Annual Maintenance and Support T&Cs
DEFINITIONS AND INTERPRETATION
In these Terms and Conditions, unless the context otherwise requires, the following terms shall have the following meanings:
“Commencement Date” means the commencement date or anniversary renewal date of the Annual Licence Fee specified in the Contract and subject to the OSL Annual Licence Terms and Conditions;
“Support Period” means the period of one year following the Commencement Date that services are to be provided by OSL to the Customer as defined in Clause 2.1;
“Confidential Information” in relation to either party means information of a confidential or proprietary nature (whether in oral, written or electronic form) belonging or relating to that party, its business affairs or activities which (i) either party has marked as confidential or proprietary, (ii) either party, orally or in writing has advised the other party is of a confidential nature, or (iii) due to its character or nature, a reasonable person in a like position and under like circumstances would treat as confidential;
“Contract” means the Customer’s purchase order and OSL’s acceptance of it, or the Customer’s acceptance of the Proposal under clause 2.2, incorporating these Terms and Conditions;
“Critical Fault” means a reproducible fault, which substantially hinders or prevents the Customer from using a material part of the functionality of the Software;
“Customer” means the person, firm or company who purchases the Annual Licence and Support Services from OSL as detailed in the Contract;
“Deliverables” means any documentation, software, documents, know-how or other works created or supplied by OSL (whether alone or jointly) in the course of providing the Support Services;
“Intellectual Property Rights” means all patents, trade marks, registered designs (and any applications for any of the foregoing) copyright, database right, unregistered design right, trade names, business names, rights in software, domain names, know-how and any other intellectual property right in each and every part of the world together with all applications, renewals, revisals and extensions;
“Support Fee” means the Licence fee specified in the Contract and subject to the OSL Annual Licence Terms and Conditions;
“Support Services” means the maintenance and support services to be provided by OSL to the Customer as defined in Clause 2.1;
“Maintenance Release” means a release of the Software, which corrects faults, adds functionality or otherwise amends or upgrades the Software but which does not constitute a New Version;
“Modification” means any Maintenance Release or New Version;
“New Version” means any new module of the Software, which from time to time is publicly marketed and offered for purchase by OSL in the course of its normal business, being a version, which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product;
“Non-Critical Fault” means any reproducible fault in the Software other than a Critical Fault;
“Software” has the meaning ascribed to it in the Software Licence Contract;
“Software Licence Contract” means the software licence contract between the parties;
“Standard Support Hours” means 9am to 5pm (excluding 1pm to 2 pm), Monday to Friday, except public holidays;
“Support Staff” mean those individuals who perform OSL’s obligations under the Contract;
“Supported Software” means the Software, any Modification and any other software, which OSL and the Customer agree, should be supported software for the purposes of the Contract;
“System Administrators” means the persons appointed by the Customer from time to time in order to fulfil the role described in Clause 5.2;
“OSL” means Optimise Solutions Limited, a company incorporated in Scotland under the Companies Acts with registered number SC119824 and having its registered office at Caledonian Exchange, 19A Canning Street, Edinburgh EH3 8HE; and
“Terms and Conditions” means these terms and conditions for the maintenance and support of the Software.
- Clause headings are for ease of reference only and shall not affect the construction or interpretation of any clause. Words importing the singular shall include the plural and vice versa and words denoting any gender shall include all genders. References to legislation are to that legislation as amended or reenacted from time to time.
- APPLICATION OF TERMS AND CONDITIONS
- These Terms and Conditions shall:
apply to and be incorporated into the Contract; and
prevail over any inconsistent terms or conditions contained, or referred to, in the Customer’s purchase order, confirmation of order, acceptance of a quotation or specification, or implied by law, trade custom, practice or course of dealing.
- The Customer’s purchase order, or the Customer’s acceptance of the Proposal, constitutes an offer by the Customer to purchase the Support Services on these Terms and Conditions. No offer placed by the Customer shall be accepted by OSL other than:
by a written acknowledgement issued and executed by OSL; or
by execution of the Proposal by OSL; or
(if earlier) by OSL starting to provide the Support Services,
when a maintenance and support contract on these Terms and Conditions will be established. The Customer’s standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other document shall not govern the Contract.
- Proposals are given by OSL on the basis that no Contract shall come into existence except in accordance with Clause 2.2.
