CHESS DIGITAL LIMITED
(1) CHESS DIGITAL LIMITED, a company incorporated in Scotland under registration number SC296800 and whose registered office is at 17 Glasgow Road, Paisley, PA1 3QS (“the Company”).
(2) THE CLIENT, details of which are set out below.
Contact and Position:
(A) The Company has experience, skill and expertise in the development of bespoke business solutions and related consultancy and support services.
(B) The Client wishes to engage the Company to provide such services as are described in Recital (A) above.
(C) The Company has agreed to provide such services to the Client subject to the terms and conditions of this Agreement.
NOW IT IS HEREBY AGREED as follows:
This Agreement consists of the terms which are set out below together with the terms and conditions contained in the Schedule and the Appendices which are attached.
Words and expressions which are defined shall have the meaning set out in the relevant part of the Schedule.
The Company shall provide the following Services to the Client in accordance with the terms and conditions set out in the corresponding parts of the Schedule.
TICK AS APPROPRIATE
Development of Bespoke Software
Supply, Installation, Configuration of Equipment and/or Software and Related Consultancy
The Client shall pay the Charges to the Company in accordance with the provisions of this Agreement. Details of the Charges are set out in the relevant proposal of services of Scope of Work.
5. COMMENCEMENT DATE AND DURATION
This Agreement shall commence on the date of the last of the parties to agree in writing or email or valid Purchase Order Number from an authorised officer of the Client or to sign the relevant Agreement and shall subsist until terminated in accordance with the provisions of the relevant Schedule(s).
THIS IS THE SCHEDULE REFERRED TO IN THE FOREGOING AGREEMENT BETWEEN CHESS DIGITAL LIMITED AND THE CLIENT
TERMS AND CONDITIONS FOR THE DEVELOPMENT OF BESPOKE CUSTOM SOFTWARE SOLUTIONS
All contracts for the development of bespoke solutions made by Chess Digital, a company incorporated under the laws of Scotland (Company Number SC296800) and having its registered office at 17 Glasgow Road, Paisley PA1 3QS (“the Company”) are subject to the following terms and conditions:-
1.1. In these terms and conditions, the following words and expressions shall, unless the context otherwise requires, have the following meanings:-
“Acceptance” means the Client’s acceptance of the Bespoke Software as set out in Condition 6;
“Acceptance Tests” means as described in Condition 5;
“Account Manager” means the Company’s account manager as may be agreed from time to time between the Client and the Company;
“Bespoke Software” means the computer software, applications or programs developed by the Company for the Client pursuant to this Contract;
“Conditions” means these terms and conditions and includes any special terms and conditions agreed in writing between the Client and the Company;
"Confidential Information" means all confidential information and data received by the Client or the Company relating to the other party, including but not limited to business methods, business plans, trade secrets, other party commercial and financial data, Client lists, product lists, lists of suppliers, databases and marketing information;
“Contract” means the contract for the supply of services comprising these Conditions, and any other documents specifically referred to in writing by the Company and the Client as forming part of the contract;
“Charges” means any charges for the provision of the Services set out in the first page of this Contract or as otherwise agreed between the Company and the Client from time to time;
“Client” means the client as described on the front page of this Contract;
“Deliverables”means all computer hardware equipment, products, documents and materials developed or provided by the Company in relation to the Bespoke Software;
“Equipment” means the computer hardware at the Site whether or not such computer hardware is situated at the Site prior to commencement of the Contract, and whether provided for by the Company or not;
“Intellectual Property Rights" means patents, registered trade marks, registered designs (and any applications for any of the foregoing) unregistered trade marks, copyright, design rights, database rights, unregistered design rights, know how, confidential information and any other intellectual or industrial property rights existing anywhere in the world, including any domain name registrations;
“Licence Agreement” shall mean any licence or terms under which the Client is permitted to use Third Party Software;
“Order” means the Client’s instruction, e-mail or purchase order for the Services (quoting the Company’s relevant Working Document reference numbers and revision numbers);
"Out with service hours" with prior agreement, Chess Digital employees will work out with their standard working hours. Chess Digital charges time and a half, of the normal day rate, for completing evening and weekend work and double the standard day rate on a Sunday.
