1. Definitions and Interpretation

The information contained in Sections B and C of this Customer Agreement constitute definitions and, in addition, the following definitions and rules of interpretation in this clause apply in this Customer Agreement:
 

1. Definitions:

2. Clause headings shall not affect the interpretation of this Customer Agreement.
3. Unless the context otherwise requires:
   1. words in the singular shall include the plural and in the plural, shall include the singular;
   2. a reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time; and
   3. any words following the terms including or include or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
4. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns.

2. Licence
   1. In consideration of the Fee paid by the Customer to BioStore (or, where the Customer has purchased this Customer Agreement through an Authorised Distributor, in consideration of the Customer agreeing to abide by the terms of this Customer Agreement), BioStore grants to the Customer a non-exclusive licence to use the Software at the Site(s).
   2. In relation to scope of use:
      1. for the purposes of clause 2.1, use of the Software shall be restricted to use of the Software in object code form for the purpose of processing the Customer’s data for the normal business purposes of the Customer (which shall not include allowing the use of the Software by, or for the benefit of, any person other than an employee of the Customer);
      2. for the purposes of clause 2.1, “use of the Software” means where the Customer has:
         1. an on-premise installation of the Software: loading the Software into temporary memory or permanent storage on the relevant computer, provided that installation on a network server for distribution to other computers at the Sites; or
         2. a hosted or software as a service installation of the Software: access to the Software;
      3. the Customer may not use the Software other than as specified in clause 2.1 and clause 2.2.1 without the prior written consent of BioStore, and the Customer acknowledges that additional fees may be payable on any change of use approved by BioStore;
      4. in the case of on-premise installations of the Software, the Customer may make as many backup copies of the Software as may be necessary for its lawful use. The Customer shall record the number and location of all copies of the Software and take steps to prevent unauthorised copying;
      5. except as expressly stated in this clause 2.2.5 the Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part except to the extent that any reduction of the Software to human readable form (whether by reverse engineering, decompilation or disassembly) is necessary for the purposes of integrating the operation of the Software with the operation of other software or systems used by the Customer, unless BioStore is prepared to carry out such action at a reasonable commercial fee or has provided the information necessary to achieve such integration within a reasonable period, and the Customer shall request BioStore to carry out such action or to provide such information (and shall meet BioStore’s reasonable costs in providing that information) before undertaking any such reduction.
   3. The Customer may not use any such information provided by BioStore or obtained by the Customer during any such reduction permitted under clause 2.2.5 to create any software the expression of which is substantially similar to that of the Software nor use such information in any manner which would be restricted by any copyright subsisting in it.
   4. The Customer shall not:
      1. sub-license, assign or novate the benefit or burden of this Customer Agreement in whole or in part;
      2. allow the Software to become the subject of any charge, lien or encumbrance; and
      3. deal in any other manner with any or all of its rights and obligations under this Customer Agreement,

without the prior written consent of BioStore, such consent not to be unreasonably withheld or delayed.

5. BioStore may at any time sub-license, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under this Customer Agreement, provided it gives written notice to the Customer.
6. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
7. Notwithstanding clause 10 a party assigning any or all of its rights under this Customer Agreement  may disclose to a proposed assignee any information in its possession that relates to this Customer Agreement  or its subject matter, the negotiations relating to it and the other party which is reasonably necessary to disclose for the purposes of the proposed assignment, provided that no disclosure pursuant to this clause 2.7 shall be made until notice of the identity of the proposed assignee has been given to the other party.
8. The Customer shall:
   1. keep a complete and accurate record of the Customer’s copying and disclosure of the Software and its users, and produce such record to BioStore on request from time to time;
   2. notify BioStore as soon as it becomes aware of any unauthorised use of the Software by any person; and
   3. pay, for broadening the scope of the licences granted under this Customer Agreement to cover the unauthorised use, an amount equal to the fees which BioStore would have levied (in accordance with its normal commercial terms then current) had it licensed any such unauthorised use on the date when such use commenced together with interest at the rate provided for in clause 7.5, from such date to the date of payment.
9. The Customer shall permit BioStore to inspect and have access to any premises (and to the computer equipment located there) at or on which the Software is being kept or used, and have access to any records kept in connection with this Customer Agreement, for the purposes of ensuring that the Customer is complying with the terms of this Customer Agreement, provided that BioStore provides reasonable advance notice to the Customer of such inspections, which shall take place at reasonable times.

