The following are the standard terms and conditions under which TRADING SYSTEM SUPPORT LIMITED, a company registered in England number
2 Definitions and Interpretation
In these Terms and Conditions the following expressions have the following meanings:
Customer means the individual, business, or other organisation with whom the Company contracts
Supplier means any supplier of Products or Services to the Company
Commencement Date isthe date from which Support Services shall begin for each element of the Supported Licensed Programs
Documentation meanselectronic versions of the Administrator and User Guides.
Equipment means such computer equipment on which the Licensed Programs are installed and in operational use
Fault means any failure of the Licensed Programs to substantially conform to the specifications included in the Documentation
Fault Correction meansa Licensed Program modification or addition that, when made or added to the Licensed Programs, establishes material conformity to the specifications in the Documentation
Licensed Program Materials are the Licensed Programs, the Documentation, and the Media
Licensed Programs arethe computer programs supplied to The Customer by The Company under license
Location isthe Customer’s premises where the Licensed Programs or the Physical Products are installed. This may include any temporary business location or home by agreement with the Company.
Media means the media on which the Licensed Programs and the Documentation are recorded
Products means any software products including Licensed Programs and Third Party Software supplied by the Company
Physical Products means any physical hardware product that is supplied by the Company to the Customer
Statement of Work isa document detailing all Professional Services to be performed for the Customer and related charges.
Support Fee isthe fee for the Support and Maintenance Services to be provided to the Customer by the Company
Support Services are the Fault Correction services to be provided by the Company in respect of the Licensed Programs
Services means any Professional Services or any Support and Maintenance or Managed Service provided by the Company to the Customer
Maintenance Services are the Licensed Programs update services to be provided by the Company
Third-Party Software means any computer programs used in conjunction with the Licensed Programs
Use the Licensed Program Materials means toread and possess the Documentation and Media
Use the Licensed Programs means to load the Licensed Programs on any equipment by or for the customer
Day(s) means business days
3.1 Product Specifications
The Company shall use reasonable endeavours to advise the Customer of variations to any product specifications. Where such changes significantly alter the fitness for purpose the Company and the Customer shall agree upon such changes in writing or arrange for the supply of alternative products. Changes to product specifications shall not provide grounds for cancellation of Customer orders unless such cancellation is agreed to in writing by the Company and the Customer.
Products shall be supplied by the Company to the Customer or licensed to the Customer on the terms and conditions of use for such Products as defined by the Suppliers at the time of delivery. The Company gives no warranty to the Customer for any Products supplied but shall take reasonable steps to assist the Customer in pursuing warranty claims against the relevant Supplier. The undertaking given in this Clause shall not apply if the Product(s) has been altered by any party other than the Company or has been operated or run on any platform or in any environment inappropriate for the Product.
3.3 Customer Warranty
The Customer warrants that it has not relied on any oral representation made by the Company or upon any descriptions, illustrations or specifications contained in any catalogues and publicity material produced by the Company which are only intended to convey a general idea of the products and services mentioned. The Customer warrants that it shall comply in all material respects with all applicable laws, regulations and codes of conduct (whether statutory or otherwise) of the United Kingdom, and that all licences, permissions and consents required for carrying on its business have been obtained and are in full force and effect.
3.4 Software License Agreement
As part of these Terms and Conditions the Customer agrees to the terms of the Supplier’s Software License Agreement for any Products supplied to the Customer by the Company. Software Licenses are non-transferable, non-resalable and non-exclusive and allow the Customer to install and use the Licensed Programs for the number of locations or number of computers or number of users or any other applicable metric for which payment has been made. The Company reserves the right to audit the installation and use of the Licensed Programs and the Customer agrees to provide access and assistance to enable such an audit.
3.5 Proprietary Rights
Unless otherwise specified in the These Terms and Conditions, copyright and all other proprietary rights in the Products and associated documentation and any documentation supplied in respect of the Services and all parts and copies thereof shall remain vested in the Company or, for Licensed Programs, Licensed Program Materials or Third-Party Software, in the Supplier.
In respect of Licensed Programs where the proprietary rights are vested in the Company only a non-exclusive, non-transferable licence for the purpose for which the Licensed Programs has been made available to the Customer is deemed to be granted by the Company and only then on condition that the Customer fulfils all of their relevant obligations arising out of the These Terms and Conditions.
