WARRANTIES, INDEMNITY AND LIABILITY. 9.1 The Supplier undertakes, represents and warrants that: 9.1.1 it has the right, power and authority to enter into and fully perform this Agreement; 9.1.2 the Services shall be executed in an efficient and diligent manner using all reasonable care and skill, and by appropriately trained and skilled staff and Sub-contractors; 9.1.3 it shall not do anything wilfully, negligently and or in breach of this Agreement which to its knowledge would or might diminish the reputation or good name of the Customer. The Supplier shall notify The Customer immediately of any such wilful or negligent act or breach. For the avoidance of doubt and without prejudice to other instances of material breach of this Agreement by the Supplier, a breach of this warranty by the Supplier shall be considered a material breach of the Agreement for the purposes of Clause 9.2.1, 11.1.1, Clause 11.3 and Clause 13.3; 9.1.4 the provision of the Services and any deliverables shall be in all respects in accordance with all Applicable Laws and the Agreement and that the Services shall be in accordance with this Agreement and shall meet or exceed the Service Levels set out in the SLA; 9.1.5 the provision of the Services and any deliverables and the receipt and use of the same by the Customer shall not infringe any rights of any third party including any third party IPR; 9.1.6 all Communications shall be in accordance with Clause 3.3.9; and 9.1.7 all systems used in the provision of the Services shall be robust at all times and irrespective of whether the interaction with the User is free or charged to the User. 9.2 The Supplier shall indemnify the Customer against all loss, damages and expenses which the Customer may incur as a result of:- 9.2.1 any non-compliance or material breach by the Supplier or its Sub-contractors of the obligations or warranties under the Agreement including a breach of any of the obligations set out in Clause 3.1, Clause 3.2.1, Clause 5 and/or Clause 9.1.3; 9.2.2 negligence, fraud or wilful default by the Supplier or its Sub-contractors; 9.2.3 any claims from third parties made against the Customer (including for the avoidance of doubt for breach of third-party IPR) as a result of the Supplier’s or its Sub- contractors' acts or omissions; or 9.2.4 any fines imposed on the Customer by a regulatory body resulting from an act or omission or material breach of this Agreement on the part of the Supplier or its Sub-contractors. 9.3 The Supplier shall arrange and maintain at its expense with a reputable insurer adequate Public Liability Insurance and Professional Indemnity Insurance, which shall be no less than one million pounds sterling (£1,000,000) and with scope of cover appropriate under the Agreement in respect of any one claim or incident. For the avoidance of doubt, such minimum insurance level shall not be a limit of liability under this Agreement. 9.4 Neither party shall be liable to the other for any special or indirect or consequential losses including, without limitation, loss of revenue, loss of profits, contracts, business or anticipated savings but in each case solely to the extent that they are special, indirect or consequential losses only (whether or not such losses were within the contemplation of the parties at the date of this Agreement) suffered or incurred by either party arising out of or in connection with this Agreement. 9.5 The Supplier shall be liable and shall indemnify the Customer against liability for damages and claimant costs arising directly out of the Supplier’s failure to comply with the obligation under Clause 9.3. 9.6 The Supplier shall produce to the Customer on demand copies of the insurance policies maintained in accordance with the terms of this Agreement, and receipts for premiums required to be paid in relation to such policies.
Appears in 1 contract
Sources: Interactivity Services Agreement
WARRANTIES, INDEMNITY AND LIABILITY. 9.1 8.1 The Supplier undertakesSeller warrants to the Customer and all members of the Customer Group that the Goods shall:
8.1.1 be of satisfactory quality within the meaning of the Sale of Goods ▇▇▇ ▇▇▇▇ and fit for any purpose held out by the Seller or made known to the Seller at any time on or before the Contract is formed;
8.1.2 be free from defects in design, represents material and workmanship and remain so for a period of 24 months;
8.1.3 correspond with any description of the Goods held out by the Seller prior to the Order;
8.1.4 comply with all requirements of the Contract (including the Specification) and any sample provided to the Customer and/or any member of the Customer Group;
8.1.5 comply with all statutory requirements and regulations relating to the Goods and their supply or performance including without limitation the Consumer Protection ▇▇▇ ▇▇▇▇;
8.1.6 be so formulated, designed, constructed, finished and packaged as to be safe and without risk to health;
8.1.7 not themselves infringe or their importation, use or resale infringe the Intellectual Property Rights of any other person; and (in the case of any documentation provided with the Goods) be accurate, complete and free from material errors and omissions.