“Project Manager” means the project manager appointed by each of the Company and the Client for the purposes of managing the relationship between the parties under the Contract;
“Services" means design and development of bespoke software solutions provided by the Company on behalf of the Client;
“Service Hours” means standard working hours that shall not exceed 7 hours each day from Monday to Friday performed between the hours of 09.00 and 17.00 but shall exclude a 1 hour lunch break and public holidays unless otherwise agreed;
“Site” means the premises of the Company or the Client, or any other premises, where the Bespoke Software is to be developed and housed;
“Specification” means the description (if any) of the Services set out or referred to in any document provided by the Client;
“Third Party Licensor” means any third party with which the Client has entered into a License Agreement in terms of which the Client uses software;
“Third Party Software” means the object code form of the computer software, applications or programs used or to be used on the Equipment or which the Company shall make available to the Client during the course of providing the Services, including any improvements of the same developed from time to time, where such software has been created by a Third Party Licensor pursuant to the terms of a License Agreement between the Third Party Licensor and the Client;
“Tools” means any software, specifications, reports, diagrams, instructions, materials or other know-how used by the Company for the purposes of providing the Services to the Client;
"Working Days" means any day except Saturdays, Sundays and public holidays; and
“Working Document” means mean any Installation Scoping Document (ISD), Consultants Proposal Document (CPD), Project Initiation Document (PID), or Work Order detailing work to be completed, which may be paper or electronic format (email).
1.2. In these Conditions references to:-
1.2.1. the singular shall include references to the plural and vice versa; and
1.2.2. any gender shall include references to each other gender.
1.3. Condition headings are for convenience of reference only and shall not affect the construction or interpretation of these Conditions.
1.4. No variation of these Conditions (whether in the Schedule or not) shall be valid unless in writing and signed by an authorised representative of each of the Client and the Company.
1.5. The Conditions shall prevail over any inconsistent terms or conditions contained in or referred to in the Client’s Order, or Working Document.
1.6. For the avoidance of doubt the Client’s own terms and conditions of Order shall not be incorporated into the Contract.
2. PROVISION OF THE SERVICES
2.1. Unless otherwise agreed between the Company and the Client the Services will be provided during Service Hours at the Site and on any Equipment as specified in the Working Document.
2.2. For the avoidance of doubt the Company shall not be obliged to provide the Services until the Working Document has been signed by both Client and the Company and the Company has received a written Order from the Client.
2.3. The Company's obligation to provide the Services is subject to any applicable Licence Agreements being in force.
2.4. Where the Company has not provided the core, underlying licenses or applications to a Client, the Company will not be liable for any faults, bugs or incidents relating to such core software, and any time and resources that have to be applied by the Company to issues found to be or related to, such core software, will be out of the scope of the Services being provided and subject to separate charges.
2.5. Services bought from the Company must be consumed by the Client within 12 months from the date of signing the Contract. If unused or unallocated after 12 months, the Contract will expire and be rendered null and void.
2.6. The Company will:
2.6.1. use reasonably competent staff in the performance of the Services and perform the Services with reasonable care and skill and if the Company prefers utilise an approved sub-contractor;
2.6.2. use reasonable endeavours to meet a request from the Client for the provision of Services outside of the Service Hours;
2.6.3. use reasonable endeavours to remedy free of charge any faulty work done by the Company provided that the Client notifies the Company in writing of the fault within seven days after the work is carried out;
2.6.4. provide proof of qualifications and experience of proposed personnel on request and to make same subject to interview upon reasonable request from the Client where specialist skills are deemed necessary;
2.6.5. use reasonable endeavours to ensure that personnel assigned to any task remain employed in the performance of that task through to completion and if not possible, use reasonable endeavours to provide a suitable replacement within a reasonable timescale.