The Customer acknowledges that the Company and its Suppliers own and retain all patents, copyrights, trade names and trademarks and other proprietary rights in or associated with the Licensed Programs or are the licensees hereof and agrees that it will not at any time assert or claim any interest in or do anything that may adversely affect the validity of or cause confusion in the ownership of any patent, trademark or copyright belonging to or licensed to the Company or the Suppliers including without limitation any act which may infringe or lead to the infringement of any proprietary rights of the Company or its Suppliers.
3.6 Quotations and Customer Orders
All quotations are deemed to be subject to these Terms and Conditions and shall be valid for 30 days unless otherwise stated on the quotation. The Company reserves the right to withdraw or amend any quotation at any time. Customer orders, if accepted by the Company, shall be subject to these Terms and Conditions and to the availability of all relevant Products and Services.
3.7 Cancellation of Orders
The Customer shall not be entitled to cancel any order except upon terms which reimburse the Company for loss of profit and all costs, charges and expenses incurred by the Company in respect of the order including the costs of any agreements that the Company may have entered into in order to provide Products or Services to the Customer.
The Company shall not be liable for any shortfalls in delivery or variation from Product specification unless a claim in writing is made within 7 days of delivery. Delivery will be deemed to have taken place when a Licensed Programs has been installed upon a computer belonging to the Customer, procured for the Customer, loaned to the Customer, or used on behalf of the customer. This includes any computer processor or storage facilities shared with other customers or the Company. If the Company is not installing the Licensed Programs, delivery will be deemed to have taken place 1 day after despatch to the Customer.
3.9 Termination of services
Where Customer has entered into an agreement for an on-going Service such as month-by-month support, cloud-based services or hosted systems, Customer may terminate the Service by giving Notice of Termination in writing. The Service will remain active during a Notice Period of ninety (90) days until the Termination Date and customer is liable for charges for the Service during the Notice Period. Any Notice of Termination will not be effective until all outstanding invoices have been paid. Following Termination of Service all conditions detailed in section Termination will apply.
The Company may terminate all responsibilities under these Terms and Conditions forthwith on giving notice in writing to the Customer if the Customer commits any material breach of any term of these Terms and Conditions and, in the case of a breach capable of being remedied, shall have failed within 30 days after the receipt of a request in writing from the Company to remedy the breach. Forthwith upon termination any licence made between the Company and the Customer shall terminate in the manner provided in any such licence. Any termination of responsibilities under these Terms and Conditions (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 hereof which is expressly or by implication intended to come onto or continue in force on or after such termination.
Should any of the following events occur such event shall be deemed to be a material breach incapable of remedy if either party: shall have ceased or threatens to cease to carry on business; a receiver or liquidator is appointed; shall pass a resolution for winding up (otherwise than for the purpose of amalgamation or reconstruction); if a Court shall make an order to that effect; shall enter into composition or arrangement with its creditor(s) or shall become insolvent.
Any termination of the These Terms and Conditions howsoever caused shall not affect any accrued rights or liabilities of either the Company or the Customer arising out of these Terms and Conditions. On termination for any reason, the Customer shall return forthwith to the Company the Licensed Program Materials and all copies thereof, any other items in the possession of the Customer which are the property of the Company. The obligations of the parties as to disclosure and confidentiality shall continue in force notwithstanding termination.
No variation in the provisions of the These Terms and Conditions shall be of any effect unless made in writing and signed on behalf of the Customer and the Company.
3.12 Intellectual Property Indemnity
The Company shall indemnify and hold the Customer from and against all loss and damage and cost and expense resulting from or arising out of any threatened or actual infringement of patents, copyright, registered designs or other intellectual property rights belonging to any party provided that the Customer shall: notify the Company in writing of any allegation or infringement; make no admission without the Company’s consent; and at the Company’s request allow the Company to conduct and/or settle all negotiations in or prior to litigation and give the Company all reasonable assistance in respect thereof.
