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SUPPLY
SUPPORT
GENERAL
1. Supply
(a) The Contractor hereby grants to the Customer and the Customer accepts the Licence and undertakes to maintain accurate and complete records of the number and location of the copies of the Products and any other materials or information supplied by the Contractor and to supply such records to the Contractor forthwith upon request.
(b) The Products may be used only on the type of computer or computer network and with the type of operating system that is specified by the Contractor. The Schedule will state whether any of the Products are allowed to operate on a computer network, rather than a stand-alone computer, and the number of workstations permitted to concurrently operate them on a network, if any.
(c) The licence applies to any modified updated versions of the Products.
(d) The licence allows the Customer to use the Products to satisfy its internal requirements, but does not allow the Customer to use them to provide to any other party, including unrelated and related third parties, any form of consulting, service-bureau, time-sharing services, or services of any other kind.
2. Delivery
(a) The Contractor shall deliver the Products, as applicable, to the Customer and shall provide the additional services, if any, specified in the Schedule.
(b) Other additional services may be provided by the Contractor under such terms and conditions and at such rates as the Contractor shall agree. The Customer shall provide the computer equipment and operating systems software specified in the Schedule.
3. Copying and Reverse Engineering
(a) Where the Products supplied includes software, the Customer may during the term of the Licence make and retain for backup and archival purposes, copies of each item of software provided that the original and each copy are kept in the Customer’s possession and that the Customer’s installation and use of the same do not exceed that allowed by the licence.
(b) To the full extent to which applicable law allows, prohibitions on reverse engineering in situations where the interface specification and access protocols for the software in question are not generally available, the Customer is prohibited from reverse engineering, decompiling or disassembling the software supplied under this agreement.
4. Warranty
(a) The Customer acknowledges that the Products in general cannot be and are not error free and agrees that the existence of such errors shall not constitute a breach of this agreement.
(b) The Contractor warrants that it is the owner of the copyright and database right in the Products and will do all things reasonably necessary to protect against unauthorised copying or other infringement.
(c) The Contractor warrants that the Products will in all material respects conform to and perform in accordance with the descriptions and specifications contained in the Schedule and for a period of 90 days thereafter.
(d) if any of the Products are demonstrated to the Contractor within 90 days from the date of delivery to the Customer not to conform to the warranty set out at clause 4(c) the Contractor will correct such error or malfunction or (at its option) replace such Products free of charge provided that:
(i) the Products have been used at all times properly and in accordance with the Contractor’s instructions;
(ii) no alteration modification or addition has been made to the Products without the Contractor’s prior written consent; and
(iii) the alleged error or malfunction has been notified to the Contractor within the warranty period specified above.
(e) Each claim of the Customer under this warranty shall be sent in writing or by fax to the Contractor specifying the type of Products involved and the nature of the fault or defect. Upon receipt of such written or faxed claim, the Contractor or its agent or representative shall have the right to test or to inspect the Products at its then location or to have the Products despatched to a point designated by the Contractor or returned to the Contractor carriage pre‑paid.
(f) The Contractor does not warrant that the Products supplied hereunder shall be free from all known viruses, the Contractor has used commercially reasonable efforts to check for the most commonly known viruses prior to packaging the Products. However, the Customer is solely responsible for virus scanning the Products. Any viruses reported during the stated warranty period are substantial variations from the Contractor’s specifications that are covered by the limited warranty.
(a) The Customer hereby agrees to pay for the Products detailed in the Schedule within 30 days of the date of the invoice sent by the Contractor. The invoice will be sent to the Customer in advance of delivery detailed in clause 3.
(b) A separate fee is required for each Product and this is detailed in the Schedule.
(c) If any invoices issued under this clause become overdue, the Contractor can suspend the Support provided under this agreement.
(d) The Contractor will have the right to charge interest at 8% per annum above the base rate of National Westminster Bank plc from the date the invoice is due to include the date of actual payment whether before or after judgment.
