PAVEGEN GENERAL TERMS AND CONDITIONS
1.1 These Pavegen General Terms and Conditions (the “General Terms”) form part of the Master Agreement between Pavegen Systems Ltd and any Customer who has executed the Pavegen Master Agreement (the “Master Agreement”) and will be incorporated therein by reference. Pavegen and Customer individually will be referred to as “Party” and collectively as “Parties.”
1.2 Execution of the Master Agreement constitutes Customer’s unqualified acceptance of the General Terms, the Order Form attached thereto (the “Order Form”) and any exhibits attached thereto. No other terms or conditions will be binding upon the Parties unless accepted by them in writing.
1.3 Unless specifically agreed upon in writing executed by the Parties, in the event of any inconsistency between these Terms and any of portion of the Documentation, the order of precedence shall be (i) the Cover; (ii) the Terms; (iii) the Exhibits to the Master Agreement.
1.1 Unless specifically stated in the Master Agreement Order Form (the “Order Form”) in the event of a conflict between this these General Terms and any Exhibit or Order Form incorporated into the Master Agreement, the foregoing documents shall be interpreted in the following order of priority: (i) these General Terms; (ii); (ii) any Exhibits; (iii) the Order Form.
2.1 Unless otherwise agreed in writing between the Parties payment of all invoices or statements of monies due (a) are payable in pounds sterling; (b) are non-cancellable and non-refundable; (c) are exclusive of VAT or any other applicable sales tax, which shall be paid by the Customer at the rate and in the manner for the time being prescribed by law; and (d) shall be in pounds sterling and shall be made to the bank account nominated in writing by Pavegen.
2.2 If a Party fails to make any payment when due, then, without limiting the other Party's remedies under the Documentation, the defaulting Party shall pay interest on the overdue amount at the rate of 4% a year above the Bank of England base rate from time to time or the maximum permitted by law, whichever is lower. This interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment.
2.3 In relation to payments disputed in good faith, interest under this clause 2 is payable only after the dispute is resolved on sums found or agreed to be due, from the due date until payment.
2.4 If the Customer disputes any invoice or other statement of monies due, the Customer shall immediately notify Pavegen in writing. The Parties shall negotiate in good faith to attempt to resolve the dispute promptly. Pavegen shall provide all evidence as may be reasonably necessary to verify the disputed invoice or request for payment. If the Parties have not resolved the dispute within 30 days of the Customer giving notice to Pavegen, Pavegen may suspend provision of any services being delivered under any agreement between the Parties (the “Services”) or postpone the production or delivery of any product scheduled to be produced or delivered under the Master Agreement. Where only part of an invoice is disputed, the undisputed amount shall be paid as set forth in the invoice or statement of monies due.
2.5 Pavegen shall not be liable for any damages arising from delayed delivery of Products or provision of Services resulting from delayed payment of fees.
2.6 All payments payable to Pavegen by the Customer under the Master Agreement shall become immediately due and payable (a) on termination of the Master Agreement for any reason; or (b) if the Customer becomes subject to any of the events listed in clause 3.2.
3. CONTRACT TERMINATION OR SUSPENSION OF SERVICES.
3.1 Either Party may terminate the Master Agreement upon written notice to the other Party if no other Product or Service is to be delivered as specified in the Order Form.
3.2 Without limiting its other rights or remedies, Pavegen may suspend provision of the Products and Services in the case of a Default Event.
3.3 On termination of the Master Agreement for any reason:
(a) the Customer shall immediately cease all use of the Services and Pavegen’s Confidential Information and return to Pavegen all equipment, materials, property and Confidential Information belonging to Pavegen that Pavegen had supplied to Customer in connection with the Master Agreement
(b) the Customer shall immediately pay any outstanding amounts owed to Pavegen pursuant to the Documentation.
(c) Pavegen may destroy or otherwise dispose of any of the Technical Data in its possession.
4.1 Each Party shall keep the other Party’s Confidential information confidential and shall not: (a) use any Confidential Information except for the purpose of exercising or performing its rights and obligations under Documentation (Permitted Purpose); or (b) disclose any Confidential Information in whole or in part to any third party, except as expressly permitted by this clause.
4.2 Each Party may disclose the other Party’s Confidential Information to those of its Representatives who need to know that Confidential Information for the Permitted Purpose, provided that (a) it informs those Representatives of the confidential nature of the Confidential Information before disclosure; and (b) at all times, it is responsible for the Representatives' compliance with the confidentiality obligations set out in this clause 4.
