Training & Consultancy Agreement

1. Interpretation
   The following definitions and rules of interpretation apply in these Conditions.
   1. Definitions:
      • Avantra Materials: has the meaning set out in 4.1(f);
      • Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;
      • Contract: the contract between Avantra and the Customer for the supply of Services in accordance with these Conditions;
      • “Confidential Information” means all information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information;
      • Customer: the person or firm who purchases Services from Avantra;
      • Customer Default: has the meaning set out in 4.2;
      • Effective Date: has the meaning given in 2.1;
      • Fees: the Fees payable by the Customer for the supply of the Services in accordance with 6;
      • Intellectual Property Rights: any and all intellectual property rights, including without limitation, copyright, trade marks, patents and rights in design in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world, in or arising out of or in connection with the Services and any deliverables forming part of the Services (without limitation including any Modified Software but excluding any intellectual property rights in any materials provided by the Customer);
      • Malicious Code: without limitation, any automatic restraint, viruses, worms, time bombs, trojan horses and other harmful or malicious code, files, scripts, agents or programs that interfere with the provision of the Software;
      • Modified Software: the standard software programs proprietary to the Supplier modified or to be modified by the Supplier under this Contract;
      • Order: the Customer's order for Services as set out in the form attached;
      • Services: the services supplied by Avantra to the Customer including any required description of or technical specification for the Services set out in or attached to the Order; and
      • Software Development Services: software development services undertaken by Avantra on behalf of the Customer as set out in the Order (including any technical specification for the same).
   
   
   
2. Basis of contract
   The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions. The Order shall only be deemed to be accepted when signed by Avantra at which point and on which date the Contract shall come into existence (Effective Date).
   
   
3. Supply of Services
   1. Avantra shall supply the Services to the Customer using reasonable skill and care and in all material respects in accordance with the Order.
   2. Avantra shall use all reasonable endeavours to meet any performance dates specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
   3. Avantra reserves the right to amend the Order if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and Avantra shall notify the Customer in any such event.
   
   
   
4. Customer's obligations
   1. The Customer shall:
      1. ensure that the terms of the Order and any information it provides therein are complete and accurate;
      2. co-operate with Avantra in all matters relating to the Services;
      3. provide Avantra, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation and other facilities as reasonably required by Avantra;
      4. provide Avantra with such information and materials as Avantra may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
      5. obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
      6. keep all materials, equipment, documents and other property of Avantra (Avantra Materials) at the Customer's premises in safe custody at its own risk, maintain Avantra Materials in good condition until returned to Avantra, and not dispose of or use Avantra Materials other than in accordance with Avantra's written instructions or authorisation; and
      7. comply with any additional obligations as set out in the Specification and/or reasonably required to enable Avantra to provide the Services.
   2. If Avantra's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
      1. without limiting or affecting any other right or remedy available to it, Avantra shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays Avantra's performance of any of its obligations;
      2. Avantra shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Avantra's failure or delay to perform any of its obligations as set out in this 4.2; and
      3. the Customer shall reimburse Avantra on written demand for any costs or losses sustained or incurred by Avantra arising directly or indirectly from the Customer Default.
   
   
   
