Support Service Agreement
Parties
-
IT SERVICES SUPPORT LIMITED
incorporated and registered in England and Wales with company number 06028203
whose registered office is at 92 Wheat Street, North Warwickshire House,
Nuneaton, Warwickshire CV11 4BH (IT Services).
-
[FULL
COMPANY NAME] incorporated and registered in England and Wales with company
number [NUMBER] whose registered office is at [REGISTERED OFFICE ADDRESS] (Customer).
Background
IT Services has agreed to provide, and
the Customer has agreed to purchase, the support services described in the
Project Plan on the terms and conditions contained in this Agreement.
Agreed terms
The
following definitions and rules of interpretation apply in this agreement.
1.1
Definitions
Customer's Equipment:
any equipment, systems, cabling or facilities provided by the Customer and used
directly or indirectly in the supply of the Services.
Customer's Manager:
the Customer's manager for the Project, appointed in accordance with clause 5.1.
Deliverables:
all Documents, products and materials developed by IT Services or its agents,
subcontractors, consultants and employees in relation to the Project Plan or the
Services in any form, including computer programs, data, reports and
specifications (including drafts) or
the deliverables specified in the Project Plan.
Document:
includes, in addition to any document in writing, any drawing, map, plan,
diagram, design, picture or other image, tape, disk or other device or record
embodying information in any form.
In-put Material:
all Documents, information and materials provided by the Customer relating to
the Services, including computer programs, data, reports and specifications or the
in-put materials specified in the Project Plan.
Intellectual Property Rights:
patents, utility models, rights to inventions, copyright and related rights,
moral rights, trade marks and service marks, business names and domain names,
rights in get-up, goodwill and the right to sue for passing off or unfair
competition, rights in designs, rights in computer software, database rights,
rights to use, and protect the confidentiality of, confidential information
(including know-how and trade secrets) and all other intellectual property
rights, in each case whether registered or unregistered and including all
applications and rights to apply for and be granted, renewals or extensions of,
and rights to claim priority from, such rights and all similar or equivalent
rights or forms of protection which subsist or will subsist now or in the
future in any part of the world.
Pre-existing Materials:
all Documents, information and materials provided by IT Services relating to
the Services which existed prior to the commencement of this agreement,
including computer programs, data, reports and specifications or the
pre-existing materials specified in the Project Plan.
Project:
the project as described in the Project Plan.
Project Plan: the detailed plan describing the Project and
setting out the estimated timetable and responsibilities for the provision of
the Services agreed in accordance with clause 3.
Services:
the services to be provided by IT Services under this agreement as set out in
the Project Plan, together with any other services which IT Services provides
or agrees to provide to the Customer.
IT Services' Equipment: any equipment, including tools, systems,
cabling or facilities, provided by IT Services or its subcontractors which is
to be loaned to the Customer and used directly or indirectly in the supply of
the Services.
IT Services' Manager:
IT Services' manager for the Project appointed under clause 4.3.
VAT:
value added tax chargeable under English law for the time being and any similar
additional tax.
1.2
Clause,
Schedule and paragraph headings shall not affect the interpretation of this
agreement.
1.3
A
person includes a natural person,
corporate or unincorporated body (whether or not having separate legal
personality).
1.4
The
Schedules form part of this agreement and shall have effect as if set out in
full in the body of this agreement. Any reference to this agreement includes
the Schedules.
1.5
Unless
the context otherwise requires, words in the singular shall include the plural
and in the plural shall include the singular.
1.6
Unless
the context otherwise requires, a reference to one gender shall include a
reference to the other genders.
1.7
This
agreement shall be binding on, and enure to the benefit of, the parties to this
agreement and their respective personal representatives, successors and
permitted assigns, and references to any party shall include that party's
personal representatives, successors and permitted assigns.
1.8
A
reference to a statute or statutory provision is a reference to it as amended,
extended or re-enacted from time to time.
1.9
A
reference to a statute or statutory provision shall include all subordinate
legislation made from time to time under that statute or statutory provision.
1.10
A
reference to writing or written includes email.
1.11
Any
obligation on a party not to do something includes an obligation not to allow
that thing to be done.
1.12
References
to clauses and Schedules are to the clauses and Schedules of this agreement and
references to paragraphs are to paragraphs of the relevant Schedule.