3. Delivery, Acceptance and Installation (On Premise Installation Customers Only)
   1. BioStore (or where applicable, Authorised Distributor) shall deliver and install on the Customer’s equipment the Software at the Site at a mutually agreeable date and time following signature of this Customer Agreement. 
   2. Within 24 hours of installation, the Customer shall supply data (Test Data) to BioStore suitable to test whether the Software operates in accordance with the Specification (Acceptance Testing) together with the results (Test Results) it reasonably expects to be achieved by processing the Test Data using the Software.
   3. If BioStore can show the Customer that the Test Data or Test Results are not suitable for Acceptance Testing, the Customer shall make such amendments to the Test Data and Test Results as BioStore may reasonably request and provide the amended versions to BioStore within seven days of the request.
   4. Within seven days of receipt of suitable Test Data and Test Results, BioStore shall carry out Acceptance Testing in the presence of the Customer or the Authorised Distributor.
   5. If the Acceptance Testing fails, BioStore shall, promptly and in any event within fourteen (14) days of the Acceptance Testing and at its cost, correct the errors so disclosed and repeat the Acceptance Testing in the presence of the Customer or the Authorised Distributor. 
   6. The Customer shall be deemed to have accepted the Software if:
      1. the Acceptance Testing is certified by BioStore to be successful;
      2. the Customer fails to provide the Test Data and Test Results within either of the time limits set out in clause 3.3 and clause 3.4 (as to which time shall be of the essence); or
      3. the Customer commences operational use of the Software.

4. Hosting and Software as a Service
   1. Where the Customer has opted for BioStore to host the Software, BioStore shall provide access and use of the Software to authorised users selected by the Customer.
   2. The Customer shall use reasonable endeavours to prevent any unauthorised access to, or use of, the Software/Services and notify BioStore promptly of any such unauthorised access or use.
   3. The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Software and Services that:
      1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
      2. facilitates illegal activity;
      3. depicts sexually explicit images;
      4. promotes unlawful violence;
      5. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
      6. is otherwise illegal or causes damage or injury to any person or property;

and BioStore reserves the right, without liability or prejudice to its other rights to the Customer to disable the Customer’s access to any material that breaches the provisions of this clause.

5. Maintenance Releases
   1. BioStore will provide the Customer with all Maintenance Releases generally made available to its customers. BioStore warrants that no Maintenance Release will adversely affect the then existing facilities or functions of the Software.
   2. Customer’s with on-premise installations of the Software shall install all Maintenance Releases as soon as reasonably practicable after receipt.
   3. Where BioStore hosts an installation of the Software for a Customer, BioStore shall promptly apply Maintenance Releases at a mutually agreeable time.
   4. If a Customer has a software as a service offering, Maintenance Releases will automatically be applied by BioStore in accordance with its general release and update cycle.

6. Services
   1. BioStore will, as part of the Services in consideration of the support fees provide the Customer with BioStore’s standard customer support services during Normal Business Hours in accordance with BioStore’s Support Services Policy in effect at the time that the Services are provided. 
   2. BioStore may amend the Support Services Policy and any other documentation describing the Services in its sole and absolute discretion from time to time. 
   3. Where available, the Customer may purchase enhanced support services separately at BioStore’s then current rates, which may be subject to additional terms and conditions.
   4. BioStore will perform the Services with reasonable skill and care.
   5. The Customer shall obtain and maintain all necessary licences, consents, and permissions necessary for BioStore, its contractors and agents to perform their obligations under this agreement, including without limitation the Services.
   6. From time to time BioStore may issue service level agreements or statements regarding elements of the Services. These are not contractually binding and are subject to change at BioStore’s discretion.

