Terms and Conditions Master Services Agreement
SystemsUp Ltd (company registration no. 05212115) whose registered office is care of 11-21 Paul Street, London, EC2A 4JU will be known as “The Supplier”; and for the purposes of this document “The Client” will refer to any potential client.
This document may be superseded by customer specific Terms and Conditions and can therefore be ignored, however where this does not exist then all content within this document is applied.
In this Agreement:
- Intellectual Property Rights means any and all patents, patent applications, know-how, trademarks, trade mark applications, trade names, registered design, copyright, database rights or other similar intellectual property rights created, developed, subsisting or used in connection with the Specified Service and whether in existence at the date hereof or created in the future;
- Specified Service means any goods, services or advice to be provided by the Supplier to the Client as detailed in Schedule 1 to this Agreement;
- Specified Sum means the agreed consideration to be paid by the Client to the Supplier as detailed in Schedule 2 to this Agreement.
- The expressions “Client”, “him”, “its” or such other expressions as appear in this Agreement shall be deemed to include the masculine, feminine and plural thereof where the context so admits.
- The headings in this Agreement are for convenience of reference only and shall not affect the construction thereof.
- Should circumstances arise which call for modifications of this Agreement these may be made by mutual consent given in No modification to this Agreement shall be effective unless it is signed or accepted by a Director of SystemsUp Limited.
- Any notice or request required or permitted to be given or made under this Agreement shall be in writing in English. Such notice shall be deemed to be duly given or made when proof is provided that it shall have been delivered by hand or mail to the Party to which it is required to be given or made at such Party’s business address specified in this Agreement or at such other address that Party shall have specified in writing to the Party giving such notice, or making such request.
- This agreement shall be governed by and construed in accordance with the laws of England.
- The Supplier shall provide the Specified Service to the Client subject to the terms of this Agreement.
- Because of the nature of the work to be undertaken by the Supplier, both parties accept that it may be necessary to agree to alter or adapt the Specified Service and that any additional works required may not be included in the Specified Sum as detailed in this Agreement. The parties therefore accept that any changes or additions to the Specified Service or the terms of this Agreement will be valid only if agreed in writing by the Supplier and the Client.
- The Supplier reserves the right to revise the Specified Sum in the light of any changes to the Specified Service in the light of Clause 4.2 above. The Supplier will inform the Client of any proposed changes in the Specified Sum in writing and these changes will not be valid until accepted in writing by the Client.
- The Supplier shall take all reasonable steps to comply with any timetable or other targets for progress or delivery of the whole or any agreed part of the Specified Services or the completion of the Specified Service agreed in writing between the parties.
- The Supplier may at any time and without giving the Client prior notification make any changes to the Specified Service which are necessary to comply with any applicable safety or other statutory requirements, or make any changes to the Specified Service which do not materially affect the nature or quality of the Specified Service.
Duration and Termination
- This Agreement shall commence from the date hereof unless agreed otherwise and shall remain in force until the Specified Services are completed unless terminated early.
- Either party may terminate this Agreement by giving one week’s written notice to the other party in the event that:
- Either party is in breach of this Agreement and fails to remedy such breach (if capable of remedy) within 3 working days after being required in writing to do so;
- The other party goes into liquidation, or (in the case of an individual or firm) becomes bankrupt, makes a voluntary arrangement with his or its creditors or has a receiver or administrator appointed.
- The Supplier may terminate this Agreement:
- By giving the Client written notice if the Client is in default of any agreed payments under this Agreement and has failed to remedy that default within two weeks of receiving a written demand from the Supplier; or
- By giving the Client two weeks written notice if the Client fails to accord the Supplier the reasonable access to premises, equipment, personnel or other information required for the Supplier to perform the Specified Services; or
- By giving the Client five working-days written notice if, in the Supplier’s opinion it is no longer appropriate for the Agreement to continue in force.
- The Supplier is entitled to charge interest to the Client on any outstanding amounts at the rate of 10% per annum under the Late Payment of Commercial Debts (Interest) Act 1998. Such interest will begin to accrue from 30 days after the date agreed for payment under this Agreement and will continue to accrue until judgement or sooner payment.
- The Client may terminate this Agreement forthwith if the Supplier, or any party performing The Supplier’s obligations under Clause 6 below, fails to provide a reasonable level or quality of service in the sole and reasonable opinion of the Client or if in the sole and reasonable opinion of the Client it is no longer appropriate for the Agreement to remain in force.
