TERMS AND CONDITIONS
1. Scope and interpretation
1.1 These are the Terms and Conditions of Moley Services UK Ltd (company number 09348843) whose registered office is at One, Fleet Place, London, EC4M 7WS and its affiliates (“Moley”) and persons and companies with whom Moley contracts for consulting, design, development, sales and supplies of goods and services or for the purchase, loan, or use (whether temporary or permanent) for any of Moley’s products including prototype products (“Supplier”).
1.2 These Terms and Conditions apply to all contracts with Moley unless the other contracting party has an agreement with Moley signed by a director of Moley, in which case the terms of the signed agreement shall prevail over these Terms and Conditions.
1.3 These Terms and Conditions can only be varied by writing signed by a director of Moley.
1.4 These Terms and Conditions shall prevail over any terms and conditions of the Supplier.
1.5 Any order placed by Moley Services UK Ltd is subject to and regulated by these Terms and Conditions and by no other terms and Conditions.
1.6 The Supplier shall carry out the work set out in the SOW .
1.7 In these Terms and Conditions:
- “Business Days” are Monday to Friday excluding public holidays in England;
- “Fees” means Moley’s professional fees for the provision of the Services;
- “Affiliates” means a company which controls, is controlled by or is under common control with the relevant party to Terms and Conditions;
- “Services” means the relevant services, provision of facilities, advice and/or other work described in the Proposal.
- “Intellectual Property” means: patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), , typographical rights, registered designs, design rights, semiconductor chip topography rights, database rights, registered and unregistered trade marks, and any other industrial or intellectual property right subsisting in any country in the world and including applications and the right to apply for any of the same in any country in the world; and all other intellectual property rights, 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, any rights and all similar or equivalent rights or forms of protection that subsist or will subsist now or in the future in any part of the world.
- Moley’s Products shall mean all and any products designed and or built and or created by Moley
- Deliverables means any matters to be supplied to Moley under the SOW or any of Moley’s products to be supplied to the other party by Moley.
2. Importation of these Provisions into SOW
2.1 Moley Services UK Ltd and a Supplier shall create and agree a Scope of Work (“SOW“) in writing. If a SOW has not been agreed and signed by a director of Moley then the SOW shall not be binding upon Moley and Moley shall have no obligation to make any payment to the Supplier. The SOW shall set out deliverables, timeline and budget information. Any preliminary discussions exchanges and communications shall not have any binding force and effect.
2.2 The provisions of clause 2 to 11 shall be deemed to be imported into every SOW unless the SOW signed by a director of Moley contains express terms which conflict with these provisions in which case only the terms and conditions set out herein which do not conflict with such SOW shall be deemed to be imported
3. Performance of Services
3.1 Supplier shall use reasonable care and skill when carrying out the Services and deliverables shall be free from defect, fit for their intended purposes and of merchantable quality and will remain so for at least two years after delivery.
4 Timescales and locations
4.1 the Supplier shall use reasonable endeavours to meet the timescales set out in the SOW.
4.2 The Services will be provided at the locations agreed between the parties.
5. Supplier warranties
5.1 The Supplier warrants that:
- the Supplier’s servants and agents and contractors shall be bound by similar obligations to Moley as are set out in these Terms and Conditions and shall fully co-operate with Moley;
- information supplied by the Supplier will be accurate and complete, and
- the Supplier has the authority to commission the Services with Moley confirmation.
5.2 Title to hardware products passes to Moley upon the earlier of full payment or delivery. Risk of loss and damage passes to Moley upon delivery.
6. Fees and payment
6.1 Fees, expenses and other charges shall be invoiced monthly in arrears and Moley shall pay the same within 30 days of the date of the invoice.
6.2 Any additional fees or scope of work not shown in the SOW has to be pre-approved and accepted in written form by Moley in an official form of amendment of the Scope of Work or Terms and Conditions signed by a director of Moley. The amendment form should include deliverables, timeline and budget.
7.1 If the Supplier has entered into a non disclosure or confidentiality agreement (“NDA”) in relation to the potential provision of the Services then, the obligations of the Supplier set out in the NDA shall apply and shall not be varied by these terms and Conditions. If the Supplier has not entered into a NDA then the provisions of clauses 7.2 to 7.6 shall apply. .