- MAINTENANCE AND SUPPORT SERVICES
- In consideration of the Customer’s payment of the Support Fee, OSL shall supply, from the Commencement Date, the following services during the Standard Support Hours:
- a telephone help-desk to provide first line technical support to users of the Supported Software;
- remote diagnosis and, where possible, remote correction of faults;
- on-site support where OSL deem necessary,
(the “Support Services”).
- When notification of a Supported Software defect or a request for advice and assistance from the Customer is not resolved during the initial contact with the Support Staff, OSL will provide further contact with the Customer within the following structure. This will apply to telephone and/or email assistance and to error correction.
|Severity Level||First Call Back||Resolution of Issue|
|Critical Fault||4 working hour||8 working hours|
|Non-Critical Fault||8 working hours||10 working days|
|General Query or Request||2 working day||N/A|
- Where a Non-Critical Fault is to be corrected in a forthcoming Maintenance Release, then for a reasonable period prior to the issue of such Maintenance Release OSL shall be entitled to decline to provide assistance in respect of that Non-Critical Fault.
- OSL shall be entitled, on prior notice to the Customer, to make reasonable changes to the Support Services, provided such changes do not have a material adverse affect on the Customer’s business operations.
- OSL shall have no obligation to provide the Support Services where faults arise from:
- improper use, operation or neglect of the Supported Software;
- unauthorised modification of the Supported Software;
- failure to maintain the necessary environmental conditions for use of the Supported Software;
- accidental damage caused to the Supported Software other than by OSL;
- use of the Supported Software in combination with any equipment or software not provided by OSL or any fault in any such equipment or software (including for the avoidance of doubt hardware and operating system faults and software viruses);
- relocation or installation of the Supported Software by any person other than OSL or a person acting under OSL’s instructions;
- any breach of the Customer’s obligations under the Contract;
- use of the Supported Software otherwise than in accordance with the Software Licence Contract; or
- failure by the Customer to implement recommendations in respect of or solutions to faults previously advised by OSL
- If, at the request of the Customer, OSL agrees to provide the Support Services in circumstances where any of the above apply OSL will endeavour to undertake the work as soon as reasonably practicable and OSL will be entitled to charge the Customer on a time and materials basis in accordance with its standard scale of charges in force from time to time.
- OSL shall have no obligation to provide the Support Services where faults arise from:
- THE CUSTOMER’S RESPONSIBILITIES
- Throughout the term of the Contract the Customer will:
- ensure that notification of a Supported Software defect or a request for advice and assistance is made by telephone in the first instance
- ensure that the Supported Software is used in a proper manner by competent trained employees only;
- ensure that appropriate environmental conditions are maintained for the Supported Software;
- notify OSL immediately upon becoming aware that the Supported Software is not operating properly;
- not alter adapt or modify the Supported Software in any way nor permit the Supported Software to be combined with any other computer program or computer hardware unless such modification or combination is agreed to by OSL;
- not request or permit anyone other than OSL to provide any maintenance and support services in respect of the Supported Software, except in circumstances where OSL refuses to or is unable to provide the Support Services;
- co-operate to a reasonable extent with the Support Staff and all other persons duly authorised by OSL in the diagnosis, investigation and correction of any fault in the Supported Software;
- make reasonably available to OSL free of charge all information facilities and services reasonably required by OSL to enable OSL to perform the Support Services including without limitation computer runs, core dumps, printouts, email, telephone and data preparation;
- provide at the Customer’s expense such telecommunication facilities as are reasonably required by OSL for remote testing and diagnostic purposes;
- provide the Support Staff and all other persons duly authorised by OSL with full, safe and uninterrupted access, including remote access, to the Customer’s premises, and the Supported Software, as may reasonably be required for the purpose of performing the Support Services, such access, except in the case of emergency or agreed out-of-hours downtime, to be within the Standard Support Hours;
- where the Support Services are to be performed at any of the Customer’s premises, provide adequate working space and office facilities (including telephone) for use by the Support Staff and all other persons duly authorised by OSL;
- keep full security copies (running back ups on a daily basis) of the Supported Software and of the Customer’s databases and computer records in accordance with good computer practice; and
- without prejudice to Clause 6.2, take all reasonable precautions to protect the health and safety of the Support Staff and all other persons duly authorised by OSL.