1.13
Any
words following the terms including,
include, in particular, for example
or any similar expression shall be construed as illustrative and shall not
limit the sense of the words, description, definition, phrase or term preceding
those terms.
2.1
IT
Services shall provide the Services to the Customer on the terms and conditions
of this agreement.
2.2
IT
Services shall provide the Services to the Customer from the date specified in
the Project Plan.
2.3
The
Services supplied under this agreement shall continue to be supplied [until the
Project is completed in accordance with the Project Plan OR for a period of 12 months] unless this agreement is terminated
by one of the parties giving to the other not less than one months' notice,
unless this agreement is terminated in accordance with clause 12.
3.1
The
Project Plan shall be agreed in the following manner:
(a)
the
Customer shall provide IT Services with a request for a Project Plan, setting
out the requirements and specifications of the services which it is requesting
from IT Services, including a description of what work is to be done, dates by
which it is requested to be started and finished, Deliverables, In-put
Materials and such other information as IT Services may request to allow IT
Services to prepare a draft Project Plan;
(b)
IT
Services shall, as soon as reasonably practicable, provide the Customer with a
draft Project Plan; and
3.2
IT
Services may charge for the preparation of the Project Plan in accordance with
clause 7.
3.3
Once
the Project Plan has been agreed and signed in accordance with clause 3.1(c), no amendment shall be made to it except in
accordance with clause 6 and clause 15.
4.1
IT
Services shall use reasonable endeavours to provide the Services, and to
deliver the Deliverables to the Customer, in accordance with the Project Plan
in all material respects.
4.2
IT
Services shall use reasonable endeavours to meet any performance dates
specified in the Project Plan, but any such dates shall be estimates only and
time for performance by IT Services shall not be of the essence of this
agreement.
4.4
IT
Services shall use reasonable endeavours to observe all health and safety rules
and regulations and any other reasonable security requirements that apply at
the Customer's premises and that have been communicated to it under clause 5.1(e), provided that it shall not be liable under
this agreement if, as a result of such observation, it is in breach of any of
its obligations under this agreement.
(a)
co-operate
with IT Services in all matters relating to the Services and appoint the
Customer's Manager in relation to the Project, who shall have the authority
contractually to bind the Customer on matters relating to the Project;
(b)
provide,
for IT Services, its agents, subcontractors, consultants and employees, in a
timely manner and at no charge, access to the Customer's premises, office
accommodation, data and other facilities as required by IT Services or any of
them;
(c)
provide,
in a timely manner, such In-put Material and other information as IT Services
may require, and ensure that it is accurate in all material respects;
(f)
ensure
that all Customer's Equipment is in good working order and suitable for the
purposes for which it is used in relation to the Services and conforms to all
relevant United Kingdom standards or requirements;
(g)
obtain
and maintain all necessary licences and consents and comply with all relevant
legislation in relation to the Services, the installation of IT Services'
Equipment, the use of In-put Material and the use of the Customer's Equipment
in relation to IT Services' Equipment, in all cases before the date on which
the Services are to start; and
(h)
keep,
maintain and insure IT Services' Equipment in accordance with IT Services'
instructions and shall not dispose of or use IT Services' Equipment other than
in accordance with IT Services' written instructions or authorisation.
5.2
If
IT Services’ performance of its obligations under this agreement is prevented
or delayed by any act or omission of the Customer, its agents, subcontractors,
consultants or employees, IT Services shall not be liable for any costs,
charges or losses sustained or incurred by the Customer that arise directly or
indirectly from such prevention or delay.
5.3
The
Customer shall be liable to pay to IT Services, on demand, all reasonable
costs, charges or losses sustained or incurred by IT Services (including any
direct, indirect or consequential losses, loss of profit and loss of reputation,
loss or damage to property and those arising from injury to or death of any
person and loss of opportunity to deploy resources elsewhere) that arise
directly or indirectly from the Customer's fraud, negligence, failure to
perform or delay in the performance of any of its obligations under this
agreement, subject to IT Services confirming such costs, charges and losses to
the Customer in writing.
6.1
The
Customer's Manager and IT Services’ Manager shall meet at least once every
[PERIOD OF TIME] to discuss matters relating to the Project. If either party
wishes to change the scope or execution of the Services, it shall submit
details of the requested change to the other in writing.