2.7. The Company will not be responsible for any delay in the provision of the Services or failure to achieve targets set by the Client arising out of
2.7.1. any breakdown in project management by the Client; or
2.7.2. as a consequence of any breach by the Client of its obligations under these Conditions.
2.7.3. any non acceptance, delay in or non payment by the Client of any charges due under the Contract or as a result of an extension offered.
3. THE CLIENT’S DUTIES
3.1. The Client shall:
3.1.1. ensure that any applicable Licence Agreements are valid and in force and permit the Company and its sub-contractors to use, install, and, where necessary, modify, adapt or alter the Third Party Software for the purpose of developing the Bespoke Software;
3.1.2. use only skilled and competent operatives in relation to the Services;
3.1.3. make available all such facilities as the Company shall reasonably require to provide the Services;
3.1.4. ensure that any equipment or software maintained by a third party on behalf of the Client is both working and configured correctly and promptly to allow the Bespoke Software to operate correctly and without the intervention of the Company, otherwise the Company will be entitled to recover any costs associated in such involvement, at normal day rates;
3.1.5. ensure that, where the Company provides access to or installs any version of the Bespoke Software, until this has been Accepted, or until any agreed remaining work has been completed by the Company, the Client will not (unless agreed with the Company in writing in advance) use the Bespoke Software as a live system, nor load or enter live data, nor require the Company to process, restore or otherwise do work on or with such data. Any time or costs incurred by the Company as a result of any such actions will be fully recoverable from the Client, at or before project completion. Further, any live use of the Bespoke Software prior to Acceptance will deem the Bespoke Software, and any work requested or required by the Client to be carried out to the Bespoke Software by the Company, not to be part of the Services and will be provided as Support services in accordance with Part 2 of the Schedule;
3.1.6. ensure that the Client or a Third Party on behalf of the Client will not work on/amend the Bespoke Software before Acceptance, unless agreed in writing in advance by the Company. Where the Client has not secured such agreement from the Company prior to the Client or a Third Party working on/amending the Bespoke Software before Acceptance, this renders any liability of the Company for any aspect of Bespoke Software as invalid, as the Company is not then in control of the application. Further, any work the Company may be asked to, or requires to, undertake, in respect of the related actions or needs of a Third Party will also be out of scope, and chargeable;
3.1.7. not carry out any unauthorised alteration, adaptation or modification of the Bespoke Software ;
3.1.8. permit the Company access to the Client Site and the Equipment during Service Hours;
3.1.9. ensure that all prerequisites set out in the Working Document are carried out prior to the Company commencing work or going onto the Client Site;
3.1.10. ensure that all the requirements of health and safety legislation and procedures are and continue to be met with regard to the Site and the Equipment;
3.1.11. maintain adequate insurance in respect of its potential liability to the personnel performing the Services on behalf of the Company;
3.1.12. make available all passwords and/or digital certificates required for the Company to deliver and complete the Services, or supply staff with access to such information at the time the Services are being provided;
3.1.13. only dispose of packaging for Deliverables that are accepted as being in full working order.
3.2. The Client warrants that:
3.2.1. in respect of any Third Party Software:-
22.214.171.124. the Client has entered into and has fully complied (and shall at all times fully comply) with the terms of the relevant Licence Agreement; and
126.96.36.199. the Company and its sub-contractors are permitted to use, modify, adapt, install and alter the Third Party Software for the purpose of developing the Bespoke Software; or
188.8.131.52. consent to such use, modification, adaptation, installation and alteration by the Company has been obtained from the relevant Third Party Licensor.
3.2.2. the Equipment and the Third Party Software have been and will be used entirely in accordance with manufacturers' instructions and recommendations and that no unauthorised use, alteration, adaptation, installation or modification has taken place or will take place in breach of the Licence Agreements in place;
3.2.3. it has full authority and power to authorise all necessary works required to the Site to be carried out to enable any equipment to be installed and cables laid.
