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1. AGREEMENT AND INTERPRETATION
These terms of business (“Conditions”) form part of Your Agreement with Keywords. By signing the Quote or confirming your acceptance of the Quote in writing, You accept the Agreement, which applies to the exclusion of all other terms, including without limitation any terms and conditions or other legal terms sent by You to Keywords in respect of the Services. In the absence of Your signature on the Quote or written acceptance, Your acceptance of the Services shall constitute acceptance of the Agreement.
1.1. In this Agreement the following defined terms apply:
1.1.1. “Agreement” means the Quote together with these Conditions and the applicable Service Annexe(s).
1.1.2. “Applicable Law” means all applicable laws, statutes, orders, rules, provisions, regulations, directives and guidelines that have legal effect, whether local, national, international or otherwise, existing from time to time, including any requirements of any applicable regulator.
1.1.3. “Keywords” means KEYWORDS INTERNATIONAL LIMITED, a company incorporated in Ireland under company number 286266 whose registered office is at Whelan House, South County Business Park, Dublin 18, Ireland, any subsidiary or any holding company of Keywords International Limited, and any subsidiary of a holding company of Keywords International Limited (also referred to in these Conditions as “We” or “us”).
1.1.4. “Keywords Know-how” means all knowledge, know-how, skills and techniques which Keywords (1) has gained from providing services similar to the Services and (2) will use to provide the Services and (3) will gain from providing the Services.
1.1.5. “Business Day” means a day (other than a Saturday or Sunday) on which banks are generally open in England for the transaction of normal banking business.
1.1.6. “Commencement Date” is as defined in the Quote.
1.1.7. “Customer Materials” means the materials (in printed or digital format), if any, to be provided by You to enable Keywords to provide the Services, as set out in the relevant Service Annex and/or Quote.
1.1.8. “Confidential Information” means any information disclosed by a Party to the other Party, either directly or indirectly, in writing, orally, electronically or by inspection of tangible objects (including without limitation documents, business plans, financial projections, prototypes, drawings, designs, engineering, technical, sales programming and consumer data and product specifications, manuals, objects of intellectual property rights, patent, copyright, trade secret, design, marketing plans, commercials, written materials and compositions, computer or software programs, studies, business plans, budgets and forecasts).
1.1.9. “Defect Notice” means the notice defined in clause 5.2.
1.1.10. “Deliverables” means the materials which Keywords is required to deliver to You and which are specified in the Quote.
1.1.11. “Dispute” is defined in clause 22.2.
1.1.12. “Event of Force Majeure” means, in relation to a Party claiming to be subject to it, an event outside the reasonable control of that Party and which causes that Party to be unable to comply with all or a material part of its obligations under this Agreement, but excluding any obligation to make a payment pursuant to this Agreement.
1.1.13. “Fees” means the amounts payable by You to Keywords pursuant to clause 7 and the Quote.
1.1.14. “Group” in respect of any undertaking, means that undertaking, any holding company of such undertaking from time to time and any subsidiary of any of the foregoing from time to time and “member of its Group” shall be construed accordingly
1.1.15. “Intellectual Property Rights” means patents, trademarks, service marks, rights in logos, rights in get-up, trade names, internet domain names, rights in designs, copyright (including rights in computer software) and moral rights, database rights, semi-conductor topography rights, utility models, rights in know-how and other intellectual property rights, in each case whether registered or unregistered, and all rights or forms of protection having equivalent or similar effect anywhere in the world and registered includes registrations and applications for registration.
1.1.16. “Quote” means the document sent to You by Keywords which sets out, amongst other terms, the Fees, the Services and the Deliverables.
1.1.17. “Representatives” means an individual from each Party who is authorised to make a binding commitment to the other Party in relation to this Agreement and its obligations, as set out in the Quote or as agreed between the Parties from time to time.
1.1.18. “Services” means the services identified in the Quote and described in more detail in the applicable Service Annexe(s).
1.1.19. “Specifications” means, in relation to a Deliverable, the functional, operational or technical specifications, if any, set out in the Quote or in an evaluation report.
1.1.20. “Term” means the duration of this Agreement as determined in accordance with clause 2.
1.1.21. “You/Your” means the entity identified in the Quote as the “Customer”.
