1.1. In this Agreement, unless the context otherwise requires:
‘Agreement’ means these terms and conditions and the Proposal;
‘Assets and Services’ means the asset and services set out in the Proposal as amended from time to time in accordance with this Agreement;
‘Business Days’ means Monday to Friday excepting public holidays; ‘Charges’ means the charges for the Services as set out in the Proposal; ‘Commencement Date’ means the date when the parties agree in writing the Services should start, or the date 4 weeks after the Effective Date, whichever is the earlier;
‘Confidential Information’ means all information of a confidential or proprietary nature disclosed by either party to the other or obtained by either party from the other;
‘Effective Date’ means the last date of signature of the Proposal; ‘Hardware’ means the hardware set out in the Proposal; ‘Minimum Period’ means the period set out in the Proposal;
‘Intellectual Property Rights’ means all present and future intellectual property rights of any kind whatsoever now or hereafter existing including patents, registered designs, copyrights, database rights, design rights, trade marks, trade names, domain names, know-how and semi-conductor topography rights whether or not any of these is registered or capable of registration and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist in any part of the world from time to time and any applications for such rights or registration thereof;
‘Premises’ means the premises set out in the Proposal;
‘Proposal’ means the proposal or agreement from Aspen Solutions Ltd to the Customer to which these terms and conditions are attached;
‘Services’ means the services described in the Proposal; and
‘Software’ means any software purchased by the customer from Aspen Solutions Ltd.
‘Your Content’ Our services and associated software allows you to store or share Your Content or receive material from others. We don’t claim ownership of Your Content. Your Content remains Your Content and you are responsible for it.
1.2 In these terms and conditions unless the context otherwise requires:
1.3 references to the singular include the plural and vice versa and references to Clauses and Schedules are to clauses of and schedules to this Agreement;
1.4. reference to any statute, statutory instrument or regulation shall be construed as a reference to the statute, statutory instrument or regulation as amended after the date of this Agreement; and
1.5 headings to Clauses and Schedules are inserted for convenience only and shall not affect the construction or interpretation of this Agreement.
- Basis of Agreement
2.1 In return for the payment of the Charges and the observance by Customer of its obligations under this Agreement, Aspen Solutions Ltd will provide the Services, Software and Hardware to the customer in the manner described in this Agreement from the Commencement Date.
- Customer Obligations
3.1 The Customer will comply with its obligations set out in this Agreement
3.2 The Customer will be responsible for the accuracy and legality of any information and/or materials supplied to Aspen Solutions Ltd under this Agreement.
3.3 The Customer shall comply with all reasonable requests made by Aspen Solutions Ltd for information and access to personnel, which is necessary for Aspen Solutions Ltd to fulfil its obligations under this Agreement.
3.3 Aspen Solutions Ltd will be granted a non-exclusive royalty free licence for the duration of this Agreement to use and manage the Hardware and Software as necessary to provide the Services. The Customer will ensure that the Hardware and Software is in good working order and complies with the manufacturer’s specification as at the Effective Date and is maintained in good order throughout the term of the Agreement at the Customer’s own expense.
3.4 The Customer shall operate each element of the Hardware and Software in accordance with the manufacturer’s or supplier’s instructions and the terms of any applicable licences.
3.5 The Customer shall make available adequate resources for contract management and liaison meetings with Aspen Solutions Ltd.
3.6 The Customer shall provide physical and network access to identified Aspen Solutions Ltd staff members on a 7-day, 24 hour basis as required by Aspen Solutions Ltd to deliver the Services. The Customer will notify Aspen Solutions Ltd of all matters affecting the Premises and pertaining to health and safety legislation.
3.7 The Customer shall provide the appropriate environment for all Hardware and Software owned/leased by/to the Customer.
3.8 The Customer shall be responsible for ensuring that all consents, licences and permissions in respect of the Hardware and Software and necessary for the performance of the Services are obtained and maintained. The Customer will also remain responsible for any payments due in respect of the purchase, leasing, licensing, support and maintenance of the Hardware and Software.
4.1 Within 7 days of the Effective Date, each party shall notify the other of the relevant person appointed as an authorised representative. Each party shall be entitled to change its appointee(s) by notice to the other at any time.
4.2 The parties agree that in the first instance the authorised representatives shall be responsible for the issue and receipt of all communications passing between the parties insofar as they relate to the agreement and each shall by notice to the other at any time from time to time be entitled to delegate any such responsibilities and revoke any such delegation. The parties agree to hold status meetings monthly or as mutually agreed.
5.1 Aspen Solutions Ltd shall invoice the Customer for the Charges and expenses in the manner set out in the Proposal.
5.2 Customer shall pay all sums due to Aspen Solutions Ltd under this agreement within thirty (30) days of the invoice date. The customer must pay by Direct Debit included in the agreement unless given express permission by Aspen Solutions Ltd not to.