7.2 In these Terms and Conditions “Confidential Information” means the proprietary or confidential information of Moley which has been disclosed to the Supplier but excluding any information which the Supplier can show:
- was in the public domain at the time of disclosure or was subsequently published or made available to the public generally otherwise than through a breach of confidentiality owed to Moley; or
- was at the time of disclosure already known to or in the possession of the Supplier free from any obligation of confidence; or
- is subsequently received by the Supplier from a third party who does not owe any duty of confidentiality; or
- was subsequently independently developed by the Supplier, its employees, agents or sub-contractors or those of its Group without use of Moley’s Confidential information
7.3 The Supplier shall, for a period of 6 years from the date of disclosure, treat Moley’s Confidential Information as confidential and, in particular, shall not, without the specific prior written consent of Moley:
- use any of Moley’s Confidential Information for any purpose other than the purposes of the SOW
- disclose or, through any failure to exercise reasonable care, cause any unauthorised disclosure of any of Moley’s Confidential Information except to those of its employees, officers, consultants, agents, sub-contractors or advisors, or those of its Group, (“Representatives”) who may need to have such Confidential Information in connection with the purposes of these Terms and Conditions and who are bound by obligations of confidentiality equivalent to those in this clause 7;
- copy any of the Moley’s Confidential Information except as required for the purposes of the SOW, for disclosures permitted under these Terms and Conditions, or as part of its electronic archiving procedures; or
- commercially exploit Moley’s Confidential Information in any way.
7.4 Each party shall ensure that its servants agents and subcontractors shall comply with this clause7, and each party shall be liable for the acts and omissions of its servants agents and subcontractors.
7.5 After each of all SOW termination, the Supplier shall, at Moley’s request, return or destroy Moley’s Confidential Information in the Receiving Party’s possession or control .
7.6 To protect the confidentiality of all Moley’s clients, access to Moley’s laboratories or work areas shall not be given to any Supplier or agent of a supplier except by special arrangement with Moley.
8. Intellectual property
In cases where Moley and the Supplier enter into any SOW for consulting, design, development or existing product modification service the following is applies:
8.1 All Intellectual Property including future Intellectual Property in the Deliverables and any inventions, and any newly developed technology arising from any order placed by Moley whether or not being relevant to any Work Order and whether or not being created as a result of the use by the Supplier of Moley’s Confidential Information (other than Intellectual Property in Third Party Components or in the relevant third party’s unmodified design documents or unmodified Source Code relating to any such Third Party Component including the development of any of Moley’s Products for specific purposes by the Supplier (“Non Assigned Deliverables”)) shall vest in Moley as soon as such Intellectual Property rights are created or developed and the Supplier agrees to and hereby does assign, transfer and convey all of its rights, title and interest in and to the Deliverables and all Intellectual Property Rights therein and thereto to Moley.
8.2 To the extent that the assignment in Clause 8.1 does not take effect, the Supplier shall execute such documents and do such acts as Moley may consider reasonably necessary to give effect.
8.3 Subject to Clause 8.1 and 8.2 the Supplier hereby grants (or shall procure that any relevant third party shall grant) to Moley a perpetual fully paid up and royalty free license to its Background Intellectual Property being irrevocable, worldwide, freely transferrable licence (with the right to sub-license) to: (i) use for the purpose of building and/or operating the Deliverables and the Developer’s Background Intellectual Property comprised or used in the Deliverables or necessary to build, have built, and operate the Deliverables; (ii) use any Deliverable in any way whatsoever, and (iii) copy, modify, adapt and use such relevant third party’s unmodified design documents, Third Party Components and unmodified Source Code relating to such Third Party Components.
8.4 The Supplier hereby waives and surrenders on behalf of itself and shall procure that all of its staff, agents sub-contractors and other personnel shall waive and surrender to the Moley, any and all rights it or they may have under Chapter IV (Moral Rights) Part 1 of the Copyright Designs and Patents Act 1988 in relation to any Deliverables.
8.5 If requested by Moley, the Supplier shall execute such documents and do such acts as is reasonably necessary to enable the Moley to apply for, obtain, maintain or defend any patent application or other protection anywhere in the world in respect of any Deliverable under these Terms and Conditions.
8.6 Any variation of the provisions of this Clause 8 shall only take effect if signed by a director of Moley.
9.1 Nothing in these Terms and Conditions shall limit the liability of either party for death or personal injury caused by that party, for any fraudulent misrepresentation of that party or in other circumstances where liability cannot be limited by law.
9.2 Subject to clause 8.1, neither party shall be liable to the other, whether in contract, tort, negligence, breach of statutory duty or otherwise, for any loss of profit, revenue, goodwill or business opportunity, for any pure economic loss or for any indirect or consequential loss, damage, costs or expenses.
9.3 Both parties undertake to maintain appropriate and adequate insurance for each respective obligation under these Terms and Conditions.
Except as expressly set out in these Terms and Conditions, each party hereby excludes all warranties, conditions, terms and undertakings, express or implied, whether by statute, common law, trade practice, custom, course of dealing or otherwise (including without limitation as to quality, performance or fitness or suitability for purpose) to the fullest extent permitted by law.