6.2
If
either party requests a change to the scope or execution of the Services, IT
Services shall, within a reasonable time, provide a written estimate to the
Customer of:
(a)
the
likely time required to implement the change;
(b)
any
necessary variations to IT Services’ charges arising from the change;
(c)
the
likely effect of the change on the Project Plan; and
(d)
any
other impact of the change on this agreement.
6.4
Notwithstanding
clause 6.3, IT Services may, from time to time and
without notice, change the Services, provided that such changes do not
materially affect the nature, scope of, or the charges for the Services.
6.5
IT
Services may charge for the time it spends assessing a request for change from
the Customer on a time and materials basis in accordance with clause 7.
7.1
In
consideration of the provision of the Services by IT Services, the Customer
shall pay the charges as set out in Schedule 2, which shall specify whether
they shall be on a time and materials basis, a fixed price basis or a
combination of both.
7.2
The
Customer shall pay each invoice submitted to it by IT Services, in full and in
cleared funds, within seven days of receipt to a bank account nominated in
writing by IT Services.
7.3
Without
prejudice to any other right or remedy that it may have, if the Customer fails
to pay IT Services on the due date:
(a)
the
Customer shall pay interest on the overdue amount at the rate of 8% per annum
above Bank of England's base rate from time to time. Such interest shall accrue
on a daily basis from the due date until actual payment of the overdue amount,
whether before or after judgment. The Customer shall pay the interest together
with the overdue amount; and
(b)
IT
Services may suspend all Services until payment has been made in full.
7.5
All
amounts due under this agreement shall be paid in full without any set-off,
counterclaim, deduction or withholding (other than any deduction or withholding
of tax as required by law).
8.1
As
between the Customer and IT Services, all Intellectual Property Rights and all
other rights in the Deliverables and the Pre-existing Materials shall be owned
by IT Services. Subject to clause 8.2, IT Services licenses all such rights to the
Customer free of charge and on a non-exclusive, worldwide basis to such extent
as is necessary to enable the Customer to make reasonable use of the
Deliverables and the Services. If this agreement is terminated, this licence
will automatically terminate.
9.1
The
Customer undertakes that it shall not at any time disclose to any person
technical or commercial know-how, specifications, inventions, processes or
initiatives which are of a confidential nature and have been disclosed to the
Customer by IT Services, its employees, agents, consultants or subcontractors
and any other confidential information concerning IT Services’ business or its
products which the Customer may obtain, except as permitted by clause 9.2.
(a)
to
its employees, officers, representatives or advisers who need to know such
information for the purposes of exercising the party's rights or carrying out
its obligations under or in connection with this agreement. Each party shall
ensure that its employees, officers, representatives or advisers to whom it
discloses the other party's confidential information comply with this clause 9; and
(b)
as
may be required by law, a court of competent jurisdiction or any governmental
or regulatory authority.
9.3
The
Customer shall not use IT Services’ confidential information for any purpose
other than to exercise its rights and perform its obligations under or in
connection with this agreement.
9.4
All
materials, equipment and tools, drawings, specifications and data supplied by IT
Services to the Customer (including Pre-existing Materials and IT Services’
Equipment) shall, at all times, be and remain the exclusive property of IT
Services, but shall be held by the Customer in safe custody at its own risk and
maintained and kept in good condition by the Customer until returned to IT
Services, and shall not be disposed of or used other than in accordance with IT
Services’ written instructions or authorisation.
(a)
death
or personal injury caused by its negligence;
(b)
fraud
or fraudulent misrepresentation; or
(c)
breach
of the terms implied by section 2 of the Supply of Goods and Services Act 1982
(title and quiet possession) or any other liability which cannot be limited or
excluded by applicable law.
10.2
Subject
to clause 10.1, IT Services shall not
be liable to the Customer, whether in contract, tort (including negligence),
for breach of statutory duty, or otherwise, arising under or in connection with
this agreement for:
(a)
loss
of profits;
(b)
loss
of sales or business;
(c)
loss
of agreements or contracts;
(d)
loss
of anticipated savings;
(e)
loss
of or damage to goodwill;
(f)
loss
of use or corruption of software, data or information; or
(g)
any
indirect or consequential loss.