- The Customer will nominate two System Administrators to be available to liaise with, and respond to queries from, the Support Staff – for example, as to the resolution of conflicting priorities between two or more items of support or maintenance.
- The Customer will indemnify OSL in respect of any claim for loss, damage or injury of any person or property occasioned by the wrongful act, neglect or default of the Customer.
- Throughout the term of the Contract the Customer will:
- SUPPORT STAFF
- OSL shall provide sufficient Support Staff to fulfil its obligations under the terms of the Contract. The Support Staff shall be suitably trained and experienced in the support and maintenance of the Supported Software.
- OSL shall ensure that while on the Customer’s premises the Support Staff and all other persons who enter such premises with the authority of OSL for the purpose of, or in connection with, the Contract or the provision of the Support Services, adhere to the Customer’s reasonable security procedures and health and safety regulations, as from time to time notified to OSL.
- In consideration of the Support Services, the Customer shall pay the Support Fee to OSL annually in advance or as otherwise agreed in writing and payment of all such sums shall be due by the Customer within thirty (30) days of the issue of OSL’s invoice.
- All Support Fees paid are non-refundable in all circumstances.
- In consideration of the Customer’s payment of the relevant Support Fee, OSL shall issue any Maintenance Releases of the Software to the Customer as and when required and when available for general release, in the absolute discretion of OSL.
- Charges for any New Version supplied by OSL to the Customer shall be agreed in writing prior to performance or supply by OSL, and shall be charged and invoiced to the Customer by OSL (and paid by the Customer) following acceptance by OSL of the Customer’s written order for such New Version.
- The Customer will reimburse any reasonable travel or subsistence expenses incurred by OSL where such expenses are incurred wholly and exclusively for the purpose of providing on-site support as part of the Support Services, provided that any request for reimbursement is either: (i) in the form of a proper invoice; or (ii) agreed between the parties prior to commencement of the Support Services.
- The Customer will pay all costs and reasonable expenses incurred by OSL for work carried out by OSL in accordance with Clause 4.2.
- If the Customer fails to pay any amount payable by it under the Contract within 28 days from the due date, OSL shall be entitled to charge the Customer interest on the overdue amount, payable by the Customer forthwith on demand, from the due date up to the date of actual payment in full (after as well as before judgment), at the rate of 4% per annum above the base rate for the time being of the Royal Bank of Scotland PLC. Such interest shall accrue on a daily basis and be compounded quarterly.
- Time of payment shall be of the essence to this Contract and no payment shall be deemed to have been received until cleared funds have been received from the Customer.
- Notwithstanding the provisions of Clause 7.4, if the Customer fails to pay any amount payable by it under the Contract, OSL shall retain the right to suspend provision of the Support Services until such time as payment is made in full.
- The Support Fee payable under the Contract is exclusive of VAT or any other applicable local sales tax, which shall be charged at the prevailing rate from time to time.
- OSL shall be entitled to apply a reasonable inflationary increase to the Support Fee on an annual basis. Any such increase shall be notified to the Customer at least three (3) months prior to such anniversary.
- OSL warrants that:
- the Support Services will be performed with all reasonable skill and care; and
- to the best of its knowledge and belief, the Deliverables will not infringe the Intellectual Property Rights of any third party.
- OSL shall give notice in writing to the Customer as soon as it is reasonably able upon becoming aware of any non-conformance with any warranty in Clause 8.1. If, during the term of the Contract, OSL receives written notice from the Customer of any breach by OSL of the warranties contained in Clause 8.1 OSL shall, at its own option and expense, remedy that breach within a reasonable period following receipt of such notice. The Customer shall provide all information reasonably necessary to enable OSL to comply with its obligations under this Clause 8.2. This clause sets out the Customer’s sole remedy and OSL’ entire liability for breach of Clause 8.1.
- No representation or warranty is given by OSL that all faults will be fixed or will be fixed within a specified period of time.
- All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into the Contract, whether by statute, common law or otherwise, are hereby excluded to the fullest extent permitted by law, including, without limitation, any implied conditions, warranties or other terms as to satisfactory quality or fitness for purpose.
- OSL warrants that:
- Neither party shall exclude liability for death or personal injury caused by the negligence of OSL or its agents acting within the scope of their duties.
