Terms & Conditions

1. DEFINITIONS

“Agreement” means an agreement for the sale, installation and support of computer software and hardware consisting of these terms and conditions and the Schedules.
“Anniversary Date” means the anniversary of the Delivery Date;
“Customer” means the customer of BlueSky identified on the Agreement signature sheet;
“Delivery Date” means the delivery date of the System, when BlueSky becomes responsible for the support and maintenance of the agreed Schedules, or the effective date, whichever is the latest;
“Conditions” means these terms and conditions
“Custom Software” means any software programs developed by BlueSky specifically for the Customer as part of the Services
“Delivery Date” means the Delivery Date of the System
“Documentation” means the manuals, if any, for the BlueSky Systems Solutions;
“Effective Date” means the date set out on the Agreement;
“Estimated Delivery Date” means the estimated delivery date of the System as set out in the Schedule;
“Equipment” means the equipment, listed in the Schedule, this term shall include any operating system of such Equipment and any related manuals ;
“Initial Period” means ONE year from the delivery date;
“BlueSky” means BlueSky Systems Solutions Limited.
“BlueSky Personnel” mean the personnel of BlueSky and/or any of its sub-contractors;
“Installation” means delivery of the software and or the third party software on media or installed on a BlueSky supplied Server;
“Licensed Users” means the employees and agents of the Customer who use the Software up to the maximum number specified in the Schedule;
“Price” means the figure given on the Schedule as the Total Price for those items listed plus VAT at prevailing rates;
“Schedule” means schedules of hardware, software and services as detailed in the Quotation;
“Services” means the installation, consultancy, project management, training and/or other services, if any, to be provided by BlueSky to the Customer as set out in the Schedule;
“Software” means any BlueSky Systems Solutions and Custom Software together and/or any part thereof as may be amended, updated or added to from time to time under the Support Services;
“Support Services” means the support services to be provided to the Customer where called for in the Schedule (if any);
“Support Fee” means the price for both the Annual Licence Fee for Software and the provision of the Support Services. The Annual Licence fee is set out in the Schedule and is payable in accordance with the terms of the Schedule;
“System” means the software whether supplied with a server or not;
“Third Party Software” means the software to be supplied or supported as part of this Agreement but which is under a licence agreement directly between a third party licensor and the Customer.

2. APPLICATION AND SCOPE OF CONDITIONS

These Conditions apply to and are incorporated into the Agreement and set out the basis upon which BlueSky shall initially, as applicable, supply Equipment, Software and Documentation, and Third Party Software to, and perform the Services for, the Customer and provide Support Services as described in the Schedule. The Conditions prevail over any inconsistent terms or conditions contained or referred to in the Customer’s purchase order, confirmation of order, or specification or implied by law, trade, custom, practice or course of dealing.

3. SOFTWARE, THIRD PARTY SOFTWARE AND EQUIPMENT

3.1 The Software and Third Party Software to be provided is detailed in the Schedule. The licence conditions for use of the Software are set out in Clause 7. The licences for Third Party Software will be supplied with the Third Party Software and the Customer agrees to be bound by such licence terms.

3.2 Custom Software (if any) is subject to a separate agreement.

3.3 Where a central processing unit (hereinafter “CPU”) is to be supplied as part of Equipment, the Customer must ensure that it has ordered sufficient disc space and processing power for any CPU to be supplied under this Agreement. This is not the responsibility of BlueSky.

3.4 No source code is provided under this Agreement

4. CUSTOMER’S OBLIGATIONS

4.1 The Customer shall:

(a) Co-operate with BlueSky in all matters relating to the Services and appoint a project manager, who shall have the authority to contractually bind the Customer on matters relating to the Services;
(b) Provide in a timely manner such access to the Customer's premises and data, and such office accommodation and other facilities, as is requested by BlueSky;
(c) Provide in a timely manner such information as BlueSky may request, and ensure that such information is accurate in all material respects; and
(d) Be responsible (at its own cost) for preparing the relevant premises for the supply of the Services.

