Type: Terms & Conditions [Tier 4]
Owner: Commercial Director
Dated:
day of
20
Customer
and
Imerja Limited
AGREEMENT FOR PROVISION OF
GOODS AND SERVICES
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General:
This Agreement for the provision of Goods and/or Services includes provision for maintenance and
support (including vendor software support subscriptions and other support services provided directly
by a manufacturer of other third party), monitoring, management, managed service desk, hosting and
other services provided by Imerja Limited to customer organisations.
Confidentiality:
This document is presented in strictest confidence, and shall be treated accordingly.
The recipient of this document acknowledges that all information provided within is confidential,
commercially sensitive and agrees not to copy, discuss, or disclose its contents, in whole or in part, by
any means without the express written permission of Imerja Limited.
Upon formal written or verbal request by an authorised officer of Imerja Limited this document will be
immediately returned to the company.
Communications with Imerja Limited:
All enquiries regarding the content of this document should in the first instance be directed to:
Contact:
Name – Position, Imerja Limited
Address:
Hallmark House, Paragon Business Park, Chorley New Road, Horwich, Bolton,
Greater Manchester BL6 6HG
Telephone:
0844 225 2888
Email:
name.surname@imerja.com
Document Control:
Version
Date Issued
Issued By
Issued To
1.0
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THE AGREEMENT
This Agreement is made the
day of
20
(the ‘Agreement Date’)
between:
[1]
CUSTOMER NAME whose registered office is at ADDRESS (registered number xxxxxxxx)
(“Customer”); and
[2]
IMERJA LIMITED whose registered office is at Hallmark House, Paragon Business Park,
Chorley New Road, Horwich, Bolton, Greater Manchester BL6 6HG (registered number
5180119) (“Imerja”)
(both individually referred to as a “party” and collectively as the “parties”)
This Agreement comprises:
1.
2.
3.
4.
5.
6.
7.
8.
this sheet
the terms and conditions
Schedule 1: Definitions
Schedule 2: Inventory of Goods
Schedule 3: Statement of Work
Schedule 4: Service Levels
Schedule 5: Pricing and Payment Plan
Schedule 6: Acceptable Use Policy (AUP)
It is agreed as follows:
1.
The terms and conditions of this Agreement shall apply to the supply and purchase of Goods,
including products and equipment, and services as described in this Agreement.
2.
The Customer’s address for service of notices is as presented in [1] above.
3.
Imerja’s address for service of notices is as presented in [2] above.
In witness thereof, each of the parties hereto has caused this Agreement to be entered into on the
day and year first before written.
SIGNED:
SIGNED:
duly authorised for and on behalf of
CUSTOMER NAME
duly authorised for and on behalf of
IMERJA LIMITED
Name:
Name:
Date:
Date:
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CONTENTS
1
DEFINITIONS.................................................................................................................................. 5
2
GENERAL ....................................................................................................................................... 5
3
APPOINTMENT AND TERM .......................................................................................................... 5
4
ORDERING ..................................................................................................................................... 6
5
VARIATION ..................................................................................................................................... 7
6
CUSTOMER RESPONSIBILITIES.................................................................................................. 7
7
SERVICE RESPONSIBILITIES ...................................................................................................... 8
8
DELIVERY & IMPLEMENTATION .................................................................................................. 9
9
CHANGE CONTROL .................................................................................................................... 10
10
SERVICE LEVELS & SERVICE CREDITS ............................................................................... 10
11
CHARGES & PAYMENT ........................................................................................................... 10
12
EXCLUSIONS ........................................................................................................................... 12
13
RISK & PROPERTY .................................................................................................................. 12
14
WARRANTIES & REMEDIES ................................................................................................... 13
15
INDEMNITY, INSURANCE & LIABILITY .................................................................................. 14
16
TERMINATION.......................................................................................................................... 15
17
INTELLECTUAL PROPERTY RIGHTS & INDEMNITY ............................................................ 17
18
CONFIDENTIALITY .................................................................................................................. 17
19
DATA PROTECTION ................................................................................................................ 19
20
NON SOLICITATION ................................................................................................................ 19
21
CORRUPT GIFTS & PAYMENT ............................................................................................... 19
22
FORCE MAJEURE ................................................................................................................... 19
23
ASSIGNMENT........................................................................................................................... 20
24
NOTICE ..................................................................................................................................... 20
25
PUBLICITY ................................................................................................................................ 20
26
WAIVER & SEVERABILITY ...................................................................................................... 20
27
DISPUTES ................................................................................................................................ 21
28
MISTAKES IN INFORMATION ................................................................................................. 21
29
AGREEMENT............................................................................................................................ 21
30
OWNERSHIP ............................................................................................................................ 22
31
GOVERNING LAW ................................................................................................................... 22
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1
DEFINITIONS
1.1
The definitions of words and expressions used in this Agreement are set out in Schedule 1.
1.2
The headings in this Agreement are for convenience only and shall not affect the
interpretation of this Agreement.
1.3
Any references in this Agreement to a statute or a provision of a statute shall be construed as
a reference to that statute or provision as amended, re-enacted or extended at the relevant
time.
1.4
Words in the singular shall include the plural and vice versa.
1.5
Reference to a gender shall include all genders.
1.5
References to a person shall include any individual, firm, unincorporated association or body
corporate.
1.6
References in this Agreement to Clauses and Schedules shall be to clauses of and the
schedules to this Agreement.
1.7
The Schedules form part of and shall be deemed incorporated in this Agreement.
2
GENERAL
2.1
These Conditions shall prevail over the terms and conditions of any Order submitted by the
Customer to Imerja for Goods and/or Services.
2.2
No variation or changes to these Conditions shall be valid unless agreed in writing and signed
by both parties.
2.3
In the event of a conflict these terms will prevail unless otherwise agreed between both
parties in writing.
3
APPOINTMENT AND TERM
3.1
The Customer appoints Imerja to provide the Goods and/or Services in accordance with the
terms of this Agreement including relevant Schedules to this Agreement.
3.2
The Customer may from time to time order Goods and/or Services under the terms of this
Agreement upon the provision of a Purchaser Order to Imerja whereupon Imerja shall provide
and/or perform such Goods and/or Services in accordance with the terms of this Agreement.
3.3
In the case of Services Imerja’s appointment shall commence on the Agreement Date and,
subject to early termination under this Agreement, shall continue from the Commencement
Date for the Initial Period.
3.4
The term of this Agreement shall begin on the Commencement Date and continue for the
Initial Period unless terminated earlier pursuant to the terms of this Clause 3. Thereafter this
Agreement shall automatically renew for additional periods of not less than one (1) year,
unless and until either party terminates the Agreement on no less than ninety (90) days
advance written notice, such notice to expire on an anniversary of the Commencement Date.
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4
ORDERING
4.1
If the Customer wishes to order Goods and/or Services from Imerja, it shall submit a request
for a Quotation to Imerja, detailing the Goods and/or Services required.
4.2
Imerja shall respond with a Quotation, which shall state the Goods and/or Services to which
the Quotation applies, the Price and Price List applicable to those Goods and/or Services, the
period during which such Quotation is valid, and where appropriate shall include the
Specification applicable to the Goods and Service Levels applicable to the Services.
4.3
Unless otherwise stated, all Quotations for Goods are valid for 14 days, and all Quotations for
Services are valid for 30 days.
4.4
If the Customer wishes to order Goods from Imerja, the parties shall co-operate in the
preparation of an Inventory of Goods which shall contain a description including part numbers
where relevant of all Goods required and any special requirements or variations from this
Agreement which have been agreed in writing between the parties prior to submission of any
associated Statement of Work, and that it is issued pursuant to this Agreement. The Inventory
of Goods shall be set out using the pro-forma template attached hereto as Schedule 2.
4.5
If the Customer wishes to order Services from Imerja the parties shall co-operate in the
preparation of a Statement of Work and Service Level schedule.
4.6
4.5.1
The Statement of Work shall contain a description of the Services required and any
special requirements or variations from this Agreement which have been agreed in
writing between the parties prior to submission of the relevant Statement of Work, and
that it is issued pursuant to this Agreement. The Statement of Work shall be set out
using the pro-forma template attached hereto as Schedule 3.
4.5.2
The Service Level schedule shall detail the Service Level relevant to the Statement of
Work described in Schedule 3. The Service Levels shall be set out using the proforma template attached hereto as Schedule 4.