Apart from any information in the public domain otherwise than as a result of a breach of the These Terms and Conditions, information that was already in the possession of the receiving party prior to disclosure by the other party and information obtained from a third party who is free to divulge the same, the Customer undertakes to treat as confidential and keep secret the terms of these Terms and Conditions and all oral communications, representations and information of any kind made by either party or their representatives or advisors pursuant to the conclusion or fulfilment of these Terms and Conditions; all information contained or embodied in the Licensed Program Materials and all documentation and/ or information conveyed to the Customer in respect of the Licensed Programs.
The Customer shall divulge confidential information only to those employees who are directly involved in the use of the Product(s) and shall ensure that such employees are aware of and comply with these obligations as to confidentiality; the Customer’s own employees; the Customer’s auditors; an officer of HM Customs and Excise and any other persons or bodies having a right, duty or obligation to know the business of the Customer, and then only in pursuance of such right, duty or obligation; any person who is for the time being appointed by the Customer to maintain any equipment on which the Licensed Programs are for the time being used (in accordance with the terms of the Licence) and then only to the extent necessary to enable such person to properly maintain such equipment.
The Customer undertakes to ensure that persons and bodies to whom information is disclosed are made aware, before the disclosure of any part of the Information, that the same is confidential, and that they owe a duty of confidence to the Company. The Customer shall indemnify the Company against any loss or damage which the Company may sustain or incur as a result of the Customer failing to comply with such undertaking. The Customer shall promptly notify the Company if it becomes aware of any breach of confidence by any person to whom the Customer divulges all or any part of the Information and shall give the Company all reasonable assistance in connection with any proceedings which the Company may institute against such person for breach of confidence.
The foregoing obligations as to confidentiality shall remain in full force and effect notwithstanding any termination.
3.14 Health and Safety
The Customer shall take all reasonable precautions to ensure the health and safety of the Company’s employees while on the Customer’s premises. The Company shall not be liable to the Customer in any civil proceeding brought by the Customer against the Company under any Health and Safety Regulations, except where such exclusion of liability is prohibited by law. The Customer shall indemnify and keep indemnified the Company in respect of any liability, monetary penalty or fine in respect of or in connection with the Product(s) and Service(s) incurred directly or indirectly by the Company under any Regulations, orders or directions made there under arising or resulting from the Customer’s default.
No waiver by the Company of any breach of these Terms and Conditions by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision. A waiver of any term, provision or condition of these Terms and Conditions shall be effective only if given in writing and signed by the waiving party and then only in the instance and for the purpose for which any waiver is given. No failure or delay on the part of any Party in exercising any right, power or privilege under these Terms and Conditions shall operate as a waiver of, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise of or the exercise of any other right, power or privilege.
Neither the Company nor the Customer is entitled to set-off any sums in any manner from payments due or sums received in respect of any claim whether under these Terms and Conditions or otherwise at any time.
3.17 Force Majeure
Neither party to these Terms and Conditions shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, Internet Service Company failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
3.18 Non Solicitation
Neither the Customer nor the Company shall during the term of these Terms and Conditions and for a period of 6 months thereafter solicit or entice away or endeavour to solicit or entice away from the other any employee without written consent of the other.
3.19 Return of Products
The return of Products shall be at the sole discretion of the Company. Should the Company decide to accept the return of any product it will include terms which reimburse the Company for loss of Profit and all costs, charges and expenses incurred by the Company in respect of the Product(s) and/or Service(s) or any part thereof. This includes the costs of any agreements that the Company may have entered into in order to provide products or services to the Customer. The Company shall be entitled to levy to the Customer a reasonable administration charge including any charges levied by suppliers.
3.20 Title and Risk
Where a physical product has been delivered to the customer or to its designated delivery point then the Customer shall not have the benefit of title until payment in full has been received by the Company. Where a licence shall be granted by a Supplier and/or the Company to the Customer then the Customer shall not have the benefit of the licence until payment in full has been received by the Company. In all circumstances risk lies with the Customer once delivery of media or physical product has taken place.
The Company shall render to the Customer an invoice or series of invoices in GB Pounds pursuant to the supply of Products and Services. Value Added Tax, if applicable, shall be added at the rate in force at the time of supply. In the case of supply to a Customer outside the UK the Customer shall be responsible for all import levies, customs duties or other similar taxes of whatever nature.