6. Support Provided under this Agreement shall Include
(a) Hotline Support. For an urgent problem, the Customer can contact by electronic mail, telephone or fax the Contractor's Hotline which is available Monday to Friday from 0900 to 1700 (excluding national holidays and the Contractor’s Christmas closedown) (“the Contractor's standard hours”). An urgent problem is degradation or failure of the System, defective software distribution media, or software performance inconsistent with documentation.
Problems which do not delay or inhibit system operations will be handled by written reports.
Customers must submit sufficient material and information to enable the Contract’s support staff to duplicate the problem.
The Contractor’s support staff will attempt to solve a problem immediately, or as soon thereafter as possible. When appropriate, the Contractor will endeavour to give an estimate of how long a problem may take to resolve. The Contractor will keep the Customer informed of the progress of problem resolution.
Where specified in the Schedule interactive support using internet based remote control and remote monitoring will be available.
Support will be withdrawn without prior notice if any monies due from the Customer to the Contractor under this or any other agreement become overdue.
(b) On-Site Support will be provided by the Contractor if specified in the Schedule and where appropriate in the event telephone support does not resolve the problem with the Product.
(c) Modem Support. The Contractor shall, where specified in the Schedule, supply on loan a modem or other direct line access to the System as agreed by the parties for on-line problem resolution.
(d) Out-of-Hours support shall where specified in the Schedule, be provided by the Contractor.
(e) Correction of critical errors or assistance to overcome specific Product problems. The Contractor may, in its sole discretion, correct errors by “patch” or by new version.
(f) Information on availability of new versions of the Products.
(g) Consultancy advice on Product development, enhancements and modifications, together with estimates for the same.
(h) Training, data back-up, upgrades and security systems audit to be provided at the discretion of the Contractor or if listed in the Schedule.
Exceptions – maintenance service does not include:-
(i) Labour or materials necessary to repair damage caused by operator error or accident, mains failure, software error, misuse, neglect or repair by any person other than an authorised representative of the Contractor.
(j) The malfunctioning of parts or attachments not approved by the Contractor.
(k) The malfunctioning of Products housed under conditions that are not approved by the manufacturer or by the Contractor.
(l) Expendable supply items (such as LaserWriter ozone filters and heated fuser rollers, toner cartridges, tape cassettes, printer ribbons, print heads, floppy disks, zip cartridges, CDs, DAT tapes, etc) or accessories; painting or refinishing the Products or furnishing materials thereof; making specification changes; or performing services in connection with relocation of Products, or adding or removing accessories, attachment or other devices.
(m) The “Cathcode Ray Tube” (CRT) on all monitors and the “Backlight” on all LCD Flat Panel Displays will not be covered for replacement exchange. If the “CRT” or “Backlight” requires a replacement unit, then the Contractor hold all rights on deciding if the unit (Monitor or LCD Display) is beyond economical repair.
(n) In case of failures arising from undetectable new viruses or hack attempts due to undisclosed vulnerabilities in Microsoft operating systems, we will provide a maximum of 2 server rebuilds in any 12 month period included within contract.
(o) Faults resulting from the use of re-filled toner cartridges or ink cartridges which may cause damage to your printer.
(p) Faults occurring on printers as a result of using gummed/sticky labels.
(q) Data recovery where data has been lost or destroyed as a result of a hardware or software malfunction.
(r) System software errors will only be covered under this agreement if the version of the suspect operating system matches that of the version of the operating system stated on the signed OSM Agreement for that individual machine or if the Contractor has upgraded the machine to a later operating system purchased by the end user.
(s) The Contractor cannot be held responsible either directly or indirectly for any malfunction, delay to or interruption of full serviceability of the Products contracted for maintenance via this agreement and which may be attributed to or alleged to be caused by any aspect of any calendar date and/or time changes prior to, at or beyond a specific point, i.e. as was, midnight 31st December 1999/1st January 2000.
(t) While the Contractor will make every effort to protect the Customer’s data which may be stored on faulty Products, the Contractor cannot be held responsible for the loss of such data, should it occur during maintenance of or repairs to such Products.
(u) The Contractor is not under any obligation, unless specified in the attached schedule, to provide spare Products at a single visit. Where spare Products are provided, this shall not be regarded as a precedent. Nevertheless, the Contractor shall use its best endeavours to provide the required service as expeditiously as possible.