1.2. Words importing the singular shall include the plural and vice-versa; words denoting persons shall include bodies corporate and unincorporated associations of persons and vice-versa; any reference to “in writing” includes email.
1.3. Reference to any statute or statutory provision is, except where otherwise stated, to a United Kingdom statute or statutory provision. Such reference includes any consolidation or re-enactment, modification of the same, any statute or statutory provision of which it is a consolidation, re-enactment, modification or replacement and any subordinate legislation in force under any of the same from time to time.
2.1. The Agreement comes into force on the day that you sign the Quote and continues to be in force (subject to early termination in accordance with its terms) until all Services have been completed and all Fees have been paid. Keywords reserves the right to wait until it receives a Quote signed by You, before Keywords commences delivering the Services.
3. PROVISION OF SERVICES
3.1. In consideration of the Fees, Keywords will provide the Services, subject to you providing Keywords the Customer Materials (if any) in good time and subject to You complying with the assumptions set out in the relevant Service Annexe(s).
3.2. Unless expressly stated to the contrary in the Quote, Keywords reserves the right to allocate the Services or part thereof to any member of the Keywords Studios Group to perform during any available shift, provided that such allocation shall not prejudice Keywords’ obligations pursuant to this Agreement.
3.3. After completing the Services, Keywords will, in relation to the Customer Materials: (1) magnetically bulk erase or otherwise render them unreadable (destroy) and discard discs or similar magnetic media; or (2) render them unreadable (destroy) and discard test candidate CD-ROMs or similar pre-release optical media; or (3) destroy (shred) any documentation supplied by you and duplicated by Keywords for the purposes of testing.
The Quote may set out timelines or deadlines for the Services, which, unless expressly stated to be final, are estimates only and time is not of the essence in respect of the Services.
5. ACCEPTANCE OF DELIVERABLES
5.1. You have the right to test the Deliverables against any specifications that have been agreed in writing with Keywords.
5.2. If You reasonably believe that a Deliverable does not meet the Specifications, You must notify Keywords in writing within (10) Business Days of receipt of that Deliverable with all relevant details (“Defect Notice”). After Keywords has received a notice from You, We will either (1) inform You in writing that we do not agree with Your reasons, in which case the matter shall be dealt with in accordance with the provisions of clause 22.2; or (2) re-submit the relevant Deliverable within  Business Days of receiving your notice.
5.3. If Keywords does not receive a Defects Notice within (10) Business Days of Your receipt of any Deliverable, that Deliverable will be deemed to be accepted.
6. INTELLECTUAL PROPERTY
6.1. Unless expressly set out in the Quote, neither Party shall have any claim or interest in the other Party’s Intellectual Property Rights and You agree that all rights in Keywords Know-how are proprietary to Keywords and no title or proprietary rights in Keywords Know-how are hereby or will be transferred to you.
6.2. All Customer Materials are provided by You on a non-exclusive, world-wide and royalty-free basis.
6.3. Subject to clause 6.1 and full payment of all Fees by You in accordance with the provisions of clause 7, Keywords hereby assigns to you all Intellectual Property Rights, title and interest in the Deliverables.
6.4. The Parties agree and acknowledge that the Deliverables are “works made for hire” for You. However, if, for any reason, a the Deliverable is not deemed to be a “work made for hire”, We shall waive any and all moral rights in and to such Deliverable which we may acquire under the Agreement or by operation of law.
6.5. Keywords hereby indemnifies You against all actions, claims, losses, costs, damages and expenses (including without limitation, all reasonable and actually incurred legal fees, costs or expenses and any compensation, costs or disbursements paid by You to compromise or settle any action or claim) suffered or incurred by You and arising directly as a result of a claim by a third party that the supply of the Deliverables by Keywords is a breach of that third party’s Intellectual Property Rights.
6.6. You hereby indemnify Keywords on demand against all actions, claims, losses, costs, damages and expenses (including without limitation, all reasonable and actually incurred legal fees, costs or expenses and any compensation, costs or disbursements paid by Keywords to compromise or settle any action or claim) suffered or incurred by Keywords and relating to a claim by a third party that Keywords’ use of the Customer Materials in the course of providing the Services infringes that third party’s Intellectual Property Rights.