7. Fees
   1. If a Customer purchases the Software through an Authorised Distributor, the Authorised Distributor may be responsible for payment of its customers’ licence fees to BioStore or may arrange for payments to be made by the Customer directly to BioStore.
   2. Where a Customer purchases the Software directly from BioStore or makes payments directly, BioStore shall invoice the Customer for the Licence Fee annually in advance on or before the Customer’s Renewal Date. The Customer shall pay each invoice which is properly due and submitted to it by BioStore, unless otherwise agreed in advance in writing within thirty (30) days of receipt, to a bank account nominated in writing by BioStore in full and cleared funds.  Time for payment shall be of the essence of this Customer Agreement. 
   3. The Licence Fee is non-refundable and all sums payable under this Customer Agreement are exclusive of VAT or any relevant local sales taxes, for which the Customer shall be responsible.
   4. Upon giving to the Customer not less than sixty (60) days’ notice in writing in advance of any Renewal Date BioStore may increase the Licence Fee payable by the Customer to BioStore or Authorised Distributor for any renewal of the Licence.
   5. Without prejudice to any other rights or remedies, if the Customer fails to make any payment due to BioStore or its Authorised Distributor, BioStore reserves the right to remove the Customer’s licence to use the Software until such time as payment is made.  Where a Customer has purchased the Software directly from BioStore, the Customer shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment.
   6. Failure to pay BioStore or an Authorised Distributor (as applicable) constitutes a material breach of this Customer Agreement.

8. Duration and Termination
   1. The Licence shall commence on the Effective Date and continue for the Initial Term after which it shall automatically renew on the same terms on each and every Renewal Date for further fixed term periods of one (1) calendar year, unless terminated in accordance with this clause 8.
   2. The Licence may be terminated by either party giving to the other not less than thirty (30) days’ notice in writing of its intention to terminate.  Termination shall be effective at the end of the Initial Term or on the next Renewal Date following the end of the notice period.
   3. Without affecting any other right or remedy available to it, either party may terminate this Customer Agreement with immediate effect by giving written notice to the other party if:
      1. the other party fails to pay any amount due under this Customer Agreement on the due date for payment and remains in default not less than sixty (60) days after being notified in writing to make such payment;
      2. the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of ninety (90) days after being notified in writing to do so;
      3. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
      4. the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
      5. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
      6. an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
      7. the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
      8. a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
      9. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within thirty (30) days;
      10. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 8.3.3 to clause 8.3.9 (inclusive); or
      11. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
   4. BioStore may terminate this Customer Agreement with immediate effect if there is a change of control of the other party (within the meaning of section 1124 of the Corporation Tax Act 2010).
   5. Any provision of this Customer Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Customer Agreement shall remain in full force and effect.
   6. Termination or expiry of this Customer Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Licence which existed at or before the date of termination or expiry.
   7. On termination or expiry of this Customer Agreement for any reason:
      1. all rights granted to the Customer under this Customer Agreement shall cease;
      2. the Customer shall cease all activities authorised by this Customer Agreement;
      3. the Customer shall immediately pay to BioStore any sums (including interest) due to BioStore under this Customer Agreement; and
      4. the Customer shall immediately destroy or return to BioStore (at BioStore’s option) all copies of the Software then in its possession, custody or control and, in the case of destruction, certify to BioStore that it has done so.
   8. Any provision of this Customer Agreement which expressly or by implication is intended to come into or continue in force on or after termination of this Customer Agreement shall remain in full force and effect.

9. Third Party Software
   1. Any Third-Party Software supplied under this Customer Agreement shall be deemed to be incorporated within the Software for the purposes of this Customer Agreement (except where expressly provided to the contrary) and use of the Third-Party Software shall be subject to the Third-Party Additional Terms.
   2. The Customer shall indemnify and hold BioStore harmless against any loss or damage which it may suffer or incur as a result of the Customer’s breach of any Third-Party Additional Terms howsoever arising.
   3. BioStore may treat the Customer’s breach of any Third-Party Additional Terms as a breach of this Customer Agreement.

10. Confidentiality and Publicity
    1. Each party shall, during the term of this Customer Agreement and thereafter, keep confidential all, and shall not use for its own purposes (other than implementation of this Customer Agreement) nor without the prior written consent of the other disclose to any third party (except its professional advisors or as may be required by any law or any legal or regulatory authority) any, information of a confidential nature (including trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party or any of its Affiliates, unless that 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 this Customer Agreement, or subsequently comes lawfully into the possession of such party from a third party. Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information.
    2. Unless otherwise agreed, no party shall make, or permit any person to make, any public announcement concerning this Customer Agreement  without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including any relevant securities exchange), any court or other authority of competent jurisdiction provided that BioStore may display the Customer’s name and logo on its website or otherwise as part of its list of customers.
    3. The provisions of this clause 10 shall remain in full force and effect notwithstanding any termination of this Customer Agreement.