4.3 Each Party reserves all rights in its Confidential Information. No rights or obligations in respect of a Party’s Confidential Information other than those expressly stated in the Master Agreement are granted to the other Party or to be implied from the Master Agreement. In particular, except as otherwise set forth in the Master Agreement, no license is hereby granted directly or indirectly under any patent, invention, discovery, copyright or other intellectual property right held, made, obtained or licensable by either Party now or in the future.
5. REPRESENTATIONS, WARRANTIES, AND COVENANTS.
5.1 Each Party represents, warrants and covenants that: (a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation; (b) it has the full capacity and authority and all necessary permissions, licences and consents and permissions necessary to enter into, and perform its obligations under, the Master Agreement (c) all Master Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms.
5.2 Pavegen represents, warrants covenants to Customer that all Services shall be performed by an appropriate number of suitably qualified and experienced personnel; using reasonable skill and care. and in accordance with all laws and regulations in force from time to time which are applicable to Pavegen and the Specifications set forth in any Order Form.
5.3 The Customer represents, warrants and covenants to Pavegen that:
(a) It shall provide Pavegen all necessary co-operation and access to information as may be required by Pavegen to deliver the Products and provide the Services including access to Technical Data and security access;
(b) It has received all necessary permissions to share the Technical Data with Pavegen;
(c) It shall carry out all other Customer responsibilities set out in the Master Agreement in a timely and efficient manner understanding that In the event of any delays in the Customer's provision of such assistance Pavegen may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) It shall ensure that the Authorised Users use the Services in accordance with the terms of the Master Agreement and shall be responsible for any Authorised User's breach of the Master Agreement;
(e) It shall ensure that its network and systems comply with the relevant specifications provided by Pavegen from time to time; and
(f) To the extent permitted by law and except as otherwise expressly provided in the Master Agreemnt, be solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Pavegen's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.
6. DATA RIGHTS.
6.1 .In connection with Customer’s use of the Products and receipt of the Equipment Warranty and/or Application Services, Pavegen requires access to the Technical Data generated by the Products. In connection therewith:
(a) the Customer shall own all Intellectual Property Rights in and to the Technical Data.
(b) The Customer grants to Pavegen a perpetual non-exclusive and non-sublicensable licence to connect to the Technical Data to fulfil Pavegen's obligations under Master Agreement.
(c) Pavegen shall not retain, monetise, or distribute any Technical Data which may be obtained through the Maintained Equipment without the written consent of Customer.
(d) Pavegen does not require access to any personally identifiable information and should not be considered the Customer's data processor with respect to any of the personal data the Customer processes.
6.2 Subject always to the other provisions of this clause 6, Pavegen shall have the right to collect and analyse data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies.
6.3 Pavegen will be free to:
(a) use such information and data to enhance the Services, and for other development, diagnostic and corrective purposes in connection with the Services and, and
(b) maintain anonymised data, which is obtained in the course of performing the Services, in Pavegen’s databases for continuous product enhancement, validation of its professional norms and standards development, and for benchmarking and industry studies, provided that such data will only be used or disclosed in an aggregated or other de-identified form (not capable of identifying any individual), and
6.4 Pavegen and/or its licensors own all Intellectual Property Rights in and to the Pavegen System and any derivatives thereof.
6.5 Except as expressly stated herein, the Master Agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Application Services or the Pavegen System.
7. WARRANTY DISCLAIMER.
Except as expressly stated in the Documentation, all warranties, conditions and terms, whether express or implied by statute, common law or otherwise (including satisfactory quality, fitness for purpose and suitability) are hereby excluded to the fullest extent permitted by law. In particular, Pavegen makes no representations, warranties, conditions or guarantees with respect to the Products or Services covered by or furnished pursuant to the Documentation, including without limitation any implied warranty or condition of: (a) merchantability; (b) fitness for a particular purpose; (c) arising from course of performance, course of dealing, or usage of trade; and (d) non-infringement of third-party rights.
8.1 During the time that any Order is in effect [and for a period of [one year] afterwards] Pavegen shall maintain in force the following insurance policies with reputable insurance companies:
(a) public liability insurance with a limit of at least £1 million a claim; and
(b) product liability insurance with a limit of at least £1million for claims arising from a single event or series of related events in a single calendar year.
