Support services

PART 2

CHESS DIGITAL LIMITED

SERVICES AGREEMENT

between

(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”).

And

(2) THE CLIENT, details of which are set out below.

Company Name:

 

Business Address:

 

Contact and Position:

 

Telephone:

 

Email:

 

 

WHEREAS:

(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:

1. AGREEMENT

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.


2. DEFINITIONS

Words and expressions which are defined shall have the meaning set out in the relevant part of the Schedule.

3. SERVICES

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.

SERVICE

THE SCHEDULE

TICK AS APPROPRIATE

Development of Bespoke Software

Part 1

 

Support Services

Part 2

 

Supply, Installation, Configuration of Equipment and/or Software and Related Consultancy

Part 3

 

Hosting Services

Part 4

 

Other Services

Part 5

 

 

4. CHARGES

The Client shall pay the Charges to the Company in accordance with the provisions of this Agreement. Details of the Charges are set out below.

CHARGES

Chess Digital will provide __ Months of priority support (as below) at a cost £___ Per Month, as a __ month agreement totalling £____ plus VAT

 

This package entitles the client to _ Hours Priority Response per Calendar month; once these initial hours are exhausted additional time will be charged at the rate of £__ per hour rounded up to the nearest __ Minutes.

 

 

 

 

 

 

 

 

5. COMMENCEMENT DATE AND DURATION

The commencement date is _______.

This Agreement shall commence on the date above

or on a date agreed by the the parties to sign this Agreement and shall subsist until terminated in accordance with the provisions of the relevant Schedule(s).

SIGNED for and on behalf of

CHESS DIGITAL LIMITED

at on the

day of ____ in the presence of:-

 

 

Authorised Signature……………………………….

 

Full Name……………………………………………

 

Address………………………………………………

 

………………………………………………………...

 

Signed on behalf of THE CLIENT

at on the

day of ____ in the presence of:-

 

 

 

 

Authorised Signature………………………………………

 

Full Name…………………………..……………………….

 

Address……………………………………………………...

 

………………………………………………………………....

 

 

THIS IS THE SCHEDULE REFERRED TO IN THE FOREGOING AGREEMENT BETWEEN CHESS DIGITAL LIMITED AND THE CLIENT

 

THE SCHEDULE

PART 2

TERMS AND CONDITIONS FOR THE PROVISION OF SUPPORT SERVICES

All contracts for the provision of support services 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. INTERPRETATION

1.1. In these terms and conditions, the following words and expressions shall, unless the context otherwise requires, have the following meanings:-

“Account Manager” means the Company’s account manager as may be agreed from time to time between the Client and the Company;

“Time-Bank” means a set number of Incidents or Manday Units which are purchased and consumed by the Client, depending on the type of issue or incident arising during the Support Period;

“Bespoke Software” means the computer software, applications, programs, configuration and code specifically developed or produced by the Company for the Client;

“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;

“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;

“Foundation Systems” means any software not written by the Company but which is used by the Company in the development or provision of any Bespoke Software or is in the possession of the Client including, and for example, Microsoft Project Server, Sharepoint, Infopath, Internet Information Server (“IIS”), .NET and SQL Server;

“Incident” means any ticket/support call relating to an error or issue requiring support and relating only to the Bespoke Software and/or the system being supported;

“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;

“Manday Unit” means any errors or other issues requiring support other than in relation to the Bespoke 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 the support services described in Condition 2;

“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;

“Specification” means the description (if any) of the Services set out or referred to in any document provided by the Client;

“Software” means the Bespoke Software, the Foundation Systems and the Third Party Software;

“Support Period” means a period of one (1) year from the date of the last party to sign this Contract;

“System” means the Client’s operating systems comprising the Equipment and the Software;

“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, 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;

“Unit” means an Incident or Manday Unit within a Bank;

"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 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. The Company will provide the following support models to the Client:-

2.1.1. Model A – Incident base model used for addressing issues and errors only in the Bespoke Software

Under Model A an Incident Unit will be consumed when an Incident is logged and closed off.

2.1.2. Model B – Manday base model used for addressing and correcting issues and errors in any software other than the Bespoke Software including for example the Foundation Systems or any Third Party Software

Under Model B a Manday Unit is consumed when time is spent and logged against related work.

