Dated 2024
TERMS AND CONDITIONS FOR THE SUPPLY OF SERVICES
1. INTERPRETATION
The following definitions and rules of interpretation apply in these Conditions.
1.1 Definitions:
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 6.
Commencement Date: has the meaning given in clause 2.2.
Computing Centre: the hosted server service such as Amazon Web Services.
Conditions: these terms and conditions as amended from time to time in accordance with clause 12.5.
Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Customer: the person or firm who purchases Services from the Supplier.
Customer Default: has the meaning set out in clause 5.2.
Datasets: data created with the software.
Deliverables: the Services as set out in the Proposal produced by the Supplier for the Customer.
Intellectual Property Rights: rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, 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 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.
Order: the Customer’s order for Services as set out in the Proposal prepared by the Supplier.
Proposal: the description or proposal of the Services provided in writing by the Supplier to the Customer.
SAAS: means Software as a Service, being a method of software delivery and licensing in which software is accessed on a subscription basis and is centrally hosted.
Services: the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Proposal. Supplier: Langcroft Consulting Limited registered in England and Wales with company number 14363605.
Supplier Materials: has the meaning set out in clause 5.1.6.
1.2 Interpretation:
1.2.1 A reference to legislation or a legislative provision:
1.2.1.1 is a reference to it as amended, extended or re-enacted from time to time; and
1.2.1.2 shall include all subordinate legislation made from time to time under that legislation or legislative provision.
1.2.2 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.
1.2.3 A reference to writing or written includes fax and email.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 Any samples, descriptive matter or advertising issued by the Supplier are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.5 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 30 Business Days from its date of issue.
3. SUPPLY OF SERVICES
3.1 The Supplier shall supply the Services to the Customer in accordance with the Proposal in all material respects.
3.2 The Supplier shall use all reasonable endeavours to meet any performance dates specified in the Proposal, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 The Supplier reserves the right to amend the Proposal if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
3.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
4. APPLICABILITY OF SPECIFIC CONDITIONS
4.1 In addition to these Conditions, where the Services relate to SAAS, the further terms of contract set out in Schedule One to these Conditions shall apply.
5. CUSTOMER’S OBLIGATIONS
5.1 The Customer shall:
5.1.1 ensure that the terms of the Order are complete and accurate;
5.1.2 co-operate with the Supplier in all matters relating to the Services;
5.1.3 provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities (if necessary) as reasonably required by the Supplier;
5.1.4 provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
5.1.5 obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
5.1.6 keep all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials (if any) in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation; and
5.1.7 comply with any additional obligations as set out in the Proposal.
5.2 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
5.2.1 without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
5.2.2 the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 5.2; and
5.2.3 the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
6. CHARGES AND PAYMENT
6.1 The Charges for the Services shall be calculated on a time and materials basis:
6.1.1 the Charges shall be calculated in accordance with the Supplier’s daily fee rates, as set out in the Proposal;
6.1.2 the Supplier’s daily fee rates for each individual are calculated on the basis of an eight-hour day from 9.00 am to 5.00 pm worked on Business Days;
6.1.3 the Supplier shall be entitled to charge an overtime rate of 25% of the daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in clause 6.1.2; and
6.1.4 the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials.
6.2 The Supplier reserves the right to increase the Charges on an annual basis with effect from each anniversary of the Commencement Date and the first such increase shall take effect on the first anniversary of the Commencement Date and shall be based on the latest available figure for the percentage increase in the Average Weekly Earnings Index.
6.3 The Supplier shall invoice the Customer on completion of the Services.
6.4 The Customer shall pay the invoice submitted by the Supplier:
6.4.1 within 10 days of the date of the invoice; and
6.4.2 in full and in cleared funds to a bank account nominated in writing by the Supplier, and time for payment shall be of the essence of the Contract.
6.5 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
6.6 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under clause 10, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 6.6 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
6.7 All amounts due under the Contract 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).
7. INTELLECTUAL PROPERTY RIGHTS
7.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier, or a third party to which the Supplier introduces to the Customer.