- The aggregate maximum liability of OSL under the Contract shall in no circumstances exceed a sum equal to the Support Fee paid by the Customer in the year in which the liability arises.
- OSL shall, in no circumstances be liable to the Customer (including by way of indemnity) in respect of any of the following losses or damage (whether such losses or damage were foreseen, foreseeable, known or otherwise):
- any, indirect, incidental, special or consequential loss or damage (whether or not such loss or damage is of the type specified in Clauses 9.3.2 to 9.3.10 below);
- loss of actual or anticipated profits;
- loss of goodwill;
- loss of business;
- loss of revenue or of the use of money;
- loss of contracts;
- loss of use or downtime;
- loss of anticipated savings;
- loss of or corruption to data (including software) or other information; and
- damage relating to the procurement by the Customer of any substitute products or services.
- Nothing in this Clause 9 shall apply so as to limit the Support Fee payable to OSL under the Contract.
- INTELLECTUAL PROPERTY RIGHTS
- All Intellectual Property Rights in the Deliverables shall belong to OSL and the Customer shall have no rights in respect of any of the Deliverables, save as expressly granted under the Contract.
- Subject to the provisions of Clause 9, OSL will indemnify and keep indemnified the Customer against any and all claims, action and proceedings brought against and all costs, damages, liabilities and expenses incurred by the Customer arising from any allegation that the Deliverables or any part of them infringes the Intellectual Property Rights of any third party, provided that:
- the Customer (i) on becoming aware of the same shall promptly give notice of it to OSL; (ii) makes no admission of liability without OSL’ written consent; (iii) allows OSL on demand to have sole conduct and control of the defence and any related settlement negotiations; and (iv) gives OSL all reasonable cooperation, help and assistance in connection with the claim;
- the infringement does not arise as a result of the use by the Customer of the Deliverables in combination with any equipment or software not supplied or approved by OSL; and
- OSL shall be entitled at its own cost to replace or modify infringing material so that it becomes non-infringing.
For the duration of the Contract and for a period of twelve (12) months thereafter, the Customer will not, without the prior written consent of OSL, whether directly or indirectly, either for itself or for any other person, firm or company, engage, employ or otherwise actively solicit for employment any person who, during the relevant period, was an employee of OSL.
- Both parties recognise the commercial importance of the others Confidential Information. The party receiving Confidential Information (“the Receiving Party”) will treat it as secret and confidential and will not use it for its own benefit or for the benefit of any other party or for any purpose other than those required or permitted by the Contract. The Receiving Party will not disclose any part of the Confidential Information to any third party without the express prior written consent of the party making the Confidential Information available (“the Disclosing Party”), other than to such of the Receiving Party’s employees who reasonably require to have same and who are bound by similar obligations of confidentiality.
- The provisions contained in Clause 12.1 shall not apply:
- to any of the information which is in or enters the public domain other than as a result of a breach of the Contract;
- where the Receiving Party receives the information from a third party which is not under any obligation of confidence to the Disclosing Party;
- where the information has been developed by the Receiving Party independently of the disclosure; and/or
- to any information which is required to be disclosed by the courts or process of law.
- Upon termination of the Contract or upon the Disclosing Party’s written request, the Receiving Party will return all the Confidential Information supplied to the Receiving Party by the Disclosing Party within twenty eight (28) days of such request. Each party may retain one copy of the Confidential Information but only if it requires to hold such information to ensure legal compliance with its obligations under the Contract including regulatory compliance.
- This Clause 12 shall survive termination of the Contract howsoever arising.
- TERM AND TERMINATION
- This Contract shall commence on the Commencement Date and, subject to termination in accordance with the Contract, shall (subject as aforesaid) continue for the Support Period.
- This Contract may be terminated by either party by written notice with immediate effect if:
- either party shall fail to observe or perform any of its material obligations contained in the Contract;
- either party commits a non material breach that it fails to remedy within thirty (30) days of being requested to do so by the other party; or
- either party ceases to carry on its activities, becomes unable to pay its debts when they fall due, becomes or is deemed insolvent, has a receiver, manager, administrator, administrative receiver or similar officer appointed in respect of the whole or any part of its assets or business, makes any composition or arrangement with its creditors, takes or suffers any similar action in consequence of debt, an order or resolution is made for its dissolution or liquidation (other than for the purpose of solvent amalgamation or reconstruction) or enters into liquidation whether compulsorily or voluntarily or shall suffer any analogous event under any jurisdiction which it is subject to.