7. FEES, EXPENSES AND PAYMENT
7.1. In consideration of the Services, You agree to pay Keywords the Fees in accordance with this clause 7 and the Quote, which shall be exclusive of VAT but inclusive, subject to clause 7.6, of all other taxes, imposts and fees. If VAT is payable it shall be separately identified on the invoice and shall be payable by the relevant Party subject to receipt of a valid VAT invoice from the other Party.
7.2. The payment terms for the Fees are set out in the Quote.
7.3. You shall, within ten (10) Business Days of receipt, notify Keywords in writing if You, acting reasonably, have a query in respect of an invoice and wish to withhold payment of it, or a part of it, such notice to state in full Your reasons for disputing the relevant amount.
7.4. Any query submitted pursuant to clause 7.3 shall be discussed between the Parties’ Representatives for a period of ten (10) Business Days. If the query is resolved within such period, the amount in question shall be paid immediately and if it is not resolved in such period, it shall be treated as a Dispute, in accordance with the provisions of clause 22.3.
7.5. If an invoice is unpaid as at the due date and Keywords has not received notification from You in accordance with clause 7.3, Keywords may:
7.5.1. at its option and without prejudice to any other remedy at any time after payment has become due, temporarily suspend the provision of any further Services; and/or
7.5.2. charge interest on all overdue invoices, which shall accrue from the date when payment becomes due until the date of payment at a rate of 6% over the Barclays Bank Base Rate (irrespective of whether the date of payment is before or after any judgment or award in respect of the same), such interest shall accrue on a daily basis and be payable on demand.
7.6. In the event that withholding tax is payable in respect of the Fees, You shall in the first instance provide Keywords with such assistance as is reasonably required and requested by Keywords in order for a dispensation from the payment of such tax to be obtained, including without limitation obtaining and completing any ‘double taxation’ forms applicable to the securing of such dispensation. In the event that such dispensation cannot be secured, You shall deduct the required withholding tax from the amounts payable to Keywords, and pay such taxes to the appropriate authority. You shall thereafter provide Keywords with all reasonable assistance (including the execution of documents) as may be required to enable Keywords to reclaim the withholding tax paid.
7.7. Unless expressly set out in the Quote, Fees are exclusive of expenses, which shall be agreed by the Parties prior to Keywords incurring them.
8.1. Each Party will treat as confidential all Confidential Information obtained from the other under this Agreement. The Parties agree that they will not without the prior written consent of the other disclose Confidential Information to any person or use the same except for the purposes of complying with their respective obligations pursuant to this Agreement. Parties recognize that a breach of the confidentiality obligations set out herein, or if a Party commences to exploit (or cause to be exploited) or use (or cause to be used) parts of the Confidential Information, prior to or without acquiring any right to do so from the disclosing Party on the basis of a written agreement, shall cause significant damages to the other Party. In such case Parties retain the right to claim full compensation of the damages causes by the breach, without prejudice to any other rights Parties may have according to the applicable law.
8.2. Clause 8.1 does not prohibit disclosure of Confidential Information to:
8.2.1. The receiving Party’s own personnel (including employees, agents and permitted contractors) who need to know of the Confidential Information provided that such personnel are first made aware of the confidential nature of the Confidential Information and the receiving Party’s obligations in relation to it and themselves agree in writing to treat the Confidential Information confidentially; or
8.2.2. the receiving Party’s auditors, professional advisers, HM Revenue & Customs (or an analogous body in a different jurisdiction) and any other person having a statutory or regulatory right to request and receive that information.
8.3. Clause 8.1 does not apply to information which the receiving Party can show by reference to documentary or other evidence:
8.3.1. was rightfully in its possession before the start of discussions between the Parties relating to this Agreement; or
8.3.2. is already public knowledge or becomes so at a future date (otherwise than as a result of breach of clause 8.1); or
8.3.3. is received from a third Party who is not under an obligation of confidentiality in relation to the information; or
8.3.4. is developed independently without access to, or use of or knowledge of, the Confidential Information.
8.4. The obligations of confidentiality under this clause 8 shall survive the termination of this Agreement until such time as the Confidential Information enters the public domain otherwise than through the fault of the recipient Party.
9. RESTRICTIVE COVENANTS
Neither Party will, during the Term and for a period of twelve (12) months after the termination or expiry of the Agreement, solicit or engage the employment or services of any employee or contractor of the other Party or with whom that Party may have come into contact as a result of the Agreement without the consent of the other party, except that nothing shall prevent either Party from employing any employee or contractor of the other Party who replies to a general recruitment advertisement.