7.2 The Supplier may grant to the Customer, or may procure the direct grant to the Customer a licence from a third party for use by the Customer in its business as a consequence of the Services provided by the Supplier. If such licence is to be granted, the Supplier shall provide or shall procure the provision of separate terms and conditions to the Customer in relation to such.
7.3 The Customer shall not sub-license, assign or otherwise transfer the rights granted in clause 7.2.
7.4 The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free, nontransferable licence to copy and modify any materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Services to the Customer.
8. LIMITATION OF LIABILITY: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
8.1 The Supplier shall comply with their data protection obligations as set out in the privacy policy which can be found on the website at www.langcroftconsultancy.co.uk.
9. LIMITATION OF LIABILITY: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
9.1 The Supplier has obtained insurance cover in respect of its own legal liability for individual claims not exceeding £500,000 per claim. The limits and exclusions in this clause reflect the insurance cover the Supplier has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss.
9.2 References to liability in this clause 8 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
9.3 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
9.4 Nothing in this clause 8 shall limit the Customer’s payment obligations under the Contract.
9.5 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
9.5.1 death or personal injury caused by negligence;
9.5.2 fraud or fraudulent misrepresentation; and
9.5.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
9.6 Subject to clause 9.3 (No limitation in respect of deliberate default), and clause 9.5 (Liabilities which cannot legally be limited), the Supplier’s total liability to the Customer for all loss or damage shall not exceed £500,000.
9.7 The caps on the Supplier’s liabilities shall be reduced by:
9.7.1 payment of an uncapped liability; or
9.7.2 amounts awarded by a court or arbitrator, using their procedural or statutory powers in respect of costs of proceedings or interest for late payment.
9.8 Subject clause 9.3 (No limitation in respect of deliberate default), clause 9.4 (No limitation of Customer’s payment obligations) and clause 9.5 (Liabilities which cannot legally be limited), this clause 9.8 sets out the types of loss that are wholly excluded:
9.8.1 loss of profits.
9.8.2 loss of sales or business.
9.8.3 loss of agreements or contracts.
9.8.4 loss of anticipated savings.
9.8.5 loss of use or corruption of software, data or information.
9.8.6 loss of or damage to goodwill; and
9.8.7 indirect or consequential loss.
9.9 The Supplier has given commitments as to compliance of the Services with relevant proposals in clause 3. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
9.10 Unless the Customer notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire 3 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
9.11 This clause 8 shall survive termination of the Contract.
10. TERMINATION
10.1 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party 3 months’ written notice.
10.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
10.2.1 the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;
10.2.2 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement
with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
10.2.3 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
10.2.4 the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
10.3 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
10.3.1 the Customer fails to pay any amount due under the Contract on the due date for payment; or.
10.3.2 there is a change of control of the Customer.
10.4 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services under the Contract or any other contract between the Customer and the Supplier if:
10.4.1 the Customer fails to pay any amount due under the Contract on the due date for payment;
10.4.2 the Customer becomes subject to any of the events listed in clause 10.2.3 or clause 10.2.4, or the Supplier reasonably believes that the Customer is about to become subject to any of them; and
10.4.3 the Supplier reasonably believes that the Customer is about to become subject to any of the events listed in clause 10.2.2.
11. CONSEQUENCES OF TERMINATION
11.1 On termination or expiry of the Contract:
11.1.1 the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
11.1.2 the Customer shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the
Supplier may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
11.2 Termination or expiry of the Contract 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 Contract which existed at or before the date of termination or expiry.
11.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
12. GENERAL
12.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
12.2 Assignment and other dealings.
12.2.1 The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
12.2.2 The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.
12.3 Confidentiality.
12.3.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, Customers, clients or suppliers of the other party, except as permitted by clause 12.3.2.
12.3.2 Each party may disclose the other party’s confidential information:
12.3.2.1 to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 12.3; and
12.3.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.3.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
12.4 Entire agreement.
12.4.1 The Contract 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.
12.4.2 Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
12.4.3 Nothing in this clause shall limit or exclude any liability for fraud.
12.5 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
12.6 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
12.7 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. If any provision or part-provision of this Contract deleted under this clause 12.7 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
12.8 Notices.
12.8.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by prepaid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by fax to its main fax number or sent by email to the address specified in the Proposal.