(v) When, in the Contractor’s judgement, a Product cannot be reasonably maintained under this Agreement, the Contractor will, as its sole option, either withdraw the Product from the Agreement pursuant to the terms listed or submit a cost estimate for reconditioning the Product. Such costs, if authorised by the Customer, will be in addition to the maintenance charge. In the event of the Customer not accepting the Contractor’s cost estimate, the Contractor shall be entitled to vary this Agreement forthwith to delete therefore all reference to such Product if in the Contractor’s opinion continued maintenance thereof would be impracticable or unreasonable to carry out. In such an event the Contractor will refund a proportionate part of the maintenance charge paid in advance.
(a) The Support Charges specified in the Schedule are payable within 30 days of the date of the invoice unless otherwise agreed in writing by the Contractor. No support will be provided until payment has been received by the Contractor. No support will be provided even if support invoices are paid but other monies due from the Customer to the Contractor under this or any other agreement are overdue and no prior notice will be given for any suspended Support.
(b) Customers with more than one PC at one Location are required to pay the Support Charge for each PC at the Location
(c) Support Charges are subject to annual review upon 90 days' prior written notice from the Contractor and are subject to variation upon issue to the Customer of enhanced versions of the Products or upon other changes in the Schedule particulars. Such increase shall affect this Agreement upon expiry of the period of notice in the case of annual review and immediately in any other case unless the Customer has notified the Contractor within such period that it wishes to exercise its right to terminate as detailed in clause 13.
(d) The Support Charges payable in terms of this Agreement are based on services provided during the Contractor's standard working hours (0900 - 1700) Monday to Friday, excluding national holidays and the Contractor’s Christmas closedown unless otherwise specified in the Schedule. Additional or out-of-hours support is subject to a higher charge.
(e) All charges referred to in this Agreement are exclusive and net of any taxes, duties or such other additional sums including, but without prejudice to the foregoing generality, value added or purchase tax, excise tax, tax on sales, property or use; import or other duties, whether levied in respect of this Agreement, the Products, their use or otherwise.
(f) The Contractor will have the right to charge interest at 8% per annum above the base rate of National Westminster Bank plc from the date the invoice is due to the date of actual payment whether before or after judgment.
(g) The Contractor shall charge for Support services requested by the Customer which are not specifically covered by this Agreement.
(h) If On-Site Support is provided the Contractor can invoice the Customer for reasonable travel time and expenses.
(i) In the event of non-payment the Contractor shall have the right to terminate the Licence hereby granted to the Customer. The Contractor may repossess any copies of the Products for which payment has not been received by the Contractor and any documentation, data, records or information relating thereto. For such purpose the Contractor or any one or more of its agents or authorised representatives shall be entitled at any time and without notice to enter upon any premises in which the same are or are reasonably believed by the Contractor, to be kept, stored or used.
The Customer has the option to pre-purchase block hours of Support (“Block Purchase Support”). Such Block Purchase Support will be at a reduced rate and is governed on the following terms:
(i) Block Purchase Support can be Hotline Support or On-Site Support.
(ii) If On-Site Support is required a minimum of 30 minutes travel time will be added to the cost of the Block Purchase Support.
(iii) Block Purchase Support can be cancelled by the Customer providing 2 months’ notice.
(iv) The Block Purchase Support will only be provided when the Customer has paid for the Block Purchase Support in advance.
(v) The Block Purchase Support will be suspended if there are any outstanding invoices due from the Customer to the Contractor under this or any other agreement and no prior notice will be given for such suspension.
9. Additional Support and Enhancement
(a) The Contractor offers to perform additional support and enhancement of the Products in accordance with the provisions of a separate agreement between the parties.
(b) Where the Products are dependent on other products, the Customer cannot have Support services with respect to the Products without also having such services with respect to the products upon which it depends. The Contractor may provide support for such other products upon agreement between the parties.
(c) The Contractor shall charge for services requested by the Customer which are not specifically covered by this Agreement.
