the date of Merit´s Invoice.
        1. Charges for any New Version or Optional Service supplied by Merit to the Client shall be determined in accordance with Merits Invoice or a relevant Support Schedule (as the case may be), and shall be charged and invoiced to the Client by Merit (and paid by the Client).
        1. The Client shall pay all costs (at Merit´s then prevailing rates) and reasonable expenses incurred by Merit for work carried out by Merit in connection with any fault which is not covered by the Standard Terms and Conditions.
        1. The Client shall reimburse any reasonable expenses incurred by Merit where such expenses are incurred wholly and exclusively for the purpose of providing on-site support as part of the Services, provided that any request for reimbursement is in the form of a proper invoice accompanied by appropriate receipts.
        1. If the Client fails to pay any amount payable by it under the Standard Terms and Conditions, Merit shall be entitled, but not obliged, to charge the Client interest on the overdue amount, payable by the Client forthwith on demand, from the due date up to the date of actual payment, after as well as before judgment, at the rate of 8% per annum above the base rate for the time being of HSBC Bank. Such interest shall accrue on a daily basis and be compounded quarterly. Merit reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
        1. All amounts payable under the Standard Terms and Conditions shall be exclusive of value added tax (if any) or other sales taxes or other taxes which shall be paid at the rate and in the manner for the time being prescribed by law.
        1. Merit shall be entitled to increase the Charges as from each anniversary of the date of the Standard Terms and Conditions. Any such increase shall be incorporated in Merit’s Invoice.
        1. Unless agreed otherwise, the Fees (or any part thereof) shall automatically increase per annum by the average UK Retail Price Index plus 5% [FIVE PERCENT]. Fees will never be subject to negative changes.
    1. The supplier´s warranties and limits of liability
        1. Merit represents and warrants to the Client that:
            1. the Services will be performed:
                1. in accordance with all applicable laws and regulations; and
                1. with all reasonable skill and care;
            1.  to the best of its knowledge and belief, the Deliverables will not infringe the UK Intellectual Property Rights of any third party; and
            1. at the date of the Standard Terms and Conditions, Merit has obtained and will maintain for the duration of the Standard Terms and Conditions all permissions, licences and consents necessary for Merit to perform the Services.
        1. If, during the term of the Standard Terms and Conditions, Merit receives written notice from the Client of any breach by Merit of the representation and warranties contained in clause 8.1, Merit shall, at its own option and expense, remedy that breach within a reasonable period following receipt of such notice, or terminate the Standard Terms and Conditions immediately on written notice to the Client and repay to the Client all sums which the Client has paid to Merit under the Standard Terms and Conditions during the year in which the termination occurs, less a charge for the Services performed up to the date of termination. The Client shall provide all information reasonably necessary to enable Merit to comply with its obligations under clause 8.2. This clause sets out the Client´s sole remedy and Merit´s entire liability for breach of clause 8.1.
        1. No representation or warranty is given by Merit that all faults will be fixed or will be fixed within a specified period of time.
        1. All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into the Standard Terms and Conditions or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including, without limitation, the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose and the use of reasonable skill and care.
        1. Client acknowledges that it is responsible for ensuring that the Software complies with any and all regulatory or legal purpose which the Software is being used to support. Client hereby indemnifies Merit for any use of the Software which it has not acquired the necessary legal or regulatory authorities, consents or approvals as may be required.
        1. Except as expressly stated in clause 8.7:
            1. Merit´s entire liability, whether under the Standard Terms and Conditions or Merits Standard Terms and Conditions, or any collateral contract, for loss of or damage to the Client´s tangible property caused by the negligence of Merit, its officers, employees, contractors or agents, shall not exceed £5,000.
            1.  Merit shall have no liability for any losses or damages which may be suffered by the Client (or any person claiming under or through the Client), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
                1. special damage, even though Merit was aware of the circumstances in which such special damage could arise;
                1. loss of profits;
                1. loss of anticipated savings;
                1. loss of business opportunity;
                1. loss of or goodwill;
                1. loss of, or damage to, data;provided that this clause 8.6(b) shall not prevent claims for loss of or damage to the Client´s tangible property that fall within the terms of clause 8.6(a) or any other claims for direct financial loss that are not excluded by any of categories (i) to (vi) inclusive of this clause 8.6(b);
            1. the Client agrees that, in entering into Merits Standard Terms and Conditions, either it did not rely on any representations (whether written or oral) of any kind or of any person other that those expressly set out in the Standard Terms and Conditions and/or Merits Standard Terms and Conditions or (if it did rely on any representations, whether written or oral, not expressly set out in the Standard Terms and Conditions) that it shall have no remedy in respect of such representations and (in either case) Merit shall have no liability otherwise than pursuant to the express terms of the Standard Terms and Conditions; and
            1. the total liability of Merit, whether in contract, tort (including negligence) or otherwise and whether in connection with the Standard Terms and Conditions or any collateral contract, shall in no circumstances exceed a sum equal to the sum set out in clause 8.6 (a).