12.8.2 Any notice or communication shall be deemed to have been received:
12.8.2.1 if delivered by hand, at the time the notice is left at the proper address;
12.8.2.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
12.8.2.3 if sent by fax or email at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 12.8.2.3, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
12.8.3 This clause 12.8 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
12.9 Third party rights.
12.9.1 Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
12.9.2 The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
12.10 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.
12.11 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
SCHEDULE ONE
Terms of Contract for the Use of Software via the Internet (SAAS)
1. SERVICES
1.1 The Supplier offers the temporary use of standard software applications via an internet connection. The offer usually also includes the temporary provision of storage for the archiving of the Customer’s Datasets in connection with the use of the software. The software shall be made available pursuant to the provisions of this Schedule One.
1.2 The Supplier shall make the Services, in particular access to the software available within its sphere of control (from the interface of the Computing Centre with the internet). The scope of the Services, the properties and condition, the purpose of use, and the conditions for the use of the Services is described in the software user manual, which is accessed through the software.
1.3 A fault-free use of the software requires the use of a current browser as described in the system requirements in the Services specification, as set out in the Proposal. Not an object of this is the authorisation to use or provide such a browser.
1.4 Any services beyond this, for example, the development of Customer-specific solutions or necessary adjustments require a separate contract.
1.5 Not an object of this contract is the performance of data backup measures. These can be contracted separately.
1.6 The Supplier does not offer the provision of a connection to the internet. An internet connection is a prerequisite for the use of the software and the Customer receives it as a service from a third-party provider.
1.7 The Supplier may make updated versions of the software available. The Supplier shall inform the Customer electronically about the updated versions and corresponding notes regarding the use and make these available accordingly. Functional expansions, modifications in the use and the system requirements shall also be notified. The Customer does not have a right to a certain version being provided.
1.8 A right to a free test/demonstration version does not apply. The Supplier may reject/terminate a free test/demo version at any time and without a statement of reasons.
1.9 To compensate for increased labour costs and other costs, the Supplier has the right to change the prices and remuneration for the Services. Such a price change is permitted
no earlier than twelve months after the signing of the contract and only once a year. The Supplier will notify the Customer of the change in writing no later than six weeks before it takes effect. In the event that the Customer does not accept the price increase, the Customer is entitled to terminate the contract in its entirety with one month’s notice to the end of the calendar month if the price increase exceeds 10% of the previous price. In the event of termination, the prices that have not been increased by the time the termination becomes effective shall apply.
1.10 Contrary, opposing or deviating terms of the Customer shall not become part of the contract, unless this is expressly agreed in written form between the Supplier and the Customer.
2. SCOPE OF USE
2.1 The Supplier shall grant the Customer a simple, non-transferable, non-sublicensable right without regional limitation to use the software on the conditions pursuant to this contract for the duration of the contractual relationship. The Services may be used exclusively by the Customer. The Customer may access the Services during the term of the contract by means of telecommunications (via the internet) and use the functionalities associated with the software in accordance with the contract by means of a browser. The Customer shall not receive any rights beyond this, in particular not to the software or the provided infrastructure Services, if any, in the respective Computing Centre. Any further use may require the prior written agreement from the Supplier.
2.2 The Customer may in particular not use the software beyond the agreed scope of use or permit third parties to use it or make it accessible to third parties. The Customer is prohibited from reproducing the software, selling or transferring the use of the software for a limited time or lease or loan it. Licensing is for natural persons. Sharing a user account among multiple persons is not permitted.
2.3 The Supplier is permitted to take appropriate technical measures to protect against any use not in accordance with the contract. This must not affect the use of the Services in accordance with the contract more than to a merely insignificant extent.
2.4 In the event a user exceeds the scope of use contrary to the contract or in the event of an unauthorised transfer for use, the Customer shall inform the Supplier of all details available to it, immediately on the Supplier’s request, for the purpose of bringing claims based on the use contrary to the contract and, in particular, it shall disclose the name and address of the user.