8.2 Pavegen’s liabilities under this Master Agreement shall not be deemed to be released or limited by Pavegen taking out the insurance policies referred to in clause 8.1.
9. LIMITATION OF LIABILITY.
9.1 This clause 9 sets out Pavegen’s entire financial liability (including any liability for the acts or omissions of their respective Representatives and claims arising out of indemnification obligations]) for (a) any breach of the Master Agreement however arising; (b) any use made or resale of the Products by the Customer, or of any product incorporating any of the Products; and (c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Master Agreement.
9.2 Nothing in the Master Agreement shall limit or exclude the liability of either Party for (a) death or personal injury resulting from negligence; (b) fraud or fraudulent misrepresentation; (c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or (d) breach of section 2 of the Consumer Protection Act 1987.
9.3 Without prejudice to clause 9.2, Pavegen shall not be liable to the Customer, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any loss of profit; loss of goodwill; loss of business; loss of business opportunity; loss of anticipated saving; loss or corruption of data or information; or special, indirect or consequential damage suffered by the other Party that arises under or in connection with the Master Agreement.
9.4 Without prejudice to 9.2 and 9.3, Pavegen’s total liability arising under or in connection with the Master Agreement, including all Exhibits and Order forms incorporated therein, whether arising in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, under any indemnification obligations, or otherwise, shall in all circumstances be limited to the Product Fees set forth in the Order Form.
10.1 Subject to the limitation of liability provisions set forth in clause 9 or elsewhere in the Master Agreement, Pavegen shall defend, indemnify, and hold harmless the Customer from and against all claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) (collectively, “Losses”) arising out of or in connection with a third party claim alleging:
(a) the Customer's use of the Product or the Services in accordance with the Master Agreement infringes any United Kingdom patent effective as of the Commencement Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims provided that in the case of a claim arising out of an Application. Services Agreement, the Services is one of Pavegen’s available off the shelf solutions and is not “bespoke” (meaning written, modified or developed specifically for the Customer);
(b) Subject to Customer’s compliance with clause 5.3(b)-permission, the use of Technical Data infringes any Intellectual Property Right of a third party.
10.2 . Subject to the limitation of liability provisions set forth in clause 9 or elsewhere in the Documentation, Customer shall defend, indemnify, and hold harmless Pavegen from and against all Losses arising out of or in connection with a third party claim alleging:
(a) infringement of third-party intellectual property rights as a result arising from Customer’s failure to comply with clause 5.3(b);
(b) a failure to comply with its obligations under the Master Agreement
10.3 In the defense or settlement of any infringement claim, Pavegen may procure the right for the Customer to continue using the Product or Services, replace or modify the Product or Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Master Agreement on two Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
10.4 Notwithstanding Section 10.2, in no event shall Pavegen or its Representatives be liable to the Customer to the extent that Customer has an indemnification obligation to Pavegen; or the alleged claim is based on:
(a) a modification of the Product or Services by anyone other than Pavegen;
(b) the Customer’s use of the Product or Services in a manner contrary to the instructions given to the Customer by Pavegen; or
(c) the Customer’s use of the Services after notice of the alleged or actual infringement from the Company or any appropriate authority.
10.5 . Each party shall promptly notify the other party in writing of any Losses under clauses 10.1 or 10.2 (as applicable), provided that any delay in notification will not relieve either party of its obligations with respect to the claim except to the extent that any delay prejudices its ability to defend the claim. The indemnified party shall allow the indemnifying party to have sole control over defense and/or settlement of the claim, so long as the indemnifying party does not enter into any settlement that requires the indemnified party to make an admission of fault or payment to any third-party. Nevertheless, the indemnified party may reasonably participate in such defense, at its sole expense, with the counsel of its choice, but shall not settle any such claim without the indemnifying party’s prior written consent.
10.6 Pavegen shall be permitted to set off any indemnification obligation payable to the Customer against any indemnity obligation owed by the Customer to them.
10.7 . The foregoing states the Customer's sole and exclusive rights and remedies, and Pavegen's (including Pavegen's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
The Master Agreement is not assignable, transferable or sublicensable by the Customer except with Pavegen’s prior written consent. Pavegen may transfer and assign any of its rights and obligations under the Master Agreement without consent. The Master Agreement shall be binding on, and enure to the benefit of, the parties to the Master Agreement and their respective personal representatives, successors and permitted assigns.