11.1 These Terms and Conditions will enforce the Supplier upon full completion accepted in mutual SOW. Either party can terminate any SOW execution at any time on written notice to the other if:
- the other party commits a material or persistent breach of these Terms and Conditions and that breach is either irremediable or if capable of remedy is not remedied within 15 days of written notice to do so; or
- an interim order is made, or a voluntary arrangement approved in respect of the other party, or if the other party passes a resolution for winding up or a court of competent jurisdiction makes an order for its winding up or dissolution, or if a notice is served of intention to appoint and administrator or an administrator is appointed by Court order or by any other means, or a receiver or administrative receiver is appointed, over any of the other party’s assets or undertaking, or if a resolution or petition to wind up the other party is passed or presented (otherwise than for the purposes of reconstruction or amalgamation), or if the other party applies to the court for protection from its creditors, or if any circumstances arise which entitle the court or a creditor to appoint a receiver, administrative receiver or administrator or to present a winding up petition or make a winding up order, or if any analogous event occurs in any jurisdiction in respect of the other party.
12.1 Supplier undertakes during the performance of the Services and for 12 months from the date of termination of latest SOW not to directly or indirectly solicit any employee or contractor, or ex-employee or ex-contractor, of Moley who is or has been engaged in the performance of the Services. This clause does not prevent either party from advertising for staff in the public media.
12.2 Neither party may assign any of its rights or obligations under these Terms and Conditions save that Moley may assign these Terms and Conditions to any Affiliate or to a purchaser of the whole or any part of its business.
12.3 Each SOW placed by Moleyin accordance with these Terms and Conditions between the parties with respect to its subject matter and supersedes all prior agreements, proposals, discussions and negotiations relating to the same. Each party confirms that, in entering into new SOW, it has not relied on and shall have no remedy in respect of any representation, statement, assurance or warranty not expressly set out in these Terms and Conditions. Each party agrees that its only remedy in respect of those representations, statements, assurances and warranties that are set out in signed SOW will be for breach of contract in accordance with the terms of these Terms and Conditions. However, nothing in these Terms and Conditions shall exclude or limit either party’s liability for fraud.
12.4 Variations or additions to these Terms and Conditions shall only be valid if agreed in writing and signed by an authorised signatory of each party.
12.5 These Terms and Conditions together with all documents referred to herein constitutes the entire understanding between the parties with respect to the subject matter hereof and supersedes all negotiations, preliminary proposals and discussions, any Supplier( Terms and Conditions documents or verbal agreements in regard thereto.
12.6 Subject at all times to the Supplier’s prior written consent and Moley’s obligations of confidentiality under clause 6, Moley may refer to the Services in a case study and/or press release.
12.7 A delay or omission by a party in exercising its rights or remedies hereunder shall not be deemed to be a waiver of such right or remedy on that or any future occasion.
12.8 No third party shall have any right to enforce any term of these Terms and Conditions.
12.9 Neither party shall be liable for any delay in the performance of its obligations under these Terms and Conditions resulting from circumstances beyond its reasonable control. The party affected will as soon as reasonably possible give notice to the other party of the occurrence of such circumstances.
12.10 Notices served under these Terms and Conditions will be validly served if delivered by
- courier and will be deemed received on the delivery;
- e-mail communication from authorised party representative;
- first class or registered post (or registered international mail) and will be deemed received 2 Business Days after posting (or 5 Business Days after posting in the case of registered international mail);
- facsimile and will be deemed received on receipt of transmission report or answer back.
12.11 If any provision of these Terms and Conditions is judged to be invalid, illegal or unenforceable, such provision shall be severed from these Terms and Conditions and the remainder of the provisions shall so far as possible continue in full force and effect. The parties shall attempt to substitute for any severed provision a valid and enforceable provision which achieves to the greatest extent possible the objectives of the severed provision.
12.12 These Terms and Conditions is governed by and shall be construed in accordance with English law. The parties irrevocably submit to the exclusive jurisdiction of the English courts.
13.1 Force Majeure Event means any circumstance not within Moley’s reasonable control including, without limitation:
(a) acts of God, flood, drought, earthquake or other natural disaster;
(b) epidemic or pandemic;
(c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
(d) nuclear, chemical or biological contamination or sonic boom;
(e) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition[, or failing to grant a necessary licence or consent];
(f) collapse of buildings, fire, explosion or accident; [and]
(g) any labour or trade dispute, strikes, industrial action or lockouts [(other than in each case by the party seeking to rely on this clause, or companies in the same group as that party)];
13.2 If Moley is prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event it shall not be in breach of this Terms and Conditions or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
13.3 The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Moley
14. Nothing in this Terms and Conditions 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.
15. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
16. In the event that the [SUPPLIER/SELLER/OTHER PARTY] does not return a signed contract to Moley within seven days of the date of this Agreement having been signed by Moley then this Agreement shall have no force and effect and all offers and obligations herein by Moley shall be deemed to be withdrawn.
v. 2.0 – July 8, 2020