2.5 The Supplier may revoke the Customer’s access authorisation and/or terminate the contract if the Customer exceeds the use permitted to it to a significant extent or if it violates rules on the protection against unauthorised use. In relation to this, the Supplier may interrupt or block the access to the Services. The Supplier shall generally set an
appropriate grace period for the Customer to remedy the situation. Solely the revocation of the access authorisation shall not be regarded as a termination of the contract at the same time. The revocation of the access authorisation without termination can be upheld by the Supplier only for an appropriate period of at most 3 months.
2.6 The Supplier can revoke the Customer’s access authorisation and/or terminate the contract if the Customer comes to be in arrears with its payment obligations. In relation to this, the Supplier may interrupt or block the access to the Services. The Supplier shall generally set an appropriate grace period for the Customer to pay the unsettled amounts. Solely the revocation of the access authorisation shall not be regarded as a termination of the contract at the same time. The revocation of the access authorisation without termination can be upheld by the Supplier only for an appropriate period of at most 3 months.
2.7 The Customer has a right to have its access authorisation with access possibility be restored, after proving that it has stopped the use contrary to the contract and a future use contrary to the contract is prevented, or after it has fulfilled its payment obligations.
3. AVAILABILITY AND SERVICES DEFECTS
3.1 The availability of the Services is defined in the application documentation (manual). The Supplier works toward offering a fault-free operation of the software at all times during the agreed term of the contract. This is naturally limited to Services that are within the control of the Supplier. The Customer acknowledges, however, that a complete and uninterrupted availability of the software is technically not realisable. It is therefore up to the Supplier to limit the access to the software temporarily or permanently, in full or in part for reason of maintenance work, capacity concerns or due to other incidents outside of its sphere of control. The Supplier does not accept any responsibility for the functionality of the connection to the server resources covered by the contract or in the event of power outages, where this is outside of the Supplier’s sphere of control.
3.2 In the event of a merely insignificant reduction of the usability of the Services for the use in accordance with the contract, the Customer shall not be entitled to any claims relating to defects. The Supplier’s liability independent of fault for any defects preexisting at the time when the contract was concluded, is excluded.
4. CUSTOMER’S DUTIES
4.1 The Customer shall protect the access credentials (being the login name and password), as well as the identification and authentication information attributed to it or to the users from coming into the possession of any third parties and not pass this information on to unauthorised parties. If the Customer finds indications of misuse, it shall inform the Supplier of this without delay.
4.2 The Customer shall ensure that the users authorised for access fulfil the obligations under these terms of contract.
4.3 The Customer is obligated to indemnify the Supplier from all claims of third parties based on rights infringements in result of any illegal use of the object of Services. If the Customer detects or has to be able to detect that such an infringement is impending, it is obligated to immediately inform the Supplier thereof.
4.4 The Customer shall use the possibilities made available by the Supplier to back up its data in its original sphere of responsibility.
4.5 The Customer shall refrain from any activity, which is suitable to compromise and/or cause excessive load in the operation of the contractual software application or its supporting technical infrastructure.
4.6 The Supplier is entitled to take technical measures to prevent any use that goes beyond the permissible scope of use. The Customer must not use any means by which such technical measures are to be overcome.
4.7 If interferences should occur in the use of the software, the Customer shall immediately inform the Supplier thereof. The same applies if the Customer discovers any use by authorised users in violation of applicable law or rights of third parties or if it discovers any use contrary to these terms of contract.
4.8 The Customer undertakes not to use any Datasets in the context of the use of the software in violation of applicable law or rights of third parties. It warrants in particular that it holds any potentially required licenses for such use.
5. SCOPE OF USE CONTRARY TO THE CONTRACT AND DAMAGE COMPENSATION
For each case in which the Services are used without authorisation within the Customer’s sphere of responsibility, which goes beyond the agreed scope of use, the Customer shall pay damage compensation, respectively in the amount of the remuneration, which would have been incurred for the use in accordance with the contract within the term of the minimum contract period applicable to these Services. The right to prove that the Customer has no fault for the unauthorised use or that no or a significantly lesser damage is present remains reserved for the Customer. The Supplier retains the right to claim further damage.
