AGREEMENT TERMS AND CONDITIONS
42ITS Ltd is a company registered in England and Wales with registered number 05082206 and whose registered office is at Milliways, Cringle Lodge, Cringle Lane, Stoke Rochford NG335EF
INTRODUCTION:
Client has agreed to appoint 42ITS Ltd to provide, and 42ITS Ltd has agreed to provide to Client, IT Consultancy Services on the terms and conditions set out in this Agreement.
OPERATIVE PROVISIONS
Definitions and Interpretation
1.1. In this Agreement, unless the context otherwise requires, the following terms and expressions shall have the following meanings:
“42ITS” 42ITS Ltd
“Agreement” this agreement together with the Schedules hereto;
“Charges” the charges for the provision of the Consultancy Services, as more particularly described in Schedule 2;
“Consultancy Services” the Consultancy Services to be provided by 42ITS (including the supply of the Deliverables) as set out in Schedule 1 or any Schedule of Work;
2. Consultancy Services
42ITS shall supply the Consultancy Services during the term of this Agreement in accordance with the terms and conditions set out in this Agreement.
3. Term
This Agreement shall [be deemed to have commenced][commence] on [ ] and, unless otherwise terminated in accordance with the provisions of this Agreement, shall continue until terminated by either party giving to the other not less than one month’s prior written notice.
4. Charges
4.1 In consideration of the supply of the Consultancy Services, Client shall pay the Charges to 42ITS.
4.2 The timing and amount of payments under this Agreement shall be as set out in Schedule 2 and shall be paid by Client (in the absence of any dispute) within 30 days of receipt by Client of a valid invoice from 42ITS in respect of the Consultancy Services provided. 42ITS reserves the right to suspend and/or restrict access to the Consultancy Services if payments of any Charges are not made by the due date thereof.
4.3 The Charges and all other payments to be made under this Agreement are stated exclusive of Value Added Tax, which (where applicable) shall be payable at the rate and in the manner from time to time prescribed by law.
SCHEDULE 1
Charges
1 Charges for each project to be undertaken by 42ITS for Client under this Agreement shall be specified in the Schedule of Works drawn up for such project
SCHEDULE 2
General terms and conditions
1 Definitions and Interpretation
1.1 In this Agreement, unless the context otherwise requires, the following terms and expressions shall have the following meanings:
“Confidential Information” all information (whether in written, electronic or oral form) belonging to or related to Client, its business affairs, activities, products and the Consultancy Services (including information relating to Client’s customers and their business affairs, activities, products and source code of any computer programs developed under the terms of this Agreement) and any other information of a confidential nature which is proprietary and confidential to Client which is disclosed to 42ITS in the course of 42ITS performing its obligations under this Agreement except any such information which
(a) at the time it is received by 42ITS is in the public domain;
(b) subsequently comes into the public domain other than as a result of 42ITS’s default; or
(c) is lawfully received by 42ITS from a third party on an unrestricted basis;
“Data” all data, information, names, addresses, telephone numbers, text, drawings, diagrams, images or sound embodied in any electronic or tangible medium and which is supplied or in respect of which access is granted to 42ITS by or on behalf of Client pursuant to this Agreement or which 42ITS creates, collates or obtains under this Agreement as part of the Consultancy Services to be provided hereunder or in the course of supply of the Deliverables;
“Data Protection Directives” European Union Directives 95/46/EC and 97/66/EC;
“Data Protection Legislation” the Data Protection Act 1998, the regulations implementing the EU Directive on Data Protection in the Telecommunications Sector and the Television Licences (Disclosure of Information) Act 2000 or any other applicable legislation or regulation amending or replacing the same and any legislation in force from time to time which implements the Data Protection Directives as amended or replaced from time to time or equivalent legislation in any applicable jurisdiction;
“Deliverables” all goods, articles, documents, specifications, items, software, copy and all other things produced or to be produced by 42ITS as part of the Consultancy Services;
“Intellectual Property Rights” patents, trademarks, service marks, rights in semiconductor chip topographies, design rights (whether registration or otherwise) database rights, applications for any of the foregoing, copyright, (including rights in software) know-how, trade or business names, trading style, set up and goodwill associated with the foregoing and other similar rights or obligations whether registration or not in any country (including but not limited to the United Kingdom);
“Relevant Employee” any employee who is wholly or mainly engaged in the provision of the Consultancy Services under this Agreement immediately before the date on which this Agreement terminates;
“Schedule of Work” Client’s detailed written description of a project or Consultancy Services as agreed from time-to-time;
“TUPE Regulations” the Transfer of Undertakings (Protection of Employment) Regulations 1981 as amended or replaced from time to time.