3.3. Where personnel are supplied by the Company on a contract basis and are required to work in accordance with instructions given from time to time by or on behalf of the Client, the Client shall:
3.3.1. ensure that such instructions are provided with sufficient notice and detail to enable completion to the Client’s required standards;
3.3.2. approve personnel’s leave of absence (which shall not be chargeable), which shall not be unreasonably refused;
3.3.3. approve and sign off the personnel’s weekly activity reports on a weekly basis.
3.4. The Client agrees to provide full responses in the shortest timescales to requests for information and assistance and acknowledges that the Company will not be responsible for problems arising as a result of failure to do so.
3.5. Where project management is undertaken by the Client, the Client shall ensure that time scales and targets (including performance-related targets and milestones) it sets are reasonably achieved.
3.6. The Client shall at all times perform its obligations hereunder with due skill and care in a timely, professional and reliable manner, use its reasonable endeavours to comply with any agreed timescales, and to respond to Company requests in under 5 Working Days.
3.7. The Client shall promptly sign off the task sheet or Working Document upon completion of the detailed schedule of work or in the case of stage projects at intervals as detailed in the relevant document.
3.8. The Client hereby warrants, represents and undertakes that in so far as the Client is aware, use by the Company of any information, software, hardware, documentation, drawings, specifications, data or other materials made available by the Client to the Company for the purposes of providing the Services will not infringe the Intellectual Property Rights of any third party.
3.9. The Client shall indemnify and hold the Company harmless from any and all loss, costs, damages and expenses arising out of any breach of Condition 3.7.
4.1. In consideration for providing the Services to the Client, the Client shall pay the Company the charges set out on the front page of this Contract together with the requisite deposit plus any cancellation or additional fees that might arise due to breach of the Conditions by the Client.
4.2. Any fees and charges arising under this Contract are exclusive of VAT and where appropriate the Client must pay VAT to the Company in addition to such fee or charge.
4.3. Service fees and charges will be paid by the Client within 30 days of invoice, or as otherwise stipulated in the Contract, together with VAT at the prevailing rate.
4.4. Invoices will normally be provided within 30 days of the amount becoming due. Reminders and final notices may be issued, however the Company is not obliged to issue these before deeming the Client in breach of these Conditions.
4.5. The Client will in addition to such fees and charges pay interest to the Company upon the amount of any invoice which is overdue from the date of invoice to the date of actual payment at 2% above the base rate of the Royal Bank of Scotland plc per month.
4.6. In the event that there is any dispute concerning a payment due from the Client to the Company it shall be dealt with in accordance with Conditions 13, 14, 16 and 23 except that the meeting shall where practical be between the Chief Executive Officers of each of the Client and the Company.
5. ACCEPTANCE TESTING
5.1. Prior to completion of the development of the Bespoke Software, the Company shall run system testing of the Bespoke Software at its premises on request of the Client. The Company agrees to grant such access to its premises to such representatives of the Client as the Client reasonably requires to be present at the relevant system testing.
5.2. Upon completion of the Bespoke Software and the testing by the Company detailed in Condition 25.1, the Company shall deliver to the Client a CD-ROM, or other suitable media version of the Bespoke Software for installation at the Client’s Site by the Client or Company. Once the Bespoke Software has been installed, the Client shall notify the Company and the parties shall work together in good faith to conduct the Acceptance Tests.
5.3. The Acceptance Tests shall take the form to be agreed between the parties in good faith. During a period of fifteen (15) Working Days following the last date of signature of this Contract, the Client shall deliver to the Company proposed acceptance criteria and test data if in scope. If requested by the Client at any time after signature of this Contract, the Company shall provide the Client with reasonable assistance in the preparation of such acceptance criteria and test data. The parties shall use reasonable endeavours to agree the proposed acceptance criteria and test data as soon as possible after the date of delivery to the Company, and once agreed in writing by both parties, such proposed acceptance criteria and test data shall constitute the “Acceptance Tests”. If the parties fail to agree on the form of Acceptance Tests within a further period of fifteen (15) Working Days or such other period as may be agreed between the parties, either party may terminate this Contract with immediate effect.
