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1
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DEFINITIONS
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1.1
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"Contract Particulars" shall mean the Contract Particulars set forth in the First
Schedule of this document and described as the Contract Particulars.
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1.2
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"Northwind IT Systems" shall mean
the company identified in the Contract as responsible for carrying out the
Software Services and shall include Northwind IT System's personal representatives,
successors and assigns.
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1.3
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"Customer" shall mean the person,
firm or company identified in the Contract for whom the Software Services is
to be provided and shall include the Customer's legal personal representatives,
successors and assigns.
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1.4
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"Software Services" shall mean work
of a professional nature to be provided by Northwind IT Systems to the Customer
under this Contract and shall include, but not be limited to, feasibility studies,
hardware and software evaluation and selection, systems analysis and design,
programming and testing, implementation, documentation, ongoing support
and consultancy.
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1.5
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"Limit of Liability" shall mean that
sum so named in the Contract or the sum to be ascertained from the rates and prices
contained in the Contract together with any additions thereto or deductions therefrom
agreed in writing under the Contract.
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1.6
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"Northwind IT Systems Project Manager"
shall mean the person for the time being or from time to time duly appointed by
Northwind IT Systems and notified in writing to the Customer to act as
Northwind IT System's representative for the purpose of the Contract, or in
default of such notification, Northwind IT Systems.
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1.7
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"Superintending Officer" shall mean
the person for the time being or from time to time duly appointed by the Customer
and notified in writing to Northwind IT Systems to act as the Customer's
representative for the purpose of the Contract, or in default of such notification,
the Customer.
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2
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SCOPE
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2.1
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Northwind IT Systems agrees to supply and the
customer agrees to acquire the Software Services on a time-and-materials basis.
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2.2
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The Software Services to be
provided are as agreed between the Customer and Northwind IT Systems as
defined in the Contract. Particulars, together with any additions, deletions
and changes agreed to in writing during the course of this Contract.
Until such time as any addition, deletion or change
is agreed in writing, Northwind IT Systems will, unless otherwise agreed, continue
working on the Contract as if such a change has not been requested.
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2.3
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Northwind IT Systems charges shall not exceed the
Limit-of-Liability plus reasonable traveling, subsistence and accommodation expenses
properly incurred by Northwind IT Systems during the performance of this Contract.
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3
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NORTHWIND IT SYSTEMS RESPONSIBILITIES
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3.1
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The Software Services shall be performed in a timely,
professional and workmanlike manner. Software development is a complex activity and
Northwind IT Systems does not warrant that any software that it develops will be free
from all defects.
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3.2
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Any materials which are supplied by Northwind IT Systems
to carry out the Software Services will be of good and serviceable quality.
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3.3
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The Northwind IT Systems Project Manager will
provide notification to the Superintending Officer at the earliest reasonable
time of the impending and/or actual occurrence of any change in the assignment
of key Northwind IT Systems personnel directly associated with this Agreement.
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3.4
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In the event that a Northwind IT Systems employee
providing the Software Services under this Agreement is unable to complete the
task through sickness or resignation from Northwind IT Systems, Northwind IT Systems
will try to provide, on a reasonable endeavours basis, another employee of similar
experience to fulfil the Contract.
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4
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CUSTOMER RESPONSIBILITIES
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4.1
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The Customer agrees to provide for each employee
of Northwind IT Systems engaged in work on the Customer's site a suitable place
of work and necessary supplies and amenities comparable to those provided
for the Customer's staff of similar status.
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5
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CONTRACT SUPERVISION
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5.1
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The day-to-day management of this Contract
shall be the responsibility of the Northwind IT Systems Project Manager
who will use reasonable endeavours to complete the agreed Software Services
within the agreed Limit-of-Liability. If at any time Northwind IT Systems
considers that the Software Services cannot be completed within the
Limit-of-Liability or by the agreed completion date then Northwind IT Systems
shall immediately inform the Superintending Officer and explain the
circumstances. The Customer may then either request Northwind IT Systems
to stop work at the end of the following day or agree appropriate
changes to the Contract.
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6
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INVOICING AND PAYMENT
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6.1
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Northwind IT Systems shall invoice the
customer monthly in arrears or on completion of the Contract,
whichever is the sooner.
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6.2
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The customer shall make payment within
30 days after the receipt of the invoice, provided that the related
Software Services have been performed to the Customer's reasonable satisfaction.
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6.3
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Northwind IT Systems reserves the
right to charge interest on overdue invoices at the rate of 2% above
National Westminster Bank base rate.
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7
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TERMINATION
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7.1
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This Agreement may be terminated by
either party by giving one month's written notice.
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7.2
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This Agreement may be terminated by either
party without notice in the event that the other party:
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7.2.1
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Commits a substantial breach of
any of its provisions or fails to cure any other breach within
28 days of receiving written notice from the other specifying the breach.
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7.2.2
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Becomes insolvent or bankrupt or
(being a company) makes an arrangement with its creditors or has
an administrative receiver or administrator appointed or resolves
to go into voluntary liquidation (other than for the purpose of
bonifide amalgamation or reconstruction).