6. RIGHTS TO USE THE DATASETS
The Customer grants the Supplier a simple right without regional limitation to store and reproduce the Customer’s Datasets for the duration of the contractual relationship, insofar as this is required for the performance of the Services owed pursuant to these
Terms of Contract. The Supplier is furthermore authorised to make changes to the structure or format of the Customer’s Datasets to correct faults.
7. INCIDENT MANAGEMENT
7.1 The Supplier shall accept fault reports from the Customer, attribute them to the agreed fault categories, in accordance with paragraph 7.3, and conduct the agreed measures for the analysis for the correction of the faults based on this attribution.
7.2 A fault is present when the software does not enable the functionalities described in the application documentation.
7.3 The Supplier shall accept fault reports from the Customer during its regular business hours (Mondays to Fridays except public holidays) from 9 a.m. to 5 p.m.. On request by the Customer, the Supplier shall confirm to the Customer that it has received the fault report.
7.4 Unless agreed otherwise, the Supplier shall attribute received fault reports upon a first screening and according to its equitable discretion to one of the following categories, in appropriate consideration of the effects the relevant fault has on the use of the Services:
7.4.1 Major Fault – The fault is based on an error in the Services, which makes the use of the Services, in particular of the software, impossible or which allows use only with severe restrictions. The Customer cannot work around this problem in any reasonable way and it is therefore prevented from executing its tasks, which cannot be delayed.
7.4.2 Miscellaneous Fault – The fault is based on a defect in the Services, with the effect of restricting the Customer’s use of the Services, especially of the software, to a more than merely insignificant extent without a major fault being present.
7.4.3 Miscellaneous Report – Fault reports, which do not fall within the categories of a) and b) will be attributed to miscellaneous reports. Miscellaneous messages will be treated by the Supplier only in accordance with the agreements made in this regard.
7.5 In the event of reports of major faults and miscellaneous faults, the Supplier shall immediately initiate measures based on the circumstances reported by the Customer to initially localise the cause of the fault.
7.6 If the reported fault turns out to be not a defect in the Services upon an initial analysis, in particular not of the provided software, the Supplier shall inform the Customer of this without delay.
7.7 Otherwise, the Supplier shall initiate accordant measures for the further analysis and correction of the reported fault or – in the case of third-party software – forward the fault report together with its analysis results to the seller or manufacturer of the thirdparty software with the request for correction. The Supplier shall make measures that are at its disposal as workarounds or bug fixes for the fault in the Services, in particular the provided software, available to the Customer, for example, as instructions or corrections of the provided software. The Customer shall adopt such measures for bypassing or fixing failures immediately and report any faults remaining after their application again to the Supplier without delay.
8. POINT OF CONTACT (HOTLINE)
8.1 Services
8.1.1 The Supplier shall set up a hotline for the Customer. This hotline shall process the Customer’s requests relating to the technical requirements and conditions for the use of the provided software, and requests relating to individual functional aspects. The hotline shall not serve as software user support. Training in the application by users can be requested from the Supplier and it will generally be provided only against separately agreed remuneration.
8.2 Acceptance and processing of requests
8.2.1 The condition for the acceptance and processing of requests is that the Customer appoints personnel, who are appropriately qualified operationally and technically and assigned internally at the Customer’s company with the processing of requests from the users of the provided software. The Customer is obligated to direct queries about this to the hotline solely through the personnel named to the Supplier. The hotline will accept such queries by email and telephone during the Supplier’s regular business hours.
8.2.2 The hotline will process regular queries and answer them where possible in the ordinary course of business. For the answer, the hotline may refer to documentation accessible to the user and other training material for the provided software. If a request cannot be answered by the hotline or not immediately, the Supplier shall forward the query for processing in particular for queries relating to software not manufactured by it.
8.2.3 Further services of the hotline, for example, other contact times and deadlines, as well as on-call duty or services by the Supplier at the Customer’s site shall be expressly agreed in advance.
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