5.4. The Client shall carry out the agreed Acceptance Tests on the Bespoke Software within five (5) Working Days of the Bespoke Software’s delivery to the Client or being made available to the Client. The Acceptance Tests shall be started as soon as reasonably possible after installation and shall be run continuously during Service Hours. The Client shall give the Company at least twenty four (24) hours' notice of the start of the Acceptance Tests and permit the other Company to observe all or any part of the testing.
5.5. If the Bespoke Software (or any part thereof) fails to pass the Acceptance Tests, the Client shall, within two (2) days from the completion of the Acceptance Tests or any part of these tests, provide notice to the Company this effect, giving details of such failure(s). The Company shall remedy the defects and deficiencies and the relevant Acceptance Test(s) shall be repeated as soon as reasonably possible.
5.6. If the Bespoke Software (or any part thereof) fails to pass any repeated Acceptance Test(s) within four (4) weeks from the date of the first Acceptance Tests:
5.6.1. the Client may, by written notice to the Company, choose at its sole discretion to fix a new date for carrying out further tests on the Bespoke Software on the same terms and conditions. If the Bespoke Software fails such further tests then the Client may request a repeat test under this Condition 5.6.1 or to proceed under Condition 5.6.2;
5.6.2. following the procedure under Condition 5.6.1 the Client may accept the Bespoke Software subject to, agreement between the parties of amended acceptance criteria and/or test data, amended Specification and/or alteration in the sums payable under this Contract as, after taking into account all the relevant circumstances, is reasonable; or
5.6.3. either party may, terminate this Contract with immediate effect by giving written notice to the other party.
6. ACCEPTANCE OF THE BESPOKE SOFTWARE
6.1. Acceptance of the Bespoke Software shall be deemed to have occurred on whichever is the earliest of:
6.1.1. the signing by the Client of an acceptance certificate for the Bespoke Software following successful completion of the Acceptance Tests; or
6.1.2. the expiry of ten (10) days after the completion of all Acceptance Tests, where the Client has not given any notice under Condition 5.6 above.
6.2. Where Services have been provided to the Client in accordance with this Contract, and the Client has not undertaken any required user testing, preparation of acceptance criteria or test data, acceptance tests, feedback or sign off within a period of fifteen (15) Working Days after expiry of the relevant period provided by this Contract (other than as a consequence of the delay or fault of the Company) the Bespoke Software will be deemed to be accepted.
7. CHANGE CONTROL PROCEDURE
7.1. The Client may, by giving written notice to the Company at any time during the term of this Contract, request a change to the Bespoke Software.
7.2. Within seven (7) days of receipt of such notice, subject to the change being viable, the Company shall, at its rates then in force, prepare for the Client a written quote, chargeable in itself, for any increase or decrease in the sums payable by the Client under this Contract, and of any effect that the requested change would have on the scope of the Services.
7.3. Should the request made not be viable, the Company shall within seven (7) Working days of the request, notify the Client of this, qualifying why and where possible suggest an alternative, also which is chargeable.
7.4. Within seven (7) working days of receipt of the written quote referred to in Condition 7.2, the Client shall inform the Company in writing of whether or not the Client wishes the requested change to be made. If the change is required, the Company shall not make the requested change until the parties have agreed and signed a written agreement specifying, in particular, any changes to the scope of the Services and the charges payable to the Company.
8. MANAGEMENT OF RELATIONSHIP
8.1. The Company shall appoint a Project Manager, and the Company shall procure that the Project Manager shall:-
8.1.1. be responsible for the management of all Services under these Conditions; and
8.1.2. organise and attend regular meetings with the Client’s Project Manager as required by the Client from time to time.