12. FURTHER ASSURANCE.
At its own expense, each Party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may reasonably be reasonably required for the purpose of giving full effect to the Documentation.
No variation of the Master Agreement shall be effective unless it is in writing and signed by both Parties (or their authorised representatives).
14.1 A waiver of any right or remedy under the Master Agreement shall only be effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
14.2 A failure or delay by a Party to exercise any right or remedy provided under the Master Agreement by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Master Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
15.1 Any notice given to a Party under or in connection with the Master Agreement shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by email, confirmed receipt to the address specified in the Master Agreement.
15.2 Any notice shall be deemed to have been received if (a) delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; (b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or (c) if sent by fax or email, at 9.00 am on the next Business Day after transmission and receipt has been confirmed.
15.3 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.
16. NO THIRD PARTY RIGHTS.
Except as expressly provided elsewhere in this Agreement, a person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
Pavegen shall be entitled to use the Customer’s name and logo on its sales, marketing and PR material (including website) for the duration of this Agreement and Customer grants Pavegen a non-exclusive license solely for this purpose.
18.1 . If any provision or part-provision of the Master Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If that modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to, or deletion of, a provision or part-provision under this clause 18 shall not affect the validity and enforceability of the rest of the Master Agreement or any Exhibits thereto.
18.2 . If any provision or part-provision of the Master Agreement is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to amend that provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
19. NON EXCLUSIVITY.
Unless otherwise agreed in writing between the Parties, the Master Agreement shall not prevent Pavegen from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Master Agreement.
20. ENTIRE AGREEMENT
20.1 The Master Agreement constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
20.2 Each party acknowledges that in entering into the Master Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Master Agreement.
20.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
21. GOVERNING LAW AND JURISDICTION.
21.1 The Documentation and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
21.2 Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Documentation or its subject matter or formation.
This Master Agreement and any portion of the Documentation may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
23. FORCE MAJEURE.
Unless otherwise set forth elsewhere in the Master Agreement, with the exception of payment obligations, neither party shall be in breach of the Documentation nor liable for delay in performing, or failure to perform, any of its obligations under the Documentation if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations
24.1 All payment terms of the Master Agreement and any provision that expressly states that it will survive or which, by its nature, must survive the completion, expiration, termination or cancellation of this Agreement, will survive the completion, expiration, termination or cancellation of the Master Agreement.
24.2 . Termination of this Master Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages for any breach of the Master Agreement that existed at or before the date of termination.
25. ANTI-BRIBERY AND EXPORT LAWS.
25.1 Each Party agrees and acknowledges that it complies with all applicable laws, statutes, and regulations relating to anti-bribery and anti corruption including but not limited to the Bribery Act 2010.
25.2 Each Party agrees and acknowledges that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of the other Party’s employees, contractors or agents in connection with the Documentation. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If either Party learns of any violation of the above restriction, such Party will use reasonable efforts to promptly notify the other Party.
25.3 The Products and Services and derivatives thereof may be subject to export laws and regulations. Each Party represents that it is not named on any government denied-party list. Customer shall not permit Authorised Users to access or use any Product or Service in a U.S. or UK embargoed country (including, without limitation, Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. or UK export law or regulation.
26. NO PARTNERSHIP OR AGENCY.
Nothing in the Master Agreement 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. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
The following definitions in this clause apply to the Documentation.
27.1 “Business Day” means a day other than a Saturday, Sunday or public holiday in England]when banks in London are open for business.
27.2 “Confidential Information” means any information of a confidential nature concerning the business, affairs, customers, clients or suppliers of the other Party or of any member of its Group, including but not limited to information relating to a Party’s operations, processes, plans, product information, know-how, designs, trade secrets, software, market opportunities and customers which is either labelled as such or else which should reasonably be considered as confidential because of its nature and the manner of its disclosure. Confidential Information does not include any information that:
(a) is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause);
(b) was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;
(c) was, is, or becomes, available to the receiving party on a non-confidential basis from a person who, to the receiving Party's knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party;
(d) was known to the receiving party before the information was disclosed to it by the disclosing party;
(e) the Parties agree in writing is not confidential or may be disclosed; or
(f) is developed by or for the receiving party independently of the information disclosed by the disclosing party.
