1.1 In these Terms, the following words or phrases shall have the meanings set opposite them:
the agreement for the supply of the Services by Forth Tech to the Purchaser, whether set out in writing or otherwise;
the fees, costs and others payable by the Purchaser to Forth Tech for the Services set out in the Agreement , and any additional fees, costs and others payable pursuant to the Agreement including clauses 2.2 and 2.7 of these Terms;
Forth Tech Solutions Limited;
any disbursements and other reasonable expenses incurred by Forth Tech in the provisions of the Services;
all tangible goods and equipment including Hardware and Software to be supplied under the Agreement;
the hardware (if any) to be supplied under the Agreement;
the other party or parties to the Agreement;
the services (other than Software Support (if any)) to be performed by Forth Tech for the Purchaser to be supplied under the Agreement (including the provision (if any) of any hardware (the “Hardware”) or software (the “Software”));
the software programs to be supplied under the Agreement;
the licence granted to the Purchaser by or on behalf of the Software Licensor;
the developer and owner of the Software;
the software support (if any) to be provided by Forth Tech for the Purchaser expressly agreed to be supplied under the Agreement;
these Terms and Conditions of Business;
between the hours of 9am and 5pm Monday to Friday but excluding any Fife, Scottish or National public or bank holidays, and the period between Christmas and New Year.- 6 –
2. SERVICES, SOFTWARE SUPPORT AND PROPERTY
2.1 Unless Forth Tech and the Purchaser have entered into a formal written agreement set out in one of Forth Tech’s “Confirmation”, the provision of the Services will be regulated by these Terms. If any additional services are provided by Forth Tech, these Terms will regulate that provision, and the Charges will be calculated in accordance with the charges of Forth Tech prevailing at that time. 2.2 Forth Tech will provide the Services to the Purchaser. Any addition to, reduction in or variation of the Services will, unless otherwise agreed in writing, be subject to further Charges. 2.3 Unless otherwise agreed in writing between the parties the Services will be provided during the Working Hours. 2.4 Forth Tech may, in the course of providing the Services and/or Software Support, advise the Purchaser that additional Software should be installed onto the Purchaser’s computer network or other action be taken by the Purchaser. For the avoidance of doubt, if the Purchaser decides not to install any such Software or the Purchaser does not take the action advised by Forth Tech, Forth Tech will not be liable to the Purchaser for any loss or damage suffered by the Purchaser as a result of the Software not being installed or Forth Tech’s advice not being actioned by the Purchaser. 2.5 If expressly agreed to be supplied under the Agreement, Forth Tech will provide the Purchaser with the Software Support. 2.6 Software Support does not include the diagnosis and rectification of any fault, or otherwise providing any Services, resulting from: 2.6.1 the improper use, operation or neglect of the Software; 2.6.2 any repair, adjustment, alteration or modification of the Software or the Hardware by any person other than Forth Tech without Forth Tech’s prior written consent; 2.6.3 the use of the Software or Hardware other than in accordance with the directions of the manufacturer or the recommendations of Forth Tech; 2.6.4 failure by the Purchaser to implement existing Forth Tech recommendations in respect of faults, underperformance, or solutions; 2.6.5 failure by the Purchaser to back-up its data; or 2.6.6 any breach by the Purchaser of any of its obligations under any maintenance agreement in respect of the Hardware. 2.7 Forth Tech will upon request by the Purchaser provide Software Support notwithstanding that the fault or underperformance results from any of the circumstances described in clause 2.6. Forth Tech will in such circumstances be entitled to make additional Charges for such Software Support.
2.8 Risk in any Goods provided by or on behalf of Forth Tech shall pass to the Purchaser on delivery. 2.9 Ownership of any Goods provided by or on behalf of Forth Tech shall not pass to the Purchaser until the Charges in respect of the Goods has been paid in full by the Purchaser, and the Purchaser shall hold such Goods in trust for Forth Tech until such payment in full has been received.
2.10 In relation to any Goods provided under the Agreement, Forth Tech will, so far as Forth Tech is legally able to do so, transfer to the Purchaser the benefit of any manufacturers’ or suppliers’ express or implied warranties or guarantees provided to Forth Tech whether in relation to the fitness for purpose or otherwise. 2.11 Without prejudice to any other exclusion or limitation of liability in these Terms including those in clause 9, Forth Tech will not be liable for any loss or damage suffered by the Purchaser where the Purchaser could have recovered that loss or damage under any manufacturers’ or suppliers’ express or implied warranties or guarantees.