10.3
Subject
to clause 10.1 and clause 10.2, IT Services’ total liability to the Customer,
whether in contract, tort (including negligence), for breach of statutory duty,
or otherwise, arising under or in connection with this agreement shall be
limited to:
(a)
£1,000,000
per claim; and
(b)
in
respect of all claims (connected or unconnected) in any consecutive 12 (twelve)
month period, the equivalent of the total charges paid by the Customer in that
period.
10.4
The
terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982
are, to the fullest extent permitted by law, excluded from this agreement.
The
Customer acknowledges and agrees that details of the Customer's name, address
and payment record may be submitted to a credit reference agency, and personal
data will be processed by and on behalf of IT Services in connection with the
Services.
(a)
the
Customer fails to pay any amount due under this agreement on the due date for
payment and remains in default not less than 14 days after being notified to
make such payment;
(c)
the
Customer repeatedly breaches any of the terms of this agreement in such a
manner as to reasonably justify the opinion that its conduct is inconsistent
with it having the intention or ability to give effect to the terms of this
agreement;
(e)
the
Customer commences negotiations with all or any class of its creditors with a
view to rescheduling any of its debts, or makes a proposal for or enters into
any compromise or arrangement with any of its creditors;
(f)
a
petition is filed, a notice is given, a resolution is passed, or an order is
made, for or in connection with the winding up of the Customer;
(g)
an
application is made to court, or an order is made, for the appointment of an
administrator, or if a notice of intention to appoint an administrator is given
or if an administrator is appointed, over the Customer;
(h)
the
holder of a qualifying floating charge over the assets of the Customer has
become entitled to appoint or has appointed an administrative receiver;
(i)
a
person becomes entitled to appoint a receiver over all or any of the assets of
the Customer or a receiver is appointed over all or any of the assets of the Customer;
(k)
any
event occurs, or proceeding is taken, with respect to the Customer in any
jurisdiction to which it is subject that has an effect equivalent or similar to
any of the events mentioned in clause 12(d) to clause 12.1(j) (inclusive); or
(l)
the
Customer suspends or ceases, or threatens to suspend or cease, carrying on all
or a substantial part of its business.
(a)
the
Customer shall immediately pay to IT Services all of IT Services’ outstanding
unpaid invoices and interest and, in respect of Services supplied but for which
no invoice has been submitted, IT Services may submit an invoice, which shall
be payable immediately on receipt;
(b)
the
Customer shall, immediately return all of IT Services’ Equipment, Pre-existing
Materials and Deliverables. If the Customer fails to do so, then IT Services
may enter the Customer's premises and take possession of them. Until they have
been returned or repossessed, the Customer shall be solely responsible for
their safe keeping; and
(c)
the
following clauses shall continue in force: clause 8 (Intellectual property rights), clause 9 (Confidentiality and IT Services’ property),
clause 10 (Limitation of liability), clause 13.1, clause 23 (Notices), clause 25 (Dispute
resolution) and clause 26 (Governing law and jurisdiction).
13.2
Termination
or expiry of this agreement shall not affect any rights, remedies, obligations
or liabilities of the parties that have accrued up to the date of termination
or expiry, including the right to claim damages in respect of any breach of the
agreement which existed at or before the date of termination or expiry.
14.1
Force Majeure Event means any circumstance
not within a party's reasonable control including, without limitation:
(a)
acts
of God, flood, drought, earthquake or other natural disaster;
(b)
epidemic
or pandemic;
(c)
terrorist
attack, civil war, civil commotion or riots, war, threat of or preparation for
war, armed conflict, imposition of sanctions, embargo, or breaking off of
diplomatic relations;
(d)
nuclear,
chemical or biological contamination or sonic boom;
(e)
any
law or any action taken by a government or public authority, including without
limitation imposing an export or import restriction, quota or prohibition, or
failing to grant a necessary licence or consent;
(f)
collapse
of buildings, fire, explosion or accident;
(g)
any
labour or trade dispute, strikes, industrial action or lockouts (other than in
each case by the party seeking to rely on this clause, or companies in the same
group as that party);
(h)
non-performance
by suppliers or subcontractors (other than companies in the same group as the
party seeking to rely on this clause); and
(i)
interruption
or failure of utility service.