5.3 The Charges are exclusive of Value Added Tax or any other applicable sales tax, which will be payable in addition by Customer.
5.4 Without prejudice to any other remedies of Aspen Solutions Ltd, if any part of the Charges is not paid by the due date, Aspen Solutions Ltd may charge the Customer interest (both before and after any judgment) on the amount unpaid, at the rate of 3% per annum above HSBC Bank base rate, until payment in full is made.
5.5 The Charges will be reviewed annually and/or in accordance with Clause 14 by the parties, so that any agreed change will take effect from the anniversary of the Commencement Date or as otherwise agreed in accordance with Clause 14. In the absence of any agreement, Aspen Solutions Ltd will be entitled to vary the Charges in line with the increase in the All-Prices Retail Price Index over the preceding twelve months.
5.6 All costs directly associated with providing the Services and not covered in the Proposal shall be submitted for approval in advance to the Customer, such approval not to be unreasonably withheld or delayed, and invoiced at cost by Aspen Solutions Ltd together with documentary evidence of actual expenditure.
5.7 After we have given you notice that your invoices are overdue, we may suspend or cancel the Services and Software if you do not make the full payment immediately. Suspension or cancellation of the Services and software for non-payment could result in a loss of access to and use of your network and its content.
6.1 Each party shall keep the other’s Confidential Information confidential and shall only use it for the purpose for which such Confidential Information was disclosed or as permitted by this Agreement.
6.2 Either party may disclose the Confidential Information of the other only to those of its employees, agents, subcontractors or advisors who need to know such information and who are bound by equivalent obligations of confidentiality as are imposed by this Agreement.
6.3 The provisions of Clause 6.1 do not apply to any disclosure of Confidential Information where such:
6.3.1 becomes generally available to the public without a breach of Clause 6; or
6.3.2 was known to the receiving party prior to the disclosure hereunder free from any restrictions as to disclosure or use; or
6.3.3 has been disclosed, without an obligation of confidentiality, to the receiving party; or
6.3.4 has been independently developed by the receiving party.
6.4 A party may disclose Confidential Information to the extent required by a court or regulatory body or as required by law.
- Intellectual Property Rights
7.1 Save as expressly set out herein the parties agree that nothing in this Agreement operates to transfer any Intellectual Property Rights of one party to the other.
7.2 All Intellectual Property Rights in the Services belong to and shall remain the property of Aspen Solutions Ltd.
7.3 Each party (‘the indemnifying party’) agrees to indemnify the other (‘indemnified party’) in relation to any actions, proceedings, claims, demands, costs, expenses (including full legal expenses), damages, liabilities and penalties affecting the indemnified party because of the indemnified party making use of Intellectual Property Rights of a third party or the indemnifying party in accordance with the terms of this Agreement, provided that:
7.3.1 the indemnified party promptly notifies the indemnifying party in writing of any alleged breach of which it is aware.
7.3.2 the indemnified party makes no admission whether in writing or orally in respect of the breach without the indemnifying party’s prior written consent; and
7.3.3 the indemnified party shall allow the indemnifying party, at the indemnifying party’s request and expense, to conduct all negotiations and litigation and to settle all actions, proceedings and potential actions and proceedings in relation to the breach and shall give the indemnifying party such reasonable assistance as the indemnifying party shall require from time to time.
7.4 Your Content. Many of our Services and software allow you to store or share Your Content or receive material from others. We don’t claim ownership of Your Content. Your Content remains Your Content and you are responsible for it.
7.4.1 When you share Your Content with other people, you understand that they may be able, on a worldwide basis, to use, save, record, reproduce, broadcast, transmit, share and display Your Content for the purpose that you made Your Content available on the Services, without compensating you. If you do not want others to have that ability, do not use the Services to share Your Content. You represent and warrant that for the duration of these Terms you have (and will have) all the rights necessary for Your Content that is uploaded, stored or shared on or through the Services and that the collection, use and retention of Your Content through the Services won’t violate any law or rights of others. We strongly advise you to make regular back-up copies of Your Content. Aspen Solutions Ltd can’t be held responsible for Your Content or the material others upload, store or share using our Services.
- Data Protection and Consents
8.1 The parties acknowledge that for the purposes of this Agreement the Customer will be a ‘data controller’ and Aspen Solutions Ltd will be a ‘data processor’ (as such terms are defined in the Data Protection Act 1998) and warrant to each other that they have and shall always comply with their respective obligations under the Data Protection Act 1998.
8.2 Customer warrants that it has obtained all necessary consents and permissions to enable Aspen Solutions Ltd to access and process ‘personal data’ (as such term is defined in the Data Protection Act 1998) as is necessary to provide the Services.