- In the event that this Agreement is terminated before the completion of the Specified Services, the Supplier shall be entitled to payment by the Client for work completed on a quantum merit basis.
- The Supplier’s resources are booked to deliver the Specified Services but cannot complete due to a customer delay (for example a cancelled meeting, delay in providing information or delay in meeting any pre-requisites required for the work), then The Supplier will apply cancellation charges in circumstances where less than 10 workings days’ notice is given.
- Cancellation charges are calculated on a sliding scale:
- Notification within 1 working day of the commencement date – 100% charge applied
- Notification within 2 to 5 working days of the commencement date – 50% charge applied
- Notification within 6 to 10 working days of the commencement date – 25% charge applied
- Notification more than 10 working days of the commencement date – No charge applied
- The Client shall, at its own expense, provide the Supplier with all documents or other materials and data or other information necessary for the completion of the Specified Service, in sufficient time to enable the Supplier to provide the Specified Service in accordance with any timetable or other target for progress or completion agreed in writing between the parties.
- The Client shall be responsible for the content of all documents or other materials and shall ensure the accuracy of all data or other information provided to the Supplier in the course of this Agreement.
- The Client shall, at its own expense, retain duplicate copies of all documents or other material and data or other information provided to the Supplier and shall insure against its accidental loss or The Supplier shall have no liability for any such loss or damage, howsoever caused.
- The Client shall ensure that the Supplier is accorded sufficient access to any of the Client’s premises, information, data or personnel and use of any equipment that is reasonably necessary for the completion of the Specified Services. Where the Supplier requires access to any third party premises, information, data or personnel the Client will make all reasonable efforts to arrange this for the Supplier.
- SystemsUp Limited shall exercise all reasonable skill, care and diligence in the discharge of its duties under this Agreement and shall provide all the expert technical advice and skills for which it is engaged.
- SystemsUp Limited shall appoint a Representative to be responsible for liaison between the Client and SystemsUp Limited.
- SystemsUp Limited shall at any time allocate such suitably qualified and experienced staff as SystemsUp Limited consider necessary for the efficient and timely completion of the Services. Where staff are specifically nominated in this Agreement, SystemsUp Limited has the right to nominate alternative staff of comparable standing at any time.
- Nothing in this Agreement shall operate to transfer to the Client the right to any intellectual property owned by SystemsUp Limited, or to any intellectual property created or licensed by SystemsUp Limited in connection with the Services, unless the same has been specifically purchased by the Client in terms of this Agreement.
- SystemsUp Limited shall not disclose to Third Parties confidential information relating solely to the Client which comes to its knowledge in the course of carrying out the Services but reserves the right to carry out similar Services for other Clients.
- SystemsUp Limited shall have the right, subject to the Client’s approval which shall not unreasonably be withheld, to publish descriptive articles with respect to the Services.
- SystemsUp Limited shall have the right, subject to the Client’s approval which shall not unreasonably be withheld, to publish descriptive articles with respect to the Services.
10. Conflicts of Interest
- The Client understands and accepts that the Supplier is entitled to seek, apply for, accept and perform contracts to supply goods and services to third parties. However, during the currency of this Agreement, the Supplier undertakes not to accept contracts to supply goods or services to third parties where this could result in the Supplier providing goods or services to competitors of the Client and where this could have a commercially harmful effect on the Client.
- The Supplier warrants to the Client that the Specified Service will be provided using reasonable care and skill and, as far as reasonably possible, in accordance with Schedule 1 to this Agreement and any timetables or other targets agreed.
- Where, in connection with the provision of the Specified Service, the Supplier supplies any goods supplied by a third party, the Supplier does not give any warranty, guarantee or other term as to their quality, fitness for purpose or otherwise, but shall, where possible, assign to the Client the benefit of any warranty, guarantee or indemnity given by the person supplying the goods to the Supplier.
Limitation of Liability
- The Specified Services have been negotiated and agreed by the Supplier with the Client in the context of information provided by the Client as to the Client’s particular needs and requirements. The Specified Services have been prepared and costed accordingly. Therefore:
- The Supplier shall have no liability to the Client for any delay, loss, damage, costs, expenses or other claims for compensation arising from any information or instructions supplied by the Client which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other fault of the Client;
- The Supplier shall have no liability to the Client for any loss, damage, costs, expenses or other claims for compensation arising from the Client making use of the Specified Services for any purpose not clearly disclosed to the Supplier or from the Client allowing a third party to make use of the Specified Services;
- Except in respect of death or personal injury caused by the Supplier’s negligence, or as expressly agreed in writing between the parties, the Supplier shall not be liable to the Client by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of this Agreement, for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence of the Supplier, its servants or agents or otherwise) which arises out of or in connection with the provision of the Specified Service or its use by the Client.