4. 2 If BlueSky’s performance of its obligations under the Agreement is prevented or delayed by any act or omission of the Customer or the Customer's agents, sub-contractors or employees, the Customer shall be liable to pay to BlueSky on demand all reasonable costs, charges or losses sustained or incurred by it (including, without limitation, any direct or indirect consequential losses, loss of profit and loss of reputation, loss or damage to property, injury to or death of any person and loss of opportunity to deploy resources elsewhere), subject to BlueSky confirming such costs, charges and losses to the Customer in writing.

4.3 The Customer shall not, without the prior written consent of BlueSky, at any time from the date of the Agreement to the expiry of twelve months after the completion of the Services, solicit or entice away from BlueSky or employ or attempt to employ any person who is, or has been, engaged as an employee or sub-contractor of the Customer.

4.4 Any consent given by the Customer in accordance with clause 4.3 shall be subject to the Customer paying to the Supplier a sum equivalent to 20% of the then current annual remuneration of BlueSky's employee or sub-contractor or, if higher, 20% of the annual remuneration to be paid by the Customer to such employee or sub-contractor.

4.5 It is the Customer’s responsibility to operate supported items in accordance with instructions issued by BlueSky and/or the manufacturer and to retain sufficient trained staff to operate it in a proper manner.

4.6 BlueSky requires the Customer to have a reasonable broadband connection over the internet at each Site to enable BlueSky to directly link to any CPU upon which any software covered by this Agreement resides. BlueSky recommends to the Customer, the use of an uninterruptible power supply (UPS) at each Site.

4.7 The Customer shall carry out regular back-ups to removable media stored separately from the supported items and carry out other normal system housekeeping routines. BlueSky shall not be liable for any loss or damage sustained or incurred by the Customer or any third party through loss or spoiling of data resulting from any maintenance activity by BlueSky required or performed under this Agreement. BlueSky will use reasonable endeavours to put right any such loss of data or programs, but reserves the right to charge for such.

4.8 The Customer remains totally responsible to have adequate Virus protection to all parts of the business.

4.9 The Customer accepts that a valid log number issued by BlueSky is the only acceptable and recognise method of logging support calls.

4.10 The Customer is responsible to secure and keep safe all software and Third Party Software licence media and documentation. BlueSky has no obligation to keep this information.

5. SOFTWARE - LICENCE CONDITIONS, TERM AND TERMINATION

5.1 The licence to use Software granted pursuant to this Agreement becomes effective from the Delivery Date subject to the customer paying the initial and Licence Fee as part of the Support Fee. The Agreement shall automatically continue from year to year thereafter until or unless terminated in accordance with the provisions of the Agreement. Continuance of the licence to use the Software is dependent upon the Customer continuing to pay the Licence Fee under the Support Services and upon compliance with the terms and conditions in these Conditions and the Agreement.

5.2 Subject to sub-clause 5.1 and the other provisions of this Agreement, BlueSky hereby grants to the Customer a non-exclusive, non-transferrable licence to use the Software on the CPU listed in the Schedule for up to the maximum number of users and for the Site(s) set out in the Schedule. The Customer shall not permit any third party to use or have access to the Software or the Documentation supplied to the Customer. Use of the Software and Documentation is restricted to use for the Customer’s own internal purposes and the Customer; i. may not reverse engineer, disassemble, translate or in any way decode the Software; ii. may not modify or adapt the whole or any part of the Software or Documentation in any way whatsoever nor permit the whole or any part thereof to be combined with or become incorporated in any other programs without BlueSky’s prior written consent.

5.3 The Customer may make such copies of the Software as is reasonably necessary for operational security and use. Such copies and the media on which they are stored shall be the property of BlueSky and/or its licensors and the Customer shall ensure that all media is kept safe.