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8
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INTELLECTUAL PROPERTY
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8.1
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All intellectual property including
without limitation that involving or relating to patentable inventions,
non-patentable processes or know-how, designs and/or copyright arising
out of any Software Services provided by Northwind IT Systems shall be
the property of the Customer.
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8.2
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This Agreement shall not preclude
Northwind IT Systems from independently developing materials which
are competitive, irrespective of their similarity to materials delivered
to the Customer.
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8.3
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Northwind IT Systems may use software segments
or "library routines" developed by Northwind IT Systems in the development
of the Customer's application. In this case Northwind IT Systems will retain
sole copyright to those routines but will grant to the Customer a perpetual
licence to use those routines within the application developed by
Northwind IT Systems.
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9
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CONFIDENTIALITY
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9.1
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Each of Northwind IT Systems and the Customer hereby agree:
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9.1.1
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that all information (written or oral),
other than technical information, obtained from the other party is
confidential and shall be used solely for the purpose of this Agreement
and shall not at any time be disclosed without the written consent of
the other party except to such persons of each party and to such an
extent as may be necessary for the execution of this Agreement;
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9.1.2
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to provide all necessary precaution to ensure
that all such information is treated as confidential and not disclosed by
their employees, servants, agents or sub-contractors;
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9.1.3
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that any technical information that is
clearly designated as confidential and received under this Agreement
shall be treated in accordance with the provisions of this clause for
a period of 5 years from receipt.
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The above provisions of this clause
shall not apply to any information which:
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9.1.4
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is trivial or obvious;
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9.1.5
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is or becomes public knowledge other
than by breach of this Agreement;
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9.1.6
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is in the possession of the receiving
party without restriction in relation to disclosure before the date
of receipt from the disclosing party.
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9.2
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Nothing herein shall be construed as
to prevent Northwind IT Systems from using data processing techniques,
ideas or know how gained during the performance of this Agreement in
the pursuit of its normal business, to the extent that this does not
result in the disclosure of confidential information or a breach of
any valid patents or copyrights of the Customer.
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10
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LIMITATION OF LIABILITY
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10.1
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Northwind IT Systems liability to the
Customer under this Agreement shall not exceed the Contract Price.
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10.2
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Under no circumstances will either party
be held liable for any consequential loss.
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11
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INDEMNITY
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11.1
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Northwind IT Systems warrants that no item or
combination of items supplied hereunder shall infringe any patent, copyright
or other intellectual property right of any third party.
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11.2
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Northwind IT Systems shall not have liability
under this Agreement for any actual or alleged infringement arising out of:
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11.2.1
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compliance by Northwind IT Systems
with specific instructions given by the Customer;
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11.2.2
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the use of item(s) in a manner neither
recommended nor reasonably contemplated by Northwind IT Systems;
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11.2.3
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the combination, operation or use of item(s)
with any item(s) not furnished by nor in the reasonable contemplation of
Northwind IT Systems;
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11.2.4
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modification to item(s) made by the Customer
or by any third party unless such infringement would have arisen independently
of such instructions, use, combination or modification.
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12
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FORCE MAJEURE
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12.1
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No liability shall result from non-performance
caused by government actions, acts of God, war, civil disorder or other
unavoidable causes beyond the control of the non performing party and
which cannot be reasonably forecasted or provided against.
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12.2
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In the event of force majeure circumstances
continuing for a period of more than 28 days from the date of receipt of
notification thereof, the other party shall have the right to cancel further
performance under this Agreement without incurring further liability.
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13
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INDEPENDENT CONTRACTORS
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13.1
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The relationship of Northwind IT Systems
to the Customer shall be that of independent contractor and not that of
employee or agent. As a result the Customer will not be responsible by
virtue of this Agreement, for the payment or deduction of any amount
whatsoever required by law to be made by an employer in relation to its
employees. At no time shall either party represent to any third party that
it is the agent of the other for any reason whatsoever. In no event shall
either party at any time have authority to make any contracts or commitments
on behalf of or as an agent for the other party. Neither Northwind IT Systems
nor its employees or agents will be covered by any Customer employee
benefit schemes.
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13.2
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It is agreed that it is not the intention of
this Agreement to give Northwind IT Systems the sole or exclusive right to
carry out for the Customer all Services of the same or similar nature to the
Software Services.
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14
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GENERAL
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14.1
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This Agreement forms the complete agreement
between the parties. All terms are included. There are no implied terms.
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14.2
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Neither party may assign all or any part of this
Agreement without the prior written consent of the other party.
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14.3
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Northwind IT Systems shall not sub-contract
the performance of any part of this Agreement without the Customer's
prior written consent.
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14.4
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This Agreement may only be amended in writing
and no such amendment shall be effective unless signed by both party's
authorised signatures.
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14.5
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If any provisions of this Agreement are held
to be invalid, illegal or unenforceable, this will not affect the validity,
legality or enforceability of the other provisions.
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14.6
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This Agreement (together with its first schedule
and any orders placed under its terms) is the complete and exclusive statement
of the agreement between the parties, which supersedes all proposals or prior
agreements oral or written concerning its content.
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14.7
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This Agreement will be governed by English Law.
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