11. Customer Data
    1. The Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
    2. Both parties will comply with all applicable requirements under the Data Protection Legislation and this Agreement.  This Agreement is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
    3.  The parties acknowledge that for the purposes of the Data Protection Legislation and this Agreement, the Customer is the data controller and BioStore is either the data processor or the sub-data processor where an Authorised Distributor is the data processer.
    4. Without prejudice to the generality of clause 11.3 the Customer:
       1. warrants and represents that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Customer for the duration and purposes of this Agreement;
       2. warrants and represents that all instructions given to the Customer for processing of personal data are lawful and as a minimum include the nature and purpose of the processing, type of personal data and categories of data subjects to whom the personal data related; and
       3. acknowledges that as data controller it is solely responsible for determining the lawful processing condition upon which it shall rely in providing instructions to the Customer for the purpose of carrying out the relevant services under this Agreement.
    5. Without prejudice to the generality of clause 11.3, the BioStore shall, in relation to any personal data processed in connection with the performance by the BioStore of its obligations as data processor or sub-data processor under this Agreement:
       1. process that personal data only on the written instructions of the Customer unless BioStore is required by any Applicable Laws.  Where BioStore is relying on Applicable Laws as the basis for processing personal data, BioStore shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit BioStore from so notifying the Customer;
       2. ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
       3. ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
       4. not transfer any personal data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
          1. the Customer or BioStore has provided appropriate safeguards in relation to the transfer;
          2. the data subject has enforceable rights and effective legal remedies;
          3. BioStore complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred;
          4. BioStore complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;
       5. assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
       6. notify the Customer without undue delay on becoming aware of a personal data breach;
       7. at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the Agreement unless required by Applicable Law to store the personal data; and
       8. maintain complete and accurate records and information to demonstrate its compliance with this clause 11 and allow for audits by the Customer or the Customer’s designated auditor.
    6. The Customer provides their consent for BioStore to use Sub-processors in the delivery of the services under the Existing Agreement. BioStore shall enter into a written agreement with such Sub-processors incorporating terms which are substantially the same as those set out in this clause 11  As between the Customer and BioStore, BioStore shall remain fully liable for all acts and omissions of any Sub-processor appointed by it pursuant to this clause 11.6. Where required by law, BioStore shall inform the Customer of any intended changes concerning the additional or replacement of a Sub-processor with access to personal data and give the Customer the opportunity to object to such changes.
    7. Either party may, at any time of not less than 30 days’ notice, revise this clause 11by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certificate scheme (which shall apply when replaced by attachment to this Agreement).

12. BioStore’s Warranties
    1. BioStore warrants that the Software will conform in all material respects to the Specification for the Warranty Period. If, within the Warranty Period, the Customer notifies BioStore in writing of any defect or fault in the Software in consequence of which it fails to conform in all material respects to the Specification, and such defect or fault does not result from the Customer, or anyone acting with the authority of the Customer, having amended the Software or used it outside the terms of this Customer Agreement for a purpose or in a context other than the purpose or context for which it was designed or in combination with any other software not provided by BioStore, or it has not been loaded onto BioStore-specified or suitably configured equipment, BioStore shall, at BioStore’s option, do one of the following:
       1. repair the Software;
       2. replace the Software; or
       3. terminate this Customer Agreement immediately by notice in writing to the Customer and refund any of the Fee paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer’s use of the Software to the date of termination) on return of the Software and all copies thereof,

provided the Customer provides all the information that may be necessary to assist BioStore in resolving the defect or fault, including a documented example of any defect or fault, or sufficient information to enable BioStore to re-create the defect or fault.

2. BioStore does not warrant that the use of the Software will be uninterrupted, error or virus-free.  The Customer must ensure it meets the Minimum Operating Requirements to operate the Software and BioStore will not be liable for any failures or operating difficulties due to the Customer not meeting or running the Minimum Operating Requirements.
3. The Customer accepts responsibility for the selection of the Software to achieve its intended results and acknowledges that the Software has not been developed to meet the individual requirements of the Customer. BioStore does not warrant that the Software will meet the Customer’s needs, be able to produce any particular outputs or the standard of the results of using the Software. 
4. All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Customer Agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
5. This Customer Agreement shall not prevent BioStore from entering into similar agreements with third parties, or from independently developing, using, selling or licensing materials, products or services which are similar to those provided under this agreement.