5.4 The Customer shall use reasonable endeavours to prevent any violation of Bluesky’s proprietary rights in the Software and shall promptly report to BlueSky any such violation that comes to its attention. In particular, the Customer shall:

(e) Ensure that each Licensed User, before starting to use the Software, is made aware that the Software is proprietary to BlueSky and that it may only be used and copied in accordance with the licence contained in this Agreement;
(f) Provide suitable disciplinary procedures for employees who make unauthorised use or copies of the Software; and
(g) Not permit third parties to have access to the Software without the prior written consent of the Supplier, who may require that such third party executes a written confidentiality agreement before being given access to the Software.

5.5 The Software is licensed on an monthly basis through payment of the Monthly Licence Fee (non payment will revoke the licence to use) which forms part of the Support Fee, this agreement has an initial period of ONE year.

6. THIRD PARTY SOFTWARE

BlueSky shall provide the Third Party Software under the standard licence terms provided by such third parties copies of which shall be provided to the Customer and the Customer agrees to be bound by such terms. It is the Customers responsibility to ensure that the correct licences are in place in respect of the Third Party Software. Save for BlueSky’s obligations to supply, and where necessary install, such Third Party Software the Customer acknowledges and agrees that BlueSky shall have no other liability in respect thereof. BlueSky does not warrant that the Third Party Software will necessarily meet the functionality, which it claims to, and it is for the Customer to satisfy itself that Third Party Software meets such requirements. Third Party Software to be supported is as detailed in the Schedule; BlueSky will not provide support for other Third Party Software. Changes, updates and releases in respect of the Third Party Software shall be covered by the licence agreement directly between the Customer and the relevant licensor to which reference should be made

7. TITLE AND RISK

7.1 The Equipment shall be at the risk of BlueSky until delivery to the Customer at the place of delivery specified in the BlueSky's acknowledgement of order. BlueSky shall off-load the Equipment at the Customer's risk.

7.2 Ownership of the Equipment shall pass to the Customer on the later of completion of delivery (including off-loading), or when BlueSky has received in full in cleared funds all sums due to it in respect of:

(h) The Equipment; and
(i) All other sums which are or which become due to BlueSky from the Customer on any account.

7.3 Until ownership of the Equipment has passed to the Customer under condition

7.2, the Customer shall:

(j) Hold the Equipment on a fiduciary basis as BlueSky's bailee;
(k) Store the Equipment (at no cost to the BlueSky) in satisfactory conditions and separately from all the Customer's other equipment or that of a third party, so that it remains readily identifiable as BlueSky's property;
(l) Not destroy, deface or obscure any identifying mark or packaging on or relating to the Equipment; and
(m) Keep the Equipment insured on BlueSky's behalf for its full price against all risks to the reasonable satisfaction of BlueSky, and hold the proceeds of such insurance on trust for the BlueSky and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.

7.4 The Customer's right to possession of the Equipment before ownership has passed to it shall terminate immediately if any of the circumstances set out in clause 10.3 arise or if the Customer encumbers or in any way charges the Equipment, or if the Customer fails to make any payment to BlueSky on the due date.

7.5 The Customer grants BlueSky, its agents and employees an irrevocable licence at any time to enter any premises where the Equipment is or may be stored in order to inspect it, or where the Customer's right to possession has terminated, to remove it. All costs incurred by BlueSky in repossessing the Equipment shall be borne by the Customer.

7.6 On termination of the Agreement for any reason, BlueSky's (but not the Customer's) rights in this clause 7 shall remain in effect.

7.7 BlueSky may appropriate payments by the Customer to such Equipment as it thinks fit, notwithstanding any purported appropriation by the Customer to the contrary, and may make such appropriation at any time.

8. PRICING AND PAYMENTS

8.1 The Price and any other charges arising under this Agreement shall be payable as set out in the Agreement or the Conditions or in the Schedule. The Price does not include any Annual Licence Fee for use of Software or applicable Third Party Software, which sum will be included as part of the Support Services.