Unless agreed to in writing by both parties, all Products shall be invoiced on the date of delivery as defined in these Terms and Conditions and all Services shall be invoiced in full and in advance.
Without prejudice to any other rights the Company may have in respect of any failure by the Customer to pay the charges or other monies payable pursuant to the These Terms and Conditions, the Company may charge interest at the rate 3% above the base rate of the Bank of England from time to time in force, after as well as before judgement on any amount due from the Customer to the Company from the date due for payment until payment is received.
Unless agreed to in writing by both parties where travel and subsistence expenses are incurred by the Company in performance of any Services, such charges shall be invoiced to the Customer and a 5% administration charge shall be added.
The time stipulated for payment shall be of the essence and failure to pay within the period specified shall, in the absence of a written explanation from the Customer that has been duly accepted by the Company, render the Customer in material breach of these Terms and Conditions. Invoices shall be payable in Pounds Sterling no later than 30 days of the invoice date unless agreed to in writing by both parties. If payment of any invoice is otherwise due it shall become automatically due immediately on the commencement of any act or proceeding in which the Customer’s solvency is involved.
The Company may at its sole discretion withdraw the provision of Professional Services and/or Support and Maintenance Services if payment is not made by the due date being 30 after the invoice date or any other due date agreed in writing by both parties.
3.23 Customer Obligations
During the continuance of the These Terms and Conditions the Customer shall: nominate prior to the provision of any of the Services under these Terms and Conditions an authorised representative to be its prime point of contact with the Company; provide and environment capable of receiving the Services or Products; ensure the accuracy and validity of all data and technical information provided to the Company; operate the Licensed Programs, maintain data and the database in accordance with the user guide; by arrangement, grant access to premises and/or systems at all times for installation support and maintenance; when required enable logons or passwords required for support staff (who will have their own logons); provide notice of intention to change hardware or operating system or data-feeds; provide, free of charge, reasonable usage of machine time, communications, stationery, media; provide free and safe suitable working accommodation and access deemed necessary by the Company to fulfil its obligations under these Terms and Conditions and shall provide an appropriate environment or platform to enable the Company to provide the Services or test run any Product; provide the Company with reasonable direct and remote access to the Customer’s equipment and the Licensed Programs, and shall provide such reasonable assistance and information as the Company may request, including, but not limited to, providing sample output and other diagnostic information; ensure that equipment provided by the Company for the purpose and provision of the These Terms and Conditions shall not be modified, changed or removed without prior written permission of the Company. Where such equipment is modified, changed or removed then the cost of restoring or replacing the equipment shall be recovered from the Customer.
The Customer shall indemnify the Company against any loss of or damage to any property or injury to or death of any persons caused by negligent act or omission, wilful misconduct or breach of contract by its employees or agents.
3.24 Security and Control
The Customer shall during the continuance of the Licence: effect and maintain adequate security measures to safeguard the Licensed Program Materials from access, use or copying by any unauthorised person; retain the Licensed Program Materials and all copies thereof under the Customer’s effective control; maintain a full and accurate record of the Customer’s copying and disclosure of the Licensed Program Materials and shall produce such record to the Company on request from time to time; comply with all reasonable instructions of the Company with regard to the use of the Licensed Program Materials, including, without limitation, the implementation of upgrades to the Licensed Programs, third party Licensed Programs, specified operating system and computer hardware.
The Company shall use its reasonable endeavours to comply with any dates for delivery of Products and for the supply of Services as stated in writing to the Customer. Any such dates shall constitute only statements of expectation and shall not be binding. If the Company, having used its reasonable endeavours fails to despatch or deliver the Products, or to supply or complete the Services by such dates such failure shall not constitute a breach of these Terms and Conditions. The Customer shall not be entitled to treat these Terms and Conditions as thereby repudiated or to rescind it or any ancillary agreement in whole or in part or claim compensation for such failure or for any consequential loss or damage resulting there from. When expedited delivery is agreed to by the Company and the Customer and necessitates overtime or other additional costs, the Customer shall reimburse the Company for the amount of such overtime payment or other costs and shall pay the same within 30 days of invoice.