5. Software Development Services 
   Where the Services include Software Development Services, the terms of this clause 5 shall apply to those Services.
   1. Testing and Delivery
      1. Avantra shall carry out reasonable tests to ensure that the Modified Software is in operable condition and is capable of meeting the requirements of the Order once properly installed.
      2. Avantra shall carry out such testing as it shall consider appropriate in its discretion on the Modified Software before delivery to the Customer, having regard to acceptance criteria and test data for such tests as are reasonably required to show that the Modified Software complies with the relevant parts of the Technical Specification. If the Modified Software (or any of it) fails to pass such tests, Avantra shall remedy the defects and deficiencies, and the relevant test(s) shall be repeated within a reasonable time.
      3. If Avantra is unable to correct any defects which prevent the Modified Software from passing such tests within a period of six months from the start of testing under clause 5.1(b), the Customer shall be entitled to reject the Services as not being in conformity with, and terminate the Contract.
   2. The Customer may:
      1. use the Modified Software with other software;
      2. not make adaptations or variations of the Modified Software without the prior consent of Avantra; and
      3. not disassemble, decompile, reverse translate or in any other manner decode the Modified Software, except as permitted by law.
   3. Avantra warrants that: (i) the Modified Software licensed to Customer will operate in all material respects as described in the applicable program documentation, under normal use and circumstances for one year after delivery; and (ii) it will use reasonable technical means to ensure that the Software does not contain any Malicious Code or other computer programming routines designed to damage, detrimentally interfere with, surreptitiously intercept or expropriate any other software. Customer must notify Avantra of any program warranty deficiency within one year after delivery.
   4. Avantra will, at its own expense and as its sole discretion and Customer`s exclusive remedy for any breach of the warranty at clause 5.2 do one of the following: (i) use commercially reasonable efforts to correct any reproducible error in the Software reported to Avantra by Customer in writing during the Software warranty period; (ii) replace the Software; or (iii) terminate the licence immediately by notice in writing to Customer and refund any portion of the Fees paid by Customer prior to date of termination (less a reasonable sum in respect of Customer’s use of the Software up to the termination date). Any such error correction or replacement provided to Customer will not extend the original warranty period.
   5. The express warranties are in lieu of all other warranties, express, implied, or statutory regarding the Modified Software, any related services and related documentation, and Avantra specifically disclaims all warranties of merchantability and fitness for a particular purpose.
   6. The express warranties do not apply to damage resulting from misuse, abuse or computer or electrical malfunction, or if the Software has been installed, used or operated other than in accordance with instructions furnished by Avantra or the program documentation. Avantra does not warrant that Customer’s use of Modified Software will be error-free, uninterrupted, virus-free, or secure. Customer acknowledges that it relies on no warranties other than the express warranties in this Contract.
   7. Avantra shall indemnify the Customer against any claim that the use of the Modified Software in accordance with this Contract infringes the UK copyright, patent or trademark rights of any third party provided that: (i) Avantra is given immediate and complete control of such claim; (ii) the Customer does not prejudice Avantra’s defence of such claim nor make any admission of liability, agreement or compromise in relation to the claim without the prior written consent of Avantra; (iii) the Customer at Avantra’s expense gives Avantra all reasonable assistance with such claim; (iv) such claim does not arise from an intentional tortious act or the negligence of Customer or breach of this Contract; (v) such claim is not based upon the use of the Modified Software in an application or environment for which the Modified Software was not designed or contemplated; (vi) such claim does not arise from open source components or third party materials or combination, operation or use of the Modified Software in or with any technology or service not provided by Avantra (vii) such claim does not arise as a result of modifications and/or improvements of the Modified Software introduced or made by Customer. This clause states the entire liability of Avantra to the Customer in respect of the infringement of the copyright, patent or trademark rights or intellectual property rights of any third party.
   
   
   
6. Fees and payment
   1. The Fees for the Services shall be as set out in the Order subject to the following:
      1. Avantra's daily fee rates are calculated on the basis of an eight-hour day from 8.00 am to 5.00 pm worked on Business Days;
      2. Avantra shall be entitled to charge an overtime rate of 30% of the daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in 6.1(a); and
      3. Avantra shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom Avantra engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by Avantra for the performance of the Services, and for the cost of any materials.
   2. Avantra reserves the right to increase the Fees on an annual basis with effect from each anniversary of the Effective Date in line with the percentage increase in the UK Consumer Prices Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Effective Date and shall be based on the latest available figure for the percentage increase in the Consumer Prices Index.
   3. Avantra shall invoice the Customer monthly in arrears.
   4. The Customer shall pay each invoice submitted by Avantra:
      1. within 30 days of the date of the invoice; and
      2. in full and in cleared funds to a bank account nominated in writing by Avantra, and time for payment shall be of the essence of the Contract.
   5. All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by Avantra to the Customer, the Customer shall, on receipt of a valid VAT invoice from Avantra, pay to Avantra such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
   6. If the Customer fails to make a payment due to Avantra under the Contract by the due date, then, without limiting Avantra's remedies under 9, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this 6.6 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
   7. All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
   
   
   