8.2 Forty percent (40%) of the Price shall be paid by the Customer on the effective date of the Agreement, and the balance shall be payable on the Delivery Date, inclusive of the cost of the Customer Software, unless otherwise agreed in writing by BlueSky.

8.3 The Customer shall pay to BlueSky the Support Fee and the charges arising hereunder. Payment of the first month’s Support Fee shall be made on or before the Delivery Date. Thereafter BlueSky shall be entitled to issue invoices up to thirty days prior to the commencement of the next Anniversary Date with payment being received by BlueSky by the next Anniversary Date.

8.4 If payment is overdue BlueSky reserves the right, in addition to any other rights it may have, to suspend its contractual obligations under this Agreement until such payment is made.

8.5 The Customer will bear the cost of all travelling time and expenses of BlueSky’s personnel attending Site(s) based on BlueSky’s rates prevailing at the time. The mileage rate shall be the average AA rate. Flights, rail fares and overnight accommodation will be re-charged net. Such costs will be additional to the Price and Support Fee unless expressly stated otherwise in the Schedule.

8.6 Training days booked by the Customer and subsequently cancelled by the Customer without a clear fourteen days notice period provided in writing to BlueSky will be charged for in full. Days are supplied on a “as consumed basis” with BlueSky making no commitment as to what can be achieved in the day, other than that the BlueSky personnel supplied will have the requisite skills.

8.7 BlueSky reserves the right to increase the Support Fee but only with effect from the first day or the next annual period of support. However, BlueSky will not increase the rate beyond that reached by applying 10% and using the Retail Price Index applied cumulatively on the full product price of support from the Delivery Date (as amended for items added later) to the date in question, except that in the event that an item may become uneconomic to support on such basis or a site becomes the subject of an extraordinary level of support, BlueSky reserves the right at its option either to remove the item or site concerned from the supported list on the Schedule or to agree with the Customer, if possible, a mutually acceptable price.

8.8 If any sum payable under this Agreement is in arrears then in addition to any other remedies which may be available, BlueSky reserves the right to charge interest on any and all such sums on a day to day basis from the original due date at the rate of two and a half percent per month until paid.

8.9 If the Customer enters into lease with a third party whereby it is intended that title to all or any part of the items on the Schedule supplied hereunder shall pass to such third party. If for any reason arrangements for financing the purchase of the items on the Schedule shall be frustrated the terms and conditions hereof shall remain in full force and effect as between the Customer and BlueSky.

9. INTELLECTUAL PROPERTY RIGHTS AND INDEMNITY FOR SOFTWARE

9.1 The copyright and all other intellectual property rights of whatever nature in the Software and Documentation and in any modifications or changes thereto made under this Agreement are and shall remain the property of BlueSky and/or its licensors, and any rights in any other work prepared or carried out by BlueSky hereunder shall vest in BlueSky, on creation thereof. The Customer shall notify BlueSky as soon as reasonably possible if it becomes aware of any unauthorised use of the whole or any part thereof by any third party.

9.2 Subject to clause 9.5, BlueSky shall defend, hold harmless and indemnify the Customer against all loss, damage, claims, liabilities, fees, costs and expenses arising out of any action brought against the Customer based on a claim that the Software or Documentation infringes any intellectual property right of any third party, provided that:

(n) BlueSky is notified promptly in writing of any such claim;
(o) The Customer makes no admission or settlement of such claim without the BlueSky's prior written consent;
(p) BlueSky has sole control of the defence and any negotiations for compromise; and
(q) the Customer provides, at the BlueSky's expense, such assistance as BlueSky reasonably requires.
9.3 If the Software or Documentation becomes or, in the opinion of qualified legal counsel, is likely to become, the subject of any such claim, the Customer will permit BlueSky:
(r) To replace all or part of the Software or Documentation with functionally equivalent hardware, software or documentation without any charge to the Customer; and/or
(s) To modify the Software or Documentation as necessary to avoid such claim, provided that the Software (as amended) functions in substantially the same way as the Software before modification; and/or
(t) To procure for the Customer a licence from the relevant complainant to continue using the Software and Documentation.