3. DATA BACK-UP
While providing the Services (including the Software Support (if any)) Forth Tech may access (including remotely) the Purchaser’s computer network and may impair the performance of that network, or inadvertently damage or lose any data stored upon it. To minimise any such damage or loss, the Purchaser undertakes that it will back-up all data stored on its computer network at least once every 24 hours, (and check every 24 hours that the back-up has been successfully complete). Purchasers are required to operate a minimum of five Back-ups. If provided as a Service, Forth Tech undertake to repair a Data Back-up problem within a reasonable timescale. More than one attempt over the course of more than one day may be required to effect a repair. Any data added after the Data Back-up requiring repair will not be the subject of a Data Back-up itself and will be lost in the event of a further fault arising. It is the sole responsibility of the Purchaser to ensure that all Data Back-ups are stored off-site.
4. EXISTING HARDWARE AND SOFTWARE PROBLEMS
The Purchaser warrants and confirms that at the time of entering into the Agreement all existing hardware and software problems have been notified to Forth Tech in writing.
5. CHARGES AND PAYMENT
5.1 The Purchaser will pay the Charges to Forth Tech. All Charges are exclusive of any Value Added Tax (if applicable), for which the Purchaser will be additionally liable at the applicable rate from time to time. 5.2 The Charges are reviewed annually each April. The Purchaser will be informed in advance of any increase to the Charges being implemented. 5.3 Forth Tech will invoice the Purchaser for all Goods provided under the Agreement (the “Goods Invoice”). Payment of any Goods Invoice should be made prior to or on delivery of the Goods that it relates to. For the avoidance of any doubt Forth Tech will not be obliged to install or modify any Goods provided under the Agreement until those Goods have been paid for. 5.4 Forth Tech will invoice the Purchaser for the Charges and any Expenses on or before the end of each month in which Forth Tech have provided the Services or incurred Expenses. 5.5 Payment of all invoices (other than any Goods invoice) issued under the Agreement should be made within thirty days of the date of the invoice. 5.6 If the Purchaser (acting in good faith) has a query in respect of any invoice, they shall be bound to submit such query to Forth Tech in writing within ten working days of the date of the invoice, failing which the invoice will be deemed to have been agreed. To the extent that any invoice is so queried, the parties will endeavour to resolve the query in good faith and, in any event, before the end of the month in which the invoice is submitted. Any balance of the invoice which is not the subject of a any query shall be duly paid in accordance with clause 5.5. 5.7 The Charges are calculated on the assumption that payment is made in accordance with these Terms. If payment is not made on time, or in full, Forth Tech may: 5.7.1 charge the Purchaser an administration fee and interest on the outstanding balance, from the thirtieth day after the date of invoice until payment, in accordance with the Late Payment of Commercial Debts (Interest) Act 1998; and 5.7.2 if a debt collection agency is used to recover the payment due, charge the Purchaser any additional collection fees, administration fees and interest incurred. 5.8 In addition, if any invoice is not settled on time by the Purchaser, the directors, partners or members of the Purchaser will each be personally liable (what is known as joint and several liability) for the outstanding Charges, including any collection fees, administration fee and interest. 5.9 Except pursuant to clause 5.6, the Purchaser will not be entitled to set-off, compensate, retain, withhold, abate or otherwise retain performance of its obligations (including but not limited to payment) for any reason whatsoever.
The Purchaser will reimburse Forth Tech for any Expenses incurred. For the avoidance of any doubt any travel or subsistence costs incurred by Forth Tech in providing the Services will be treated as Expenses.
7. INTELLECTUAL PROPERTY RIGHTS (INCLUDING COPYRIGHT)
7.1 The Software is licensed to the Purchaser strictly in terms of the relevant exhaustive Software Licence by the Software Licensor. For the avoidance of any doubt, no such licence will be granted (or deemed to be granted) until the Charges have been paid in full. 7.2 The Software, including any manuals or other documentation produced by the Software Licensor (the “Software Material”), may contain confidential and/or proprietary information of the Software Licensor. All copyright, trademarks and other intellectual property rights in the Software Material is and will remain the exclusive property of the Software Licensor and may only be used under the terms of the relevant Software Licence. All documentation, information and other materials (including all training manuals) produced by Forth Tech (the “Forth Tech Materials”) may contain confidential and/or proprietary information of Condie IT. All copyright, trademarks and other intellectual property rights in the Forth Tech Material is and will remain the exclusive property of Forth Tech and may only be used in accordance with the Agreement. 7.3 Notwithstanding the generality of the foregoing, and in relation to both the Software Materials and the Forth Tech Materials (the “Materials”), the Purchaser will not: 7.3.1 reverse compile or adapt all or any part of the Materials; 7.3.2 assign, transfer, sell, lease, license, rent, charge or otherwise use, deal in or encumber the Materials or use thereof either for itself or on behalf of any third party or make available the Materials to any third party; or 7.3.3 remove or alter any copyright or other proprietary notice on any of the Materials; or 7.3.4 reproduce or copy the Materials.
8. ASSIGNATION AND SUB-LICENSING
8.1 The Purchaser may not assign, sub-license or otherwise transfer its rights and obligations under the Agreement without the prior written consent of Forth Tech. 8.2 Any assignation, sub-licence or other transfer of rights and obligations under any Software Licence will be governed by the relevant Software Licence. 8.3 Forth Tech may assign its rights and obligations under the Agreement provided notice of assignation is given to the Purchaser.