The Customer shall order the Goods and/or Services by submitting a Purchase Order to
Imerja. Each Purchase Order issued pursuant to this Agreement shall specify:
4.6.1
The Goods and/or Services required;
4.6.2
The Price of the Goods and/or Services;
4.6.3
The Premises to which the Goods shall be delivered and/or at which the Services
shall be performed;
4.6.4
In the case of Goods, the Delivery date required;
4.6.5
In the case of Services, the Commencement Date, the Initial Period, the Statement of
Work and Service Level schedule applicable to the Purchase Order;
4.7
Notwithstanding preparation of the Schedules required under Clause 4.4 and Clause 4.5, the
parties agree that Imerja shall not be obliged to deliver the Goods and/or Services until such a
time that it is in receipt of a valid Purchase Order.
4.8
The provisions of this Agreement and the relevant Inventory of Goods, Statement of Work and
Service Level shall apply to the Purchase Order and the goods and/or Services so ordered
and the terms and conditions on the reverse of any Purchase Order, acknowledgement,
invoice or other document shall not apply.
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5
VARIATION
5.1
Any requirement for a change to the Goods and/or Services or for the provision of additional
Services or facilities (any alteration being an “Amended Service”) shall be subject to a joint
negotiation between the two parties and shall not be effective until recorded in writing and
signed by both parties.
5.2
Where the Customer requires an Amended Service or Supplementary Services and Imerja is
capable of providing the Amended Service of Supplementary Service, Imerja shall submit a
quotation to the Customer against which an order may be raised.
5.3
Upon agreement of the terms of the Amended Service or Supplementary Services in
accordance with this Clause 5, the Amended Services or Supplementary Services shall be
governed by the terms of this Agreement and references to Services shall include Amended
Services and Supplementary Services, as appropriate.
6
CUSTOMER RESPONSIBILITIES
6.1
The Customer shall notify Imerja upon failure of Goods, including Equipment and/or
Supported Software subject to this Agreement and shall allow Imerja full and free access to
the Goods, free from contamination or hazardous materials, and use of machines and devices
in the Customer’s possession necessary to effect repair subject to the Services provided.
6.2
Unless otherwise agreed and detailed in the Statement of Works and/or Service Level
schedule, the Customer shall be solely responsible for ensuring it keeps adequate back-up
copies of its application software and data files for the purpose of on-site software rebuilding.
6.3
The Customer shall keep a log of the Goods and notify Imerja in writing of a change in
location and/or inventory of the Goods subject to the Services (Schedule 2).
6.4
The Customer shall ensure that the Goods are located and operate in an environment that
meets the manufacturer’s recommended specifications, all external surfaces of the Goods are
kept clean and in good condition, and shall carry out any minor maintenance and safety
changes as defined in the manufacturer’s user instructions from time to time.
6.5
The Customer shall indemnify and hold harmless Imerja from and against any claim for loss,
damage or injury to any person or property occasioned by or arising from negligence or
misuse of the Goods or any unauthorised addition, adjustment, modification, alteration,
maintenance, repair or other work thereto.
6.6
Except in the case of an on-site Service, the Customer shall, at its own expense, be
responsible for returning the Goods, free from contamination or hazardous materials, and with
carriage and insurance paid to transport the Goods to Imerja’s nominated depot.
6.7
The Customer (or its employee) shall accompany Imerja's personnel at all times whilst on the
Customer's premises and the Customer shall take all reasonable precautions to ensure the
health and safety of Imerja's personnel. The Customer shall ensure that whenever the Goods
are made available to Imerja under this Service they shall be free from contamination or
hazardous materials.
6.8
In order to receive the Services provided by Imerja (Schedule 2) the Customer agrees to
undertake at its own expense to provide security services and use reasonable security
precautions in connection with its use of the Services; create and maintain a current and
verified copy of all server content (including software, data and other information stored on
Customer’s Imerja servers); comply with the AUP (Schedule 6) and cooperate with Imerja’s
reasonable investigation of any suspected violation of the AUP.
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6.9
The Customer is solely responsible for ensuring the suitability of Services it purchases from
Imerja.
6.10
Imerja shall be provided access to the Customer systems as required to facilitate the delivery
of Services on approval from the Customer for the term of this Agreement or as may be
otherwise agreed between Imerja and the Customer
6.11
Customer shall be responsible for any unauthorised use of the Services by any person, other
than any unauthorised use through material breach of Services by Imerja or its agents or
through the negligence of Imerja or its agents.
6.12
The Customer agrees not to remove, modify or obscure any copyright, trademark or other
proprietary rights notices that appears on any software provided by Imerja.
6.13
The Customer may not reverse engineer, decompile, or disassemble any Imerja provided
software, except and only to the extent that such activity is expressly permitted by applicable
law notwithstanding this limitation, or is permitted by the terms of any “open source” license
that governs the use of the software.
6.14
Should Imerja use any third party software to provide the Services, the Customer agrees to all
third party license terms and agrees that if it resells the Services it will require each of its
customers to agree to those terms also.
7
SERVICE RESPONSIBILITIES
7.1
In respect to the delivery of Services, Imerja shall provide a Service during the Hours of Cover
and to the Service Level as defined in Schedule 4 of this Agreement, and keep the Goods in
good working order in accordance with the specifications of the manufacturer(s) of such
Goods.
7.2
Where the Service Level indicates an on-site service, Imerja may repair the Goods where it
considers it necessary to do so taking into account the nature of the maintenance task.
7.3
Imerja may provide a permanent replacement part, either new or refurbished, instead of
repairing the defective part, and in that case on exchange that part becomes the property of
the Customer, and the faulty part replaced becomes the property of Imerja.
7.4
Imerja will respond to valid calls logged by the Customer with the ISOC and shall provide
Service(s) during the Hours of Cover, unless otherwise defined by the specified Service Level.
7.5
Unless otherwise specified the Service provided is limited to reinstatement of the Goods to
the working condition prior to the fault occurrence excluding Customer’s software and data
files.
7.6
If the Customer shall request unscheduled services outside the Hours of Cover and not
previously agreed with Imerja, Imerja shall nevertheless use all reasonable endeavours to
comply with the Customer’s request and actions resulting from that request shall be
considered as being outside the scope of this Agreement and charged for accordingly.
7.7
Where a maintenance task is found not to be part of the Service Level specified in the
Schedule, the Customer can request, and Imerja shall not unreasonably refuse such request,
that the task be carried out at the prevailing spare parts price and labour rates.
7.8
As an alternative to Clause 7.7 the Customer may request Imerja to amend the Service Level
defined in Schedule 4 to include such non-included maintenance tasks, except those
excluded under the provisions in Clause 12, at agreed prices and subject to the provisions
made under Clause 11.
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7.9
Goods serviced by Imerja which are moved to any new location not stated in the Schedule
may, at Imerja's discretion, be excluded from continued service in accordance with Imerja's
rates and terms then in effect at that location, and Imerja retains the right to propose new
rates and terms to continue the Support of the Goods at the new location.
7.10
Should the Service(s) requested be excluded as detailed in Clause 12, Imerja may thereupon
notify the Customer in writing that the corresponding item(s) are removed from the Schedule
with effect from the date of said notification and shall have no liability to the Customer in
respect of its failure to provide such Services. Where such notice is given, Imerja may provide
a refund of associated funds provided for the Service of the said item(s), in line with the
provision made under Clause 11.
7.11
Should Imerja's performance be prevented or delayed for a period in excess of 90 days due to
any cause beyond the control of Imerja as detailed in Clause 22 then either party shall be
entitled to terminate this Agreement by notice in providing 30 days notice in writing to the
other at any time thereafter.
7.12
Imerja may from time to time perform Supplemental Services on a daily fee basis. With the
exception of Emergency and Remediation Services, Supplemental Services will be performed
only on the Customer’s advance approval and will be invoiced at Imerja’s standard fees in
effect at the time the Supplemental Services are performed or other rates agreed by both
parties in advance.
7.13
The Customer agrees that Imerja may suspend Services to the Customer immediately upon
notice to the Customer and without liability if:
7.13.1 Imerja reasonably believes that the Services are being used in violation of the AUP.
7.13.2 The Customer fails to cooperate with any reasonable Imerja investigation of any
suspected violation of the AUP
7.13.3 There is a denial of service attack on Customer’s servers or other similar event for
which Imerja reasonably believes that the suspension of Services is necessary to
protect its network or its other customers;
7.13.4 There is a security emergency or other similar emergency; or
7.13.5 As requested by a law enforcement or government agency.
7.14
The Customer agrees that Imerja may suspend Services to the Customer without liability if
such suspension is scheduled and notified to Customer at least five (5) Business Days in
advance by Imerja, to enable Imerja to carry out works. Imerja will use all reasonable
endeavours to ensure that such works cause the least possible disruption to the Customer
and follow the Planned Outage Procedure detailed in Schedule 4.