13. Limits of Liability
    1. Except as expressly stated in clause 13.2:
       1. BioStore shall not in any circumstances have any liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), 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 if BioStore was aware of the circumstances in which such special damage could arise;
          2. loss of profits;
          3. loss of anticipated savings;
          4. loss of business opportunity;
          5. loss of goodwill;
          6. loss of or damage to (including corruption of) data,

provided that this clause 13.1.1 shall not prevent claims for loss of or damage to the Customer’s tangible property that fall within the terms of clause 13.1.2 or any other claims for direct financial loss that are not excluded by any of categories  to 13.1.1.6 inclusive in this clause 13.1.1;

2. the total liability of BioStore, whether in contract, tort (including negligence) or otherwise and whether in connection with this Customer Agreement or any collateral contract, shall in no circumstances exceed a sum equal to the Licence Fee paid in the twelve (12) calendar months immediately preceding the date on which the cause of action giving rise to the claim occurred; and
3. the Customer agrees that, in entering into this Customer Agreement, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this Customer Agreement or (if it did rely on any representations, whether written or oral, not expressly set out in this Customer Agreement) that it shall have no remedy in respect of such representations and (in either case) BioStore shall have no liability in any circumstances otherwise than in accordance with the express terms of this Customer Agreement.

2. The exclusions in clause 12.4 and clause 13.1 shall apply to the fullest extent permissible at law, but BioStore does not exclude liability for:
   1. death or personal injury caused by the negligence of BioStore, its officers, employees, contractors or agents;
   2. fraud or fraudulent misrepresentation;
   3. breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
   4. any other liability which may not be excluded by law.
3. All dates supplied by BioStore for the delivery of the Software shall be treated as approximate only. BioStore shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.
4. All references to “BioStore” in this clause 13 shall, for the purposes of this clause only, be treated as including all employees, subcontractors and suppliers of BioStore and its Affiliates, all of whom shall have the benefit of the exclusions and limitations of liability set out in this clause.

14. Intellectual Property Rights
    1. The Customer acknowledges that all Intellectual Property Rights in the Software and any Maintenance Releases belong and shall belong to BioStore or the relevant third-party owners (as the case may be), and the Customer shall have no rights in or to the Software other than the right to use it in accordance with the terms of this Customer Agreement.
    2. BioStore undertakes at its own expense to defend the Customer or, at its option, settle any claim or action brought against the Customer alleging that the possession or use of the Software (or any part thereof) in accordance with the terms of this Customer Agreement infringes the UK Intellectual Property Rights of a third party (Claim) and shall be responsible for any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against the Customer as a result of or in connection with any such Claim. For the avoidance of doubt, clause 14.2 shall not apply where the Claim in question is attributable to possession or use of the Software (or any part thereof) by the Customer other than in accordance with the terms of this Customer Agreement, use of the Software in combination with any hardware or software not supplied or specified by BioStore if the infringement would have been avoided by the use of the Software not so combined, or use of a non-current release of the Software.
    3. If any third party makes a Claim, or notifies an intention to make a Claim against the Customer, BioStore’s obligations under clause 14.2 are conditional on the Customer:
       1. as soon as reasonably practicable, giving written notice of the Claim to BioStore, specifying the nature of the Claim in reasonable detail;
       2. not making any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of BioStore (such consent not to be unreasonably conditioned, withheld or delayed);
       3. giving BioStore and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Customer, so as to enable BioStore and its professional advisers to examine them and to take copies (at BioStore’s expense) for the purpose of assessing the Claim; and
       4. subject to BioStore providing security to the Customer to the Customer’s reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, taking such action as BioStore may reasonably request to avoid, dispute, compromise or defend the Claim.
    4. If any Claim is made, or in BioStore’s reasonable opinion is likely to be made, against the Customer, BioStore may at its sole option and expense:
       1. procure for the Customer the right to continue to use the Software (or any part thereof) in accordance with the terms of this Customer Agreement;
       2. modify the Software so that it ceases to be infringing;
       3. replace the Software with non-infringing software; or
       4. terminate this Customer Agreement immediately by notice in writing to the Customer and refund any of the Fee paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer’s use of the Software to the date of termination) on return of the Software and all copies thereof,

provided that if BioStore modifies or replaces the Software, the modified or replacement Software must comply with the warranties contained in clause 12.1 and the Customer shall have the same rights in respect thereof as it would have had under those clauses had the references to the date of this Customer Agreement been references to the date on which such modification or replacement was made.

