Brady Professional Services – Standard Terms

THIS IS A LEGALLY BINDING AGREEMENT BETWEEN THE CLIENT AND BRADY ENTITY IDENTIFIED IN THE RELEVANT ORDER FORM. ANY PROVISION OF PROFESSIONAL SERVICES BY BRADY WILL BE DEEMED TO BE ON THESE TERMS AND CONDITIONS UNLESS THEY ARE SPECIFICALLY EXCLUDED IN WRITING AND SIGNED BY BRADY.

1. DEFINITIONS

In this Agreement, unless the context otherwise requires, the following terms shall have the meaning set forth below:

  • “Agreement”shall mean this Agreement, including any applicable Order Form and Schedules.
  • “Client”means the legal entity procuring the Services from the Company, as identified in the applicable Order Form.
  • “Company” means Brady legal entity providing the Services to the Client, as identified in the applicable Order Form.
  • “Confidential Information” shall mean confidential or commercially sensitive information relating to a party’s business that has been kept confidential by the party from whom the information originates and which has not come into the public domain in breach of any obligation of confidence.
  • “Consultancy Rate” shall mean the daily consultancy rate of the Supplier, as amended from time to time.
  • “Consumer Price Index” or CPI means, for the purpose of this Agreement, the UK Retail Price Index, or the equivalent for the country where the Company is registered.
  • “Data” means any proprietary data or information owned by the Company and provided to the Client as part of the Services or Deliverables.
  • “Deliverable” means the output of the Services, including but not limited to reports, designs, documentation, or other items prepared by the Company for the Client subject to the terms and conditions of the Agreement.
  • “Force Majeure Event” shall mean, in relation to either party, any circumstances beyond the reasonable control of that party including (but not limited to) act of God, act of war, law or action taken by a government, riot, strike, lock-out, trade dispute or labour disturbance, accident, break-down of plant or machinery, pandemic, fire or flood, unusual physical or electrical stress or any failure or fluctuation in electrical power, air-conditioning or humidity controls or other factors attributable to the technical environment.
  • “IPR” shall mean patents, trademarks, service marks, registered designs, applications for any of those rights, utility models, trade and business names (including internet domain names and email address names), unregistered trade and service marks, copyrights, know-how, database rights, rights in designs and inventions and rights of the same or a similar nature anywhere in the world.
  • “Order From” means the signed order describing the scope and fees for the Services.
  • “Services” means the services provided by the Company to the Client under the Agreement, the scope of which is further described in the Order Form.
  • “Software” means any proprietary software owned by the Company and licensed to the Client for the purpose of the use of Services or Deliverables.

 

2.SERVICES

The Client appoints the Company, and the Company agrees, to carry out the Services and supply the Deliverables, subject to the terms and conditions of this Agreement. The Client will contract with the Company for the Services through each Order Form, which shall include, at a minimum: (i) a description and scope of the services, and any Deliverables and/or training materials to be provided to the Client; (ii) the duration of the Services; and (iii) the applicable fees and payment terms. Any such document shall be deemed part of and subject to the terms and conditions of this Agreement.

3. PERFORMANCE OF THE SERVICES

The Company will perform the Services in accordance with the terms and conditions of this Agreement and any specific terms agreed under a relevant Order Form. If Company personnel are working on Client’s premises: (a) the Client shall provide a safe and secure working environment for such personnel; and (b) the Company personnel shall comply with all reasonable workplace safety and security standards and policies that are applicable to the Client’s employees and of which the Client notifies the Company in writing and in advance of the commencement of any Services hereunder.