8.2. The Client shall appoint a Project Manager and the Client shall procure that he/she shall:-
8.2.1. liaise regularly with the Company’s Project Manager; and
8.2.2. attend regular meetings with the Company’s Project Manager.
8.3. The Company shall procure that its staff shall, at all times while on the Client’s premises, comply with the Client’s regulations regarding health, safety, disciplinary and security matters as reasonably notified to them from time to time.
9. INTELLECTUAL PROPERTY RIGHTS
9.1. The Client acknowledges that any and all Intellectual Property Rights in the Tools are owned by and shall remain at all times the exclusive property of the Company.
9.2. The Client will not delete any proprietary marks on any third Party Software.
9.3. If any third party Intellectual Property Rights are used, the Company shall obtain all necessary consents, approvals and licences for the use of the same, and advise the Client of any conditions or terms or costs attached to the same.
9.4. If any part of the Services supplied by the Company to the Client infringes or is alleged to have infringed the Intellectual Property Rights of any third party, the Company will , as soon as is reasonably practicable (unless such material has been obtained from the Client) replace the infringing part or code (as the case may be) at its own expense with non-infringing material.
9.5. Unless otherwise agreed, all Intellectual Property Rights arising from or relating to the Bespoke Software shall remain the exclusive property of the Company.
10.1. Each party shall treat the Confidential Information as secret and confidential and, other than as set out in Conditions 10.2 and 10;3, not use, copy or disclose the Confidential Information or any part of the Confidential Information except insofar as may be necessary for the proper fulfilment of its obligation under these Conditions, subject always to the provisions of Condition 10.3.
10.2. The obligations contained in Condition 10.1 shall not apply to information or data which:-
10.2.1. is in or enters the public domain otherwise than by breach of these Conditions;
10.2.2. is known to the recipient prior to its receipt and is at its free disposal;
10.2.3. is received from an independent third party having the right to disclose the same; or
10.2.4. is required to be disclosed by law to any court or other competent authority.
10.3. The Company may summarise its current or past projects for purposes of publicity in various media, unless otherwise agreed in writing with the Client.
10.4. The obligations contained in this Condition 10 shall survive any termination of this Contract for a period of five (5) years.
11. LIMITATION OF LIABILITY
11.1. The express obligations of the Company in condition 2 are, to the fullest extent permitted by law, in lieu of and to the exclusion of any warranty, conditions, term, undertaking or representation of any kind whether express, implied, statutory or otherwise relating to the BESPOKE SOFTWARE or anything supplied or the Services provided (in this CONDITION 11 referred together as “a warranty”) including (without limitation) a warranty as to the condition, quality performance or fitness for purpose of any OF the Services or any aspect of them.
11.2. Subject to CONDITION 11.4 the Company will not be liable for any indirect or consequential loss, damage, cost or expense of any kind whatever and however caused whether arising under contract, delict (including negligence) or otherwise including (without limitation) loss of production, loss of or corruption to data, loss of profits, or of contracts, loss of operation time, loss of goodwill or anticipated savings even if the Company has been advised of their possibility.
11.3. subject to condition 11.4 the maximum liability of the company or that of its employees or properly appointed sub-contractors under this contract shall be limited as follows:
11.3.1. for up to £1million in respect of each incident or series of connected incidents giving rise to damage or loss to the Client's tangible property;
11.3.2. in all cases not falling within 11.3.1 £100,000 in aggregate.
11.4. Nothing in these Conditions excludes the liability of the Company:
11.4.1. for death or personal injury caused by the Company’s negligence or that of its employees or properly appointed sub-contractors; or
11.4.2. for fraud or fraudulent misrepresentation.
12. CLIENT INDEMNITY
12.1. The Client shall indemnify and hold the Company harmless in respect of any claim, action, proceedings, losses, damages, expenses and costs arising out of or in connection with the Company’s use of any Third Party Software in the course of providing the Services provided that:-
12.1.1. the Client is given reasonably prompt notice of such claims;
12.1.2. the Company gives reasonable co-operation to the Client in defending such claims; and
12.1.3. the Client is given sole authority to defend such claims.