5. Notwithstanding any other provision in this Customer Agreement, clause 14.2 shall not apply to the extent that any claim or action referred to in that clause arises directly or indirectly through the possession or use of any Third-Party Software or through the breach of any Third-Party Additional Terms by the Customer.
6. This clause 14 constitutes the Customer’s exclusive remedy and BioStore’s only liability in respect of Claims and, for the avoidance of doubt, is subject to clause 13.1.

15. Waiver

No failure or delay by a party to exercise any right or remedy provided under this Customer Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

16. Remedies

Except as expressly provided in this Customer Agreement, the rights and remedies provided under this Customer Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

17. Entire Licence
    1. This Customer Agreement, the schedules and the documents annexed as appendices to this Customer Agreement or otherwise referred to herein 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.
    2. Each party acknowledges that, in entering into this Customer Agreement and the documents, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to this Customer Agreement or not) other than as expressly set out in this Customer Agreement.
    3. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
    4. Nothing in this clause shall limit or exclude any liability for fraud.

18. Variation

No variation of this Customer Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

19. Severance
    1. If any provision or part-provision of this Customer Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Customer Agreement.
    2. If any provision or part-provision of this Customer Agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

20. Third-party Rights

A person who is not a party to this Customer Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Customer Agreement, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.

21. No Partnership or Agency
    1. Nothing in this Customer Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
    2. Each party confirms it is acting on its own behalf and not for the benefit of any other person.

22. Force Majeure

Neither party shall be in breach of this Customer Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Customer Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances, the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for ninety (90) days, the party not affected may terminate this Customer Agreement by giving fourteen (14) days written notice to the affected party.

23. Notices
    1. Any notice given to a party under or in connection with this Customer Agreement shall be in writing and shall be delivered by:
       1.  hand or by pre-paid first-class post or other next working day delivery service to BioStore’s registered office address or the Customer’s Postal Address for Notices as set out in Section A; or
       2. email to notices@biostore.co.uk for BioStore or to the Customer’s Email Address for Notices as set out in Section A.
    2. Any notice shall be deemed to have been received if:
       1. delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
       2. sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or
       3. sent by email at the time of transmission.
    3. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

24. Export
    1. Neither party shall export, directly or indirectly, any technical data acquired from the other party under this Customer Agreement (or any products, including software, incorporating any such data) in breach of any applicable laws or regulations (Export Control Laws), including United States export laws and regulations, to any country for which the government or any agency thereof at the time of export requires an export licence or other governmental approval without first obtaining such licence or approval.
    2. Each party undertakes:
       1. contractually to oblige any third party to whom it discloses or transfers any such data or products to give an undertaking to it in similar terms to the one set out above; and
       2. if requested, to provide the other party with any reasonable assistance, at the reasonable cost of the other party, to enable it to perform any activity required by any competent government or agency in any relevant jurisdiction for the purpose of compliance with any Export Control Laws.

25. Dispute Resolution
    1. If a dispute arises out of or in connection with this Customer Agreement or the performance, validity or enforceability of it (Dispute) the parties shall follow the procedure set out in this clause:
       1. either party shall give to the other written notice of the Dispute, setting out its nature and full particulars together with relevant supporting documents.  Suitably involved individuals with this Customer Agreement shall then seek to resolve the Dispute in good faith;
       2. if the Dispute is not resolved within thirty (30) days of then notice being served, senior managers of both parties shall meet within the following seven (7) days to attempt to settle the dispute; and
       3. if no settlement results from the meeting specified in clause 25.1.2. for the following thirty (30) days the parties shall attempt to settle the dispute by mediation be an independent mediator, the costs to be shared equally between the parties.
    2. If no settlement is reached under clause 25.1, the matter shall be brought before the courts of England and the parties agree to co-operate in the speedy conduct of such legal proceedings.

26. Governing Law and Jurisdiction
    1. This Customer 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 England.
    2. The parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Customer Agreement or its subject matter or formation (including non-contractual disputes or claims).