9.4 If the Software or Documentation is determined in a court of law to be infringing and BlueSky is unable after commercially reasonable efforts to procure for the Customer the right to continue using the Software and Documentation, or to provide the Customer, with a functionally equivalent non-infringing Software and Documentation, the Agreement and any licence to use the Software shall be terminated.

9.5 BlueSky shall have no liability for any claim of intellectual property infringement:

(u) Caused by the Customer's use of the System in combination with software not supplied or approved in writing by BlueSky (other than the operating system of any customer hardware, provided that the BlueSky was notified of the identity of this operating system before this agreement was entered into); or
(v) Resulting from any unauthorised modification of the Software and Documentation; or
(w) Based on use of any version of the Software and Documentation other than the latest version supplied by the BlueSky, if such claim could have been avoided by the use of such supplied version; or
(x) Where the claim for infringement arises in respect of a feature of the Software which was specified by the Customer.

10. TERMINATION

10.1 The Customer may terminate the licence to use Software granted under this Agreement by giving at least 180 days notice in writing to BlueSky. In the event that the customer gives notice to terminate during the Initial Period BlueSky will be entitled to receive payment of the total amount which they would have received during the whole of the Initial Period including any price increases as detailed in 8.7. Termination of third party licence agreements is governed as provided within such licences.

10.2 In respect of the Software BlueSky may terminate the licence to use granted under this Agreement forthwith on giving notice to the Customer if: i. the Customer commits any material breach of any term of the licence or this Agreement and, in the case of a breach capable of being remedied fails to do so within thirty days after receipt of a request in writing from BlueSky to remedy the breach; and/or ii. the Customer fails to pay the Support Fee which includes the Annual Licence Fee for Software due under this Agreement or any payments due under these Condition or the Agreement.

10.3 This Agreement may be terminated with immediate effect by written notice to the Customer if the Customer shall become bankrupt or insolvent or enter into any scheme of administration with its creditors or enter into receivership or liquidation take any action for voluntary winding up other than for the purpose or a solvent reconstruction or amalgamation, cease to carry on business.

10.4 Save as provided 10.2 and 10.3 the licence to use the Software may not be terminated by BlueSky, unless it issues an end of life on the software, which cannot be during the Initial Period.

10.5 If the Customer purports to cancel this Agreement in whole or in part otherwise than through the default of BlueSky the Customer shall become immediately liable to compensate BlueSky by way of liquidated damages and pay to BlueSky 50% of the Price relating to the whole or part of the System which the Customer has purported to cancel if the Customer purports to do so before Acceptance.

10.6 Upon termination of the licence to use the Software granted to the Customer under this Agreement, howsoever occasioned, the Customer shall return the Software to BlueSky within 7 days of the termination date and destroy all copies thereof. This provision shall survive any termination whether of the licence to use Software or of the Agreement as a whole.

11. DESCRIPTION OF SUPPORT SERVICES

11.1. Unless otherwise expressly agreed by BlueSky, support services will be provided during normal UK business hours of 9.00 a.m. to 5.00 p.m. Monday to Friday, excluding Public Holidays.

11.2. BlueSky warrants that it shall use all reasonable endeavours to carry out the Support Services described herein in a professional manner and shall at all times use reasonable endeavours to maintain the items supported in good working order and to supply all component spares necessary for supported equipment. The periodic updates provided under support for the Software may include legislative updates the scope of which can vary considerably. Where major legislative changes take place it is expressly provided that BlueSky reserves the right to make an additional charge which shall be spread evenly over all its customers for the Software in order to cover the updates dealing with such legislative changes. Such updates are deemed to be outside of the Support Fee cost.