7. Intellectual Property Rights
   1. All Intellectual Property Rights are, and shall remain, the property of Avantra and the Customer acquires no rights in or to them other than as expressly granted by this Contract.
   2. Avantra at all times reserves the right to grant licences to use the Intellectual Property Rights to any other party or parties. Avantra grants to the Customer a non-exclusive, royalty-free, non-transferable license for the purpose of receiving and using the Services for any purpose related to its ordinary business while a valid and active software contract remains in place for Avantra software at the subscription level held during the term of this contract or higher.
   3. The Customer shall do, and execute or arrange for the doing and executing of, each necessary act, document and thing that Avantra may consider necessary or desirable to perfect the right, title and interest of Avantra in and to the Intellectual Property Rights.
   4. The Customer shall use reasonable endeavours to prevent any infringement of Avantra's Intellectual Property Rights and shall promptly report to Avantra any such infringement that comes to its attention. In particular, the Customer shall:
      1. ensure that its employees are made aware that the Intellectual Property Rights are proprietary to Avantra and that it may only be used and copied in accordance with this Contract; and
      2. not permit third parties to have access to the Intellectual Property Rights without the prior written consent of Avantra.
   5. The Customer grants Avantra a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to Avantra for the term of the Contract for the purpose of providing the Services to the Customer.
   
   
   
8. Confidentiality and Data protection
   1. Neither party shall disclose to any person or entity any Confidential Information that is furnished to or otherwise becomes known to the other. Each party’s obligation to maintain the confidentiality of such information shall not apply to information which: (a) was known to the receiving party before receiving such information; (b) is in the public domain; or (c) is received by the receiving party from a third party who was legally entitled to make an unrestricted disclosure.
   2. Each party agrees that it may only use any Confidential Information that it receives from the Disclosing Party for the purpose of performing its obligations or exercising its rights under this Contract (“Permitted Purpose”), and that it may only disclose such Confidential Information to its officers, employees, contractors and agents to the extent they need to know and use it for the Permitted Purpose. Each party shall ensure that its officers, employees, contractors and agents are bound by equivalent obligations in respect of the Confidential Information to those set out hereunder and shall use its best efforts to ensure that they abide by such obligations.
   3. If either party is compelled by law, regulation or a court of competent jurisdiction to disclose any Confidential Information belonging to the other party, to the extent permitted by law, it will promptly notify the other party so it may seek a protective order or other appropriate remedy, and cooperate, at the other party’s expense, in seeking such order or other remedy.  If disclosure is ultimately required, the party will furnish only that portion of the Confidential Information that is legally required, exercise reasonable efforts to obtain assurance that it will receive confidential treatment, and continue to treat such Confidential Information in accordance with its obligations under this clause.
   4. The Customer acknowledges and agrees that Avantra shall monitor and collect usage data from customers for the purposes of developing and improving its Services. For the avoidance of doubt this shall be aggregate, anonymised data, not personal data and shall be classified as Confidential Information and treated as such in accordance with the terms of this Contract.
   5. The parties shall also comply with their data protection obligations as set out in Schedule 1. Avantra will maintain organizational and technical measures for the protection, security, confidentiality and integrity of any personal data provided by or on behalf of Customer and processed by Avantra pursuant to this Contract. The terms of our privacy policy at: https://www.avantra.com/en/privacy shall apply to such processing, and are hereby incorporated by reference
   
   
   
9. Limitation of liability
   THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
   1. Nothing in this Contract shall limit or exclude either party’s liability for death or personal injury caused by its negligence or for fraud or fraudulent misrepresentation.
   2. In all other cases Avantra’s liability to Customer under this Contract, for all losses, costs, expenses and damages, whether arising in contract, by reason of negligence or otherwise, will not in the aggregate exceed a sum equal to the total Fees received by Avantra in the 12 month period immediately preceding the event giving rise to such liability.
   3. In no event (to the extent not prohibited by law) will Avantra be liable for: (i) loss resulting from any defect or deficiency which Avantra remedies within a reasonable time; or (ii) any indirect, special, incidental or consequential costs, losses, damages or expenses; or (iii) loss of business, profits, revenue, goodwill or anticipated savings; or (iv) loss or corruption of data; or (v) any sums paid by Customer to a third party; or (vi) loss which could have been avoided by Customer following Avantra’s reasonable advice and instructions.
   