10. Warranties and Indemnities
10.1. Each of the Parties hereby warrants and undertakes to the other that it has the power, has taken all necessary action to allow it, and has all governmental and regulatory authorisations, licences, approvals and registrations necessary for it to enter into and perform this Agreement and to permit the payments contemplated by this Agreement.
10.2. Keywords warrants and represents to You that:
10.2.1. it will provide the Services using reasonable skill and care; and
10.2.2. it will not incorporate a third party’s material into the Deliverables without Your prior written approval.
10.3. You warrant and represent to Keywords that the Customer Materials, if any, do not infringe a third Party’s Intellectual Property Rights or other proprietary rights.
10.4. Other than expressly set out in this Agreement, Keywords makes no representations and gives no warranties, guarantees or undertakings in relation to the Services or the Deliverables. All other warranties and conditions, express or implied, are expressly excluded from this Agreement.
11.1. Nothing in this clause shall exclude or limit a Party’s liability for death or personal injury or fraud or any matter for which it would be unlawful for the Parties to exclude liability.
11.2. Subject to clause 11.1, Keywords’ liability in respect of breach of contract or breach of duty, tort or fault or negligence or otherwise whatsoever and/or howsoever arising out of or in connection with this Agreement shall be limited to the lesser of (i) the value of the Fees paid by You in respect of the Service in relation to which the alleged breach occurred during the 12 month period immediately preceding the breach giving rise to the liability or (ii) €500,000.
11.3. Notwithstanding any other provision in this Agreement, in no event shall either Party be liable to the other Party for:
11.3.1. any lost revenue, lost profits, business, opportunity or anticipated savings, loss of goodwill or injury to reputation, loss of data and/or loss of use of any data, replacement goods, loss of technology rights or services; or
11.3.2. incidental, punitive, indirect or consequential damages arising from or related to the performance of its obligations under this Agreement,
11.3.3. even if advised of the possibility of such damages, whether under contract, tort (including negligence), strict liability or otherwise.
12. TERMINATION AND CONSEQUENCES
12.1. Without limiting any other remedy available to it, a Party (the “Terminating Party”) may terminate the Agreement with immediate effect by giving written notice to the other Party (the “Non-terminating Party”):
12.1.1. at any time if the Non-terminating Party is in material or persistent breach of any of the provisions of the Agreement, which, if remediable, is not remedied within twenty (20) Business Days or such alternative period as may be agreed between the Parties, following the receipt of such written notice; or
12.1.2. at any time if the Non-terminating Party is unable to pay its debts (within the meaning of section 123(1) of the Insolvency Act 1986) or an order is made or a resolution passed for its liquidation, winding-up or dissolution (otherwise than for the purpose of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer is appointed over it or all or any substantial part of its assets or takes formal steps towards making any kind of composition, compromise or arrangement involving it and any of its creditors, or anything analogous to the foregoing shall occur in any jurisdiction;
12.1.3. pursuant to clause 13.3.2.
12.2. Keywords may, in addition, terminate the Agreement by immediate written notice to You in the event that You have not paid any Fees on the due date, other than Fees disputed in accordance with clause 7.3.
12.3. The following clauses shall survive termination or expiry of this Agreement: 1, 4, 5, 6, 7, 8, 9, 10, 11, 12, 15 and 22.
13. FORCE MAJEURE
13.1. Neither Party shall be liable for any delay in performing its obligations under this Agreement to the extent that such is directly caused by an Event of Force Majeure provided that:
13.1.1. any delay by a sub-contractor or supplier of the Party who is delayed will not relieve that Party from liability for delay except where the delay is beyond the reasonable control of the sub-contractor or supplier concerned; and
13.1.2. strikes or industrial action on behalf of the delayed Party’s staff or its appointed sub-contractors will not relieve that Party from liability for delay.
13.2. Subject to the delayed Party
13.2.1. immediately telling the other Party in writing of the reasons for the delay and the likely duration of the delay; and
13.2.2. using reasonable endeavours to perform its obligations under this Agreement, the performance of the delayed Party’s obligations will be suspended during the period that those circumstances persist and that Party will be granted an extension of time for performance equal to the period of the delay.