2.2. Support shall be provided through a process of consumption of either an Incident or a Manday Unit from the Bank, depending on whether the support is Model A or Model B. The Bank may be consumed as a mix of Incidents or Manday Units or by all of one Model.

2.3. If during the provision of the Services issues arise or are found to be related to other software or underlying Third Party Software or Foundation Systems, infrastructure or hardware not provided by us, these will be regarded as out of scope of Incidents and will be addressed where practicable by Model B.

2.4. The Company shall provide the Client with technical advice by telephone, fax or e-mail during Service Hours on any Working Day. Such advice will be made available by contacting the Company’s helpdesk by the following means:

Telephone

0141 889 4207

Fax

0141 842 1433

Email

support@irw.co.uk

 

2.5. After an incident is logged on the Company’s fault report systems and its category determined, the Company will use all reasonable endeavours to respond within 30 minutes and will endeavour to provide any telephone support within 2 Service Hours. If the fault cannot be fixed during the first telephone conversation then the Company will provide support in accordance with the response times set out below.

2.6. The Company shall provide support to the Client in accordance with the following timescales:

Fault Category

Description

Response Times

Target for clearing outstanding Faults

Critical

Complete system failure or software corrupted so seriously that the System is made inoperable.

2 Service Hours

4 hours from the time the fault is logged

Major

Problems resulting in one or more modules not being able to perform normal function.

4 Service Hours

No longer than 1 Working Day from the time the fault is logged..

Medium

Problems with one module which have no further effect elsewhere on the System.

8 Service Hours

5 Working Days from the time the fault is logged.

Minor

Small faults – which do not threaten the operation of the System.

 

10 Working Days from the time the fault is logged or on the next planned upgrade. This applies only to Model A and does not apply to Model B.

Amendments

To be determined on an individual basis subject to Change Control procedure under these Conditions.

N/A

On the next planned upgrade

 

Please note that “Response” refers to all and any action by the Company in response to the communication from the Client whether by telephone, fax, email or site visit. All Response Times are based on responding during Service Hours during Working Days only.

2.7. 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. 

2.8. The Company's obligation to provide the Services is subject to any applicable Licence Agreements being in force.

2.9. Where the Company has not provided the core, underlying licences 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.

2.10. Services bought from the Company for and under an annual must be consumed by the Client within the Support Period, or will become null at the renewal/expiry date.. No Services will be provided after expiry of the Support Period in respect of any unused or unallocated work from the period ended.

2.11. The Company will:

2.11.1. 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;

2.11.2. use reasonable endeavours to meet any request from the Client for the provision of Services out of the Service Hours;

2.11.3. 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;

2.11.4. provide proof of qualifications and experience of proposed personnel and to make same subject to interview upon reasonable request from the Client where specialist skills are deemed necessary;

2.11.5. 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.

2.12. 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

2.12.1. any breakdown in project management by the Client; or

2.12.2. as a consequence of any breach by the Client of its obligations under these Conditions;

2.12.3. 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.

2.13. The Company shall have no obligation to provide support to the Client if faults arise from:-

2.13.1. misuse, incorrect use of or damage to the Software from whatever cause, including failure or fluctuation or electrical power;

2.13.2. failure to maintain the necessary environmental conditions for use of the Software;

2.13.3. use of the Software in combination with any equipment or software not provided or designated by the Company or any fault in any such equipment or software;

2.13.4. relocation of the Software by any person other than the Company or a person acting under the Company’s instructions;

2.13.5. any breach of the Client’s obligations under this Contract or having the Software maintained by a third party;

2.13.6. operator error, hosting or infrastructure where not provided by the Company or in the scope of the Services provided.

Any time required to be spent and issues that are found to be related to any of the above issues will be debited from the Bank or at the Company’s then standard normal rates if preferred by the Client.

