Conditions of Contract
In this Contract, the following words shall have the following meanings:
"Background" shall mean any inventions, information, diagrams, know-how, data, designs, computer software, reports drawings, models, samples and other works made available by the Unit for use in the performance of the Contract but not generated under and during the course of the Contract, and in which the Unit has unrestricted proprietary rights by virtue of any industrial property or which the Unit is not restricted from disclosing to the Client by any contractual or other legal obligation.
"Foreground" shall mean reports, drawings, patents, designs, copyrights (including copyright on software in any code) applications for any such rights and all other Intellectual Property Rights and information generated by the University (whether or not registerable) and other works and information either (i) produced in the course of preparation of proposals (ii) during or in the performance of its tasks under the agreement entered into based on the proposal or (iii) during or following completion of the proposed project and which may contain or be based on ideas or information supplied by the Unit.
"Intellectual Property Rights (IPR)" shall mean patents, applications for patents, trade marks or trading names (whether or not registered or registrable), rights in the know-how, designs (registered or registrable and including applications for registered designs), design rights, copyright (including rights in computer software and any sui generis rights), topography rights and other rights in semi-conductor chips, design rights, rights in inventions, the right to claim damages for past infringements of the same and all rights having equivalent or similar effect wherever situated.
"Proposal" shall mean the technical proposal for a programme of work as detailed specifically and in any supporting documents referred to therein, together with the Unit’s estimate of costs set out therein.
"Unit" will mean the University of Southampton acting through the Wolfson Unit for Marine Technology and Industrial Aerodynamics
The conditions set out below shall together with the Proposal set out overleaf ("the Work Programme") constitute the terms of the Contract between the Unit and the Client together with any amendments or variations agreed in writing between the parties.
No variation or amendments to these conditions shall be valid unless agreed to in writing by the Parties
The Client shall supply free of charge all pertinent data and information and give such assistance as shall be required by the Unit for the carrying out of the Work Programme.
(a) Subject to this Clause, the price to be charged by the Unit will be as expressly set out in the Proposal and shall be exclusive of any Value Added Tax (VAT) or similar tax.
(b) Any request by the Client for any alteration or additions to the Work Programme must be submitted in writing to the Unit for approval and the Unit’s approval shall be subject to a corresponding price adjustment and adjustment of the time period previously agreed for the completion of the Work Programme to be agreed in writing between the Parties.
(c) In the case of projects which extend beyond 3 months from the date of commencement, the Unit shall be entitled to submit invoices at monthly intervals. For projects where major test facilities are required, a sum equivalent to 50% of the cost of the hire of the facilities shall be payable in advance by the Client and shall be non returnable thereafter in the event of cancellation by the Client. All payments shall be made by the Client within 30 days of receipt of the Unit’s invoice
In any event, where the Work Programme is delayed through no fault of the Unit for more than 3 months then the Unit shall be entitled to submit an invoice for all work done up to that date and such invoice shall be payable within 30 days of receipt.
If the Client intends to or wishes to make payment for the Work Programme via a third party, the Unit’s prior written consent must be obtained but in any event, the Client shall remain primarily liable for all such payments.
Whilst the Unit will make every effort to meet the delivery dates, any time or date specified for delivery is an estimate only and time shall not be of the essence of this contract. Delays in delivery shall not render the Unit liable under any circumstances for damages, consequential loss or loss of profits
Notwithstanding delivery and the passing of risk in any goods or any other provision of these Conditions, the property in the goods shall not pass to the Client until the Unit has received in cash or cleared funds payment in full of the price of the goods and all other goods agreed to be sold by the Unit to the Client for which payment is then due.
9. Limitation of Liability
(a) While the Unit will endeavour to achieve a satisfactory outcome of the project, no term condition or warranty either expressed or implied, is given to the performance of the results obtained or obtainable from any design, layout, scheme, investigation or other work done by the Unit or in respect of any goods supplied by the Unit.