12.2. The Client shall defend the Company, its officers, directors, employees and sub-contractors against any claim that the Bespoke Software infringes any Intellectual Property Rights of a Third Party, and shall indemnify the Company for any amounts awarded against the Company in judgment or settlement of such claims, provided that:
12.2.1. the Client is given reasonably prompt notice of such claims;
12.2.2. the Company gives reasonable co-operation to the Client in defending such claims; and
12.2.3. the Client is given sole authority to defend such claims.
12.3. The Client shall indemnify and hold the Company harmless in respect of any claim, action, proceedings, losses or damages, expenses and costs arising out of or in connection with any breach by the Client of this Contract.
12.4. The Client shall reimburse the reasonable costs incurred by the Company in complying with the provision of Conditions 12.1.2 and 12.2.2 above.
13. CANCELLATION AND SUSPENSION OF SERVICES
13.1. The Company reserves the right to suspend provision of the Services in the event that any invoice is overdue, if Condition 2.6 applies, or for health and safety reasons under Condition 3.
13.2. Subject to Condition 13.3, if the Client gives notice in writing cancelling an Order not less than ten days before the Services are due to commence then no charge shall be made by the Company. If the Client gives notice in writing cancelling an order not more than nine days and not less than five days before the Services are due to commence then the Client shall pay the Company one half of the agreed fee or if no fee shall have been agreed one half of the fee that the Company anticipated charging in respect of the Order. In all other cases the Client shall pay the Company the full fees.
13.3. Upon receipt of a valid notice of cancellation the Company shall in its discretion terminate the provisions of the Services.
13.4. The Client shall give the Company a minimum of two Working Days’ notice will be required for the postponement of scheduled on-site and off-site Services work, or the Client will be liable to recompense the Company for the notice days at the published rates.
13.5. Once both parties sign the Working Document or Contract then no cancellation of an Order for the Services will be permitted unless the Company agrees in writing.
14. EFFECT OF SUSPENSION OR TERMINATION
Immediately following suspension or termination of the Services (whether partial or in respect of all the Services) the Client shall forthwith pay to the Company all outstanding fees and charges (together with VAT where appropriate) and the quantum merit amount due in respect of all Services for which no invoice has at the date of suspension been delivered, including any fees and charges payable by instalments. In calculating a quantum merit charge the Company shall be entitled to take into account any loss of profit suffered by the Company arising out of the suspension or termination as the case may be.
15. SOLICITING OR APPOINTMENT OF STAFF
Whilst the Services are being provided and for a period of six months following the last provision of such Services neither the Client nor the Company shall (whether directly or indirectly) employ or retain the services of any person employed or retained by the other party including sub-contractors where such person has at some time in the preceding 12 months worked on or been involved in connection with the Services. Unless agreed by both parties before the event has occurred and for the avoidance of doubt the minimum payment to the other party shall be 33% of the person’s current annual remuneration or 25% of day rate ( 7 hours) multiplied by 260.
16. Alternative Dispute Resolution
If a dispute arises between the Company and the Client the parties agree first to use their respective best endeavours in good faith to settle the dispute by mediation before having recourse to litigation or some other dispute resolution procedure. A party claiming that a dispute has arisen must give written notice to the other party specifying the nature of the dispute. On receipt of such notice the parties must within seven (7) days of receipt convene a meeting between their respective Chief Executive Officers (or nominated deputy) and the other relevant members of management to attempt to resolve the dispute. If the dispute is not resolved within seven (7) days or within such further period as the parties agree, then the dispute is to be referred to a mediation provider appointed by the parties and in default of agreement by the President for the time being of the Law Society of Scotland.
The Company may appoint sub-contractors for the provision of the Services but such appointment shall not relieve the Company from its obligations under these Conditions.