4. CLIENT OBLIGATIONS

The Client shall provide the Company with access to its sites and facilities during their normal business hours as reasonably required by the Company to perform the Services. The Client shall also make available to the Company any data, information and any other materials reasonably required by the Company to perform the Services, including, but not limited to, any data, information or materials specifically identified in the Agreement (collectively, “Client Materials”). The Client shall keep any Company confidential information in confidence and secrecy and shall not disclose, or divulge such confidential information, or any part thereof, to any third party without Company’s written consent. The Client shall indemnify the Company and keep the Company fully and effectively indemnified against all costs, claims, demands, expenses, and liabilities of whatsoever nature arising out of or in connection with any claim that the use by the Company of any information or material supplied by the Client, for the purpose of enabling the Company to provide the Services, infringes the IPR of any third party.

5. TRAINING

Unless otherwise agreed in writing, the Client is prohibited from: (a) modifying the training Deliverables; (b) reselling or sublicensing any training Deliverables; (c) utilizing the training Deliverables to replicate or attempt to perform the training, unless otherwise authorized in writing by the Company; and (d) developing or attempting to develop any of the products described in such training Deliverables. The Client may not record, stream, or otherwise capture any performance or aspect of the training, unless otherwise agreed in writing. For on-site delivery, the Client is responsible for providing appropriate training facilities, including without limitation internet connectivity, access to a demo device, projector, computers and other reasonable classroom amenities.

6. DELIVERABLES

The Company shall own all rights, title, and interest in and to the Deliverables and related IPR (excluding any Client’s Confidential Information provided to the Company for its provisioning of Services). The Company shall have the right to use any of the Client’s Confidential Information solely for the purpose of providing the Services to the Client hereunder. Deliverables may contain the Company’s confidential and proprietary information and the Client shall not, to the maximum extent such restriction is permitted by the applicable law, reverse engineer, decompile, disassemble, translate, copy, reproduce, display, publish, create derivative works of, assign, sell, lease, rent, license, sublicense or grant a security interest in all or any portion of the Deliverables. Subject to terms and conditions of this Agreement, and during the term, the Company hereby provides the Client with a limited, non-exclusive, non-transferable and terminable license to use the Deliverables solely for the Client’s internal operations in connection with its authorized use under the applicable Services. Unless otherwise agreed by the Parties in writing, the Services and Deliverables are deemed accepted in the event the Client fails to provide a written acceptance or rejection (with reasonable details for rejection) within ten (10) days of delivery.

7. TOOLS

Notwithstanding any other provision of this Agreement: (i) nothing herein shall be construed to assign or transfer any intellectual property rights in the proprietary software, data, tools, libraries, know-how, techniques and expertise (collectively “Tools”) used by the Company to develop the Deliverables, and to the extent such Tools are delivered with or as part of the Deliverables, they are licensed, not assigned, to the Client, on the same terms as the Deliverables or as otherwise agreed by the Client; and (ii) the term “Deliverables” shall not include the Tools. Tools are the Company’s confidential and proprietary information.

8. LICENCE GRANT

Subject to the terms and conditions of the Agreement, and where applicable, the Company grants the Client a non-exclusive, non-sublicensable and non-transferable, limited license to use the Data and Software, solely for the Client’s internal business use of the Services and or Deliverables, or as otherwise described in the Order Form (the “Permitted Use”). The Client shall have no ownership rights in the Software or Data provided by the Company. All rights not specifically granted in this Agreement are reserved by the Company. Unless otherwise agreed to in writing with the company, the client shall NOT: (a) copy, modify, or create derivative works of the Software or Data, in whole or in part; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software or Data; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source of the Software or Data or methods used to compile the Software or Data, in whole or in part; (d) remove any proprietary notices included within the Data; (e) publish, enhance, or display any compilation or directory based upon information derived from the Data; (f) use the Software or Data in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; or (g) allow unauthorized users to access the Software or Data.