27.3 “Configuration Data” means data sets including but not limited to: site name, array ID, Generator ID’s, configuration map of generators positions within array.
27.4 “Default Event” means
(a) Customer is in material breach of the General Terms which breach is irremediable or (if such breach is remediable) Customer fails to remedy the breach within thirty (30) days of being notified in writing to do so;
(b) Customer is unable to pay its debts or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction or
(c) Customer fails to pay any amount due under any Order Form within 30 days from the due date for payment.
34.5 “Delivery Date” means the date specified for delivery of Products in the Order Form.
34.6 “Excluded Causes” means (a) use of the Maintained Equipment with computer equipment or materials not supplied or approved in writing by Pavegen; (b) any maintenance, alteration, modification or adjustment performed by persons other than Pavegen or its employees or agents unless approved by Pavegen in writing; (c) the Customer or a third party moving the Maintained Equipment; (d) the use of the Maintained Equipment in breach of any of the provisions of the agreement under which the Maintained Equipment was supplied; (e) a failure, interruption or surge in the electrical power or its related infrastructure connected to the Maintained Equipment; (f) a failure or malfunction in the air conditioning or other environmental controls required for the normal operation of the Maintained Equipment, or an error or omission in the correct use of that air conditioning or other environmental controls by the Customer; (g) the use of the Maintained Equipment contrary to Pavegen or manufacture's recommendations; (h) the neglect or misuse of the Maintained Equipment; or (i) failure to adhere to the Customer Obligations set forth in the Equipment Warranty, if applicable
34.7 “Force Majeure Event” means 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; (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); (h) non-performance by suppliers or subcontractors (other than by companies in the same group as the Party seeking to rely on this clause); and (i) interruption or failure of utility service.
34.8 “Good Working Order” means the Maintained Equipment operates in accordance with the Operating Manuals.
34.9 “Group” means in relation to a company, that company, any subsidiary or holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company.
34.10 “Holding Company” means a holding company as defined in section 1159 of the Companies Act. [In the case of a limited liability partnership which is a subsidiary of a company or another limited liability partnership, section 1159 of the Companies Act 2006 shall be amended so that: (a) references in sections 1159(1)(a) and (c) to voting rights are to the members’ rights to vote on all or substantially all matters which are decided by a vote of the members of the limited liability partnership; and (b) the reference in section 1159(1)(b) to the right to appoint or remove a majority of its board of directors is to the right to appoint or remove members holding a majority of the voting rights.]
34.11 “Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, 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), 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.
34.12 “Maintained Equipment” means the Product purchased by Customer which such Product is maintained by Pavegen pursuant to the Equipment Warranty.
34.13 “ Operating Manuals” means operating manuals and specifications provided by Pavegen to Customer.
34.14 “Pavegen System” means the Application Services and any information technology system or systems owned or operated by Pavegen from which Technical Data is received and all Intellectual Property associated with or derived therefrom.
34.15 Products” mean: the products described in the Order Form or otherwise ordered by Customer or supplied by Pavegen.
34.16 “Representative” means : in respect of a Party, that Party's employees, officers, representatives, advisers or sub-contractors.
34.17 “Subsidiary” means a subsidiary as defined in section 1159 of the Companies Act. In the case of a limited liability partnership which is a subsidiary of a company or another limited liability partnership, section 1159 of the Companies Act 2006 shall be amended so that: (a) references in sections 1159(1)(a) and (c) to voting rights are to the members’ rights to vote on all or substantially all matters which are decided by a vote of the members of the limited liability partnership; and (b) the reference in section 1159(1)(b) to the right to appoint or remove a majority of its board of directors is to the right to appoint or remove members holding a majority of the voting rights.
34.18 “Taxation or Duties” means any form of tax, levy, impost, duty, contribution, customs and other import duties, liability and charge in the nature of taxation and all related withholdings or deductions of any kind wherever and whenever payable.
34.19 “Technical Data” means the Telemetry Data and the Configuration Data.
34.20 “Telemetry Data” means the data stream generated by the Products including, but not limited to array voltages and currents, generator voltages and currents, battery voltages, currents, and temperature
34.21 “Tiles” the energy generating floor tiles manufactured by the Company and sold pursuant to a Purchase Agreement.
34.22 “VAT” means value added tax or any equivalent tax chargeable in the UK or elsewhere.