If performance of any Services is suspended at the request of the Customer or delayed through default of the Customer including, but without prejudice to the generality of the foregoing, incomplete or incorrect instructions, or refusal to accept the Services for a period of 30 days, the Company shall be entitled to payment at the then prevailing rates for the Services already performed, Products supplied or ordered and any other additional costs thereby incurred and the Customer shall pay such sums within 30 days of invoice.
3.26 Data Protection and GDPR
The parties undertake to comply with the provisions of the Data Protection Act and any related legislation in so far as the same relates to the provisions and obligations of this These Terms and Conditions. Customer accepts that the Company makes no special security provisions for the protection of customer data covered by General Data Protection Regulations (GDPR) regulations. It is the responsibility of the Customer to ensure that no such data is provided to the Company. The Company is not responsible for any issues arising from failure to protect personal information covered by GDPR regulations
The following provisions set out the Company’s entire liability (including any liability for the acts and omissions of its employees) to the Customer in respect of: any breach of its contractual obligations arising out of the These Terms and Conditions; any representation, statement, act or omission, including negligence arising out of or in connection with these Terms and Conditions.
The Company shall maintain for a period of 12 months public liability, professional negligence and employer’s liability insurance cover in respect of its liabilities arising out of or connected with these Terms and Conditions, such cover to be to a minimum value of £1,000,000 and with an insurance company of repute. The Company shall on request supply copies of the relevant certificates of insurance to the Customer as evidence that such policies remain in force. The Company undertakes to use reasonable commercial efforts to pursue claims under such insurance policies.
In no event will the Company be liable for any damages resulting from loss of data or use, lost profits, loss of anticipated savings, nor for any damages that are an indirect or secondary consequence of any act or omission of the Company, whether such damages were reasonably foreseeable or actually foreseen.
The Company’s maximum liability to the Customer under these Terms and Conditions or otherwise for any cause whatsoever (whether in the form of the additional cost of remedial services or otherwise) will be for direct costs and damages only and will be limited to the greater of: the sum for which the Company carries comprehensive insurance cover; or a sum equivalent to the price paid to the Company for the products or services that are the subject of the Customer’s claim, plus damages limited to 25% of the same amount for any additional costs directly, reasonably and necessarily incurred by the Customer in obtaining alternative products and/or services.
The Customer’s statutory rights as a consumer (if any) are not affected. All liability that is not expressly assumed in this These Terms and Conditions is excluded. These limitations will apply regardless of the form of action, whether under statute, in contract or tort, including negligence, or any other form of action. For the purposes of this clause, the ‘the Company’ includes its employees, sub-contractors and suppliers who shall all have the benefit of the limits and exclusions of liability set out above in terms of the Contracts (Rights of Third Parties) Act 1999. Nothing in these Terms and Conditions shall exclude or limit liability for fraudulent misrepresentation.
If at any time any one or more clause, sub-clause, paragraph, subparagraph or any other part of the These Terms and Conditions or these Terms and Conditions is held to be, or becomes, void or otherwise unenforceable for any reason under any applicable law the same shall be deemed omitted and the validity and/or enforceability of the remaining provisions of these Terms and Conditions shall not any way be affected or impaired thereby.
The Company may delegate or sub-contract any or all work, obligations or responsibilities arising out of the These Terms and Conditions to any of its business associates, agents or sub-contractors. Performance by such associates, agents or sub-contractors shall be deemed to be performance by the Company and the Company shall remain liable for such performance.
3.30 Third Parties
The parties confirm their intent (except as provided in clause 10.7) not to confer any rights on any third parties by virtue of this These Terms and Conditions and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to this These Terms and Conditions.
The Customer may not assign the benefit or burden of these Terms and Conditions in any way without the prior written consent of the Company. At the written request of the Customer the Company may, at its sole discretion, agree to novation of these Terms and Conditions. Such agreement must be evidenced in writing.
3.32 Press Releases
The Customer agrees that the Company or its Suppliers as applicable may use the Customer’s name in press releases announcing the relationship between the Company and the Customer’s use of the Licensed Programs.