7.15
Information on Customer’s infrastructure may be unavailable during a suspension of Service.
8
DELIVERY & IMPLEMENTATION
8.1
Imerja shall comply with all applicable regulations or other legal requirements concerning the
manufacture, packaging, packing and delivery of the Goods.
8.2
The Goods shall be delivered to the address stated in the Purchase Order. Delivery shall be
made during normal office hours during the Business Day.
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8.3
Imerja shall be responsible for the safe custody of the Goods during transport and delivery.
Delivery shall have taken place when the Goods are received at the Customer’s address or its
representatives have acknowledged receipt of the Goods in writing.
8.4
If the Goods are to be delivered by instalments, then insofar as such Goods are the subject of
the same Purchase Order, or relate to a particular agreement between the Customer and its
customer(s), the Purchase Order will be treated as a single contract and not severable.
9
CHANGE CONTROL
9.1
The Customer shall notify Imerja of any changes in the specifications, attachments or features
of any part of the Goods. Within five (5) Business Days of receipt of such notice, Imerja shall
notify the Customer of any modification to the Services necessary and the basis of any cost or
other relevant consequences of such changes.
9.2
Imerja shall not modify all or any of the Services or the Price without the prior written approval
of the Customer.
9.3
The Customer acknowledges that Imerja reserves the right to charge on a time and expenses
basis any costs arising directly or indirectly from any request for a change which is not
included within the Statement of Works.
9.4
Subject to the provisions under Clause 11, if the Customer should not pay within the period
defined in Clause 11.13 the charge(s) in respect to a request for change as defined under
Clause 9.3, Imerja reserves the right to withdraw or cease those additional or changed
Services not defined within the Statement of Works
10
SERVICE LEVELS & SERVICE CREDITS
10.1
Where performance of the Services is not made by the date specified in Schedule 3 the
Statement of Work or in accordance with Schedule 4 the Service Level (save to the extent
that failure to meet the relevant date or the Service Level is attributable to events of force
majeure (as defined in Clause 22) or to any acts or omissions of the Customer or its
representatives) the Customer shall be entitled to recover from Imerja by way of Service
Credits the sums if specified in Schedule 5.
10.2
Service Credits paid under this Clause are a pre-estimate of the appropriate level of
compensation for the Customer’s loss in the event of delay or failure to meet the Service
Levels and shall not be treated as a penalty, but shall be paid as Service Credits owing and
payable by Imerja to the Customer in respect of and in compensation for the loss or damage
sustained by reason of such delay or failure.
11
CHARGES & PAYMENT
11.1
Imerja reserves the right to include charges for packaging, carriage and delivery of Goods
and/or Upgrades to the relevant delivery address as well as any duties, import taxes or levies
other than VAT.
11.2
All prices quoted are exclusive of any applicable VAT which, where payable, shall be paid by
the Customer subject to receipt of a proper VAT invoice.
11.3
Payment for the Products and/or Services shall be made in accordance with the terms of
Schedule 5. Details of the timing and manner of payment and any discounts, volume rebates
or other variation agreed are set out in Schedule 5. Payment for Supplemental Services will
be invoiced separately under Imerja’s standard terms and conditions of trading.
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11.4
Unless otherwise notified to Imerja in writing in advance of an invoice payment due day, the
payment of an invoice will be deemed to be approval or acceptance by the Customer of any
Goods and/or Services in respect of which the invoice was issued and such payment is
without prejudice to the Customer’s rights and remedies under this Agreement or at law or in
equity in respect of any failure or delay on the part of Imerja to perform its obligations.
11.5
The Customer shall pay Imerja the total amount on the Schedule. Prices within the Schedule
are exclusive of VAT, which will be identified separately and payable at the current rate at the
time payment is made.
11.6
Payments for Services must be received in advance of the period of Service(s) to which they
relate. Unless otherwise stated in Schedule 5, payments will be paid annually in advance.
11.7
Where Service charges apply from a date which is not the annual renewal date because a
new item is added to the Schedule, where appropriate Imerja shall apply such charge
calculated pro-rata from the date of the change to the next anniversary of the Commencement
Date. Such payments will be due immediately on commencement of the additional Service.
11.8
In the case of software support subscriptions which are backed off to an Equipment and/or
Software manufacturer Imerja retains the right to charge the full cost for annual support
regardless of the date an item is added to or removed from the schedule.
11.9
Where a discount has been applied to the standard annual cost for Services in respect to the
total cost for a multi-year contract Imerja does not guarantee to apply the same level of
discount to items added to the Schedule after the Commencement Date and retains the right
to charge the full cost for support.
11.10
If Imerja decides to furnish services which in its opinion fall outside the scope of this
Agreement it shall be entitled to charge for such Services at its prevailing day rates then in
effect. Invoices for this work will be raised after completion of this work.
11.11
Unless the Goods were supplied by Imerja and Service is to start from the time of supply,
Imerja reserves the right to inspect and audit the Goods at the Customer's premises and
charge the Customer at Imerja's applicable prevailing labour rate and spare parts prices for
any Ad Hoc work required to reinstate the Goods to full working order in accordance with the
manufacturer's instructions before providing Services on those Goods.
11.12
Where a remote service is included, the Customer is responsible for the costs of a suitable
communications circuit connecting to the Goods where required.
11.13
Notwithstanding the provisions of Clause 11 the charges payable in respect of all Services as
well as all charges for Amended Services and Ad Hoc work are to be paid within 30 days of
the date of Imerja's invoice. Time of payment is of the essence of this Agreement.
11.14
Imerja reserves the right to charge interest on all invoiced amounts outstanding after the due
date at the rate of 4% per annum above the base rate from time to time of NatWest Bank Plc
from the due date (or such earlier date on which the sum becomes payable) until the actual
date of payment.
11.15
Notwithstanding the provisions of Clause 16 (Termination) Imerja may at its sole discretion,
suspend any or all Services on five (5) Business Days advance notice if the Customer is
overdue on the payment of any amount due under the Agreement by more than fifteen (15)
Business Days.
11.16
The Customer agrees to pay Imerja’s Reinstatement Fee following a suspension of service for
non-payment or AUP violation, and agrees to pay Imerja’s reasonable costs of collection of
overdue amounts, including collection agency fees, lawyer’s fees and court costs.
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12
EXCLUSIONS
12.1
Services are contingent upon the proper use of all Goods and do not cover Goods which have
been modified without Imerja's approval or which has been subjected to unusual physical or
electrical stress.
12.2
Imerja shall be under no obligations to furnish Services if:
12.2.1 Adjustment, repair or parts replacement is required because of accident, neglect,
operator error, misuse, failure of or change in electrical power, transportation, or other
causes other than ordinary wear and tear occurring in the proper use of the Goods;
12.2.2 The Goods are serviced or repaired, or if attempts to repair or service the Goods are
made, other than by Imerja's approved personnel;
12.2.3 The Goods are moved from their location stated on the Schedule without notification
to Imerja;
12.2.4 The Goods are, in the reasonable opinion of Imerja, irreparable or spare parts for the
Goods become unavailable; or
12.2.5 The item reported as faulty does not appear listed on the Schedule.
12.3
The Service does not include:
12.3.1 Operating supplies or accessories, painting or refinishing the Goods or furnishing
materials for this purpose;
12.3.2 Electrical work external to the Goods or maintenance of accessories, alterations,
attachments or other equipment not identified on the Schedule to be maintained;
12.3.3 Work or parts required to put right damage described in Clause 12.2 above;
12.3.4 Any patching or fixing of systems or applications software of any sort;
12.3.5 Work where the configuration of the Goods has been changed or additional hardware
has been added to the Inventory of Goods without Imerja's acceptance and an
appropriate Service Level is included on the Schedule;
12.3.6 Preventative maintenance, except as set out in Clause 6; or
12.3.7 Refurbishment or repair of casings or outer surfaces.
13
RISK & PROPERTY
13.1
Subject to Clause 8.3 risk of damage to or loss of Goods shall pass to the Customer upon
delivery to the Customer or its customer(s).