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 providing the Services;

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 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. not carry out any unauthorised alteration, adaptation or modification of the Software;

3.1.6. permit the Company access to the Site and the Equipment during Service Hours;

3.1.7. ensure that all prerequisites set out in the Working Document are carried out prior to providing the Services;

3.1.8. 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;

3.1.9. maintain adequate insurance in respect of its potential liability to the personnel performing the Services on behalf of the Company;

3.1.10. 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;

3.2. The Client warrants that:

3.2.1. in respect of any Third Party Software:-

3.2.1.1. 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

3.2.1.2. the Company and its sub-contractors are permitted to use, modify, adapt, install and alter the Third Party Software for the purpose of providing the Services; or

3.2.1.3. 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 signoff 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 and use its reasonable endeavours to comply with any agreed timescales.

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. CHARGES

4.1. In consideration for providing the Services to the Client, the Client shall pay the Company the fee set out on the front page of this Contract. The Client shall also pay any cancellation or additional fees that might arise due to breach of the Conditions by the Client. Such fee shall be paid immediately upon signature of this Contract by the Client in advance of providing the Services.

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. Any invoices issued will be paid within 30 days of issue. 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.

4.4. 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.

4.5. In consideration of payment of the fee, the Client shall be entitled to consume a set number of support Units from the Bank which can either be under Model A or Model B or a combination of both Models.

4.6. If the initial agreed number of Units is consumed by the Client during the Support Period, additional Units may be purchased to top up the Bank as required. Additional units may be purchased in blocks of 5 at a cost of £3,500 plus VAT for each block of 5.

5. OPERATION OF THE BANK

5.1. Incidents and/or Manday Support Units will be consumed at a minimum of one per month, unless otherwise agreed in writing, whether or not an actual support incident or Unit has been logged. Such Unit will cover the project management and housekeeping work component provided by the Company if this amounts up to one Manday Unit for the relevant month. If the time consumed is over one Unit then this will be logged and debited in addition.

5.2. Any actual time spent by the Company will be logged in 30 minute minimum blocks. The Company shall aim for no more than one Manday Unit per month for project management and housekeeping activities but if additional project management or administration is required or requested by the Client, this will be logged for communication in the next monthly report.

5.3. If a number of Units are not consumed, the Client may elect to request systems development or amendment work on the basis of one day of development consuming 2 Units. If the Client elects to convert Incidents to development days, a bank of one Unit per month should be retained throughout the Support Period. No more than two development days per month are permissible although this may be increased at the sole discretion of the Company. A maximum of 80% of all Units may be converted to development days. Development days can only be during Working Days and provided that at least 14 days’ prior written notice is given. If development is requested during the final three months of the Support Period, at least 28 days’ prior written notice must be given for consuming any remaining Units.

5.4. All Units must be consumed within the Support Period or they will be forfeited.

5.5. If a number of Incidents or Manday Units occur within the same month, the standard service Unit consumption will form part of the total used. So for example if two Units are consumed via Incidents or Manday Units occurring within a month, the total deduction will be two Units.

5.6. If the Client is requested to investigate an issue, up to one half of a Unit will be deemed to be consumed from the Bank. The Company shall notify the Client whether the output is to be under Model A in which case an Incident Unit will be used from the Bank or a Model B issue in which case a Manday Unit will be deemed to be consumed.


6. CHANGE CONTROL PROCEDURE

6.1. The Client may, by giving written notice to the Company at any time during the term of this Contract, request a change to the Services.

6.2. 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 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.

6.3. 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.

6.4. 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.

7. MANAGEMENT OF RELATIONSHIP

7.1. The Company shall appoint a Project Manager and the Company shall procure that the Project Manager shall:-

7.1.1. be responsible for the management of all Services under these Conditions; and

7.1.2. organise and attend regular meetings with the Client’s Project Manager as required by the Client from time to time.

7.2. The Client shall appoint a Project Manager and the Client shall procure that he/she shall:-

7.2.1. liaise regularly with the Company’s Project Manager; and

7.2.2. attend regular meetings with the Company’s Project Manager.

7.3. 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.


8. INTELLECTUAL PROPERTY RIGHTS

8.1. 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.

8.2. No title or rights of ownership, copyright or any other Intellectual Property Rights in the Software is or will be transferred to the Client.

8.3. The Client will not delete any proprietary marks on the Software.

8.4. 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.