13.3. Save where the delay is caused by the act or failure to act of the other Party (in which event the rights, remedies and liabilities of the Parties will be those conferred by the other terms of this Agreement and by law):
13.3.1. any costs arising from that delay will be borne by the Party incurring the same; and
13.3.2. either Party may, if that delay continues for more than five weeks, terminate this Agreement immediately on giving written notice to the other.
14. ASSIGNMENT AND SUBCONTRACTING
14.1. This Agreement may not be assigned by either Party without the other Party’s prior written consent, save that Keywords may at any time sub-contract the provision of the Services, including without limitation to any company within the Keywords Studios Group. Keywords shall be liable to You for the acts and omissions of all sub-contractors appointed by Keywords in relation to the Services.
15.1. Any notice under this Agreement shall be sent in writing and may be sent by letter, by fax or by electronic mail (email) by one Party’s Representative to the other Party’s Representative, at the address, fax number or e-mail address set out in the Quote.
15.2. Any notice shall be effective when given as follows:
15.2.1. If the notice is by letter, it shall be effective when delivered. Delivery shall be deemed to have taken place when the letter is left by hand at the address required by clause 15.1 or within three (3) Business Days after being put in the first-class post (by airmail if to another country) with postage prepaid and addressed as per clause 15.1 (and whether sent by recorded or registered delivery or otherwise).
15.2.2. If the notice is by fax or by e-mail it shall be effective on the date of transmission, if transmitted before 3pm local time at the place of destination on any Business Day, and in any other case on the Business Day following the date of transmission.
16. THIRD PARTY RIGHTS
Unless expressly stated in this Agreement, a person who is not a Party has no right to enforce any provision of this Agreement.
If any one or more of the provisions contained in this Agreement shall be invalid, illegal or unenforceable in any respect the validity, legality or enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.
18. NO PARTNERSHIP OR AGENCY
Nothing in this Agreement shall be deemed to constitute a partnership between the Parties nor, save as expressly set out herein, constitute either Party the agent of the other Party for the purpose.
19. ENTIRE AGREEMENT
19.1. This Agreement constitutes the entire agreement and supersede any previous written or oral agreements between the Parties relating to the subject matter of this Agreement.
19.2. Each Party acknowledges that it has not relied upon or been induced to enter into this Agreement by a representation, statement, warranty or understanding (whether negligently or innocently made) other than as expressly set out in this Agreement.
19.3. A Party is not liable to the other Party for a representation that is not set out in this Agreement.
19.4. This clause 19 does not affect a Party’s liability in respect of a fraudulent misrepresentation or its own wilful default.
No alteration or variation of the terms of this Agreement shall be binding or effective unless agreed to in writing and signed by authorised representatives of both Parties.
21. INVALIDITY OR UNENFORCEABILITY
21.1. If a provision of this Agreement is or becomes illegal, invalid or unenforceable in any jurisdiction, this will not affect:
21.1.1. the legality, validity, or enforceability in that jurisdiction of any other provision of this Agreement; or
21.1.2. the legality, validity or enforceability in any other jurisdiction of that or any other provision of this Agreement.
22. APPLICABLE LAW AND DISPUTE RESOLUTION
22.1. This Agreement shall be governed by and construed in accordance with the law of English and Wales and each of the Parties irrevocably submits for all purposes in connection with this Agreement to the exclusive jurisdiction of the English Courts.
22.2. Any question or difference which may arise concerning the construction, meaning or effect of this Agreement or any matter arising out of or in connection with this Agreement (“Dispute”) shall in the first instance be referred to the Representatives for discussion and resolution. This clause shall not affect a Party’s right to claim injunctive relief in relation to an alleged breach of clauses 6 or 8 or any unauthorised or infringing use of the Party’s Intellectual Property Rights.
22.3. In the event of a Dispute between You and Keywords, the following procedure shall apply:
22.3.1. the relevant Representative shall notify the other in writing of the Dispute;
22.3.2. the Representatives will, in good faith, use all their reasonable endeavours to resolve the Dispute within twenty (20) Business Days of receipt of the written notification;
22.3.3. where a Dispute is not resolved pursuant to the provisions of this clause 22.3, it shall be dealt with in accordance with clause 22.1.