1.2 Reference to a statutory provision includes a reference to that statutory provision as from time to time amended, extended or re-enacted and any regulations made under it.
1.3 The headings in this Agreement are for ease of reference only and shall not affect its interpretation. References to any clause or schedule are unless otherwise stated to clauses of or schedules to this Agreement. References in this Schedule to any Clause are to a clause of this Schedule.
1.4 Save where the context otherwise requires, “including” shall mean “including, without limitation”.
1.5 In the event, and to the extent only, of any conflict between any of the provisions of this Schedule and the provisions of any other part of or Schedule to this Agreement, the provisions of such other part or Schedule shall prevail.
2 42ITS’s Obligations
2.1 42ITS undertakes to supply the Consultancy Services with reasonable skill, care and diligence through employees or entities who are suitably skilled and qualified to deliver the Consultancy Services.
2.2 42ITS shall comply (and shall procure that its employees and any sub-contractors providing the Consultancy Services comply) at all times with any reasonable written policies notified to 42ITS by Client from time to time and with all laws and statutory rules and regulations applicable to the provision of the Consultancy Services.
3 Warranties and Representations
42ITS warrants and represents that:
3.1 the Deliverables and the Consultancy Services will comply in all respects with the provisions of this Agreement (including the provisions of and any specifications set out in Schedule 1) and will be supplied with reasonable skill, care and diligence and in a professional and workmanlike manner;
3.2 42ITS has, or will at the relevant time or times have, full capacity, resources and authority and all necessary licences, permits and consents to enter into and to perform this Agreement and to provide the Consultancy Services;
3.3 the Consultancy Services, Deliverables and the use thereof by Client or any other third party in accordance with the provisions of this Agreement shall not infringe any Intellectual Property Rights of any third party; and
3.4 the Consultancy Services shall be performed strictly in compliance with all applicable laws, enactments, orders, regulations, and other similar instruments.
4 Intellectual Property Rights
4.1 To the extent that the Deliverables include any pre-existing works created by 42ITS or any works created by another party, 42ITS hereby grants, and shall, prior to the delivery of the Deliverables to Client, arrange for applicable third parties to grant, a perpetual, royalty free license to reproduce, modify, adapt, sell, provide, rent, lease, transfer, assign, license, sublicense and exploit such pre-existing works for the purposes set out in the relevant Schedule of Work by the means and in the media, whether now known or hereafter developed or discovered, specified in the relevant Schedule of Work throughout the territory and time period specified in the relevant Schedule of Work.
4.2 Subject to Clause 4.1, 42ITS hereby agrees that all right, title and interest to and all and any Intellectual Property Rights in all and any Deliverables created by 42ITS pursuant to this Agreement (including any software or computer programs and the source code and materials to any such software or computer programs) pursuant to 42ITS’s provision of the Consultancy Services to Client shall vest in Client upon Client’s payment in full to 42ITS of all Charges relating thereto and, subject to such payment, 42ITS hereby assigns with full title guarantee (by way of present and future assignment) all such right, title and interest to and Intellectual Property Rights throughout the world for the duration of such rights in the Deliverables. 42ITS shall ensure that, on termination of this Agreement for any reason (including expiry but excluding termination of this Agreement by 42ITS under Clause 6), 42ITS shall to the extent it has not already done so immediately deliver up to Client all Deliverables.
4.3 42ITS hereby waives all moral rights it has or may have under the Copyright Designs and Patents Act 1988 or otherwise in all Deliverables.
4.4 Where required by Client, 42ITS shall enter into a trademark licence to govern the use of any trademarks of Client’s clients used in the provision of the Consultancy Services.
4.5 42ITS further agrees to perform such acts and sign such documents as shall be necessary to give effect to the matters contemplated by this Clause 4.
5 42ITS’s Indemnity
5.1 42ITS shall indemnify and keep indemnified Client against all claims, demands, actions, costs, expenses (including but not limited to legal costs and disbursements), losses and damages suffered by Client arising from or incurred by reason of:-
(a) Any claim that the use of the Deliverables in accordance with the provisions of this Agreement infringe the Intellectual Property Rights of any third party; and
(b) Any third party claim arising directly or indirectly as a result of a breach by 42ITS of any of 42ITS’s obligations under this Agreement,
Provided that (i) 42ITS shall not be liable for any consequential loss, loss of profits, loss of business, depletion of goodwill and/or similar losses, loss of anticipated savings, loss of goods, loss of contract, loss of use, loss or corruption of data or information, or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses suffered by Client and (ii) 42ITS’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of this Agreement shall be limited to £1,000,000 (one million pounds).