8.5. 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 it 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. CONFIDENTIALITY

9.1. Each party shall treat the Confidential Information as secret and confidential and, other than as set out in Conditions 9.1, 9.2 and 9.3, 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 9.3.

9.2. The obligations contained in Condition 9.1 shall not apply to information or data which:-

9.2.1. is in or enters the public domain otherwise than by breach of these Conditions;

9.2.2. is known to the recipient prior to its receipt and is at its free disposal;

9.2.3. is received from an independent third party having the right to disclose the same; or

9.2.4. is required to be disclosed by law to any court or other competent authority.

9.3. The Company may summarise its current or past projects for purposes of publicity in various media, unless otherwise agreed in writing with the Client.

9.4. The obligations contained in this Condition 9 shall survive any termination of this Contract for a period of five (5) years.

10. LIMITATION OF LIABILITY

10.1. 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 OR OTHER SERVICES PROVIDED (IN THIS CONDITION 10 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 OTHER SERVICES OR ANY ASPECT OF THEM.

10.2. SUBJECT TO CONDITION 10.4 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.

10.3. SUBJECT TO CONDITION 10.4 THE MAXIMUM LIABILITY OF THE COMPANY OR THAT OF ITS EMPLOYEES OR PROPERLY APPOINTED SUB-CONTRACTORS UNDER THIS CONTRACT SHALL BE LIMITED AS FOLLOWS:

10.3.1. 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;

10.3.2. IN ALL CASES NOT FALLING WITHIN 10.3.1 £100,000 IN AGGREGATE.

10.4. Nothing in these Conditions excludes the liability of the Company:

10.4.1. for death or personal injury caused by the Company’s negligence or that of its employees or properly appointed sub-contractors; or

10.4.2. for fraud or fraudulent misrepresentation.

11. CLIENT INDEMNITY

11.1. 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:-

11.1.1. the Client is given reasonably prompt notice of such claims;

11.1.2. the Company gives reasonable co-operation to the Client in defending such claims; and

11.1.3. the Client is given sole authority to defend such claims.

11.2. 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.

11.3. The Client shall reimburse the reasonable costs incurred by the Company in complying with the provision of Conditions 11.1.2 and 11.2.2 above.

12. CANCELLATION AND SUSPENSION OF SERVICES

12.1. 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.

12.2. Subject to Condition 12.3, 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.

12.3. Upon receipt of a valid notice of cancellation the Company shall at its discretion terminate the provision of the Services.

 

12.4. 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.

12.5. 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.

13. 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.

14. 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.

15. 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.


16. SUB-CONTRACTORS

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.

17. 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.

18. 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.

19. NOTICES

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:

19.1. by hand delivery – at the time of delivery;

19.2. by first class post – 48 hours after the date of mailing;

19.3. 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.


20. WAIVER

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.

21. SEVERABILITY

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.

22. DURATION AND TERMINATION

22.1. This Contract shall commence on the date of the last of the parties to sign the front page of this Contract and shall, subject to provisions on termination contained in Condition 22.2 below continue the Support Period and hereafter may be extended subject to the agreement of both parties.

22.2. Each party shall be entitled forthwith to terminate this Contract by written notice to the other if:

22.2.1. 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

22.2.2. 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

22.2.3. 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

22.2.4. 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

22.2.5. anything analogous to any of the foregoing under the laws of any jurisdiction outwith Scotland occurs in relation to the other party; or

22.2.6. the other party ceases, or threatens to cease, to carry on business.

22.3. 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).

22.4. Either party may terminate provision of the Services during the Support Period without cause by giving at least three (3) months’ written notice to the other party.

22.5. Upon termination of the Contract, the Client shall within fourteen (14) days cease all use of any Company Software related to the Services and not owned by the Client and return the Company Software (and all copies of the whole or any part thereof) to the Company, or if requested by the Company shall destroy all copies of the same.

22.6. 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), 9 (Confidentiality), 10 (Limitation of Liability) and 11 (Client Indemnity) shall survive termination and/or expiry of the Contract and remain in full force and effect.

23. JURISDICTION

This Contract shall be governed by the laws of Scotland and the parties submit to the non-exclusive jurisdiction of the Scottish Courts.