13.2
Subject to Clause 17, and without prejudice to any right of rejection under this Agreement, the
property in the Goods shall pass to the Customer upon the earlier of:
13.2.1 Payment to the Customer by its customers is respect of the Goods;
13.2.2 Delivery of the Goods; or
13.2.3 Payment for the Goods to Imerja by the Customer.
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14
WARRANTIES & REMEDIES
14.1
Imerja represents warrants and undertakes to the Customer that the Goods and/or the
Services (to the extent applicable):
14.1.1 Will comply with and operate and perform in accordance with the Specification;
14.1.2 Will not cause damage of any kind to any computer system of the Customer nor any
computer system of the Customer’s own customers;
14.2
Imerja shall where appropriate:
14.2.1 Use anti-virus software to check the Goods for viruses and other malicious code in
accordance with Good Industry Practice in the information technology and
telecommunications industry; and
14.2.2 Use reasonable endeavours in accordance with Good Industry Practice in the
information technology and telecommunications industry to ensure that the Goods will
not contain nor introduce to any equipment or system of the Customer nor to any
equipment or system of the Customer’s own customers any computer viruses, trojan
horses or similar destructive, disruptive or nuisance programs.
14.3
Imerja further warrants, represents and undertakes to the Customer that:
14.3.1 It shall, and shall continue to, hold all the rights necessary to perform its obligations
under this Agreement and that it will comply with all requirements and conditions
imposed by UK or EC law applicable to or which affect the Services;
14.3.2 The Services will be performed by appropriately qualified and trained personnel, with
due care and diligence (including using the reasonable skill and care of a competent
telecommunications service provider), in accordance with such standards as the
Customer may reasonably prescribe, and to such high standard of quality as it is
reasonable for the Customer to expect in all the circumstances;
14.3.3 It is the owner or valid licensee of any Intellectual Property Rights required to be used
in the performance of this Agreement and that performance of the Services will not
constitute an infringement of Intellectual Property Rights.
14.4
The Customer represents and warrants to Imerja that the information it has provided and will
provide to Imerja for purposes of establishing and maintaining the Services is accurate.
14.5
Imerja represents and warrants to the Customer and the Customer represents and warrants
to Imerja, that the execution and delivery of the Agreement and the performance of its
obligations hereunder do not conflict with or violate applicable laws or regulations, and do not
conflict with or constitute a default under its charter documents.
14.6
Imerja does not warrant or represent that the Services will be uninterrupted, error-free or
completely secure.
14.7
The Customer acknowledges that there are risks inherent in Internet and network connectivity
that could result in the loss of Customer’s privacy, confidential information and property.
14.8
Except as described in the Service Level Agreement, neither party shall be liable to the other
for harm caused by or related to the Customer’s use of the Services or inability to use the
Services unless the harm was caused by that party’s gross negligence or willful misconduct
14.9
To the extent permitted by applicable law, Imerja disclaims any and all warranties not
expressly stated in the Agreement.
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15
INDEMNITY, INSURANCE & LIABILITY
15.1
Imerja will indemnify the Customer against:
15.1.1 Any claims for injury or death to persons caused by the negligence of the employees
of Imerja while on the Customer's premises providing Services.
15.1.2 Any claims arising from direct damage to property caused by negligence of Imerja's
employees while performing their duties. Imerja's total liability shall be limited to a
maximum value of one year's charge for Service(s) for the specific Good(s) which
were logged as faulty when the damage was caused, as listed in the Schedule.
15.1.3 Except as provided in Clause 15.1.1 and 15.1.2 above, in no event will Imerja be
liable for any direct or indirect consequential loss or damage howsoever caused, or
for damages that could not have been avoided by the use of reasonable diligence,
arising in connection with the Agreement.
15.2
In no event shall Imerja be liable to the Customer for any loss or damage caused by the
Customer not promptly informing Imerja for the need for scheduled preventative maintenance,
and allowing a reasonable period from this notification to allow Imerja to perform the
preventative maintenance.
15.3
No warranty shall be given to the Customer by Imerja in connection with any advice given in
respect to the Services.
15.4
The Customer agrees to indemnify and hold harmless Imerja, Imerja’s authorised
representatives, and each of their respective officers, directors, agents, and employees from
and against any and all claims, demands, liabilities, obligations, losses, damages, penalties,
fines, punitive damages, amounts in interest, expenses and disbursements of any kind and
nature whatsoever (including reasonable lawyer’s fees) incurred or brought by a third party
under any theory of legal liability arising directly out of the use of Customer’s Services in
violation of the AUP or applicable law by any person regardless of whether such person has
been authorised to use the Services by Customer, other than any unauthorised access
through material breach of Services by Imerja or its agents or through the negligence of
Imerja or its agents.
15.5
Neither party excludes or limits liability to the other party for fraud or for death or personal
injury due to its own negligence or its employees’ or agents’ negligence whilst acting in the
course of their employment or any breach of any obligations implied by Section 12 of the Sale
of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982.
15.6
Subject always to the provisions of Clause 15.4 and save in respect of any claim for
indemnification under Clause 17 or any claim made by the Customer in respect of Losses
suffered by it in respect of its customers by reason of Imerja’s breach of this Agreement or
any act or omission of Imerja or its employees, agents or subcontractors, neither party shall
be liable to the other for any type of special, indirect or consequential loss including, without
limitation, any loss of profit or anticipated savings arising from (a) any breach of its contractual
obligations under this Agreement or (b) any representation, statement or tortious act or
omission including negligence arising under or in connection with this Agreement, even if
such loss was reasonably foreseeable or that party had been advised of the possibility of the
other incurring the same.
15.7
Imerja’s liability to the Customer in relation to any Purchase Order submitted under this
Agreement shall be limited to 100% of the Price payable under such Purchase Order.
15.8
The Customer’s liability shall be limited to 100% of the Price paid under such Purchase Order.
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15.9
Without affecting the provisions elsewhere under this Clause 15 the maximum aggregate
liability in any twelve (12) month period of each party and any of each party’s employees,
contractors or authorised representatives, under any theory of law (including but not limited to
breach of contract, tort or strict liability shall be a payment of money not to exceed the amount
paid by Customer for the Services for the twelve (12) months prior to the occurrence of the
event(s) giving rise to the claim.
15.10
Each party shall be liable to the other for physical loss of or damage to tangible property to
the extent resulting directly from their respective breach of contract, fault, negligence, lack of
due diligence or breach of statutory duty.
15.11
The provision of indemnities defined in this clause are conditional on:
15.11.1 The party seeking to be indemnified notifying the indemnifying party promptly in
writing of any claim and giving the indemnifying party full and complete authority,
information, cooperation and assistance for the investigation and defence of such
claim.
15.11.2 The indemnifying party having sole control of the investigation and defence and of the
negotiations for settlement, if any, of such claim.
15.11.3 The party seeking to be indemnified using all reasonable efforts to mitigate the
quantum of any associated claim.
16
TERMINATION
16.1
This Agreement shall commence on the Agreement Date and shall continue from the
Commencement Date for the Initial Period as a minimum and thereafter until it and the related
Statement of Works and related Schedules are terminated by either party on three (3)
calendar months’ written notice such notice to expire at or at any time after the expiry of the
above mentioned period, subject to earlier termination in accordance with this Agreement.
Any Purchase Order shall commence on the date stated in the Purchase Order and shall
continue for the Initial Period stated on the Purchase Order, subject to earlier termination in
accordance with the provisions of this Agreement.
16.2
If Imerja defaults in its obligation under this Agreement and such default is not capable of
remedy within thirty (30) Business Days after written notice thereof by the Customer, this
Agreement may thereupon be terminated by the Customer subject to the minimum notice
period defined in Clause 16.1.
16.3
If the Customer defaults in its obligation under this Agreement, including materially breaching
any provisions herein, including the AUP, and fails to remedy that violation within twenty (20)
business days of Imerja notifying the Customer of the violation, Imerja reserves the right to
suspend provision of the Service(s) until the default is corrected. If the Customer defaults in
payment and such default continues for a further 15 days after written notice thereof by
Imerja, this Agreement may thereupon be terminated by Imerja, who will be entitled to recover
the overdue payment plus interest and reasonable costs by way of cancellation charges.