(b) The Unit shall retain ownership of all Background and Foreground including all computer software and associated documentation written or used in the execution of any work by the Unit. The Background and Foreground may not be copied in whole or in part by electronic, digital, photographic, mechanical, optical or any other means without prior written permission of the Unit.
(c) The Unit provides computer programs designed and written using sound scientific and engineering principles. However, no warranty either express or implied is given, including but not limited to the implied warranties of merchantability and fitness for any particular purpose. It is the responsibility of the Client to verify the correctness of any results obtained. The Unit accepts no liability for any loss or damage resulting from the use, failure to use or misuse of the software or the interpretation or misinterpretation of results derived from the software.
(a) It is hereby agreed that the liability of the Unit to the Client for any loss or damage or expense arising from any cause whatsoever and whether in contract or tort (other than negligence causing death or personal injuries) shall not in any one contract exceed the sum of £50,000.
(b) The Client shall indemnify the Unit against any losses, damages or costs suffered by the Unit in connection with any claim made by any other person against the unit arising from the work done under the Work Programme.
(c) The Client shall indemnify the Unit against all damages penalties costs and expenses to which the Unit may become liable as a result of work done in accordance with the Client’s specifications set out in the Work Programme which involves the infringement of any third party patent, copyright, design, trade marks or other industrial or intellectual property rights which results from the Unit’s use of the Client’s information or any claim for such infringement.
(a) Any drawings models samples or other matter submitted by the Unit to the Client with the Work Programme are confidential and must not be copied or transmitted to any third party or used for any other purpose whatsoever other than for the purposes of negotiating a contract for a Work Programme. The drawings models samples and other matter and any copies thereof shall remain the property of the Unit and the Client must return promptly the same together with any tangible copies (including any electronic or digital copies) to the Unit upon the Unit’s written request without retaining any copies.
(b) Any information relating to the Client’s operations shall be regarded as confidential and will not without the prior written consent of the Client be used (except in connection with the project) communicated or disclosed by the Unit, its employees subcontractors or consultants. This restriction does not apply to information which is or at the time of communication or disclosure has become public knowledge through no act or default of the Unit, its employees, subcontractors or consultants.
(c) Findings and results arising out of a project relating specifically to the Client’s product or design will not be used, communicated disclosed or published except by mutual consent of the parties.
All models [or experimental equipment] supplied by the Client or constructed by the Unit to the client’s specification and for the purpose of the Unit undertaking the Proposal shall remain the property of the Client unless otherwise agreed in writing between the Parties. The model [or experimental equipment] will be held at the risk of the Client, and the Unit will not be liable for any loss, damage, destruction or disclosure of the same. The Client shall arrange suitable and adequate insurance to cover loss, damage or destruction to Unit property caused by the model [or experimental equipment] whilst it is held by the Unit, save for when such loss, damage or destruction is caused by the negligent or wilful act by the Unit in its use or storage of the same.
After completion of the Proposal the Client will be responsible for the collection or disposal of the models [or experimental equipment] and if after six-months from completion of the Proposal the models [or experimental equipment] have not been collected or disposed of by the Client, the Unit shall be entitled to destroy or dispose of the models [or experimental equipment] without approval from the Client. The Client will be responsible for any costs associated with and in relation to the disposal or return of the models [or experimental equipment].
14. Governing Law
This agreement shall be governed by the Laws of England and the parties agree to submit to the exclusive jurisdiction of the English Courts.
Headings are inserted for convenience only and shall not affect the meaning of any provisions in this Contract
All disputes between the parties to the Agreement with respect to any matter or thing arising out of or relating to the Agreement shall after notice by either party to the Agreement to the other be referred to a single arbiter agreed for that purpose, or in default of such Agreement to be appointed at the request of the University by the President of the Law Society for the time being. Such reference shall be deemed to be submission to arbitration under the Arbitration Act 1950 to 1996, or any statutory modification or re-enactment thereof.