ADDITIONAL TERMS RELATING TO HARDWARE

For the avoidance of doubt the terms of the Client Agreement shall apply to this Hardware agreement along with the additional clauses and changes as detailed below.

1. DEFINITIONS

“Defect” means an error in the Hardware that causes it to fail to operate substantially in accordance with the Documentation;

“Documentation” means operating manuals, user instruction manuals, technical literature, and other related materials in human readable and/or machine readable forms supplied by BioStore to the Customer;

“Hardware” means the hardware to be provided by BioStore as set out in the Client Document;

“Hardware Delivery Date” means the agreed date of delivery of the Hardware as set out in the Client Document;

“Hardware Fee” means the fee to be provided by the Customer for the purchase of the Hardware as set out in the Client Document;

“Hardware Warranty Period” as defined in Schedule 1;

“Location” means the location where the Hardware is to be delivered and/or installed (as the case may be) as set out in the Client Document.

2.              PROVISION OF HARDWARE

2.1            BioStore will, in consideration of the payment by the Customer of the Hardware Fee:

2.1.1      sell the Hardware to the Customer free from any encumbrances; and

2.1.2      deliver the Hardware to the Location(s) on the Delivery Date(s).

2.2            The Customer shall pay the annual licences fees to BioStore on the dates and in the manner set out within the attached to the Client Document.  The Terms and Conditions must be signed and agreed before we will proceed with the initial install.

3.              TITLE AND RISK

3.1            The title to the Hardware shall pass to the Customer on payment in full and in cleared funds of the Hardware Fee and any other sums which may then be due under this Customer Agreement.

3.2            Risk in the Hardware shall pass to the Customer on delivery of the Hardware to the Location.

4.              LOCATION PREPARATION

                  Where BioStore is also providing installation services:

4.1            The Customer shall at its own expense, unless otherwise specified in the Client Document, prior to delivery prepare the Location and provide the environmental and operational conditions in accordance with the advices of BioStore.

4.2            The Customer shall provide all cabling and other equipment needed for the installation of the Hardware at the Locations, including any equipment needed to connect and interface the Hardware with any Customer Equipment.

4.3            If in the reasonable opinion of BioStore it is necessary to remove or otherwise disconnect any of the Customer’s existing computer or other equipment at the Location in order to carry out the installation of the Hardware, then the Customer shall permit, and obtain all necessary consents for, such removal and/or disconnection and shall give the Supplier all necessary assistance to enable such work to be carried out.

4.4            The Customer shall at its own expense, unless otherwise specified in the Client Document, make good any area once existing equipment has been removed.

4.5            The Customer will not, without the prior written consent of BioStore alter or interfere with the Hardware in any way until installation is complete in compliance always with the manufacturer warranty.

5.              DELIVERY AND ACCEPTANCE

5.1            Unless otherwise expressly agreed in writing and/or specified in the Client Document:

5.1.1      BioStore shall deliver and install the Hardware at the Location(s) and shall endeavour to do so in accordance with the agreed Hardware Delivery Date(s); and

5.1.2      the Hardware Fee includes the cost of delivery of the Hardware to the Locations by any method of transport selected by the Supplier.

5.2            The Customer shall within forty-eight (48) hours of Installation of the Hardware to the Customer notify Biostore in writing of any non-conforming item of Hardware.  Any failure to so notify BioStore shall be deemed an acceptance of the Hardware so installed. If BioStore confirms a Defect BioStore shall, at its option and expense, either repair or replace the non-conforming Hardware. If BioStore is unable to repair or replace a nonconforming Hardware, Biostore’s sole liability and the Customer’s exclusive remedy shall be for Biostore to refund to the Customer 100% of the Hardware Fees paid for that item of Hardware.

5.3            Acceptance of a Hardware item shall be deemed to have occurred on whichever is the earliest of:

5.3.1      the expiry of seven (7) days from the date of installation thereof to the Customer (unless the Customer has notified BioStore in accordance with clause 5.2); or

5.3.2      the use of that item of Hardware by the Customer in the course of its business

(hereinafter referred to as the “Acceptance Date”).

6.              WARRANTY

6.1            BioStore warrants that the Hardware will be free from defects in materials, workmanship and installation for the Hardware Warranty Period.

6.2            As far as it is able BioStore will pass onto the Customer the benefit of any warranties given by any third party manufacturers in relation to any item of the Hardware.