9. EXCLUSION AND LIMITATION OF LIABILITY
9.1 Nothing contained in the Agreement limits Forth Tech’s liability for negligence resulting in death or personal injury. 9.2 Forth Tech will not be liable to the Purchaser or be deemed to be in breach of the Agreement for any loss, damage, costs, expenses or other claims for compensation arising from any information supplied, or instruction given, by the Purchaser which is incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from its late arrival or non-arrival, or arising from any other fault of the Purchaser. 9.3 Forth Tech will not be liable to the Purchaser or be deemed to be in breach of the Agreement by reason of any delay in performing, or any failure to perform, any of Forth Tech’s obligations, if the delay or failure was due to any cause beyond Forth Tech’s reasonable control. Without prejudice to the generality of the foregoing Forth Tech will not be liable to the Purchaser or be deemed to be in breach of the Agreement for any loss, damage, costs, expenses or other claims for compensation arising from any hardware or software failure where said failure was due to any cause beyond Forth Tech’s reasonable control. In particular Forth Tech will not be liable should all of the Purchaser’s Data Back-ups fail to restore. 9.4 Forth Tech will not be liable to the Purchaser or be deemed to be in breach of the Agreement if, other than as a result of any malicious or reckless act of Forth Tech, any loss or damage is caused to any data of the Purchasers or any third party. 9.5 In respect of any: 9.5.1 representation (unless fraudulent), 9.5.2 implied warranty, condition or other term, 9.5.3 duty at common law (including but not limited to liability for negligence), or 9.5.4 duty under the Agreement, Forth Tech will not be responsible for any loss of profit; legal and management fees or expenses; or, indirect, special or consequential loss suffered by the Purchaser or any agent, customer or supplier of the Purchaser. 9.6 Without limiting clause 9.1 in any way, Forth Tech’s entire and remaining liability under or in connection with any breach of the Agreement, and other than as actually excluded by clauses 9.2, 9.3, 9.4 or 9.5, will not exceed the amount of the Charges actually paid by the Purchaser to Forth Tech during the previous twelve months. 9.7 If any provision of this clause 9 is held by any court or other competent authority to be invalid or unenforceable in whole or in part, such provision shall be divisible from the Agreement and shall be deemed to be deleted, provided always that if such deletion substantially affects or alters the commercial basis of the Agreement, the parties agree to amend and modify the provisions of the Agreement so as to achieve so far as possible the same economic effect without rendering the Agreement so amended or modified illegal, invalid or unenforceable. The validity of the other provisions of the Agreement and the remainder of the provision in question shall not be affected.
10. TERMINATION AND EFFECT OF TERMINATION
10.1 Forth Tech may terminate the Agreement immediately by written notice if the Purchaser: 10.1.1 is in breach of the Agreement or any other agreement with Forth Tech; or 10.1.2 is apparently insolvent or makes any composition or arrangement with its creditors or has an application made for the appointment of an administrator or has a petition for a winding up order presented or has a resolution for voluntary winding up passed or has a receiver of its business appointed or has possession taken by or on behalf of any creditor of any property that is subject to a charge or has diligence executed against it whether on the dependence of an action or in the execution of any decree.
The Purchaser will on demand and regardless of whether or not the Agreement has been terminated under clause 10.1 indemnify Forth Tech on a full indemnity basis against all liabilities, loss, damages, costs and expenses (including legal and management fees/expenses; any loss of profit and all indirect, special or consequential losses) awarded against or incurred or paid by or suffered by Forth Tech as a direct or indirect result of any breach by the Purchaser of any provisions (express or implied) of the Agreement.
12. ENTIRE AGREEMENT
The Agreement constitutes the entire agreement between the parties in respect of its subject matter and supersedes any previous agreement or understanding in respect of its subject matter and may not be varied except in writing between the parties. All other terms and conditions express or implied by statute or otherwise, are excluded to the fullest extent permitted by law, and neither party is relying on any representation other than expressly set out in writing in the Agreement.
13. DATA PROTECTION
13.1 Forth Tech may record information about the Purchaser, its officers and its employees. Forth Tech may use this information to assist it in providing the Services and other information which Forth Tech think may be of interest. Please notify Forth Tech if doing so would be unwelcome. 13.2 If in the course of providing the Services Forth Tech processes data, as defined in the Data Protection Act 1988, Forth Tech will comply with its obligations under this Act.
Neither Party will disclose or use, or cause to be disclosed or used, at any time during or subsequent to the Agreement, otherwise than as permitted under the Agreement, any secret or confidential information of the other Party or any other non-public information relating to the business, financial or other affairs of the other Party acquired under the Agreement.
Scots law will apply to the Agreement, and the parties agree to submit to the non-exclusive jurisdiction of the Scottish courts.