16.4
Notwithstanding anything else contained herein this Agreement may be terminated by either
party forthwith on giving notice in writing to the other if the other party shall have a receiver or
administrative receiver appointed of it or over any part of its undertaking or assets or shall
pass a resolution for winding-up (otherwise than for the purpose of a bona fide scheme of
solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an
order to that effect or if the other party shall become subject to an administration order or shall
enter into any voluntary arrangement with its creditors or shall cease or threaten to cease to
carry on business
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16.5
Either party may terminate this Agreement or any affected Purchase Order immediately upon
written notice to the other at any time if the other is in material breach of any provision of this
Agreement or a Purchase Order and such breach is not capable of remedy, or is in
“persistent” breach of this Agreement or a Purchase Order and fails to remedy such breach
within thirty (30) Business Days of written notice to remedy the same, such notice stating that
failure to remedy the breach may give rise to termination under this Clause 16. A breach is
deemed to be “persistent” if it is repeated sufficiently often to have a material impact on the
conduct of the other party’s business or the provision of the Services.
16.6
If at any time either party shall become insolvent or become the subject of a winding up order
(of any type) or an administration order, or have an administrative receiver appointed
(including under the Law of Property Act), or compound with its creditors, enter into a
company voluntary arrangement or scheme of arrangement, then the other party shall be
entitled to terminate this Agreement immediately upon notice.
16.7
Should Imerja's performance be prevented or delayed for a period in excess of 90 days due to
any cause beyond the control of Imerja as detailed in Clause 22 then either party shall be
entitled to terminate this Agreement by notice in providing 30 days notice in writing to the
other at any time thereafter.
16.8
On termination or expiry of this Agreement, each party shall:
16.8.1 Return to the other party or destroy any relevant documents and other materials
provided by the other party or created from information supplied by the other party,
including all copies thereof.
16.8.2 Return to the other party any data provided by the other party or created in the
performance of this Agreement, such data to be returned in a format specified by the
other party.
16.8.3 Cooperate fully with the other party to ensure an orderly, efficient and as least
disruptive as reasonably possible transfer of each party’s obligations under this
Agreement to each other or a third party nominated by the Customer.
16.9
On the expiry of written notice of termination of this Agreement or any Purchase Order:
16.9.1 Imerja shall cease to be bound to perform and the Customer shall cease to be bound
to receive any further Services or delivery of any Goods under the cancelled
Purchase Order.
16.9.2 The Customer shall cease to be bound to pay that part of the sum due in accordance
with the provisions of Schedule 5 which relates to Services which have not been
performed or Goods not yet delivered.
16.9.3 Save where a Purchase Order is terminated by Imerja in accordance with provisions
made under Clause 16, the Customer shall not be liable for any loss or damage
whatever arising from such termination.
16.9.4 Where applicable, the Customer agrees to promptly release any Internet protocol
numbers, addresses or address blocks assigned to Customer in connection with the
Services provided by Imerja (but not any URL or top level domain or domain name)
and agrees that Imerja may take steps to change or remove any such IP addresses.
16.10
Each party’s further rights and obligations shall cease immediately on termination of this
Agreement, but termination does not affect either party’s accrued rights and obligations at the
date of termination.
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16.11
Termination of this Agreement shall not affect the fulfilment of any Purchase Order issued
prior to the date of termination, save where such Purchase Order is also terminated in
accordance with the provisions of this Agreement.
17
INTELLECTUAL PROPERTY RIGHTS & INDEMNITY
17.1
Imerja acknowledges and agrees that all Intellectual Property Rights of the Customer and its
licensors subsisting on the Agreement Date shall remain vested in the Customer or its
licensors and that no licence is granted and no transfer, assignment or licence of rights shall
be deemed to have arisen or implied in any Intellectual Property Rights of the Customer or its
licensors save that Imerja is hereby licensed to use the Intellectual Property Rights subsisting
in any materials submitted to Imerja by the Customer solely for the purpose of performing
Imerja’s obligations under this Agreement. This licence does not include the right to grant sublicences.
17.2
The Customer acknowledges and agrees that all Intellectual Property Rights of Imerja and its
licensors subsisting on the Agreement Date shall remain vested in Imerja or its licensors and
that no licence is granted and no transfer, assignment or licence shall be deemed to have
arisen or implied in any Intellectual Property Rights of Imerja or its licensors save as set out in
this Clause.
17.3
In the event of any alleged infringement of any Intellectual Property Rights of any kind
whatsoever by the provision, receipt, possession and/or use of the Goods and/or the
performance of the Services:
17.3.1 The Customer shall promptly notify Imerja in writing of any alleged infringement of
which it has notice;
17.3.2 The Customer shall make no admissions without Imerja’s consent.
17.4
If at any time any allegation of infringement of third party Intellectual Property Rights is made
in respect of the Goods and/or Services or in Imerja’s reasonable opinion is likely to be made,
Imerja may at its own expense:
17.4.1 Modify or replace the affected Goods and/or Services without in any way affecting the
performance or functionality of the System, Imerja making good to the Customer any
losses excluding consequential loss suffered by the Customer during modification or
replacement, so as to avoid the infringement; or
17.4.2 Procure for Imerja the right to continue to perform the Services for the Customer
and/or procure for the Customer and its customer(s) the right to retain and continue to
use the Goods.
18
CONFIDENTIALITY
18.1
Imerja and Customer shall treat as confidential all information obtained from the other and
shall not divulge such information to any party (except to such party's own employees and
then only to those employees who need to know the same) without the party's prior written
consent provided that this clause shall not extend to information which is already public
knowledge or becomes so at a future date (otherwise then as a result of a breach of this
Clause) or which is trivial or obvious. Each party shall take all reasonable steps to ensure that
its employees are aware of and comply with the provisions of this Clause. The foregoing
obligation of confidentially shall survive any termination of this Agreement.
18.2
Confidential Information shall be treated as proprietary and confidential to the party imparting
the same. Each party hereby agrees that it shall use the Confidential Information received or
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procured by it from the other solely for the purposes of this Agreement and that it shall not at
any time during or after completion, expiry or termination of this Agreement disclose the same
whether directly or indirectly to any third party except:
18.2.1 with the prior written consent of the other party;
18.2.2 to the extent necessary to comply with any law or the valid order of a court or tribunal
of competent jurisdiction or the rule, regulation or direction of any governmental or
other regulatory authority or agency in which event the relevant party shall so notify
the other as promptly as reasonably practicable (and if possible prior to making any
disclosure) and shall use its reasonable endeavours to seek confidential treatment of
such information;
18.2.3 to its auditors, legal advisers and other professional advisers provided that it uses its
reasonable endeavours to procure that such persons maintain such confidentiality;
18.2.4 in order to enforce its rights under this Agreement; and
18.2.5 to any person with a bona fide and legitimate interest in such information who enters
into a confidentiality agreement including, but not limited to, a prospective purchaser
of its business and provided that such person only uses the information for the
purpose of such bona fide and legitimate interest.
18.3
The provisions of Clause 18.1 shall not apply to:
18.3.1 any information in the public domain otherwise than by breach of this Agreement;
18.3.2 information obtained from a third party who is free to divulge the same;
18.3.3 information that was already known to the receiving party prior to disclosure under
this Agreement and was not previously acquired by the receiving party from the
disclosing party under an obligation of confidentiality or non-use towards the
disclosing party;
18.3.4 information that can be shown by documentary evidence to have been created by one
party to this Agreement independently from work under this Agreement.
18.4
Imerja shall divulge Confidential Information only to those employees who are directly
involved in the performance of this Agreement and shall ensure that such employees are
aware of and comply with these obligations as to confidentiality.
18.5
Each party acknowledges and agrees that damages would not be an adequate remedy for
any breach of this Clause and that either party shall be entitled to seek the remedies of
injunction, specific performance and other equitable relief for any threatened or actual breach
of this Clause.
18.6
Each party shall take all reasonable steps to ensure that its employees are aware of and
comply with the provisions of this Clause. The foregoing obligation of confidentially shall
survive any termination of this Agreement.
18.7
Neither party may publicly use the other party’s logo or other trade or service mark without
that party’s permission. The parties acknowledge that this does not inhibit each party from
referring to the other party by name in any way.
18.8
The obligations contained in this Clause shall endure beyond the termination of this
Agreement without limit in time except and until any Confidential Information enters the public
domain otherwise than through the default of the party receiving the same.
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18.9
Notwithstanding anything to the contrary above, Customer agrees that Imerja may provide
any information, including Confidential Information, it has about the Customer or any of its
customers or end users in response to a formal request from a law enforcement or regulatory
agency or a formal request in a civil action that on its face meets the requirements for such a
request, provided that Imerja has used all reasonable efforts to consult with the Customer
prior to responding to any such request.