- The Supplier will be liable for all damages brought to the Client in relation to the Supplier not able to provide the contracted services in accordance with Schedule 1.
- Neither Party shall be deemed in breach of the Order or liable to the other for delay in performing its obligations, or failure to perform any such obligations, under the Order, if the delay or failure results from Force Majeure provided that the affected Party:
- Promptly notifies the other Party, in writing, of the known or anticipated event which causes or may cause it;
- Produces reasonable evidence of its occurrence;
- Uses all reasonable endeavours to eliminate or minimise the delay and continues to fulfil its obligations to the extent that they are not affected by the Force Majeure;
- Recommences its full performance as soon as is reasonably possible following its cessation; and
- Gives notice of the cessation of any event previously notified to the other Party as likely to result in prevention or delay in execution of the Order.
- If a Party is affected by Force Majeure, it will use its reasonable endeavours to mitigate its effect. Neither Party will be entitled to any payment from the other for any costs or expenses incurred as a result of it.
- If a Force Majeure exceeds a continuous period of thirty (30) days, then the Supplier shall have the right by written notice to the Client to terminate the Order immediately without having any liability to the Client except in respect of that part of Supplies already delivered to and accepted by the Supplier prior to such termination.
- Unless agreed otherwise in writing between the Client and the Supplier:
- The Client shall retain ownership of all Intellectual Property Rights of whatever nature and, if registrable, whether registered or not, in the documents or other material and data or other information provided to the Supplier in the context of this For the avoidance of doubt, the Client shall not be deemed to have granted the Supplier any licence to use the documents or other material and data or other information other than for the purposes of this Agreement.
- The Supplier shall retain ownership of all Intellectual Property Rights of whatever nature and, if registrable, whether registered or not, in all documents or other material and data or other information and devices or processes provided or created by the Supplier in the provision of the Specified Services save that the Supplier shall be deemed to have granted the Client a non-exclusive and non-assignable licence to make use of any such documents or other material and data or other information and devices or processes in the context of the Specified Services.
- Where appropriate, the Supplier shall be deemed to have asserted its moral rights over any documents or other material provided or created by the Supplier in the provision of the Specified Services.
- The Supplier warrants to the Client that:
- No documents or other material and data or other information and devices or processes will be provided by the Supplier for use in the provision of the Specified Services which infringe any third party intellectual property rights;
- Any documents or other materials created by the Supplier in the provision of the Specified Services for use by the Client will be original and created specifically for the Client.
- The Client warrants to the Supplier that no documents or other material and data or other information and devices or processes will be provided by the Client to the Supplier for use in the provision of the Specified Services which infringe any third party Intellectual Property Rights.
- In the event that a claim for the infringement of third party Intellectual Property Rights is made or intimated against the Supplier in relation to documents or other material, data and other information or devices and processes provided to the Supplier by the Client for use in the provision of the Specified Services or which the Client dictated should be used by the Supplier in the provision of the Specified Services, the Client shall indemnify the Supplier against any and all costs, expenses, damages or other losses suffered or payments made by the Supplier in connection with the claim and any associated judgement or settlement.
- Both parties will take all reasonable steps to ensure that any documents or other materials and data or other information which are supplied to the other party in the provision of the Specified Services and are clearly marked as confidential remain confidential to the parties. Such information will only be made available by the parties to those personnel who have a reasonable need to know of it and the documents or other materials and data or other information or copies thereof will not be made available to any third parties. Either party is entitled to demand the return of all copies of any such documents or other materials and data or other information within four weeks by giving the other party written notice.
- This obligation of confidentiality will remain in force beyond the cessation or other termination of this Agreement.
- This clause shall not apply to any documents or other materials and data or other information which are already in the public domain at the time when they are provided by either party, and shall cease to apply where either party is required by law to make a disclosure or if at any time the information becomes public knowledge through no fault of the other party.
- Both parties undertake that any information which is received from the other party in the provision of the Specified Services will only be used for the purposes of this Agreement.
- Should any employee leave the employment of SystemsUp, they may not be employed or contracted to do work for the Client, except under the following condition.
- Should the Client employ any current or former employee of SystemsUp Limited, an introduction fee of 40% of the employee’s salary will be invoiced to The Client upon appointment of the employee.