8.2 The Seller warrants to the Customer and all members of the Customer Group that the Services shall:
8.2.1 be performed with the best standard of care, skill and diligence in accordance with best practice in the Seller's industry, profession or trade;
8.2.2 be performed by appropriately qualified, trained and experienced personnel;
8.2.3 comply with all requirements of the Contract (including the Specification);
8.2.4 (in the case of any documentation provided with the Services) be accurate, complete and free from material errors and omissions; and
8.2.5 not themselves infringe, or their use or resale infringe, the Intellectual Property Rights of any other person.
8.3 The Seller warrants to the Customer and all members of the Customer Group that:
9.1.1 8.3.1 it has or will, at the righttime of transfer, power have full and authority unrestricted rights to enter into and fully perform this Agreementsupply the Goods on these Conditions;
9.1.2 the Services shall be executed in an efficient and diligent manner using 8.3.2 it will comply with all reasonable care and skill, and by appropriately trained and skilled staff and Sub-contractors;
9.1.3 it shall not do anything wilfully, negligently and or in breach of this Agreement which to its knowledge would or might diminish the reputation or good name of the Customer. The Supplier shall ’s policies (as notified to the Seller), and all rules and regulations relating to the Seller’s personnel visiting the Customer’s or any third party premises ;
8.3.3 it will notify The the Customer immediately of any such wilful or negligent act or breach. For in advance if the avoidance of doubt and without prejudice to other instances of material breach of this Agreement by the Supplier, a breach of this warranty by the Supplier shall be considered a material breach delivery of the Agreement Goods would result in the Customer being deemed a ‘Producer’ under the Waste Electrical and Electronic Equipment (WEEE) Regulations;
8.3.4 no Goods will, directly or indirectly, be purchased from or provided from or by, nor will any of the charges or Price received under the Contract, directly or indirectly, be used or paid for the purposes of Clause 9.2.1any transaction related to:
8.3.4.1 any company or corporation resident or incorporated in a country which is the subject of embargoes or sanctions by any of the United Nations, 11.1.1the European Union, Clause 11.3 and Clause 13.3Her Majesty’s Treasury, any European Union member state or any United States government entity; or
8.3.4.2 any country which is the subject of embargoes or sanctions by any of the United Nations, the European Union, Her Majesty’s Treasury or any United States government department.
8.4 The warranties in Condition 8 are in addition to any other warranties or guarantees contained in the Order or implied by law or provided by the Seller or any third party.
8.5 Without prejudice to the other rights or remedies of the Customer and/or any member of the Customer Group (whether express or implied), in the event that the Seller breaches any of the terms of this Contract (including a failure or delay in delivery) or in the event that the Customer terminates the Contract for any other reason in accordance with Condition 9, then the Customer or the relevant member of the Customer Group may, but will not be obliged to, (whether or not the Goods have been accepted) do one or more of the following:
8.5.1 cancel any or all remaining instalments or stages if the Contract has not already been terminated;
9.1.4 8.5.2 refuse to accept any subsequent delivery of the provision Goods and/or performance of the Services and any deliverables shall be in all respects in accordance with all Applicable Laws and which the Agreement and that the Services shall be in accordance with this Agreement and shall meet or exceed the Service Levels set out in the SLASeller attempts to make;
9.1.5 8.5.3 recover from the provision of the Services and Seller any deliverables and the receipt and use of the same additional expenditure reasonably incurred by the Customer shall not infringe and/or any rights member of any third party including any third party IPRthe Customer Group in obtaining the Goods and/or Services from a substitute supplier;
9.1.6 all Communications shall be in accordance with Clause 3.3.9; and
9.1.7 all systems used in 8.5.4 claim damages for any additional costs, losses or expenses incurred by the provision Customer and/or any member of the Services shall be robust at all times and irrespective of whether the interaction with the User is free or charged Customer Group which are in any way attributable to the UserSeller’s breach of the Contract; and/or
8.5.5 oblige the Seller (at the option of) to repair or replace any Goods or re-perform any Services free of charge. If it is necessary to open up or dismantle any other works or assemblies to permit such repair or replacement then the Seller shall bear the cost of such opening up or dismantling and of re-assembly and making good after repairs, replacements and testing of such Goods have been completed to the Customer's reasonable satisfaction.