5.2 If 42ITS is prevented or delayed in the performance of any of its obligations under this Agreement by any cause beyond its reasonable control, it shall forthwith serve notice in writing on Client specifying the nature and extent of the circumstances giving rise to the prevention or delay, and shall, subject to service of such notice, have no liability in respect of the performance of such of its obligations as are prevented or delayed thereby.
6 Termination
6.1 Either party may terminate this Agreement immediately on giving notice in writing to the other in the event of:
(a) any material breach of this Agreement by the other party which breach is not remediable or, if remediable, is not remedied within 30 days after the service by the party not in default of a written notice on the other party, specifying the nature of the breach and requiring that the same be remedied; or
(b) the other party becoming insolvent, entering into liquidation, whether voluntary or compulsory, passing a resolution for its winding up, having a receiver or administrator appointed over the whole or any part of its assets, making any composition or arrangement with its creditors or taking or suffering any similar action in consequence of its debt.
For the purposes of Clause 6.1(a) 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).
6.2 Termination in accordance with this Clause 6 shall not prejudice or affect any right of action or remedy which shall have accrued or shall thereafter accrue to Client or to 42ITS under the terms of this Agreement.
6.3 The provisions of Clauses which because of their purpose or context are intended to survive the termination or expiry of this Agreement shall do so.
6.4 Within 14 days of termination or expiry of this Agreement, 42ITS shall return to Client all Confidential Information and other materials belonging to Client (including all Deliverables).
7 Protection of Data
7.1 Save as otherwise specifically agreed in any Schedule of Works or in respect of any Deliverables in respect of which only limited rights are to be acquired by Client, 42ITS waives, and shall procure that all its sub-contractors waive, any interest it or they may have in the Data.
7.2 In performing its obligations under this Agreement, 42ITS shall comply with the Data Protection Legislation and any notifications or registrations made or reasonable instructions given by Client thereunder.
7.3 42ITS shall take reasonable technical and organisational measures with a view to preventing the unauthorised or unlawful processing of the Data and/or the actual loss or destruction of, or damage to, the Data.
7.4 42ITS shall where Data is to be made available to Client on an exclusive basis:
(a) refrain from disclosing the Data except in accordance with Client’s instructions and otherwise in accordance with this Agreement and having regard to the provisions of the Data Protection Legislation, or as is required by law or any regulatory body; and
(b) process the Data under this Agreement only in accordance with Client’s instructions and otherwise in accordance with this Agreement and having regard to the provisions of the Data Protection Legislation, or as is required by law or any regulatory body.
7.5 42ITS shall ensure that all communications with any person exercising any statutory powers under the Data Protection Legislation, or with a Data Subject (as defined by and in relation to the exercise of a Data Subject’s rights under the Data Protection Legislation) are made only through Client and 42ITS shall immediately upon receipt by 42ITS forward to Client any such communications and provide such reasonable assistance as Client may require on matters relating to this Clause 7.5.
7.6 Where Data is to be made available to Client on an exclusive basis, 42ITS shall not use the Data for any purpose other than the performance of this Agreement.
7.7 Subject always to an obligation to comply with all relevant Data Protection Legislation, 42ITS shall, whilst the Data is in 42ITS’s possession or control, take reasonable precautions to ensure the integrity of the Data and to prevent any corruption or loss of the Data.
7.8 If the Data is corrupted or lost as a result of any default by 42ITS Client may require 42ITS, at its own expense, to restore or procure the restoration of the Data. To the extent that any Data is provided to 42ITS by Client, Client undertakes to 42ITS to keep copies of such Data.
8 Employees
8.1 Client undertakes to 42ITS that Client will not (and will procure that no member of Client’s Group will) directly or indirectly, either solely or jointly with any other person during the period commencing on the commencement of this Agreement and ending on the date six months after the termination or expiry of this Agreement (“the Agreement Period”), solicit or entice away, or attempt to do so, (a) any employee of 42ITS employed at any time during the Agreement Period in a senior managerial or commercially sensitive position (a “Key Employee”) or (b) any person whose services have been engaged by 42ITS (whether directly or through a loan out company) at any time during the Agreement Period in connection with the supply to Client of any Deliverables (a “Key Supplier”), whether or not such person would commit a breach of his, her or its contract of employment or contract for services by reason of leaving service PROVIDED THAT the placing of an advertisement for a post available to a member of the public generally and the recruitment of a person through an employment agency will not constitute a breach of this Clause 8 provided that no member of Client’s Group or any of their respective officers and employees encourages or advises such agency to approach any Key Employee or Key Supplier.