11.3 Supported software:

BlueSky will use all reasonable endeavours to respond to any request by the Customer within eight working hours of receiving notification of such need from the Customer. Error correction is provided on a reasonable effort basis, and BlueSky cannot guarantee to correct any error within any given timescale. The Customer shall endeavour to provide written notification and appropriate examples supporting any error found. Major errors that are found in software supported hereunder then BlueSky will supply any correction over the broadband connection via the internet. As part of the support service BlueSky shall provide updates and releases from time to time to the software supported during the term of this Agreement. It is the Customer’s responsibility to install corrections, updates and releases to the software and for ensuring that their staffs have the capability of doing so. BlueSky shall have the right to make additional charges for services, which are required due to the Customer failing to install such items correctly. Where BlueSky has to carry out site visits for support, it reserves the right to charge over and above the annual Support Fee. BlueSky reserves the right not to deal with, or to make additional charges for, reported errors in such software which: i. Are the result of failure of equipment or other software not covered by this Agreement; ii. Faults in mains electrical supplies or operator error; iii. Are, or could be reasonably construed as, a lack of knowledge of the software; iv. Are caused by air conditioning, humidity or other environmental conditions; v. are caused by the accident, neglect, misuse or default of the Customer or any third party; vi. are due to acts of God, war, acts of violence or any similar occurrence; vii. Result from any attempt by any person, other than BlueSky, to modify or maintain the software otherwise than in the case of only trained Customer staff carrying out normal System functions; viii are caused by cable or connector malfunctions.
The provisions of this clause 11.3 shall apply to any Customers who are supplied with beta versions of the Software

11.4 Supported equipment:

Support is provided during the hours set out in 11.1 and on the items listed in the Schedule. On receipt of a telephone request for support for an item, BlueSky will log the call and endeavour to identify the problem as either an engineering problem or a software problem or a system operating software problem. BlueSky will, if appropriate to the problem reported, despatch an engineer to the Site concerned. BlueSky will use all reasonable endeavours to ensure that BlueSky’s engineer will respond within 8 hours. Where the problem encountered relates to a CPU and the terms of this Agreement provide that temporary replacement equipment will be provided to the Customer the engineer will endeavour to load the hard disc of the CPU, if unaffected, onto a loaned CPU and thus leave the Customer with a working system, but the Customer must appreciate that such may not always be possible. If, on attendance at Site, the engineer believes the Support Fee does not cover the fault, the customer will be advised, and in such event, any corrective activity, spare parts and the cost of the visit itself, shall be charged. The service provided assumes normal use of the equipment and relates to normal wear and tear. BlueSky reserves the right to make additional charges at its standard rates for the time being in force where its engineers are called out because of faults which: i. are the result of accident, unauthorised transportation, alteration, neglect or misuse; ii. Is the result of failure of the Customer to provide and maintain a suitable operating environment as recommended by BlueSky and/or the manufacturer. BlueSky shall not be liable for any item, which fails due to manufacturers design or inherent defects. Nor shall BlueSky be liable to perform any work, which is in the opinion of BlueSky impractical to perform owing non-standard use or location. BlueSky shall provide all necessary tools and test equipment together with all spares, which in the opinion of BlueSky’s engineer are required to ensure the operational efficiency of the equipment. The Customer shall be responsible for all operating materials and of all consumables, including but not limited to print heads, laser cartridges, ribbons, toners, fuser and developer kits all of which are outside the scope of the Support Fee. BlueSky reserves the right to make additional charges to the Customer to cover all of the cost repairing equipment more than five years of age.

