SD1. Services and Performance
SD1.1 Calm will exercise reasonable skill and care in providing the Services but does not warrant that the Services will be provided on an uninterrupted or continuous basis.
SD1.2 The Client acknowledges that its signature of the Order constitutes its agreement to the specification of the Services contained in the Order. If the Client requests changes to the Services following signature of the Order, such additional services or modifications shall be dealt with in accordance with Calm’s normal hourly or daily rates as revised from time to time. Alternatively, Calm may at its sole discretion or on request from the Client, submit a quotation for the cost of the modifications or additional services requested and an indication of the additional time required and/or an indication of any anticipated delay to the Services.
SD1.3 Calm will provide any basic training and support as set out in the Order. Where it is able to do so, Calm will provide additional training, including providing additional Digital information as requested by the Client from time to time on reasonable notice and recommends that the Client requests training or information on any aspect of the Services (technical or otherwise) that the Client does not fully understand. Additional Services and training will be charged at Calm’s normal hourly or daily rates as revised from time to time, unless otherwise agreed.
SD1.4 Any third-party software will be supplied in accordance with the relevant licensor’s standard terms. The licence fees for third-party software will, where possible, be included in the charges for the Services as stated in the Order.
SD1.5 The Client acknowledges that Calm’s ability to provide the Services is dependent upon the full and timely cooperation of the Client, which the Client agrees to provide, as well as the accuracy and completeness of the Input Material and any other information the Client provides to Calm. Accordingly, the Client shall, in accordance with any timetable agreed between the parties:
SD1.5.1 provide Calm with access to, and use of, all information, data and documentation reasonably required by Calm for the performance of the Services; and
SD1.5.2 be responsible for checking the proofs and carrying out tests for the purpose of ensuring compliance of the Output Material with the Input Material and the specification set out in the Order.
SD1.6 Before supplying the Output Material in its final version Calm will carry out reasonable tests to ensure that each such item is in operable condition and is capable of meeting the requirements as specified in the Order. Calm will have final and conclusive determination as to the suitability of the Output Material and its compliance with the Order.
SD2. Rights in Output Material
SD2.1 No part of any Output Material supplied may be copied, reproduced or modified in any form by any means without the prior written approval of Calm. Calm hereby grants the Client a licence to load, display, run, transmit, store or use the Output Material for the sole purpose specified in the Order and subject to the Terms. Calm reserves the right to suspend or terminate the licence granted under this clause in the event that the Client fails to settle any invoices raised in respect of services or goods delivered under these Terms as and when they fall due.
SD2.2 The Client shall not:-
SD2.2.1 copy the whole or any part of any software provided except that the Client shall be entitled to make such back-up copies of the software programs that are necessary for security reasons; nor
SD2.2.2 decompile, reverse engineer, translate, adapt, arrange or alter the whole or any part of any software, save as permitted under the Copyright Designs and Patents Act 1988 (as amended).
SD2.3 The Client acknowledges that the Output Material is only for use in its entire form as specified in the Order. The Client shall not reproduce, modify, copy or redistribute any part of the Output Material in order to produce a new product or project not specified in the Order.
SD2.4 The Client shall not decompile, remove, reverse engineer, adapt, arrange or alter audio within the Output Material. The audio must never be used in isolation and is only to be used within the Output Material in its entire form as specified in the Order.
SD2.5 The Client shall not make use of, copy or disclose to any third party any scripts, underlying principles or ideas in any Services, whether or not such script, principles or ideas were discovered through the Client’s lawful use of the Services.
SD2.6 The Client acknowledges that any and all of the IPRs, created, developed, subsisting or used in or in connection with the development of the Output Material are and shall remain the sole property of Calm unless agreed to the contrary by Calm in writing.
SD2.7 In the event that new inventions, designs or processes evolve in the performance of or as a result of the provision of the Services, the Client acknowledges that the same shall be the property of Calm unless otherwise agreed in writing.
SD2.8 Calm will retain the right to use any such Output Material in its own marketing.
SD2.9 The Output Material may contain technical protection measures which will be used by Calm to ensure that the Output Material is used solely for the purposes stated in the Order.
SD3. Charges and Payment
SD3.1 Save where payment by identified milestones has been specified in the Order or otherwise agreed in writing, the Client shall pay 50% of the charges for the Services after the Order has been accepted and before work begins and the remaining balance of the charges on satisfactory completion of the tests specified at clause SD1.6.
SD3.2 Calm shall issue invoices in respect of the charges relating to any ongoing maintenance as set out in the Order, such charges to be subject to an annual review by Calm in March of each year with increases to be notified promptly to the Client.
SD4. Warranties
SD4.1 Calm shall perform the Services with reasonable skill and care.
SD4.2 Save for any infringement arising from the Client’s breach of its obligations under any part of clause GL5 above and subject to clause GL6, Calm warrants that the Output Material and its use by the Client will not knowingly and intentionally infringe the IPRs of any third party and Calm shall indemnify the Client against any loss, damages, cost, expenses or other claims arising from any such infringement.
SD4.3 Save in respect of Input Material or third party software or materials that form part of the Output Material, Calm warrants that, with the exception of third party software, it has the title to and property in the Output Material which is free and unencumbered and that it has the right, power and authority to licence the same in accordance with the Terms.
SD5. Data Migration
SD5.1b The Client shall, in sufficient time to permit Calm to meet all its obligations in the Order, give Calm access to any data that is to be migrated as part of the Services and the Client shall be responsible for the accuracy and completeness of any such data.
SD5.2 The Client shall ensure it holds all applicable licences and permissions in respect of any data and shall indemnify Calm in respect of any loss or damage caused by data which is transferred without such licences or permissions being in place or any virus or damage which may be caused by such data migration.
SD6. Liability
SD6.1 The liability of Calm to the Client shall not exceed the charges paid or payable (excluding any set up fees) in accordance with the Terms for the provision of the Services in the 12 months preceding the event giving rise to the liability in question.
SD6.2 Except in relation to Clause GL7 (Confidentiality), Calm’s liability to the Client shall cease two months after the completion or termination of the Services noted in the Order.
SD6.3 Calm accepts no liability for loss or damage to information or data stored on the Client’s system during an installation or otherwise. The parties agree that the Client is the best judge of the value of its data. Accordingly the Client shall be responsible for ensuring that it has adequate back-up copies of all information, data and files at all times.
SD6.4 Without prejudice to the generality of Clause
D6.3, Calm accepts no liability for loss or damage caused by any error, fault or negligence of the Client.