6.3            If BioStore receives written notice from the Customer of any breach of the warranty in clause 6.1 then BioStore shall at its own expense and within a reasonable time after receiving such notice, repair or, at its option, replace the Hardware or such parts of it as are defective or otherwise remedy such defect provided that BioStore shall have no liability or obligations under the said warranty unless it shall have received written notice of the defect in question no later than the expiry of the Hardware Warranty Period.  The title to the Hardware or any defective parts shall revert to BioStore upon the replacement of the Hardware or such defective parts.

6.4            BioStore shall have no liability or obligations under the said warranty other than to remedy breaches thereof by the provision of materials and services within a reasonable time and without charge to the Customer. The foregoing states the entire liability of BioStore, whether in contract or tort, for Defects in the Hardware notified to it after the Hardware Acceptance Date.

6.5            The warranty given in clause 6.1 does not however cover:

6.5.1      any part of the Hardware which has been modified without BioStore’s prior written consent or which has been subjected to unusual physical or electrical stress or on which the original identification marks have been removed or altered; or

6.5.2      repair or parts replacement required as a result of causes other than ordinary use including without limitation accident, hazard, misuse or failure or fluctuation of electric power, air conditioning, humidity control or other environmental conditions; or

6.5.3      any performance, non-performance or effect of software supplied or approved by the Customer or

6.5.4      any damage found to be due to a customer action outside normal use.

6.6            BioStore does not give any warranty that the Hardware is fit for any particular purpose unless that purpose is specifically advised to BioStore in writing by the Customer and the BioStore confirms in writing that the Hardware can fulfil that particular purpose.

7.              CUSTOMER’S OBLIGATIONS

7.1            The Customer shall comply with its obligations under this Customer Agreement.

7.2            The Customer undertakes to provide BioStore promptly with any information which BioStore may reasonably require from time to time to enable BioStore to proceed without interruption with the performance of this Customer Agreement.

7.3            The Customer shall, for the purposes of this Customer Agreement, afford to BioStore’s authorised personnel during normal working hours full and safe access to the Location and such other facilities as may be necessary for the Supplier to proceed uninterruptedly with the performance of this Customer Agreement.

7.4            If BioStore is delayed or impeded or obliged to spend additional time or incur additional expenses in the performance of any of its obligations under this Customer Agreement by reason of any act or omission of the Customer, its employees, agents, contractors or subcontractors (including the provision by any such person of any incorrect or inadequate data, information or instructions) then, notwithstanding anything else contained in this Customer Agreement, the Customer shall pay BioStore for any additional time spent and expenses incurred by or on behalf of BioStore in carrying out such obligations and caused or rendered necessary by such act or omission and any target time specified for the performance by BioStore of any of its obligations shall be extended accordingly.

7.6            The provision of employees, subcontractors and agents of Biostore to perform its obligations under this Customer Agreement shall be at the discretion of BioStore.

8.              ADDITIONAL TERMINATION RIGHTS

8.1            Upon termination of this Customer Agreement, howsoever arising, BioStore shall be entitled upon demand to the immediate return of any item of Hardware which remains in the ownership of BioStore and the Customer irrevocably authorises BioStore to enter any premises to recover such item of Hardware.  Recovery of any item of Hardware shall not of itself discharge the Customer’s liability to pay any outstanding invoices or amounts owing to BioStore.

9.              LIMIT OF LIABILTY

9.1            Clause 13 of the Client Agreement shall apply to these additional Hardware terms in full other than clause 13.1.2 which in relation to Hardware shall be reworded as follows:

13.1.2      the total liability of BioStore, whether in contract, tort (including negligence) or otherwise and whether in connection with this Customer Agreement or any collateral contract in relation to Hardware, shall in no circumstances exceed a sum equal the total value of the Hardware.

Schedule 1: Hardware Warranty Period.

The following table defines the Warranty Period for the different hardware types.

Year 1 Warranty is included as part of the initial hardware purchase.

Year 2 & Year 3 Warranty is only valid with a current Hardware Maintenance Agreement.

Where the customer has no valid current Hardware Maintenance Agreement, then the customer may return the faulty hardware to Biostore for repair, at the Customers costs.

Warranty periods beyond 3 years are subject to separate Hardware Maintenance agreement.