19
DATA PROTECTION
19.1
Imerja shall comply with the provisions of the Data Protection Act 1998 (“the Act”) and Data
Protection Law and shall ensure that it is properly registered under the Act for such
processing of personal data (as defined in the Act) as may be required in the performance of
this Agreement.
19.2
Imerja shall take all necessary steps to ensure that data or information belonging to the
Customer or its customers which comes into its possession or control in the course of
providing the Services is properly protected.
19.3
Where as part of the Services Imerja processes personal data on behalf of the Customer
Imerja shall act only on instructions from the Customer in relation to such processing.
20
NON SOLICITATION
20.1
Neither party shall (during the term of the Agreement, and for six months after termination,
however caused) without the other party’s written consent, solicit any of the personnel of the
other party who have at any time been engaged in the performance of the Agreement.
20.2
The foregoing undertaking shall not apply in respect of any person who (without having been
previously approached directly or indirectly) responds to a general recruitment advertisement
placed by (or on behalf of) the new employer. If either party breaches this sub-clause, then it
shall pay to the other an amount equivalent to the employee’s annual salary (net of benefits)
paid by the other party in recognition of the disruption that such breach would cause to the
efficient conduct of the other party’s business.
20.3
Each party acknowledges that this provision is a fair and reasonable term intended to be a
genuine assessment of the loss likely to be suffered as a result of breach of this clause.
21
CORRUPT GIFTS & PAYMENT
21.1
Neither party shall offer or give or agree to give any person employed by or connected with
the other party any gift or consideration of any kind as an inducement or reward for doing or
forbearing to do or for having done or forborne to do any act in relation to this Agreement, or
for showing or forbearing to show favour or disfavour to any person in relation to this
Agreement.
22
FORCE MAJEURE
22.1
Neither party shall be deemed in default or liable for any loss or damage resulting from delays
in performance or from failure to perform or comply with the terms of this Agreement to the
extent that such delays or failure are directly due to Acts of God or the public enemy, riots and
insurrection, war, fire, embargos, judicial or government action and acts of civil or military
authority (each an "event of force majeure"), provided that the affected party uses all
reasonable endeavours to overcome or remedy its inability to perform as promptly as
possible.
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22.2
If either party is affected by an event of force majeure it shall at the earliest possible moment
give written notice thereof to the other party, specifying the relevant events or circumstances
and the delay or default likely to be caused thereby or resulting therefrom, and for so long as
such party is affected shall provide regular reports on the likely duration and effect of the
same, and on the progress of work to overcome or remedy its inability to perform.
23
ASSIGNMENT
23.1
Neither party may assign, novate or otherwise transfer the Agreement, whether in whole or in
part, or any of its rights or obligations hereunder, to any third party without the prior consent in
writing of the other party, such consent not to be unreasonably withheld or delayed.
24
NOTICE
24.1
Any notice to be given under this Agreement shall be in writing and shall be deemed duly
given if left at or sent by registered or recorded delivery post to (in the case of Imerja) its
registered office and (in the case of the Customer) the address given in Section 1 or other last
known address. Any such notice shall be deemed to be served at the time when it is handed
to or left at the address of the parties served and, if served by post, on the day (not being a
Sunday or public holiday) next following the day of posting. In proving the giving of a notice it
shall be sufficient to prove that the notice was left at the said address or that the envelope
containing such notice was properly addressed and posted as the case may be.
24.2
Any notice to be given by one party to the other shall be in writing and sent by prepaid
recorded delivery or registered post to the address of the relevant party or by facsimile
transmission to the facsimile number of the relevant party, in each case as set out on the front
sheet. Notices shall be deemed to have been received by the addressee within three working
days of posting in the case of notices sent by post and within one working day (24 hours) of
transmission in respect of notices sent by facsimile transmission subject to receipt by the
sender of a transmission report indicating that all pages of the notice have been transmitted to
the correct facsimile number. Each party may, by notice, designate a different address and/or
facsimile number for the receipt of notices under this Clause.
25
PUBLICITY
25.1
Each party agrees not to use or refer to this Agreement or to the name, trade mark or trade
name of the other party in any publicity, advertisements or other disclosure (including
customer lists), without first obtaining the written approval of the other party save that either
party shall be entitled to refer to the other in its internal communications with employees
unless otherwise defined elsewhere in the Agreement and subject to any specific Customer
requirements without obtaining Imerja’s prior approval.
26
WAIVER & SEVERABILITY
26.1
If either party grants any extension of time or indulgence in respect of any breach of any term
of this Agreement, or fails at any time to insist upon or enforce any right remedy or power by
another, then this shall not be deemed a waiver of any part of or all of this Agreement.
26.2
If any provision of this Agreement shall be held to be void or unenforceable in whole or in part,
this Agreement shall continue in force in relation to the unaffected provisions, and the parties
will, to the extent permitted by law, use all reasonable endeavours in good faith to renegotiate the provision held to be void and unenforceable to achieve the same objects.
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26.3
The failure of Imerja to insist upon strict performance of any of these terms and conditions
shall not be construed as a waiver of any such terms or conditions and shall in no way affect
Imerja’s right to enforce such provision later.
26.4
If any provision of this Agreement is held by any competent authority to be invalid or
unenforceable in whole or in part, the validity of the other provisions of such article(s) and the
remaining articles shall not be affected thereby.
27
DISPUTES
27.1
In the event of any dispute or difference which may arise between the Customer and Imerja in
connection with or arising out of this Agreement, senior representatives of the parties shall,
within thirty (30) Business Days of a written request from either party to the other, meet in a
good faith effort to resolve the dispute without recourse to legal proceedings. If the senior
representatives cannot reach agreement on the dispute within such thirty (30) Business Day
period the matter shall be referred to the Chief Executive Officer or Managing Director of that
part of the relevant party’s business which is responsible for performing the obligations of that
party under this Agreement. If the Chief Executive Officers or Managing Directors are
themselves unable to resolve the matter within twenty (20) Business Days of the first request
to them so to do the parties shall be free to pursue the matter through other reasonable
means as deemed appropriate.
27.2
Neither party may initiate legal action until the above process has been completed unless
either party has reasonable cause to do so to avoid damage to its business or to protect or
preserve any right of action it may have. Nothing in this Clause shall be construed as
prohibiting a party from applying to a court for interim injunctive relief.
28
MISTAKES IN INFORMATION
28.1
Both parties shall be responsible for and shall pay extra costs occasioned by any
discrepancies, errors or omissions in drawings, documentation or other information supplied
in writing to the other party, whether they have been approved by the receiving party or not,
provided that such discrepancies, error or omissions are not due to inaccurate drawings or
information and decisions supplied in writing to Imerja by the Customer.
29
AGREEMENT
29.1
This Agreement constitutes the entire agreement between the parties concerning the subject
matter of this Agreement and supersedes all previous arrangements, commitments,
understandings and agreements between the parties concerning the subject matter hereof.
Nothing in this Clause shall act to exclude or limit either party’s liability to the other with
respect to fraudulent misrepresentations.
29.2
This Agreement, or any part of it, may only be amended or modified by written agreement of
each of the parties.
29.3
Nothing in this Agreement shall prohibit or restrict either party from entering into similar
agreements or arrangements with third parties.
29.4
The rights, powers, privileges and remedies provided in this Agreement are cumulative and
are not exclusive of any rights, powers, privileges or remedies provided by law or otherwise.
29.5
All provisions that by their context and nature are intended to survive termination of the
Agreement of Terms and Conditions will survive expiration or termination of the Agreement.
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30
OWNERSHIP
30.1
Each party acknowledges and agrees that the other party retains exclusive ownership and
rights in its trade secrets, inventions, copyrights and other intellectual property, and that
Imerja shall own any intellectual property that it may develop in the course of performing the
Services. Customer does not acquire any ownership interest or rights to possess Imerja’s
server(s) or other hardware, and has no right of physical access to the hardware.
30.2
For the avoidance of doubt, goods purchased by the Customer for which the Customer retains
ownership are identified as ‘Customer Owned’ within Schedule 2.
31
GOVERNING LAW
31.1
This Agreement shall be subject to and construed and interpreted in accordance with the laws
of England and Wales and shall be subject to the exclusive jurisdiction of the Courts of
England and Wales.
31.2
This Agreement and associated Schedules shall constitute the entire Contract between Imerja
and the Customer.