9. SERVICES WARRANTY

The Company warrants that the Services will be performed for and delivered to the Client in a diligent, workmanlike manner. The Company’s ability to successfully perform hereunder is dependent upon the Client’s provision of timely information, access to resources, and participation. If through no fault or delay of the Client, the Services do not conform to the foregoing warranty, the Client may require Company to re-perform the non-conforming portions of the Services provided that the Client notifies the Company in writing within ten (10) days of delivery of the Services. EXCEPT AS STATED ABOVE, THE COMPANY DOES NOT REPRESENT THAT THE CLIENT’S USE OF THE SERVICES, DELIVERABLES, AND/OR TOOLS WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT THE SERVICES, DELIVERABLES, AND/OR TOOLS WILL MEET THE CLIENT’S REQUIREMENTS OR WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED ABOVE ARE THE SOLE WARRANTIES AND REMEDIES FOR THE CLIENT AND EXCLUSIVE OBLIGATIONS OF COMPANY RELATED TO THE SERVICES, DELIVERABLES AND/OR TOOLS TO BE PERFORMED FOR AND DELIVERED TO THE CLIENT PURSUANT TO THIS AGREEMENT. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE AND NON-INFRINGEMENT. EXCEPT AS PROVIDED HEREIN, THE SERVICES, DELIVERABLES, AND/OR TOOLS PROVIDED TO THE CLIENT ARE ON AN “AS IS” AND “AS AVAILABLE” BASIS AND ARE FOR COMMERCIAL USE ONLY.

10. FEES AND PAYMENT

Fees and expenses for the Services shall be set forth in the Order Form and shall be paid by the Client to the Company on or before the due date. Unless otherwise stated in the Order Form, all invoices shall be paid within thirty (30) days from the date of invoice. Without limiting other remedies available to the Company, in the event the Client fails to make a required payment under this Agreement when its due, the Company reserves the right to: (i) temporarily suspend all or part of the Services and/or the Deliverables and (ii) require the Client to pay the interest, in respect of such payment due, at the prorated rate of 5% above the base interest rate per annum from time to time of the Bank of Ireland, or to the maximum extent permitted by the applicable law, where such interest shall be payable on demand. During the temporary suspension period, the fees will continue to apply, and the Client shall pay all fees due and payable prior to the services being reinstated. The fees do not include any local, provincial, federal, or foreign taxes, VAT, levies or duties of any nature (“Taxes”). The Client is responsible for paying all applicable Taxes. If the Company has the legal obligation to pay or collect Taxes for which the Client is responsible under this section, the appropriate amount shall be invoiced to and paid by the Client unless the Client provides the Company with a valid tax exemption certificate authorized by the appropriate taxing authority. Unless otherwise agreed in writing, the fees and the Consultancy Rates will be increased annually by an amount which is equal to the percentage increase, if any, in the Consumer Price Index plus 2% for the preceding calendar year.

11. TERM AND TERMINATION

The Services shall commence on the effective date provided in the Order Form and shall continue in effect until terminated as provided therein. Once signed or accepted, the Agreement shall be non-cancellable, except as otherwise agreed in writing. The parties may terminate the Agreement with mutual consent in writing.

Either party may terminate this Agreement on immediate written notice to the other party if: (a) the other party is in material breach of any of its obligations under this Agreement; (b) the other party is in breach of its obligations under this Agreement and (where such breach is capable of remedy) fails to remedy such breach or provide an appropriate plan to remedy such breach within thirty (30) days of receipt of notice from the party not so in breach requiring it to do so; or (c) the other party undergoes insolvency or bankruptcy events or its normal business operations ceases.

Upon expiration or termination of this Agreement for any reason, or at any other time upon the Company’s written request, the Client shall promptly (in any event within five (5) days after such expiration or termination): (a) return all materials, equipment, software and other property provided by the Company; (b) deliver to the Company all tangible documents and other media, including any copies, containing, reflecting, incorporating, or based on the Confidential Information; (c) permanently erase all of the Confidential Information from its computer systems and certify in writing to the Company.

The terms and conditions of this section and sections 12 to 20 shall survive the expiration or termination of this Agreement.