8.3 Aspen Solutions Ltd will ensure that personal data is processed only for the purposes of this Agreement and in accordance with the instructions of the Customer. The Customer undertakes that any instructions given to Aspen Solutions Ltd will be in accordance with the Data Protection Act 1998, the Regulation of Investigatory Powers Act 2000, and any other applicable legislation.
8.4 Both parties agree that they will take appropriate technical and organisational measures to guard against unauthorised or unlawful processing by them of personal data and against accidental loss or destruction of, or damage to, personal data by them, having regard to the nature of the data and the processing to be undertaken.
8.5 The Customer agrees to indemnify Aspen Solutions Ltd and keep Aspen Solutions Ltd fully indemnified in relation to any claims, demands, costs and expenses (including full legal costs) affecting Aspen Solutions Ltd as a result of processing, monitoring, intercepting and storing personal data and email and other electronic communications as permitted by this Agreement.
9.1 Aspen Solutions Ltd warrants that it will perform the Services with reasonable skill and care.
9.2 Save as set out in Clause 9.1, Aspen Solutions Ltd neither gives nor makes any express warranty to Customer. To the fullest extent permitted by applicable laws, Aspen Solutions Ltd disclaims all implied representations, warranties, conditions, obligations, or duties of every nature (including, without limitation, any equitable, common law or statutory warranties of fitness for a particular purpose, merchantability and/or satisfactoriness) in respect of the Services. Accordingly, all such implied representations, warranties, conditions, obligations, or duties are excluded to the fullest extent permitted by applicable laws. Nothing in this Agreement shall however operate to limit or exclude any liability for fraud.
9.3 Customer agrees that the foregoing exclusions of express and/or implied warranties and the limitations and exclusions of liability set out in this Clause 9 are in all respects fair and reasonable having regard to:
9.3.1 the nature of the Services;
9.3.2 the Charges to be paid pursuant to this Agreement; and
9.3.3 the relative resources of the parties.
10.1 The following provisions set out Aspen Solutions Ltd.’s entire liability (including any liability for the acts and omissions of its employees, agents or sub-contractors) to the Customer in respect of:
10.1.1 any breach of its contractual obligations arising under this Agreement; and
10.1.2 any representation, (other than fraudulent misrepresentation) statement or delictual act or omission including negligence arising under or in connection with this Agreement.
10.2 Other than in respect of death and personal injury caused by Aspen Solutions Ltd.’s negligence, or in relation to any liability which by law may not be limited or excluded:
10.2.1 Aspen Solutions Ltd.’s liability with regard to any other matter, aspect, fact or thing arising from or relating to this Agreement shall in no event exceed the 20% of sums paid and due to be paid hereunder as at the date of the matter giving rise to the claim; and
10.2.2 Aspen Solutions Ltd shall not be liable for any consequential or indirect loss or loss of profit, business, data, revenue, goodwill or anticipated savings which arises out of or in connection with this Agreement.
10.3 The Customer is and shall remain responsible for the use, testing and management of the Software and the results obtained therefrom (including but not limited to any data or information generated by any Software) as well as the combination of the Software with other equipment, programs and services.
11.1 The Agreement will come into force on the Effective Date.
11.2 Unless terminated in accordance with the provisions of Clause 12, this Agreement will continue in perpetuity on a rolling monthly basis.
12.1 Either party shall be entitled immediately to terminate this Agreement by providing 30 days written notice.
- Effects of Termination
13.1 Upon expiry or termination of this Agreement howsoever caused:
13.1.1 Aspen Solutions Ltd will cease provision of the Services;
13.1.2 each party will cease use of any Confidential Information belonging to the other and shall return or destroy on request such of the original versions of any Confidential Information and copies thereof that are in its possession;
13.1.3 all sums due to be paid by Aspen Solutions Ltd in respect of Charges shall become immediately payable by Customer.
13.2 The expiry or termination of this Agreement (howsoever arising) shall be without prejudice to any rights (including, without limitation, rights in respect of antecedent breach of this Agreement) of either party which may have accrued by, at or up to the date of such expiry or termination.
13.3 The rights and obligations of the Parties under Clauses 3-15 shall survive any expiry or termination (howsoever arising) of this Agreement.
13.4 Aspen Solutions Ltd reserve the right to charge £80.00 an hour for any handover work requested by the customer.
13.5 Access to client systems and infrastructure will only be transferred once funds have cleared for any outstanding liabilities to the Aspen Solutions Ltd.
- Change Procedure
14.1 Either the Customer or Aspen Solutions Ltd may request a change to the Asset and Services being offered. Change requests shall be made in writing at any time for any reason and specify in reasonable detail:
14.1.1 a description of any proposed change to the Assets and Services (changes may result in a change to the monthly/annual charge for services which will be agreed between Aspen Solutions Ltd and The Customer);
14.1.2 any proposed variations or amendments to this Agreement;
14.1.3 any other details which the other party might reasonably want to know and which relate to the change proposed.