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Schedule 1 - DEFINITIONS
Words and phrases on the front sheet shall have the meanings (if any) assigned to them on the front
sheet and the following words and expressions shall have the following meanings unless the context
otherwise requires:
‘Agreement’ means the front sheet, signed by each party, of these terms and conditions, the
Schedules and any Purchase Order issued pursuant to the terms set out herein.
‘Agreement Date’ means the date on which the Agreement is signed by both parties.
“AUP” means the Imerja Hosting Acceptable Use Policy, as it may be amended from time to time in
accordance with Clause 7 of these Hosting Terms and Conditions.
‘Business Day’ means 9:00am to 5:00pm Monday to Friday, excluding Public and Bank Holidays in
the United Kingdom.
‘Clauses’ means the numbers clauses included in the Agreement.
‘Commencement Date’ will mean the date of the Service commencement or date the Services are
ready for use by the Customer, whichever is the earlier.
‘Conditions’ means the terms and conditions as defined in the Clauses of this Agreement.
‘Confidential Information’ means all information of a confidential nature imparted by either party to the
other or which may be imparted from time to time to the other in connection with this Agreement,
including but not limited to data of or about customers, drawings, specifications and any information
relating to the technical affairs or business or product plans of either of the parties.
‘Contract’ means the legal contract entered into between Imerja and the Customer under the terms of
this Agreement.
‘Customer’ means the Customer or a customer of the Customer for which Imerja is obliged to supply
Goods and/or Services and the provision of such Services, or the supply of such Goods, has been
subcontracted in whole or in part to Imerja under a Statement of Work or a Purchase Order.
‘Data Protection Law’ means the EU Data Protection Directive 95/46/EC and the Electronic
Communications Data Protection Directive 2002/58/EC, as amended from time to time and as
implemented under national law.
‘Deliverable’ shall include, but not be limited to, any Goods and/or Services supplied by Imerja during
performance of this Agreement.
‘Delivery’ shall mean the full delivery of any Goods and/or Services ordered under the terms of this
Agreement. Delivery will be deemed to have been fulfilled by Supplier upon the completion of all
delivery terms as outlined in this Agreement or in the Purchase Order or as otherwise agreed
between the parties.
‘Emergency and Remediation Services’ means services provided by Imerja at its sole discretion in the
event of a security emergency, problems caused by an AUP violation or other emergency, performed
as Supplemental Services for the Customer without the Customer’s prior consent and for which the
Customer agrees to pay the daily fee rate charged. Specifically in respect for hosting services only,
the charge for remediating an AUP violation shall not exceed one month’s Fee for Services.
‘Equipment’ means the equipment and software described in the Inventory of Goods, Statement of
Work and any Products referenced within the Schedules to this Agreement.
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‘Euro-Compliant’ means that the Products shall comply with the conversion, rounding and other
requirements of Council Regulation (E.C.) No. 1103/97 dated June 17, 1997 and Council Regulation
(E.C.) No. 974/98 dated May 3, 1998 on the introduction of the Euro without adversely affecting either
the performance or functionality of the Products.
‘Fee’ means the charges payable by the Customer for the Service as contained within Schedule 6
(Price & Payment Plan).
‘Good Industry Practice’ shall mean the exercise of that degree of skill, care, prudence, efficiency,
foresight and timeliness as would be expected from a leading company within the relevant industry or
business sector.
‘Goods’ shall mean the Goods and Deliverables (if any) that form part of the Goods to be Delivered by
Supplier under the terms of this Agreement and/or Purchase Order as described in Schedule 2
(Inventory of Goods) and which will include, without limitation, any hardware, peripherals,
consumables, tangible products or materials, documentation, marks, text, diagrams, software, codes,
documents, photographs, logos, designs, drawings, artistic and graphical works, reports,
presentations, images, sounds, data, information, other works of authorship and inventions, including
whether the same are embedded in any electronic or tangible medium.
‘Group’ means in relation to either party that company and every other company which for the time
being is controlling, controlled by or under common control with that company and the term ‘control’
shall mean having, directly or indirectly, the legal, beneficial or equitable ownership of more than 50%
of the aggregate of all voting equity interests in a company (and the terms ‘controlling’, ‘controlled by’
and ‘under common control with’ shall be construed accordingly).
‘Hours of Cover’ means the hours for which the Service will be provided as defined in the Statement
of Works.
‘Initial Period’ means the period set out in the Purchase Order:
(a)
in the case of Goods this means the period from receipt of the Customer order through to
the date of Customer acceptance;
(b)
in the case of Services this means the continuous period of Service delivery from the
Commencement Date; where the Initial Period is not specified in the Purchase Order,
Statement of Work or elsewhere in the Agreement, the Initial Period for the delivery of
Services will be one (1) year from the Commencement Date.
‘Intellectual Property Rights’ means any patents, trade marks, service marks, rights in semi-conductor
chip topographies, design rights, registered designs, applications for any of the foregoing, copyright,
database rights, know-how and other similar rights or obligations whether registrable or not in any
country;
‘ISOC’ means the Imerja Secure Operations Centre.
‘Losses’ means all claims, demands, actions, losses, damages, expenses, liabilities, judgments,
awards, fines, sanctions, penalties, taxes and amounts paid in settlement and shall include, without
limitation, reasonable costs, fees and expenses of lawyers, experts, accountants, appraisers,
consultants, witnesses, investigators and any other agents reasonably appointed.
‘Milestone’ means the date by which certain parts of the Services are to be completed as detailed in
Schedule 5.
‘Order’ means the Customer order for Goods and/or Services as detailed in the Purchase Order.
‘Personal Data’ means information relating to an identified or identifiable natural or legal person as
defined in the Data Protection Law.
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‘Premises’ means the place or places where the Products are to be delivered or Services are to be
performed.
‘Price’ means the price of the relevant Goods and/or Services as specified in the Purchase Order
which shall be in accordance with the relevant Price List.
‘Price List’ means:
(a)
in relation to Services, the list of applicable prices for the Services as set out in the
applicable Statement of Work; and
(b)
in relation to Goods, the list of applicable prices for the Goods set out in any quotation
provided by Imerja.
‘Pricing and Payment Plan’ means the pricing and payment plan attached hereto at Schedule 6.
‘Products´ means equipment and software described in Schedule 1 and the Software and includes all
Upgrades provided in respect thereof.
‘Purchase Order’ means the Customer’s purchase order.
‘Quotation’ means a quotation in relation to the supply of Goods and/or Services provided by Imerja.
‘Reinstatement Fee’ means a charge payable by the Customer to Imerja following any suspension of
service for non-payment or AUP violation.
‘Renewal Term’ means one or more additional terms of 12 month duration following the Initial Term.
‘Schedules’ means the Schedules included as part of this Agreement.
‘Services’ means the services that the Customer may require Imerja to provide under a Statement of
Work, a general description of which is set out in Schedule 3.
‘Service Credits’ means the service credits described in the Pricing and Payment Plan which may fall
due to the Customer due to a failure to meet Service Levels detailed in Schedule 5.
‘Service Levels’ means the service levels described in Schedule 5.
‘Software’ means the software described in the Specification and shall include without limitation all
software embedded in or forming an integral part of any of the Products and all Upgrades.
‘Specification’ means the technical and functional description of the Products provided by Imerja with
each Quotation.
‘Statement of Work’ means the document to be agreed by the parties and attached to this Agreement.
‘Supplemental Services’ means services Imerja may from time to time perform in addition to the
Services to be changed on a daily fee basis, such as the customisation of a Service and other
professional technical services.
‘System’ means the system comprising the Equipment and the Software.
‘Upgrade’ means any bug fix, update, patch or module replacement, or an improved version of the
whole or any part of the Software, whether undertaken at the request of the Customer or otherwise.
‘Warranty Period’ means the stated period of warranty calculated from the delivery of Goods or
Services in accordance with this Agreement, during which the Customer will be entitled to exercise a
warranty or guarantee of workmanship under the Agreement.
Other applicable definitions will be defined in the Schedules to this Agreement as required.
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Schedule 2 – INVENTORY OF GOODS
[Table below is indicative and to be amended as appropriate to this engagement – if applicable
identify all Imerja Goods which may be included in the overall inventory under Ownership]
Item
Manufacturer
Part No.