        1. The exclusions in clause 8.6 shall apply to the fullest extent permissible at law but Merit does not exclude liability for:
            1. death or personal injury caused by the negligence of Merit, its officers, employees, contractors or agents; or
            1. fraud or fraudulent misrepresentation; or
            1. breach of the obligations implied by Section 12 Sale of Goods Act 1979 or Section 2 Supply of Goods and Services Act 1982; or
            1.  any other liability which cannot be excluded by law.
    1. Intellectual property rights
        1. You acknowledge that all intellectual property rights in the Software and the Documentation throughout the world belong to Merit, that rights in the Software are licensed (not sold) to you, and that you have no rights in, or to, the Software or the Documentation other than the right to use them in accordance with the terms of the Standard Terms and Conditions.
        1. You acknowledge that you have no right to have access to the Software in source code form or in unlocked coding or with comments.
          Any and all intellectual property rights relating to the Software, including any intellectual property arising from the provision of services, will be owned by Merit Software or it’s successors unless specifically agreed in writing otherwise
    1. The Client´s responsibilities
        1. Without prejudice to clause 6.2, the Client shall provide Merit, the Support Staff and all other persons duly authorised by Merit with full, safe and uninterrupted access including remote access to the Client’s premises, and the Software as may reasonably be required for the purpose of performing the Services, such access, except in the case of emergency or agreed out-of-hours downtime, to be within the Standard Support Hours. Where the Services are to be performed at any of the Client´s premises, the Client shall provide adequate working space and office (including telephone) facilities for use by Merit´s personnel and take reasonable care to ensure their safety.
        1. The Client shall ensure that appropriate environmental conditions are maintained for the supported Software and shall take all reasonable steps to ensure that the supported Software is operated in a proper manner by the Client’s employees
        1. The Client shall nominate a Manager to be available to liaise with, and respond to queries from, the Support Staff (for example, as to the resolution of conflicting priorities between two or more items of support or maintenance).
        1. The Client shall:
            1. co-operate with Merit in performing the Services and provide any assistance or information as may reasonably be required by Merit;
            1. report faults promptly to Merit; and
            1. keep full back-up copies of all of its data.
        1. The Client shall indemnify Merit against any losses, damages, costs (including legal fees) and expenses incurred by or awarded against Merit as a result of the Client´s breach of the Standard Terms and Conditions or any negligent or wrongful act of the Client, its officers, employees, contractors or agents.
    1. Meetings
      For the duration of the Standard Terms and Conditions, the Manager, the Support Staff as may from time to time be considered appropriate shall meet at least once in each calendar month, at a Client office location and at a time to be agreed between the Manager and the Support Staff, for the purpose of discussing provi­sion of the Services and achievement of the Service Levels and any other appropriate matters.
    1. Dispute resolution
        1. It is the intention of the parties to settle amicably by negotiation all disagreements and differences of opinion on matters of performance, procedure and management arising out of the Standard Terms and Conditions. Accordingly, it is agreed that the procedure set out in clause 12 shall be followed prior to the serving of written notice terminating the Standard Terms and Conditions, or in relation to any matter of dispute between the parties concerning performance, procedure or management.
        1. In the event that any disagreement or difference of opinion arises out of this agree­ment, the matter shall be disposed of as follows:
            1.  the Manager and the Support Staff shall meet to attempt resolution. Should they not meet within 14 days of the date on which either party convenes a meeting to resolve the matter, or should they not be able to resolve the matter with 14 days of first meeting; then
            1. the matter shall promptly be referred by either party to a Director of the Client and the CEO of Merit for immediate resolution.
        1. If, within 36 days of the matter first having been referred, no agreement has been reached as to the matter in dispute, the dispute resolution process shall be deemed to have been exhausted in respect of the matter in dispute, and each party shall be free to pursue the Arbitration rights as set out at Clause 19 of Merits Standard Terms and Conditions.
        1. The Client shall not, for the duration of the Standard Terms and Conditions , and for a period of six months following termination, directly or indirectly induce or attempt to induce any employee of Merit who has been engaged in the provision, receipt, review or management of the Services or otherwise in connection with the Standard Terms and Conditions to leave the employment of Merit.
    1. Risk and title
      Risk in, and title to, any media bearing any software or Documentation or other information that may from time to time be supplied by Merit to the Client shall pass to the Client on acceptance by the Client.
    1. Force majeure
        1. Subject to due compliance with clause 14.2, neither party shall be liable to the other for any delay or non-performance of its obligations under the Standard Terms and Conditions arising from any cause beyond its reasonable control including, without limitation, act of God, governmental act, war, fire, flood, explosion or civil commotion.
        1. In the event of either party being so delayed or prevented from performing its obligations, such party shall:
            1. give notice in writing of such delay or prevention to the other party as soon as reasonably possible, stating the commencement date and extent of such delay or prevention, the cause thereof and its estimated duration;
            1.  use all reasonable endeavours to mitigate the effects of such delay or preven­tion on the performance of its obligations under the Standard Terms and Conditions; and
            1. resume performance of its obligations as soon as reasonably possible after the removal of the cause of the delay or prevention.