(d) Where the Products supplied under this Agreement include software and/or databases this agreement does not require the Customer to use the current release level of software, but standard maintenance service may not be available unless the current release level with all defect corrections, enhancements, updates and revisions is in use. The Customer acknowledges that some information in some databases is subject to change over time. If the Customer elects to forego maintenance service for such a database, the Customer acknowledges that it assumes responsibility for its use of outdated information. Also, an old release level of software may not operate with a new release level of software. The Customer acknowledges that it assumes responsibility for such problems if it does not use the current release level of all software.
(e) If the maintenance service lapses, or is not ordered initially, then before it is restored or initiated the Contractor reserves the right to inspect the Products in use, to require their upgrading to current release levels, and to impose conditions such as the removal of incompatible third-party software. Such inspections may be charged for at the Contractor’s then current rates. The scope of and the fees for any renewed or restored maintenance service will be stated in a jointly signed amendment to this agreement.
10. Support not Included and which shall be Charged for:
(a) Support of other products, accessories, attachments, machines, systems or other devices not supplied by the Contractor nor listed in the Schedule.
(b) Rectification of lost or corrupted data arising for any reason other than the Contractor's own negligence.
(c) Support rendered more difficult because of any changes, alterations, additions, modifications or variations to the Products, the System or operating environment.
(d) Attendance to faults caused by using the Products outside design or other specifications or outside the provisions laid down in any documentation or manual supplied by the Contractor with the Products,
(e) Diagnosis and/or rectification of problems not associated with the Products
11. Undertakings by the Customer
The Customer undertakes:
(a) to comply with the instructions and advice and any manuals supplied by the Contractor;
(b) where the Customer has been provided with support or diagnostic Products by the Contractor (the "Support Products"), except to the extent permitted by the applicable law:
(i) not to copy the Support Products, other than for the purposes of backup, nor otherwise to reproduce the same;
(ii) not to translate, adapt, vary or modify the Support Products nor to communicate the same to any third party without the Contractor's prior written consent;
(iii) not unlawfully to disassemble, decompile or reverse engineer the Support Products.
(c) to maintain accurate and up-to-date records of the number and location of all copies of the Support Products;
(d) to supervise and control use of the Support Products in accordance with the terms of this Agreement;
(e) to replace the current version of Support Products with the upgraded version immediately forthwith upon receipt;
(f) to reproduce and include the copyright notice contained in or on the Support Products and on all and any copies made, whether in whole or in part, in any form, including partial copies or modifications of such Products made herein;
(g) not to provide or otherwise make available the Support Products in whole or in part (including but not limited to program listings, object code, source program listings and source code), in any form to any person other than the Customer's employees without prior written consent from the Contractor;
(h) not to provide screen dumps, report listings and database definitions to third parties without prior written consent from the Contractor.
(i) to have the requisite fire wall service packs and any other protections as stipulated by the Contractor from time to time.
(k) if the Customer fails to pay the Support Charges or any other sums due to the Contractor for any Support, Products or additional support or products, the Customer undertakes to cease using the Support Products in any way until all sums are paid in full and the Contractor has confirmed that the Customer can begin to re-use the Products.
(a) The Contractor shall not be liable to the Customer for any loss or damage whatsoever or howsoever caused arising directly or indirectly in connection with this Agreement, the Support, the Products, any Support Products, modem or other hardware, its use, the System or other equipment, property or otherwise except to the extent that such liability may not be lawfully excluded.
(b) The Contractor expressly excludes liability for any loss or damage arising from virus infections, spam email and attacks, hacking, loss of data, misuse of Products, Support Products and hardware failure.
(c) Notwithstanding the generality of (a) above, the Contractor expressly excludes liability for consequential loss or damage which may arise in respect of the Products, any Support Products, any modem or other hardware, its use, the System or other equipment or property or for loss: of profit, business, revenue, goodwill or anticipated savings.
(d) In the event that any exclusion or other provision contained in this Agreement be held to be invalid for any reason and the Contractor becomes liable for loss or damage that could otherwise have been limited, such liability shall be limited to £2,000,000.
(e) The Contractor does not exclude liability for death or personal injury to the extent only that the same arises as a result of the negligence of the Contractor, its employees, agents or authorized representatives .