12. CONFIDENTIALITY

In performance of their obligations under this Agreement, the parties may disclose Confidential Information to each other. Subject to below, each party shall hold all such Confidential Information of the other party in the strictest confidence, not disclose it to any third party without the other party’s prior written consent and ensure that knowledge of such Confidential Information of the other party is confined only to its employees who require such knowledge in the ordinary course of their employment for the purposes of this Agreement. The foregoing shall not apply to information which prior to receipt thereof from one party was in the possession of the other without any restriction on its disclosure or use, or which is subsequently disclosed to the recipient party without any obligations of confidence by a third party who has not derived it directly or indirectly from the other party, or which is or becomes generally available to the public through no act or default of the recipient party, or which is required by law or by any competent authority to be disclosed (but only to the extent that such disclosure is so required).

13. PRIVACY

For the purpose of this section, “Data Protection Legislation” shall mean the Data Protection Act 2018, or, from the date it comes into force in the UK, the General Data Protection Regulation (EU) 2016/679 (“GDPR”) (as applicable) and any other laws relating to the protection of personal data and the privacy of individuals; and “Data Subject”, “Controller”, “Processor”, “Processing” and “Personal Data” have the meaning set out in the Data Protection Legislation in relation to data that are Processed under this Agreement.

The Client confirms that it has the necessary authority (where required) from all relevant Data Subjects for the Company to use and process such Personal Data in accordance with this Agreement.

To the extent that the Company is a Processor acting on behalf of the Client for the purposes of this Agreement: (a) the type of Personal Data and categories of Data Subjects are: name, username, email address or business phone number of the employees or representatives of the Client; and (b) the nature/purpose of the Processing is to enable the Company to carry out the Services (which form the subject matter of the Processing) and the duration of the Processing shall be the Term of this Agreement.

The Company shall comply with its obligations under the Data Protection Legislation and shall, in particular: (i) process the Personal Data only to the extent necessary for the purposes specified herein, in accordance with the Client’s written instructions and this section; (ii) implement appropriate technical and organisational measures in accordance with the Data Protection Legislation to ensure a level of security appropriate to the risks that are presented by such Processing; (iii) not transfer the Personal Data outside of the European Economic Area without the Client’s prior written consent; (iv) ensure that any employees or other persons authorised to Process the Personal Data are subject to appropriate obligations of confidentiality;(v) not engage any third party to carry out its Processing obligations under this agreement without obtaining the Client’s prior written consent; (vi) notify the Client as soon as reasonably practicable, about any request or complaint received from Data Subjects without responding to that request (unless authorised to do so by the Client) and assist the Client by technical and organisational measures, insofar as reasonably possible, for the fulfilment of the Client’s obligations in respect of such requests and complaints; (vii) on request by the Client, and taking into account the nature of the Processing and the information available to the Company, assist the Client in ensuring compliance with its obligations under the GDPR (where applicable) with respect to: (1) implementing appropriate technical and organisational measures; (2) where relevant, notifying Personal Data breaches to the Information Commissioner’s Office (or any replacement body) and/or communicating such breaches to the Data Subject in accordance with the Data Protection Legislation; and (3) where necessary, carrying out and/or reviewing and, if applicable, consulting with the Information Commissioner’s Office (or any replacement body) with respect to data protection impact assessments in accordance with Data Protection Legislation; (viii) on request by the Client, make available all information necessary to demonstrate the Company’s compliance with this section; and (ix) on termination or expiry of this Agreement, destroy or return (as the Client directs) all Personal Data and delete all existing copies of such data.

14. SUBCONTRACTING

The Company reserves the right to use third party service providers (who are under a covenant of confidentiality with the Company), including, but not limited to, offshore subcontractors to assist with the Professional Services, which may include, without limitation, any data migration, training, configuration, installation, implementation or development processes.