8.2 42ITS undertakes to Client that 42ITS will not (and will procure that no member of 42ITS’s Group will) directly or indirectly, either solely or jointly with any other person during the period commencing on the commencement of this Agreement and ending on the date six months after the termination or expiry of this Agreement (“the Agreement Period”), solicit or entice away, or attempt to do so, (a) any employee of Client employed at any time during the Agreement Period in a senior managerial or commercially sensitive position (a “Key Employee”) or (b) any person whose services have been engaged by Client (whether directly or through a loan out company) at any time during the Agreement Period in connection with the projects for which 42ITS provides Consultancy Services under this Agreement (a “Key Supplier”), whether or not such person would commit a breach of his, her or its contract of employment or contract for services by reason of leaving service PROVIDED THAT the placing of an advertisement of a post available to a member of the public generally and the recruitment of a person through an employment agency will not constitute a breach of this Clause 11 provided that no member of 42ITS’s Group or any of their respective officers and employees encourages or advises such agency to approach any Key Employee or Key Supplier.
8.3 While each of the restrictions contained in this Clause 8 is considered fair and reasonable by Client and 42ITS, it is recognised that restrictions of this nature may fail for unforeseen technical reasons and accordingly it is hereby declared and agreed that if any of such restrictions shall be adjudged to be void but would be valid if part of the wording thereof were deleted the said restriction shall apply with such deletion as may be necessary to make it valid and effective.
8.4 Client and 42ITS shall co-operate with each other in relation to the employment consequences of the termination of this Agreement and, in particular, shall consider in good faith whether the TUPE Regulations will apply on such termination.
9 Confidential Information
9.1 42ITS understands and acknowledges that, whether in the course of performance of this Agreement or otherwise, it will receive or become aware of Confidential Information.
9.2 42ITS undertakes to keep and procure the keeping of all Confidential Information secure and protected against theft, damage, loss or unauthorised access, and not at any time, whether during the term of this Agreement or at any time thereafter, without the prior written consent of Client, directly or indirectly, to use or authorise the use of any of the Confidential Information other than as necessary for the purpose of the performance of 42ITS’s rights and obligations hereunder.
9.3 The obligations imposed by this Clause 9 shall survive the expiry or termination of this Agreement.
Nothing in this Clause 9 shall prohibit or restrict 42ITS from disclosing any Confidential Information to the extent to which the same is required to be disclosed by law, regulation or pursuant to an order of a competent authority, or to 42ITS’s professional advisers.
10 Notices
10.1 Any notice hereunder to be given to either party shall be in writing and shall be delivered by hand or by first class prepaid, registered or recorded delivery post or by facsimile transmission to the addressee at its above written address. Addresses for service may be varied by notice given in accordance with this clause.
10.2 A notice shall be deemed to have been served (a) if delivered by hand, at the time of delivery; (b) if sent by post, on the date on which it would be received in the normal course of post; and (c) if sent by facsimile transmission, at the time of transmission. In proving service, it shall be sufficient to prove that a by hand delivery was made, that the notice was properly addressed and posted or that the fax was properly addressed and transmitted.
11 General
11.1 If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if this Agreement had been executed with the invalid provisions eliminated. In the event of a holding of invalidity so fundamental as to prevent the accomplishment of the purpose of this Agreement, Client and 42ITS shall immediately commence good faith negotiations to remedy such invalidity.
11.2 No waiver, express or implied, by either party of any term or condition or of any breach by the other of any of the provisions of this Agreement shall operate as a waiver of any breach of the same or any other provision of this Agreement.
11.3 This Agreement shall be governed by and construed in accordance with the laws of England and Wales and the parties hereby submit to the exclusive jurisdiction of the courts of England and Wales.
11.4 This Agreement shall not be varied or amended unless such variation or amendment is agreed in writing and signed on behalf of each of the parties by a duly authorised officer.
11.5 This Agreement sets out the entire understanding of the parties regarding its subject matter and supersedes any prior agreement, understanding or arrangement between the parties, whether oral or in writing. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to this Agreement except as expressly stated in this Agreement. Neither party shall have any remedy in respect of any untrue statement made by the other upon which that party relied in entering into this Agreement (unless such untrue statement was made fraudulently) and that party’s only remedies shall be for breach of contract as provided in this Agreement.
11.6 Nothing in this Agreement is intended to confer any benefit on any third party or any right to enforce any term contained in this Agreement. Nothing contained in this Agreement shall be construed as or deemed to constitute a partnership or joint venture between the parties.