14.2 When a change request is submitted the other party must evaluate it and within 10 Business Days of receipt submit a response setting out in reasonable detail:
14.2.1 whether or not it is prepared in principle to agree to the proposed change;
14.2.2 any additional change or terms which it would propose (including any cost implications).
14.3 Once a response has been submitted, the parties will then discuss the proposed change and any related matters. If agreement is reached on any change, a document will be prepared which specifies the relevant change to:
14.3.1 this Agreement;
14.3.2 any Services.
14.4 All changes will be subject to final approval and signature on behalf of both parties. Once signed on behalf of both parties, the change will be binding and will form part of this Agreement.
14.5 Notwithstanding the provisions of this Clause 14, Aspen Solutions Ltd may at any time make any changes to the Services which are necessary to comply with any applicable health and safety or other statutory requirements, or which do not materially affect the nature or quality of the Services.
15.1 The Customer warrants that there are no individuals whose employment will transfer to Aspen Solutions Ltd by reason of the coming into force of this Agreement, the application of the Transfer of Undertaking (Protection of Employment) Regulations 1981 as amended and the Acquired Rights Directive 77/187 EEC as amended (the ‘Regulations’) or otherwise.
15.2 The Customer shall on demand by Aspen Solutions Ltd, indemnify and fully reimburse Aspen Solutions Ltd for all time from and against any and all costs and expenses by or in respect of any employees of the Customer who transfer to Aspen Solutions Ltd in terms of the Regulations, including for the avoidance of doubt, where such claims arise as a result of the termination of any individual’s employment by Aspen Solutions Ltd after the Commencement Date.
15.3 The parties agree that they will not during the term of this Agreement nor for six months thereafter actively solicit the other party’s employees who have been directly connected with the provision or receipt of the Services.
16.1 This Agreement and the documents referred in it constitute the entire agreement and understanding of the parties in relation to the subject matter hereof, and supersedes any previous agreements or negotiations between the parties relating to the subject matter hereof.
16.2 Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely upon and shall have no remedy in respect of any statement, representation, warranty or undertaking (whether negligently or innocently made) of any person (whether a party to this Agreement or not) other than as expressly set out in this Agreement. Nothing in this Agreement shall operate to limit or exclude liability for fraud.
16.3 Any timescales quoted for provision of the Services are approximate only and Aspen Solutions Ltd shall not be liable for any delay in delivery of the Services howsoever caused. Time of performance shall not be of the essence of this Agreement unless previously agreed by Aspen Solutions Ltd in writing. However, Aspen Solutions Ltd shall use its reasonable endeavours to provide or procure the provision of the Services within the timescales quoted.
16.4 Neither party will be liable to the other for any breach of this Agreement caused by a matter outside the reasonable control of that party. If any event of force majeure occurs, the party affected must take reasonable steps to mitigate its effects and to recommence performance under this Agreement. If any event prevents performance for more than 28 days, the party not affected may terminate this Agreement on giving the other party written notice.
16.5 If any provision of this Agreement is or becomes illegal, invalid or unenforceable in any jurisdiction, that shall not affect:
16.5.1 the legality, validity or enforceability in that jurisdiction of any other provision of this Agreement; or
16.5.2 the legality, validity or enforceability in any other jurisdiction of that or any other provision of this Agreement.
16.6 The Customer may not assign, transfer, or otherwise deal with the benefit or burden of this Agreement without the prior written consent of Aspen Solutions Ltd. Aspen Solutions Ltd may assign all its rights and / or obligations arising or subsisting under this Agreement.
16.7 Any delay in the exercise, or the non-exercise, of any right is not a waiver of that right. Any right of rescission available to either party shall be in addition to and without prejudice to all other rights and remedies available to it.
16.8 This contractual agreement may be assigned to another party assuming that there is no restriction on assignment. This amounts to a statutory assignment, provided that 3 months’ notice in writing is also given to the customer.
16.9 Acceptance indicates you are aware of Aspen’s relationship with an upstream supplier(s) in providing the support and services detailed in this document and your acceptance of all relevant terms and conditions required by Aspen’s upstream supplier. Aspen may defer to the terms and conditions provided by the upstream supplier in the enforcement of this contract. All applicable terms and conditions are detailed in or alongside this document
- Governing Law
17.1 This Agreement shall be governed and construed in accordance with the law of Scotland. Each party hereby irrevocably submits to the exclusive jurisdiction of the Scottish courts as regards any claim, dispute or matter arising out of or relating to this Agreement and its implementation and effect.