   
   
10. Termination
    1. The initial term of this Contract shall commence on the Effective Date and continue for the Initial Term specified within the Order (“Initial Term”), following which this Contract will automatically renew for successive one year terms unless terminated in accordance with this Contract (each a “Renewal Term”). Either party may terminate this Contract without cause by providing 90 days written notice to the other party before the expiry of the Initial Term or applicable Renewal Term, provided that such termination shall not take effect until the expiry of the Initial Term or the then current Renewal Term.
    2. This Contract may be terminated:
       1. by either party if the other commits a material breach of any term of this Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
       2. by either party if the other 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 (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986; or
       3. by Avantra if Customer fails to pay any amount due under this Contract on the due date for payment and remains in default not less than 10 days after being notified to make such payment.
    3. Any termination hereunder shall be without prejudice to any other rights or remedies either party may be entitled to hereunder or at law or in equity and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
    4. Upon termination or expiry of this Contract:
       1. All rights, licenses and authorisations granted to Customer hereunder will immediately terminate and Customer will: (i) immediately cease all use of and other activities with respect to the Software (and related documentation); (ii) within 2 business days deliver to Avantra, or at Avantra’s written request destroy, and permanently erase from all devices and systems Customer directly or indirectly controls, the Software, related documentation and Avantra’s Confidential Information, including all documents, files, and tangible materials (and any partial and complete copies) containing, reflecting, incorporating, or based on any of the foregoing, whether or not modified or merged into other materials; and (iii) certify to Avantra that it has complied with these requirements; and
       2. all amounts payable by Customer to Avantra of any kind under this Contract are immediately payable and due no later than 5 business days after the effective date of the expiration or termination of this Contract.
    
    
    
    1. Notices
       1. Any notice given to a party under or in connection with this Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service to the address detailed below, or by email to the email address identified below and to the contact details provided in the Order in respect of Customer:
          1. Avantra Address: Avantra, C/O Syslink Xandria Ltd, 5 Kew Road, Richmond, TW9 2PR, UK
          2. Email: finance@avantra.com
       2. provided that a party may change its notice details on giving notice to the other party of the change in accordance with this clause.     
       3. Any notice or communication shall be deemed to have been received:
          1. by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
          2. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Working Day after posting or at the time recorded by the delivery service; or
          3. if sent by email, upon the date of transmission to the recipient.
       4. 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.
    2. Assignment
       Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust of or deal in any other manner with any or all of its rights and obligations under this Contract without Avantra’s prior written consent.  Avantra shall be entitled to assign transfer, mortgage, charge, subcontract, declare a trust of or deal in any other manner with any or all of its rights and obligations hereunder.
    3. Variation
       No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
    4. Third Parties
       No one other than a party to this Contract, shall have any right to enforce any of its terms.
    5. Waivers / Severability
       1. Any waiver or failure to enforce any provision of this Contract on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
       2. In the event any provision of this Contract is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of this Contract shall remain valid and enforceable according to its terms.
    6. Force Majeure
       Neither party shall have any liability under or be deemed to be in breach of this Contract for any delays or failures in performance of this Contract which result from circumstances beyond the reasonable control of that party (including Acts of God, war or other armed conflict, and terrorist attacks, but excluding strikes, lockouts or any industrial action). The party affected by such circumstances shall promptly notify the other party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than six months, either party may terminate this Contract by written notice to the other party.
    7. No Agency or Partnership 
       Nothing in this Contract shall constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in this Contract. Neither party shall have, nor represent that it has any authority to make commitments on the other party’s behalf.
    8. Export Controls
       Export and use of the Software may be subject to export control laws and regulations, including prohibition. By installing, activating or using this Software, Customer confirms that it will not export or re-export the Software without all required foreign government licenses.  Customer will defend, indemnify, and hold harmless Avantra from and against all fines, penalties, liabilities, damages, costs and expenses incurred as a result of any violation of such laws or regulations by Customer or any of its agents or employees.
    9. Entire Agreement
       This Contract and all documents referred to in it, constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings and communication, whether written or oral. In the event of a conflict between the terms of this Contract and the terms of any purchase orders or other agreements between the parties (or any of their affiliates), the terms of this Contract govern to the extent of the conflict.
    10. Jurisdiction
        This Contract is governed by the substantive and procedural laws of England and Customer agrees to submit to the exclusive jurisdiction of, and venue in, the courts in England. The UN Convention on Contracts for the International Sale of Goods (C.I.S.G) is not applicable.General