11.5. Additional Services:

The Support Fee does not include, and additional charges shall be made for:

(i) Repair or support in respect of any data corruption and in respect of software support arising from such data corruption;
(ii) All costs for any calls made to fit supplies;
(iii) As a result of the Customer allowing access by a third party to a supported item where BlueSky has agreed to perform corrective activities and not to terminate the Agreement and not to delete the item concerned from the list of items being supported.
(iv) Providing new or updated versions of an operating system of an item of Hardware;
(vi) Programs transferred via an internet connection will be charged to the Customer at BlueSky’s prevailing rates. Any Site visits carried out by BlueSky in respect of support outside that covered by the Support Fee are carried out at BlueSky’s discretion and may be chargeable at BlueSky’s current daily rate for such service together with the reasonable costs of accommodation, travelling time and travelling expenses all of which shall be over and above the Support Fee covered by this Agreement.

11.6 The Support Services shall commence on the Delivery Date and shall be for the Initial Period and thereafter extend automatically for further one year periods unless or until terminated by the either party giving at least 90 days written notice effective and prior to the next Anniversary Date.

11.7. The Customer shall not move any supported item either from one Site to another location or within the same or between different buildings without the prior written consent of BlueSky, as such can affect the ability of BlueSky to support it. BlueSky shall have the right to vary the Support Fee or to terminate support in respect of such item or items.

12. LIABILITY

12.1 The following provisions set out the entire financial liability of Bluesky (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:

(a) any breach of the Agreement;
(b) any use made by the Customer of the Services, and the Software, and the Support Services or any part of them; and
(c) any representation, statement or tortuous act or omission (including negligence) arising under or in connection with the Agreement
12.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement.
12.3 Nothing in these conditions excludes the liability of BlueSky:
(d) for death or personal injury caused by BlueSky's negligence; or
(e) for fraud or fraudulent misrepresentation.

12.4 Subject to clause 12.3

(f) BlueSky shall not be liable, whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation or otherwise for:

(i) Loss of profits; or
(ii) Loss of business; or
(iii) Depletion of goodwill or similar losses; or
(iv) Loss of anticipated savings; or
(v) Loss of goods; or
(vi) Loss of contract; or
(vii) Loss of use; or
(viii) Loss or corruption of data or information; or
(ix) Any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.

(g) The BlueSky’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Services shall be limited to £1,000,000 or the value of the Price and the Services at the date any breach occurs.

13. FORCE MAJEURE

BlueSky shall have no liability to the Customer under these Conditions and the Agreement if it is prevented from, or delayed in, performing its obligations under the Agreement or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.

14. GENERAL

14.1 The failure by either party to enforce at any time any provision of this Agreement shall not affect its rights to later require complete performance by the other party hereto, nor shall any waiver of a breach of a provision be taken or held to affect its rights in the event of any subsequent or additional breach of the same or any other provision.

14.2 The Customer shall neither assign this Agreement nor part with any rights or obligations hereunder in any way whatsoever whether in whole or in part without the prior written agreement of BlueSky. BlueSky shall be entitled to sub-contract, sub-let or assign the whole or any part of this Agreement but such shall not adversely affect the Customer’s rights hereunder.

14.3 Except as expressly provided in this Agreement no warranty, condition, undertaking or term, express or implied, statutory or otherwise as to the condition, quality, performance, merchantability or fitness for purpose of the items supplied or any part thereof shall be assumed by BlueSky, and except as expressly provided for in this Agreement all such warranties, conditions, undertakings and terms are hereby excluded to the extent permitted by law.

14.4 This Agreement constitutes the entire agreement between the parties hereto. No addition or modification to this Agreement shall be binding on either party unless made in accordance with 14.5.

14.5 This Agreement may only be amended by written agreement of the parties and signed by the duly authorised representatives of both parties. Any notice of termination, breach or other notice of a legal nature required to be given to either party under this Agreement shall be given by first class delivery post to the appropriate address of the party concerned set out in this Agreement.

14.6. The construction, validity and performance of this Agreement shall be governed by English law and the parties hereby agree to English courts jurisdiction.

14.7 The Agreement and these Conditions is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns, and is not intended to benefit, or be enforceable by, anyone else.