- OSL shall have the right, without prejudice to its other rights or remedies, to terminate the Contract by three (3) months written notice to the Customer.
- The Contract will terminate automatically on termination of the Software Licence for whatever reason.
- CONSEQUENCES OF TERMINATION
- On expiry or termination of the Contract:
- the Customer’s right to receive the Support Services shall cease automatically;
- each party shall immediately return to the other all property and materials containing Confidential Information belonging to the other; and
- all amounts due and that remain outstanding from the Customer under the Contract shall be paid immediately by the Customer.
- the Supported Software will cease to operate on the next anniversary of the Commencement Date that follows the date of termination.
- Any termination of the Contract (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision of the Contract, which is expressly or by implication intended to come into force or continue in force on or after that termination.
- On expiry or termination of the Contract:
- FORCE MAJEURE
- OSL reserves the right to defer the delivery of the Support Services or to cancel or reduce the Support Services (without liability to the Customer) where OSL is prevented or delayed from carrying out the Support Services due to circumstances outwith OSL’s reasonable control. For the avoidance of doubt, nothing in this clause 15 shall excuse the Customer from any payment obligations under this Contract.
- DATA PROTECTION
- Where required to provide you with our Support Services, OSL will on occasion have a need to process personal data that you hold in your database(s) or on your equipment, such as customers and suppliers. Any data collected will only be retained for as long as is necessary to allow OSL to deliver our Services. OSL will not make use of such data for marketing purposes.
- The Customer shall not, and shall not purport to, assign, charge or otherwise transfer the Contract or any rights or obligations under it without OSL’s prior written consent, which consent shall not be unreasonably withheld or delayed. Any such consent shall not excuse the Customer from performance of any obligation on its part to be performed.
- Any notice under this Contract shall be given in writing and delivered by recorded delivery or personal delivery to the other party at the address specified in the Contract or such other address as may be notified to the sender in writing. Notices sent by recorded delivery shall be deemed to have been received forty eight (48) hours after sending (as shown by the senders receipt). Notices sent by personal delivery shall be treated as received at the time when left at the correct address of the recipient.
- ENTIRE AGREEMENT
- The Contract supersedes all prior agreements and arrangements of whatever nature and sets out the entire agreement and understanding between the parties relating to its subject matter.
- In the event of any inconsistency between the Terms and Conditions and the Proposal the Terms and Conditions shall prevail.
- If and in so far as any part or provision of the Contract is or becomes void or unenforceable it shall be deemed not to be or never to have been or formed a part of the Contract and the remaining provisions of the Contract shall continue in full force and effect.
- INDEPENDENT CONTRACTORS
- The parties are independent contractors and nothing in the Contract and no action taken by the parties pursuant to the Contract shall constitute, or be deemed to constitute, between the parties a partnership, association, joint venture or other co-operative entity.
- The failure of either party to exercise or enforce any right conferred on that party by the Contract shall not be deemed to be a waiver of any such right or operate to bar the exercise or enforcement thereof at any time or times thereafter.
- THIRD PARTY RIGHTS
- Save to the extent expressly set out in this Contract, this Contract is not intended nor shall it create any rights, entitlement, claims or benefits enforceable by any person that is not a party to it.
- Any variation to the Contract shall only be effective if in writing and signed by both parties.
- DISPUTE RESOLUTION
- Any question, dispute or difference which might arise relating to a technical issue in respect of the Software shall on the application of either party be referred to a person or persons appointed by the parties hereto (the “Expert“). Failing agreement as to the appointment of the Expert, the same shall be appointed by the President of the Law Society of Scotland for the time being.
- The Expert shall act as an expert and not as an arbitrator and shall give his decision in writing and if requested reasons thereof. In any event, the decision of such Expert shall be binding on the parties. The parties shall share the costs of the Expert equally, unless otherwise decided by such Expert.
- GOVERNING LAW
- All matters relative to the Contract shall be governed and construed in all respects by Scots law and the parties hereby submit to the non-exclusive jurisdiction of the Scottish Courts.