(f) any statement, condition or warranty, express or implied, statutory or otherwise, as to the quality, merchantability, or suitability or fitness for any particular purpose of the Products or the Support Products is hereby excluded to the full extent permitted by law and otherwise and the Contractor shall not be liable to the Customer or to any other persons for loss or damage (whether direct or consequential) arising directly or indirectly in connection with the Products or Support Products or any modification, variation or enhancement thereof, and any documentation, manual or training relating thereto.
(g) To the full extent permitted by law, except as they are stated herein and only to the extent they are expressed in this Agreement, the Contractor hereby excludes all additional terms and representations related to this Agreement, the Products and the Support Products, its media, the databases, the user instructions and the services furnished hereunder. This Agreement does not affect the Customer’s statutory rights
(a) This Agreement shall take effect on the date on the cover of this Agreement ("the Commencement Date") notwithstanding the date hereof and shall continue for a period of one year and from year to year thereafter until or unless terminated by either party giving to the other not less than 3 months prior written notice, subject always to prior termination as herein specified.
(b) Each copy of the Products, licensed under this agreement has an individual licence term commencing upon its delivery to the Customer and continuing for an initial duration specified in the Schedule, but to a date no later than the expiry of the then current term of this agreement, subject always to prior termination by the Contractor or the Customer as hereinafter specified.
(c) In addition to provisions for termination as herein provided, the Contractor may, by notice in writing to the Customer, terminate this Agreement if any of the following events shall occur, namely:
(i) if the Customer is in breach of any term, condition or provision of this Agreement or required by the applicable law and fails to remedy such breach (if capable of remedy) within 30 days of having received written notice of such breach from the Contractor;
(ii) if the Customer, being a body corporate shall present a petition or have a petition presented by a creditor for its winding up, or convene a meeting to pass a resolution for voluntary winding up, or shall enter into any liquidation (other than for the purposes of a bona fide reconstruction or amalgamation); shall call a meeting of its creditors, or shall have a receiver of all or any of its undertakings or assets appointed, or shall be deemed by the relevant statutory provisions under the applicable law to be unable to pay its debts.
(iii) if the other party shall (or shall threaten to) sell, assign, part with or cease to carry on its business or that part of its business relating to the subject matter of this Agreement; or
(iv) the control (as defined for the purposes of the Income and Corporation Taxes Act 1988 s 416) of the other party shall be transferred to any person or persons other than the person or persons in control of that party at the date hereof; or
(d) As soon as the Customer is aware of any of the events mentioned in clause 13(c)(ii) occurring the Customer must notify the Contractor immediately and the Support will cease.
(e) If any of the events in 13(c)(ii) occur and an administrator/receiver/liquidator requires access to Products such access will only be provided if an agreed fee is paid to the Contractor in advance of granting access to the Products.
(f) Upon termination, the Customer shall pay to the Contractor all costs and expenses, including legal and other fees incurred and all arrears of charges or other payments arising in respect of the Products, any Support Products, Support, this Agreement or otherwise and shall comply with its undertaking specified in Clause 13(k).
(g) Termination, howsoever or whenever occasioned shall be subject to any rights and remedies the Contractor may have under this Agreement or in Law.
(h) On termination of this Agreement the Customer must return to the Contractor any of the Products, Support Products, or any other materials supplied by the Contractor and all Products must be deleted from the Customer’s computers.
(i) The Customer acknowledges that once this Agreement has been terminated it will be unable to access the Products and any records located in the Products. Access to such recover must be paid for by the Customer to the Contractor for a fee to be agreed by the Contractor.
(j) In the event of the expiration or termination of licences in respect of Products for any reason whatsoever without the expiration or termination of this agreement, the Customer shall promptly delete all copies of the expired or terminated Products from all computers and return to the Contractor all other copies of the expired or terminated Products.