9.2 8.6 The Supplier Seller shall indemnify keep indemnified and hold harmless each member of the Customer Group from and against all loss, damages and expenses which the Customer may incur as a result of:-
9.2.1 any non-compliance or material breach by the Supplier or its Sub-contractors of the obligations or warranties under the Agreement including a breach of any of the obligations set out in Clause 3.1, Clause 3.2.1, Clause 5 and/or Clause 9.1.3;
9.2.2 negligence, fraud or wilful default by the Supplier or its Sub-contractors;
9.2.3 any claims from third parties made against the Customer costs (including for the avoidance cost of doubt for breach of third-party IPR) as a result of the Supplier’s or its Sub- contractors' acts or omissions; or
9.2.4 any fines imposed on the Customer by a regulatory body resulting from an act or omission or material breach of this Agreement on the part of the Supplier or its Sub-contractors.
9.3 The Supplier shall arrange and maintain at its expense with a reputable insurer adequate Public Liability Insurance and Professional Indemnity Insuranceenforcement), which shall be no less than one million pounds sterling (£1,000,000) and with scope of cover appropriate under the Agreement in respect of any one claim or incident. For the avoidance of doubtexpenses, such minimum insurance level shall not be a limit of liability under this Agreement.
9.4 Neither party shall be liable to the other for any special or liabilities, injuries, direct, indirect or consequential losses including, loss (all three of which include without limitation, loss of revenuepure economic loss, loss of profits, contractsloss of business, business depletion of goodwill and like loss), damages, claims, demands, proceedings and legal costs (on a full indemnity basis) and judgments which the Customer and/or any member of the Customer Group incurs or anticipated savings but in each case solely suffers arising as a consequence of any act, omission, breach of this Contract or negligence by the Seller, its employees, agents, officers and sub-contractors.
8.7 The Seller shall effect and maintain insurance with a reputable insurer against all insurable risks for which the Seller is liable under this Contract. Satisfactory evidence of such insurance and payment of the current premiums shall be shown to the extent Customer on request.
8.8 Neither party excludes or limits its liability (if any) to the other:
8.8.1 for breach of its obligations arising under section 12 of the Sale of Goods ▇▇▇ ▇▇▇▇ or section 2 of the Supply of Goods and Services ▇▇▇ ▇▇▇▇;
8.8.2 for personal injury or death caused by its negligence or by a person for whom it is vicariously liable;
8.8.3 fraud or fraudulent misrepresentation;
8.8.4 for a deliberate, personal repudiatory breach by that they party;
8.8.5 for any breach of Condition 14.3 of these Conditions;
8.8.6 for liability under any indemnity set out in these Conditions; or
8.8.7 for any matter for which liability may not be limited or excluded by law.
8.9 Subject to Condition 8.8, the Customer Group’s maximum aggregate liability under or in connection with this Contract in respect of liability for breach of contract, misrepresentation (whether tortious or statutory), tort (including without limitation negligence), breach of statutory duty or otherwise shall be limited to 100% of the Price payable under the Contract.
8.10 Subject to Condition 8.8, the Seller’s aggregate liability under or in connection with this Contract in respect of liability for breach of contract, misrepresentation (whether tortious or statutory), tort (including negligence) and breach of statutory duty to the Customer Group shall be limited to the greater of: 150% of the prices payable under all Contracts which are in force at the date of the relevant claim; and £5 million.
8.11 Subject to Condition 8.6, the Customer and/or the Customer Group shall not under or in connection with this Contract and whether in contract, tort (including without limitation negligence), misrepresentation (whether tortious or statutory), breach of statutory duty or otherwise have any liability to the Seller for any loss of profit, loss of business, loss of revenue or any special, indirect or consequential losses only (whether or not such losses were within the contemplation of the parties at the date of this Agreement) suffered or incurred by either party arising out of or in connection with this Agreementloss.
9.5 The Supplier shall be liable and shall indemnify the Customer against liability for damages and claimant costs arising directly out of the Supplier’s failure to comply with the obligation under Clause 9.3.
9.6 The Supplier shall produce to the Customer on demand copies of the insurance policies maintained in accordance with the terms of this Agreement, and receipts for premiums required to be paid in relation to such policies.
Appears in 1 contract
Sources: Order Agreement