        1. In the event that such delay or prevention continues for more than eight weeks, the party whose performance is not delayed or prevented may terminate the Standard Terms and Conditions on 30 days´ written notice to the other party, in which case the provisions of clause 16 shall apply.
    1. Termination
        1. Each party shall have the right, without prejudice to its other rights or remedies, to terminate the Standard Terms and Conditions immediately by notice to the other if the other:
            1.  is in material or persistent breach of any of its or its obligations under the Standard Terms and Conditions and either that breach is incapable of remedy, or that other party has failed to remedy that breach within 30 days after receiving written notice requiring it to do so; or
            1.  is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administra­tive or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction.
        1. Merit shall have the right, without prejudice to its other rights or remedies, to terminate any Service, Module (without interruption to the other Services or Modules) or the Standard Terms and Conditions immediately by notice to the Client if the Client:
            1. undergoes a change of control which does not result in control passing to a company that, immediately prior to the change in question, was an Affiliate of the Client; or
            1.  sells all of its assets or is merged or re-organised in circumstances where it is not the surviving entity; or
            1. disputes the ownership or validity of Merit´s Intellectual Property Rights;
            1.  fails to pay any Invoice which has become due and payable.
    1. Consequences of termination
        1. On expiry or termination of a Service, Module or the Standard Terms and Conditions:
            1. the Client´s right to receive the Service, Module or the entire Services (as appropriate) shall cease automatically;
            1. each party shall immediately return to the other all property and materials containing Confidential Information (as defined in clause 18) belonging to the other; and
            1. all amounts due from the Client under the Standard Terms and Conditions shall be paid immediately by the Client; and
            1.  all Fees and Charges which will become due and payable under the current Term shall automatically be due and immediately payable to Merit.
        1. Any termination of the Standard Terms and Conditions (howsoever occasioned) shall not affect any accrued rights or liabilities of either party, nor shall it affect the coming into force or the continuance in force of any provision of the Standard Terms and Conditions which is expressly, or by implication, intended to come into force or continue in force on or after that termination.
    1. Assignment and sub-contracting
        1. Subject to the remaining terms of clause 17, neither party may assign, sub-license, sub-contract, mortgage or otherwise transfer any of its rights or obligations under the Standard Terms and Conditions without the prior written consent of the other, such consent not to be unreasonably withheld or delayed.
        1. Merit may sub-contract any of its obligations under the Standard Terms and Conditions on notice to the Client provided that it shall remain liable to the Client for the performance of all such obligations.
    1. Confidentiality and publicity
        1. Each party shall, during the term of the Standard Terms and Conditions and thereafter, keep confidential, and shall not use for its own purposes, nor without the prior written consent of the other disclose to any third party, any and all information of a confiden­tial nature (including trade secrets and information of commercial value) that may become known to such party from the other party, and which relates to the other party or any of its Affiliates (Confidential Information), unless such information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of the Standard Terms and Conditions, or subsequently comes lawfully into the possession of such party from a third party.
        1. The terms of the Standard Terms and Conditions may not be disclosed by the Client (other than to its legal advisers) without the prior written consent of Merit.
        1. The provisions of clause 18 shall remain in full force and effect notwithstanding any termination of the Standard Terms and Conditions.
    1. Waiver
      No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.
    1. Severability
      If any provision of the Standard Terms and Conditions is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions will not be prejudiced
    1. Amendments
      Any amendment, waiver or variation of the Standard Terms and Conditions shall not be binding on the parties unless set out in writing, expressed to amend the Standard Terms and Conditions and signed by or on behalf of each of the parties.
    1. Third party rights
      No term of the Standard Terms and Conditions is intended to confer a benefit on, or to be enforceable by, any person who is not a party to the Standard Terms and Conditions.
    1. Notices
      Any notice required to be given pursuant to the Standard Terms and Conditions shall be in writing, and shall be sent to the other party marked for the attention of the person at the address set out for such party in the Standard Terms and Conditions. Notices may be sent by first-class mail or fax, provided that faxes are confirmed within 24 hours by first-class mailed confirmation of a copy. Correctly addressed notices sent by first-class mail shall be deemed to have been delivered 72 hours after posting and correctly directed faxes shall be deemed to have been received instantaneously on transmission, provided that they are confirmed as set out in this contract. Unless stated otherwise, the provisions of clause 23 shall not apply to day-to-day communications between the Support Staff and Manager relating to the performance of the Services pursuant to clause 2.1.
    1. Entire agreement
      Merits Standard Terms and Conditions, including and Schedules and Invoices contain the whole agreement between the parties relating to the subject matter hereof, and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.
  1. Governing law and jurisdiction
    This agreement shall be governed by and construed in accordance with English law and each party hereby submits to the rights of Arbitration as exclusive remedy and as set out at Clause 19 of Merits Standard Terms and Conditions.

    This agreement has been entered into on the date stated as stated on the Invoice.