All notices under this These Terms and Conditions shall be in writing to The Managing Director, TRADING SYSTEM SUPPORT LIMITED, Suite 1a Churchill House, Horndon Business Park, West Horndon, CM13 3XD, United Kingdom or by email to email@example.com
Subject to the agreement of the parties, if any dispute or difference shall arise between the Company and the Customer on any matter relating to or arising out of these Terms and Conditions, such a dispute shall be referred to the arbitration of a single Arbitrator to be agreed upon by the parties or failing this to be appointed by the then President of the Law Society of England and Wales.
3.35 Entire Terms and Conditions
These Terms and Conditions supersede all prior Terms and Conditions, arrangements and undertakings between the parties and constitute the entire Terms and Conditions between the parties relating to the subject matter of these Terms and Conditions. However, the obligations of the parties under any pre-existing non-disclosure agreement shall remain in full force and effect in so far as there is no conflict between the same.
3.36 Law and Jurisdiction
These Terms and Conditions and all matters arising from it and any dispute resolutions referred to below shall be governed by and construed in accordance with English law.
4 Professional Services
4.1 Scope of Work
Services to be performed by the Company will be detailed in a Statement of Work which will be prepared by the Company and agreed to in writing by the Customer. The Statement of Work will include a brief project plan, a price and payment schedule and a high-level design if appropriate.
4.2 Company’s Obligations
With effect from the Commencement Date the Company shall, in consideration of the Fees being paid in accordance with the terms of payment, provide the Services expressly identified in a Statement of Work. Reasonable care and skill will be used to perform such Services. The Parties agree that time will not be of the essence in the performance of these obligations.
The Customer agrees to pay the Fees in accordance with the Statement of Work payment schedule. The Company shall be entitled to recover from the Customer his reasonable incidental expenses for materials used and for third party goods and services supplied in connection with the provision of the Services.
The Customer shall pay the Company for any additional services provided by the Company that are not specified in the Statement of Work in accordance with the Company’s daily rate in effect at the time of the performance or such other rate as may be agreed. Any such charge for additional services shall be invoiced separately from any Fees due under the Statement of Work payment schedule.
4.4 Variation and Amendments
If the Customer wishes to vary any details of the Statement of Work it must notify the Company in writing as soon as is reasonably possible. The Company shall use all reasonable endeavours to make any required changes and any additional costs thereby incurred shall be separately invoiced to the Customer.
If, due to circumstances beyond the Company’s control, it has to make any change in the arrangements relating to the provision of the Services it shall notify the Customer forthwith. The Company shall endeavour to keep such changes to a minimum and shall seek to offer the Customer arrangements as close to the original arrangements as is reasonably possible in the circumstances.
5 Support and Maintenance
5.1 Services to be Provided
The Company agrees to provide support and maintenance services for the Customer as detailed in a Schedule of Supported Licensed Programs to be produced by the Company. The Schedule of Supported Licensed Programs will include details of Licensed Programs types, quantities, locations, versions, service levels and the Support Fees applicable. The Commencement Date and term shall be identified.
The Support and the Maintenance Services shall commence on the Commencement Date and shall remain in force from year to year thereafter, unless and until terminated by either party giving 3 months notice.
The Company shall be entitled at any time, and from time to time, to increase the Support Fee to accord with any change in the Company’s standard scale of charges by giving to the client not less than 90 days’ prior written notice.
Risk in the Media shall pass to the Customer on delivery. If any part of the Media shall thereafter be lost, destroyed or damaged the Company shall promptly replace the same (embodying the relevant part of the Licensed Programs or Documentation) at no cost. The Company shall not make any further or additional charge for such replacement.
During the continuance of this These Terms and Conditions, the Company shall provide the Customer with all or any of the following Support services:
Hotline support: For any problem, the Customer can telephone the Company’s Hotline which is available during the periods defined in the Schedule of Supported Licensed Programs.
On-site support: On-site support will be provided at the sole discretion of the Company. The Customer may request on-site support at any time and such requests will be given due consideration.
Remote-support: The Company will provide Remote-Access Support where specified in the Schedule of Supported Software and where VPN access has been provided by the Customer.
Fault Correction: Correction of Licensed Programs errors or assistance to overcome specific Licensed Programs problems. The Company may, in its sole discretion, correct errors by ‘patch’ or by new version.
Information: Information on availability of new versions of Licensed Programs and ‘work-arounds’.