15. CHANGE MANAGEMENT PROCESS

The Client may, by giving written notice to the Company, request a change to the Services. Within a reasonable time of receipt of such notice, the Company shall, prepare for the Client a written estimate of any increase or decrease in the fees for the Services and of any effect that the requested change would have on other aspects of the Services. Within 14 working days of receipt of the written estimate referred herein, the Client shall inform the Company in writing whether or not the Client wishes to proceed with the change. If the Client wishes to proceed with the change, the Company shall not make the requested change until the parties have mutually agreed and signed a written variation to this Agreement specifying any change to the Services and any change to the fees. For the avoidance of doubt, for all development services requested by the Client, the Client shall be required to provide a business requirements document which must be approved in writing by both the Company and the Client, prior to moving into development.

16. LIMITATION OF LIABILITY

THE CLIENT ASSUMES ALL RISK ASSOCIATED WITH THE USE OF THE SERVICES AND DELIVERABLES. THE COMPANY ACCEPTS NO RESPONSIBILITY FOR ANY LOSS OR DAMAGES ARISING FROM THE CLIENT’S USE OF THE SERVICES OR DELIVERABLES. IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, DATA, OR USE INCURRED BY THE CLIENT OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF THE COMPANY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE COMPANY’S LIABILITY FOR DAMAGES HEREUNDER FOR ANY CAUSES WHATSOEVER SHALL IN NO EVENT EXCEED THE FEES RECEIVED BY THE COMPANY FROM THE CLIENT IN PRECEDING TWELVE (12) MONTHS TERM FROM THE DATE OF ANY CLAIM WITH RESPECT TO THE PARTICULAR TRANSACTION WHICH GIVES RISE TO THE LIABILITY.

17. ANTI-CORRUPTION

Each party shall: (a) comply with all applicable laws, statutes, regulations relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010; (b) have and maintain in place throughout the Term its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with this section; and (c) promptly report to the other party any request or demand for any undue financial or other advantage of any kind it receives in connection with the performance of this Agreement. Breach of this section shall be deemed a material breach of this Agreement.

18. EXPORT CONTROL

The Client shall not export, directly or indirectly, any data acquired from the Company under this Agreement (or any data or products incorporating any such data). The Client shall comply with any export control laws of any country for which the government or any agency of the government at the time of export requires an export licence or other governmental approval.

19. GOVERNING LAW AND JURISDICTION

The Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the laws of the country where the Company is registered and the parties irrevocably submit to the exclusive jurisdiction of the courts of such country.

20. MISCELLANEOUS

Neither party shall be liable to the other party, for any loss or damage which may be suffered as a direct or indirect result of a party being delayed, prevented or hindered in the performance of any of its obligations under this Agreement by reason of a Force Majeure Event. The affected party shall give notice to the other party as soon as is reasonably practical.

If the Client’s internal policies require a purchase order to be issued, the Client shall issue a purchase order to the Company in respect of payment no less than thirty (30) days prior to such payment being due or payable. For the avoidance of doubt, the Client’s failure to issue such purchase order will not prevent the Company from issuing an invoice for payment, nor permit the Client to avoid or delay payment of any such amounts. The terms and conditions of this Agreement shall apply to the exclusion of any other terms that Client seeks to impose or incorporate, including any terms on a purchase order, or which are implied by trade, custom, practice or course of dealing.

All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the Order Form (or to such other address that may be designated by the receiving party from time to time in writing).

This Agreement, together with any other documents incorporated herein by reference, and related Order Form, exhibits and schedules, constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto, and any of the terms thereof may be waived, only by a written document signed by each party to this Agreement or, in the case of waiver, by the party or parties waiving compliance.

If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. This Agreement may be executed in multiple counterparts and by electronic or facsimile signature, each of which shall be deemed an original and all of which together shall constitute one instrument.

Except as expressly provided in this Agreement, a person who is not a party to this Agreement shall not have any rights to enforce any term of this Agreement, under the Contracts (Rights of Third Parties) Act 1999 or equivalent applicable legislation.
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