18. ENTIRE AGREEMENT
This Contract and associated Working Documents contain the whole agreement between the parties in respect of the subject matter of this Contract and each of the parties acknowledges that in entering into this Contract it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to the agreement or not) relating to the subject matter of this Contract other than as expressly set out in this Contract.
19. FORCE MAJEURE
Neither the Company nor the Client will be liable to the other for any delay in performance or failure to perform its obligations under these Conditions (other than a payment obligation) due to any course outside its reasonable control. Such delay or failure will not constitute a breach of this Contract and the time for performance of the affected obligation will be extended by such period as is reasonable.
All notices which are required to be given shall be in writing and shall be sent to the address of the recipient set out on the Order or such other address as the recipient may designate by notice given in accordance with this Condition. Any such notice may be delivered personally by first class pre-paid letter or facsimile transmission and will be deemed to have been received:
20.1. by hand delivery – at the time of delivery;
20.2. by first class post – 48 hours after the date of mailing;
20.3. by facsimile transmission -immediately on transmission within the Service Hours (the hours of any Saturday Sunday or Public Holiday shall be ignored) provided a confirmatory copy is sent by first class prepaid post or by hand by the end of the next business day.
No neglect, forbearance, indulgence of, or giving of extra time by the Company in obtaining payment or enforcing these Conditions strictly or at all shall in any way affect the liability of the Client.
If any provision of these Conditions shall be held to be invalid, illegal or unenforceable, then both parties shall be relieved of all rights and obligations arising under such provision but only to the extent that such provision is invalid, illegal or unenforceable and such provision shall be modified to the extent necessary to make it valid, legal and enforceable whilst preserving the intent of the parties. All other provisions of this Contract shall be regarded as fully valid and enforceable unless otherwise proved.
23. DURATION AND TERMINATION
23.1. This Contract shall commence on the date of the last of the parties to sign the front page of this Contract, or on the date the client provides a valid Purchase Order, or a letter or email to the company from an authorised signatory, accepting the related proposal , and shall, subject to provisions on termination contained in Condition 23.2 below continue until the date of Acceptance of the Bespoke Software in accordance with Condition 6 above
23.2. Each party shall be entitled forthwith to terminate this Contract by written notice to the other if:
23.2.1. the other party commits any material breach of any of the provisions of this Contract and, in the case of a breach which is capable of remedy fails to remedy the same within 30 days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied; or
23.2.2. an encumbrancer takes possession or a receiver, administrative receiver or a judicial factor is appointed over any of the property or assets of the other party; or
23.2.3. the other party becomes insolvent or apparently insolvent or makes any voluntary arrangement with its creditors generally, or becomes subject to an administration order; or
23.2.4. the other party goes into liquidation (except for the purposes of amalgamation or reconstruction and in such manner that the company resulting therefrom is solvent and effectively agrees to be bound by or assume the obligations imposed on the other party under this Contract); or
23.2.5. anything analogous to any of the foregoing under the laws of any jurisdiction outwith Scotland occurs in relation to the other party; or
23.2.6. the other party ceases, or threatens to cease, to carry on business.
23.3. For the purpose of Condition 23.2.1 a breach shall be considered capable of remedy if the party in breach can comply with the provision in question in all respects other than as to the time of performance (provided that time of performance is not of the essence).
23.4. Termination of the Contract for whatever reason shall not affect the accrued rights of the parties under these Conditions arising out of this Contract as at the date of termination and, in particular but without limitation, the right to recover damages from the other; nor shall termination affect the continuance in force of any provision contained within this Contract which is expressly or by implication intended to continue in force on or after such termination. Conditions 8 (Intellectual Property Rights), 10 (Confidentiality), 11 (Limitation of Liability) and 12 (Client Indemnity) shall survive termination and/or expiry of the Contract and remain in full force and effect.
This Contract shall be governed by the laws of Scotland and the parties submit to the non-exclusive jurisdiction of the Scottish Courts.