14.2
Provided
it has complied with clause 14.4, if a party is prevented, hindered or delayed
in or from performing any of its obligations under this agreement by a Force
Majeure Event (Affected
Party), the Affected Party shall not be in breach of this
agreement or otherwise liable for any such failure or delay in the performance
of such obligations. The time for performance of such obligations shall be
extended accordingly.
14.3
The
corresponding obligations of the other party will be suspended, and the time
for performance of such obligations extended, to the same extent as those of the
Affected Party.
(a)
as
soon as reasonably practicable after the start of the Force Majeure Event but
no later than 14 days from its start, notify the other party of the Force
Majeure Event, the date on which it started, its likely or potential duration,
and the effect of the Force Majeure Event on its ability to perform any of its
obligations under the agreement; and
(b)
use
all reasonable endeavours to mitigate the effect of the Force Majeure Event on
the performance of its obligations.
14.5
If
the Force Majeure Event prevents, hinders or delays the Affected Party's
performance of its obligations for a continuous period of more than four weeks,
the party not affected by the Force Majeure Event may terminate this agreement
by giving two weeks' written notice to the Affected Party.
14.6
If
the Force Majeure Event prevails for a continuous period of more than three
months, either party may terminate this agreement by giving two weeks' written
notice to all the other party. On the expiry of this notice period, this
agreement will terminate. Such termination shall be without prejudice to the
rights of the parties in respect of any breach of this agreement occurring
prior to such termination.
Subject
to clause 3 and clause 6, no variation of this agreement shall be
effective unless it is in writing and signed by the parties (or their
authorised representatives).
No
failure or delay by a party to exercise any right or remedy provided under this
agreement or by law shall constitute a waiver of that or any other right or
remedy, nor shall it prevent or restrict the further exercise of that or any
other right or remedy. No single or partial exercise of such right or remedy
shall prevent or restrict the further exercise of that or any other right or
remedy.
The
rights and remedies provided under this agreement are in addition to, and not
exclusive of, any rights or remedies provided by law.
18.1
If
any provision or part-provision of this agreement is or becomes invalid,
illegal or unenforceable, it shall be deemed modified to the minimum extent
necessary to make it valid, legal and enforceable. If such modification is not
possible, the relevant provision or part-provision shall be deemed deleted. Any
modification to or deletion of a provision or part-provision under this clause
shall not affect the validity and enforceability of the rest of this agreement.
18.2
If
any provision or part-provision of this agreement is invalid, illegal or
unenforceable, the parties shall negotiate in good faith to amend such
provision so that, as amended, it is legal, valid and enforceable, and, to the
greatest extent possible, achieves the intended commercial result of the
original provision.
19.1
This
agreement constitutes the entire agreement between the parties and supersedes
and extinguishes all previous agreements, promises, assurances, warranties,
representations and understandings between them, whether written or oral,
relating to its subject matter.
19.2
Each
party agrees that it shall have no remedies in respect of any statement,
representation, assurance or warranty (whether made innocently or negligently)
that is not set out in this agreement. Each party agrees that it shall have no
claim for innocent or negligent misrepresentation based on any statement in
this agreement.
19.3
Nothing
in this clause shall limit or exclude any liability for fraud.
20.1
This
agreement is personal to the Customer and the Customer shall not assign,
transfer, mortgage, charge, subcontract, declare a trust over or deal in any
other manner with any of its rights and obligations under this agreement.
20.2
IT
Services may at any time assign, mortgage, charge, declare a trust over or deal
in any other manner with any or all of its rights under this agreement,
provided that IT Services gives prior written notice of such dealing to the
Customer.
21.1
Nothing
in this agreement is intended to, or shall be deemed to, establish any
partnership or joint venture between any of the parties, constitute any party
the agent of another party, or authorise any party to make or enter into any
commitments for or on behalf of any other party.
21.2
Each
party confirms it is acting on its own behalf and not for the benefit of any
other person.
No
one other than a party to this agreement, their successors and permitted
assignees, shall have any right to enforce any of its terms.