The Customer on request by the Company shall supply in writing to the Company a detailed description of any fault requiring support services and the circumstances in which it arose, and shall submit sufficient material and information to enable the Company’s support staff to duplicate the problem. When appropriate, the Company will endeavour to give an estimate of how long a problem may take to resolve. The Company will keep the Customer informed of the progress of problem resolution. The Company’s support staff will attempt to solve a problem immediately, or as soon thereafter as possible and the response times shall be detailed in the Schedule of Supported Licensed Programs.
The Company will support the current and the previous release of Licensed Programs and may at its discretion provide support for earlier releases. The repair of faults in any earlier version may require an upgrade to a later release.
The Company shall be under no obligation to provide Support in respect of: problems resulting from any modifications or customisation of the Licensed Program Materials or the Equipment not authorised in writing by the Company. For the avoidance of doubt, modifications to the Licensed Program Materials shall include but not be limited to changes to the logical or physical database schema for the Licensed Program Materials, changes to the disk layout and configuration, and hand-modified changes to the data within the database; any Licensed Programs other than the Licensed Program Materials; incorrect or unauthorised use of the Licensed Program Materials or operator error where these are defined as use or operation not in accordance with the Documentation; any fault in the Equipment; any programs used in conjunction with the Licensed Program Materials; use of the elements of the Licensed Program Materials in any combination other than those specified in the Documentation; use of the Licensed Program Materials with computer hardware, operating systems or other supporting Licensed Programs other than those specified in the Documentation. The Company shall not be obliged to make modifications or provide support in relation to the Customer’s computer hardware, operating system Licensed Programs, or third party application Licensed Programs or any data feeds or external data.
The Company shall make an additional charge in accordance with its standard scale of charges for the time being in force for any services provided by the Company: at the request of the Customer, but which do not qualify under the aforesaid error correction service by virtue of any of the exclusions referred to above; or at the request of the Customer but which the Company finds are not necessary. For the avoidance of doubt nothing in this clause shall impose any obligation on the Company to provide services in respect of any of the exclusions referred to above.
The Company shall promptly notify the Customer of any improved version of the Licensed Programs detailed in the Schedule of Support Licensed Programs. Upon receipt of such notification, the Company shall deliver to the Customer as soon as reasonably practicable (having regard to the number of other users requiring the new release) the object code of the new release in machine-readable form together with the Documentation. If required by the Customer, the Company shall provide training for the Customer’s staff in the use of the new release at the Company’s standard scale of charges for the time being in force as soon as reasonably practicable after the delivery of any new release. The new release shall thereby become the current release and the provisions of these Terms and Conditions shall apply accordingly.
Implementation of new releases and migration of systems and data by the Company is not included in Maintenance. Should the Company be requested to provide such services they will be provided at the Company’s standard scale of charges for the time being in force.
The Customer undertakes not to alter or modify the whole or any part of the Licensed Program Materials in any way whatsoever, nor to permit the whole or any part of the Licensed Programs to be combined with, or become incorporated in, any other programs.
The Company shall provide the Customer with Administrator and User Guides in electronic format. Should any other documentation be required they will be detailed in a Statement of Work and their production will be subject to charges for Professional Services.
5.9 Remote Access
If the Company has remote access to any part of the Customer’s Equipment in the course of performing its obligations under these Terms and Conditions the following provisions shall apply additionally. The Company: will only use a remote access method approved by the Customer (such approval not to be unreasonably withheld or delayed); provide the Customer with the name of each individual who will have remote access to the Customer’s Equipment and the phone number at which the individual may be reached during remote-access; further warrants and agrees that its personnel will not remotely access the Customer’s Equipment from a networked computer `unless the network is protected from all third party networks by a firewall that is maintained by 24×7 administrative staff. This firewall must be certified by the International Computer Security Association (ICSA) (or an equivalent certification as determined by the Customer) if the connection to the Customer’s network is an ongoing connection; will restrict remote access by the Company to only the Customer’s test and/or training systems and nothing in this clause shall entitle the Company to have access to the Customer’s live production copy of the Licensed Programs unless the parties have expressly agreed in writing that such access is to take place and the Customer has given written confirmation of the date on which such access was implemented. The Company shall report in writing when such access takes place detailing all activities and actions taken during such access.