(k) within 14 days after the date of expiry or termination of this Agreement for whatever reason to furnish the Contractor with a certificate, certifying that the principal and all copies of all Products, and Support Products and related documentation (in whole and in part), in any form including partial copies or modifications of such Products received from the Contractor or made in connection with this Agreement, have been destroyed, unless the Customer has obtained the Contractor's prior written authorization to retain one copy of the same and upon such conditions as the Contractor may impose.
(a) All information, drawings, specifications, documentation, Products listings or code which the Contractor may have imparted and may from time to time impart to the Customer relating to any Support, Products, modem or other hardware or generally to the Support or Products provided hereunder is proprietary and confidential and the Customer agrees that it shall use the same solely in accordance with the provisions of this Agreement and that it shall not at any time during or after expiry or termination of this Agreement disclose the same whether directly or indirectly to any third party without the Contractor's prior written consent.
(b) Subject only to the specific, limited provisions of Clause 3a and 11(b) above the Customer further agrees that it shall not itself or through any subsidiary, agent or third party use such confidential information to copy, reproduce, translate, adapt, vary, modify, decompile, disassemble or reverse engineer the Products or the Support Products nor shall the Customer sell, lease, license, sub-license or otherwise deal with any supporting products or hardware or variations, modifications, copies, releases, versions or enhancements thereof or have any products or other program written or developed for it based on any confidential information supplied to it by the Contractor.
(c) The foregoing provisions shall not prevent the disclosure or use by the Customer of any information which is or hereafter, through no fault of the Customer, becomes public knowledge or to the extent permitted by law.
(d) In the event of disclosure the Customer will obtain from such third parties duly binding agreements to maintain in confidence the information to be disclosed to the same extent at least as the Customer is so bound hereunder.
The Contractor shall be under no liability to the Customer in respect of anything which, apart from this provision, may constitute breach of this Agreement arising by reason of force majeure, namely, circumstances beyond the control of the Contractor which shall include (but shall not be limited to) acts of God, perils of the sea or air, fire, flood, drought, explosion, sabotage, accident, embargo, riot, civil commotion, including acts of local government and parliamentary authority; inability to provide support or supply materials; breakdown of equipment and labour disputes of whatever nature and for whatever cause arising including (but without prejudice to the generality of the foregoing) work to rule, overtime bars, strikes and lockouts and whether between either of the parties hereto and any or all of its employees and/or any other employer and any or all of its employees and/or between any two or more groups of employees (and whether of either of the parties hereto or any other employer).
Failure or neglect by the Contractor to enforce at any time any of the provisions hereof and partial exercise by either party of any right hereunder shall not be construed nor shall be deemed to be waiver of the Contractor's rights hereunder nor in any way affect the validity of the whole or any part of this Agreement nor prejudice the Contractor's rights to take subsequent action.
The headings of the terms and conditions herein contained are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of any of these terms and conditions of this Agreement.
18. Severability
In the event that any of these terms, conditions or provisions shall be determined by any competent authority to be invalid, unlawful or unenforceable to any extent such term, condition, or provision shall be amended by the parties in such reasonable manner as achieves the intention of the parties without illegality or shall to that extent be severed from the remaining terms, conditions and provisions which shall continue to be valid to the fullest extent permitted by law.
(a) The Customer shall not assign or otherwise transfer all or any part of this Agreement without the prior written consent of the Contractor.
(b) The Contractor may authorize a distributor, dealer, service centre or other third party support organization to provide the support services and/or to invoice the Customer for and collect the charges specified herein as its designated representative. Such authorization may be in the form of a sub-contract or other arrangement deemed appropriate by the Contractor.
Any notice to be given by either party to the other may be sent by recorded delivery to the address of the other party as appearing herein or such other address as such party may from time to time have communicated to the other in writing and if so sent shall be deemed to be served 2 days following the date of posting.
Each party irrevocably agrees that this Agreement and all matters arising from it are governed by and construed in accordance with the laws of England and Wales whose courts shall have exclusive jurisdiction over all disputes arising in connection with this Agreement.
No variation or amendment to this Agreement shall be effective unless in writing signed by an authorised representative of the parties.
The schedule referred to forms part of this Agreement.
The remedies available to the parties under this Agreement shall be without prejudice to any other rights, either at common law or under statute which either may have against the other.