Description
Qty
Ownership
1
2
3
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Schedule 3 – STATEMENT OF WORKS
[headings below are indicative and to be amended as appropriate to the type of engagement this
Statement of Works relates to]
Description of Services
[If relevant, attach relevant documents detailing services to be supplied]
Optional Services
Assumptions & Constraints
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Schedule 4 – SERVICE LEVELS
[insert details of service levels]
Hours of Cover
Service Levels
Escalation
Service Reviews
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Schedule 5 – PRICE & PAYMENT PLAN
1
PRICE
1.1
The agreed Price is as detailed in Imerja’s Quotation and the Customer’s Purchase Order for
Goods and/or Services.
2
PAYMENT TERMS
2.1
Products: Payment for Goods will be invoiced at the time of Delivery to the address specified
in the Customer’s Purchase Order.
2.2
Services: Payment for Services will be invoiced annually in advance.
2.3
Stage Payments: Where agreed in wiring between both parties, payments may be due in line
with a payment schedule aligned to agreed milestones.
2.4
The Customer will pay all such invoices within 30 days of date of invoice.
3
PRICE REVIEW & COST RULING
3.1
Either party shall be entitled to review the prices set out in this Price and Payment Plan every
twelve (12) months to determine whether the prices are representative of the Services being
delivered by Imerja.
3.2
Imerja retains the right to alter prices set out in this Price and Payment Plan due to variations
in the price of materials or other resources, however caused, including but not limited to
fluctuations in exchange rates, where the cost to Imerja should vary by more than 10% from
the date of order acceptance.
4
CANCELLATION OF PURCHASE ORDERS
4.1
The Customer is required to provide Imerja with a minimum of 30 days written notice of its
intention to cancel any Purchase Order. If Imerja should accept the cancellation, which it is
not obliged to do under the terms of this Agreement, it reserves the right to leve penalty
charges against the cancelled Purchase Order.
5.
PRICE SCHEDULE
[Include price schedule below]
[The following section only applies to engagements with Channel Partners]
6.
COMPENSATION FEES
6.1
In addition to provisions made in Clause 4 (Ordering) Imerja may from time to time, with the
Customer’s approval, provide Goods and/or Services directly to the Customer’s own
customers on receipt of a PO from the Customers end customer directly. A direct engagement
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by Imerja with a Customer’s end customer will only be made with the prior agreement of all
parties.
6.2
Where Imerja enters into a direct relationship with the Customer’s own customer under the
terms of this Agreement, the Customer will be entitled to charge and Imerja will be obliged to
pay a compensation fee. This fee shall be based on a percentage of the identified gross
margin in respect to each specific Purchase Order for Goods and/or Services provided.
Compensation fees will be payable only during the Entitlement Period, being the first five (5)
years from the date when Imerja first engages directly with a Customer’s end customer
organisation, other than when Imerja can demonstrate it has an existing direct engagement
with the end customer in which case the compensation fee will not be payable unless
otherwise agreed.
6.3
The value of the compensation fee to be invoiced and paid in respect to all discrete end
customer engagements shall be calculated as 20% of the gross margin achieved for the
specific Purchase Order for Goods and/or Services, including:
6.4
6.3.1
the purchase of Goods including equipment.
6.3.2
the purchase of and/or professional services.
6.3.3
the purchase of single year annual support services backed off by Imerja to a
manufacturer, distributor or other third party supplier.
6.3.4
the purchase of single year annual monitoring, management and/or Service Desk
services delivered directly by Imerja
Where Imerja enters into a multi year contract with a Customer’s end customer to provide
annuity based support, monitoring or management services, including Service Desk and
hosting services, the compensation fee shall be payable for the initial three year period of the
contract, calculated as follows:
Year 1 – 20% of recognised gross margin in Year 1 of the contract
Year 2 – 10% of recognised gross margin in Year 2 of the contract
Year 3 – 5% of recognised gross margin in Year 3 of the contract
Notwithstanding the expiry of the Entitlement Period defined in section 6.2 above,
compensation fees will not be payable beyond Year 3 of a multi-year contract should the
contract period be longer.
6.5
All compensation fees will be paid by Imerja to the Customer on receipt of invoice in line with
Imerja’s standard payment terms, subject to Imerja having received payment from the end
customer and the contract not being curtailed or terminated by either party as permitted under
the terms of Agreement in place between Imerja and the end customer.
6.6
Imerja may withhold payment of any compensation fee if the Customer defaults on payment
to Imerja for Goods and/or Services received, and on issuing written notification to the
Customer may retain all or part of the compensation fees to offset monies owed and/or
contribute towards costs of recovery against outstanding payments.
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Schedule 6 – ACCEPTABLE USE POLICY (AUP)
1.
Overview
1.1.
This Acceptable Use Policy (AUP) has been created by Imerja to ensure the integrity,
reliability and stability of the Imerja network, associated networks and related services.
1.2.
This AUP shall be effective from the time a Service is initiated for the Customer, through to
the time the Service is ceased by either party as permitted under the terms of this
Agreement. The Customer must ensure that the use of any Service, product, or resource
offered, provided, or controlled by Imerja conforms to this AUP as well as Imerja’s Terms
and Conditions. The Customer will be held responsible for its direct use of Imerja’s services,
its systems, and any third-party use.
1.3.
Imerja may at its discretion modify this AUP at any time and in any way as and when it feels
necessary.
2.
Acceptable Use
2.1.
In addition to the other requirements of this AUP, the Service may be used only in a manner
that, in Imerja’s sole discretion, is consistent with the purposes intended The Customer
should contact Imerja if unsure of whether any contemplated use or action is within the
intended purpose.
2.1.1.
The usage of Imerja’s Services must comply with current laws and regulations,
including but not limited to regulations pertaining to copyright, license agreements
and patents
2.2.
The Customer agrees to use reasonable security precautions in connection with its use of
the Service.
3.
Unacceptable Use
3.1.
By way of example, and not limitation, the following sections outline activities that are
expressly prohibited. Services provided by Imerja, including hosting services, shall not be
used to post, transmit, re-transmit or store material which, in the judgment of Imerja Limited:
3.1.1.
violates Law;
3.1.2.
could be considered threatening, obscene, indecent, defamatory, threatening or that
otherwise could adversely affect any individual, group or entity;
3.1.3.
is deceptive or fraudulent practices;
3.1.4.
involves any activity infringing on the intellectual property rights of others, including,
but not limited to, copyrights, trademarks, service marks, trade secrets, patents;
3.1.5.
involves advertising, transmitting, or otherwise making available any software,
program, product, or service that is designed to violate this AUP;
3.1.6.
involves sending unsolicited bulk messages (spam), via any means, including, but
not limited to, email, instant messenger services, and newsgroup postings. Imerja
reserves the right to determine in its sole discretion and based on the information
available what constitutes spam as well as what measures are necessary in
response to spamming complaints;
3.1.7.
involves the engagement of Imerja services to promote deceptive and or illegal
marketing practices, products or services;
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3.1.8.
involves the deliberate transmission of computer viruses, worms, trojan software, or
other malicious programs;
3.1.9.
interferes with, disrupts, or denies service including, but not limited to, using any
technique to intentionally degrade or disable the delivery of any legitimate data (e.g.
denial of service attacks);
3.1.10. attempts to gain unauthorised entry to any site or network including, but not limited
to, executing any form of network probing, monitoring or other information gathering
on the Imerja or a third party site or network;
3.1.11. attempts to circumvent host or user authentication or other security measures of any
host, network or account;
3.1.12. manipulates or bypasses Imerja’s usage limits.
4.
Additional Obligations
4.1.
The Customer is responsible for protecting passwords and for any authorised or
unauthorised use of its systems and/or networks. All actions resulted from passwords being
compromised will remain the sole responsibility of the Customer.
4.2.
The Customer is responsible for all content or information residing on, obtained or
transmitted via the Service.
4.3.
Imerja reserves the right, without prior notice, to perform vulnerability tests on systems
residing on its IP address range, which may be allocated for Customer use. Imerja will
employ all reasonable efforts to ensure that such testing will be non-intrusive in nature, and
will not adversely affect the Service provided to Customer or compromise the security of
Customer's network.
5.
AUP Enforcement
5.1.
Imerja reserves the right to immediately, and without prior notice, filter, block, suspend,
and/or terminate access to the Service at any time for any conduct that Imerja, at its sole
discretion, determines violates, or may violate, this AUP and/or these Terms and Conditions
or is otherwise harmful to Imerja’s interests or the interests of others.
5.2.
If the Customer wishes to notify Imerja of a potential violation of this AUP it should do so by
sending an E-mail to isoc@imerja.com. Imerja will review such communication as quickly as
possible and take action as deemed appropriate by Imerja.
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