Schedule 1 (Data Protection)

This Schedule sets out the basis upon which both Parties will comply with any applicable data protection laws, including but not limited to, the UK Data Protection Act of 2018 as amended (“DPA”), European Union Directive 95/46/EC and Regulation 2016/679 (the General Data Protection Regulation or “GDPR”) as well as any legislation relating to the exit of the United Kingdom from the European Economic Area (together, “Applicable Laws”).  Unless otherwise specified all terms used herein shall have the same meaning as under the DPA.

1. The reason for the processing of any Personal Data (provided by the Customer) by Avantra is for the performance of the Services. The duration of the processing, the nature and purpose of the processing, the categories of individuals, and the types of Personal Data processed under this DPA, as required by article 28(3) of the GDPR, are further specified below, as may be amended by the Parties from time to time.
2. Without limiting the foregoing, Avantra agrees that it will only ever process Personal Data provided to it by Customer as a Processor. Accordingly, Avantra and Customer agree as follows:
   1. Customer shall process Personal Data in accordance with the requirements of Applicable Laws.
   2. Processing may only be undertaken for purposes set out in this Contract, or the Customer’s instructions, setting out the subject-matter and duration of the processing to be undertaken, the nature and purpose of the processing, the type of Personal Data and categories of data subjects to be processed.  
   3. Avantra shall:
      1. process the Personal Data only on documented instructions from the Customer, which instructions shall be consistent with the terms of this Contract unless processing is required by Applicable Laws to which Avantra (or any applicable sub-processor) is subject, in which case Avantra shall to the extent permitted by Applicable Laws inform Customer of that legal requirement before the relevant Processing of that Personal Data);
      2. ensure that persons authorised to process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
      3. implement technical and organisational measures in such a manner that the processing will meet the requirements of Applicable Law;
      4. not engage any other processor (i.e. sub-processor) without notification to the Customer. Where Avantra engages a sub-processor to carry out specific processing activities on behalf of the Customer, the same data protection obligations as set out in this Schedule shall be imposed on that other processor by way of a contract, and Avantra shall remain fully liable to Customer for the performance of that other processor's obligations;
      5. assist the Customer, taking into account the nature of the processing, by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Customer's obligation to respond to requests for exercising the data subject's rights laid down in Chapter III of the GDPR (GDPR Articles 12-23). To the extent legally permitted, Customer shall be responsible for any costs arising from Avantra’s provision of such assistance;
      6. assist the Customer in ensuring compliance with the obligations pursuant to GDPR Articles 33 to 36 taking into account the nature of processing and the information available to Avantra. To the extent legally permitted, Customer shall be responsible for any costs arising from Avantra’s provision of such assistance;
      7. at the choice of the Customer, delete or return all Personal Data to the Customer after the end of the provision of services relating to processing and delete existing copies unless Applicable Law requires storage of the Personal Data; and
      8. make available to the Customer all information reasonably necessary to demonstrate compliance with the obligations set forth herein and allow for and contribute to such audits, including inspections, conducted by the Customer or another auditor mandated by the Customer and Avantra shall immediately inform Customer if, in its opinion, an instruction infringes applicable data protection legislation.
   4. Nothing set forth herein shall relieve Avantra of its own direct obligations or liabilities under Applicable Laws.
   5. Cross Border Data Transfers. In fulfilling its obligations under the Contract, Avantra may not transfer Personal Data to a third country that has not been recognised by the relevant supervisory authority as providing an adequate level of protection for Personal Data.

DETAILS OF PROCESSING

• Duration of the Processing: the term agreed between Customer and Avantra in this Contract.
• Nature and purpose of the Processing: to facilitate Avantra’s performance of the services under the Contract
• Types of Customer Information processed: the Personal Data to be processed by Avantra is:
• Contact name
• Contact email and telephone
  
  

Last publication date: 8th Feb 2023

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