23.1
A
notice given to a party under or in connection with this agreement:
(a)
shall
be in writing and in English or accompanied by an accurate translation into
English;
(b)
shall
be signed by or on behalf of the party giving it;
(c)
shall
be sent to the party for the attention of the contact and at the address, or fax
number listed in clause 23.3;
(d)
shall
be sent by a method listed in clause 23.5; and
(e)
is
deemed received as set out in clause 23.5 if prepared and sent in accordance
with this clause.
| Party | Contact | Address | Fax number |
| IT
Services | [NAME
OF CONTACT] | 92
Wheat Street, Nuneaton, Warwickshire CV11 4BH | [FAX
NUMBER] |
| [NAME
OF PARTY] | [POSITION
OF CONTACT] | [ADDRESS] | [FAX
NUMBER] |
23.3
A
party may change its details given in the table in clause 23.3 by giving
notice, the change taking effect for the party notified of the change at 9.00
am on the later of:
(a)
the
date, if any, specified in the notice as the effective date for the change; or
(b)
the
date five Business Days after deemed receipt of the notice.
(a)
delivery
methods for sending a notice to a party under this agreement; and
(b)
for
each delivery method, the corresponding delivery date and time when delivery of
the notice is deemed to have taken place provided that all other requirements
in this clause have been satisfied and subject to the provisions in clause 23.6:
| Delivery method | Deemed delivery date
and time |
| Delivery
by hand. | On
signature of a delivery receipt. |
| Pre-paid
first class post or other next working day delivery service providing proof
of delivery. | 9.00
am on the second Business Day after posting or at the time recorded by the
delivery service. |
| Fax. | At
the time of transmission. |
(a)
all
references to time are to local time in the place of deemed receipt; and
(b)
if
deemed receipt would occur in the place of deemed receipt on a Saturday or
Sunday or a public holiday when banks are not open for business, deemed receipt
is deemed to take place at 9.00 am on the day when business next starts in the
place of receipt.
23.7
A
notice given under this agreement is not valid if sent by email.
24.1
This
agreement may be executed in any number of counterparts, each of which when
executed and delivered shall constitute a duplicate original, but all the
counterparts shall together constitute the one agreement.
25.1
If
a dispute arises out of or in connection with this agreement or the
performance, validity or enforceability of it (Dispute) then the parties shall
follow the procedure set out in this clause:
(a)
either
party shall give to the other written notice of the Dispute, setting out its
nature and full particulars (Dispute Notice), together with relevant supporting
documents. On service of the Dispute Notice, the IT Services’ Manager and the
Customer’s Manager shall attempt in good faith to resolve the Dispute;
(b)
if
the IT Services’ Manager and the Customer’s Manager are for any reason unable
to resolve the Dispute within 14 days of service of the Dispute Notice, the
parties will attempt to settle it by mediation in accordance with the CEDR
Model Mediation Procedure. Unless otherwise agreed between the parties, the
mediator shall be nominated by CEDR Solve. To initiate the mediation, a party
must serve notice in writing (ADR notice) to the other party to the Dispute, requesting
a mediation. A copy of the ADR notice should be sent to CEDR Solve. The
mediation will start not later than 14 days after the date of the ADR notice.
25.2
The
commencement of mediation shall not prevent the parties commencing or
continuing court proceedings in relation to the Dispute.
25.3
If
the Dispute is not resolved within 30 days after service of the ADR notice, or
either party fails to participate or to continue to participate in the
mediation before the expiration of the said period of 30 days, or the mediation
terminates before the expiration of the said period of 30days, the Dispute
shall be finally resolved by the courts of England and Wales.
This
agreement and any dispute or claim arising out of or in connection with it or
its subject matter or formation (including non-contractual disputes or claims)
shall be governed by and construed in accordance with the law of England and
Wales.
Each
party irrevocably agrees that the courts of England and Wales shall have
exclusive jurisdiction to settle any dispute or claim arising out of or in
connection with this agreement or its subject matter or formation (including
non-contractual disputes or claims).
This agreement has been entered into on
the date stated at the beginning of it.
Schedule
1 : Project
Plan
[DESCRIPTION OF THE SERVICES TO BE
PROVIDED UNDER THE AGREEMENT.]
Schedule
2 : Pricing
Part
1. Price
[DETAILS OF PRICE, FOR EXAMPLE THE FIXED
PRICE OR DAILY RATE.]
Part
2. Payment
[THE PAYMENT SCHEDULE, WHICH SHOULD
INCLUDE THE DATES ON WHICH INSTALMENTS ARE TO BE INVOICED AND THE AMOUNT OF
EACH INSTALMENT.]