- Should disciplinary action be taken against SystemsUp personnel whilst on site at The Clients premises, SystemsUp will escort the personnel from The Clients premises.
- For the avoidance of doubt, SystemsUp shall be responsible for all salaries, taxes and other employee/employer costs in respect of any personnel supplied to work on or with The Clients systems.
Health and Safety
- In the event that the Supplier’s staff are required to attend any premises belonging to or under the control of the Client, the Client acknowledges that it is their responsibility to ensure that the Supplier’s staff are fully advised of any health and safety regulations applicable to the site.
- The Supplier shall not be liable to the client or be deemed to be in breach of the contract by reason of any delay in performing, or any failure to perform, any of the Suppliers obligations in relation to the specific service, if the delay or failure was die to any cause beyond the suppliers reasonable control.
- The parties to this Agreement are independent businesses and nothing in this Agreement or by virtue of performing it shall be taken as creating a relationship of agent to principal, employer to employee, partnership or joint venture between the Supplier and the Client. Neither party shall be entitled to enter into agreements or other arrangements on behalf of the other, and it is intended that both parties shall retain their independence.
- The terms of this Agreement represent the entire agreement between the parties and supersede any previous representations or agreements whether recorded in writing or otherwise.
- Both parties agree that the terms of this Agreement are fair and reasonable in all the circumstances.
- It is agreed that this Agreement will be governed and construed according to the laws of England and Wales and the parties submit to the non-exclusive jurisdiction of the English Courts.
- The Client shall pay to SystemsUp Limited in respect of the Services amounts set forth in this Agreement, in accordance with the payment schedule set forth herein.
- The Client shall remunerate SystemsUp Limited separately for any additional work as agreed between the Parties and resulting from the Client’s specific requests or modifications to the Services or postponement of the Services or termination of this Agreement.
- Remuneration shall be paid to SystemsUp Limited within thirty days after the date of submission of the invoices by SystemsUp Limited. If the Client fails to pay SystemsUp Limited within thirty days after the date of submission of any invoice SystemsUp Limited is entitled, without prejudice to the rights of SystemsUp Limited under any other provisions hereof, to claim interest as from the date of the invoice at two per cent above the base rate as published from time to time by the Bank of England.
- If any item or part of an item of an invoice rendered by SystemsUp Limited is disputed or subject to question by the Client, the payment by the Client of the remainder of that invoice shall not be withheld on those grounds. The provisions of Clause 5.3 and Clause 6.3 shall apply to the extent that any such item or part of an item so disputed by subject to question shall be subsequently agreed or determined to have been due to The Supplier.
Suspension and Termination
- SystemsUp Limited shall promptly notify the Client in writing of any situation or of the occurrence of any event as a result of which it ceases to be reasonably practicable for SystemsUp Limited to carry out in whole or in part its obligations hereunder. Upon confirmation in writing from the Client of the existence of any such situation or event or upon such failure of the Client to dispute the same in writing within thirty days, SystemsUp Limited shall be relieved of all liability for failure to carry out such obligations and the Services may, at the option of SystemsUp Limited, be deemed to have been postponed.
- The Client may by written notice to SystemsUp Limited at any time, by giving not less than thirty days prior notice of his intention, postpone the Services in whole or in part or terminate this Agreement.
- SystemsUp Limited may by written notice to the Client terminate this Agreement:
- if SystemsUp Limited has not received any payment as provided in this Agreement within thirty days after the due date and such default has not been corrected within thirty days after notice thereof has been given by SystemsUp Limited.
- if the Services have been postponed as provided for in Clause 6.1 or Clause 6.2 and such postponement has lasted for a period exceeding six months.
- Upon notice of postponement under Clause 6.1 or Clause 6.2 or notice of termination under Clause 6.2 or Clause 6.3 SystemsUp Limited shall take steps to bring the Services to a close in a prompt and orderly manner, and to limit expenditures to a minimum.
- Upon postponement of the Services or termination of this Agreement, SystemsUp Limited shall be entitled to payment of such part of the price and of all other sums due under this Agreement in respect of the period prior to the date of such postponement or termination and of all costs, expenses and liabilities incurred by SystemsUp Limited to Third Parties in relation to this Agreement or resulting therefrom, as also all costs incidental to the orderly termination of the work of SystemsUp Limited. Further payment if any shall be a matter for agreement to be negotiated between SystemsUp Limited and the Client or, failing such agreement, for arbitration as hereinafter provided.
- Any termination of this Agreement shall not prejudice or affect the accrued rights or claims and liabilities of either Party to this Agreement.