Terms of Business

In absence of a signed agreement, the relationship between Client and Intrinsiq is specified in the terms below.

PARTIES 

1. Intrinsiq Ltd, a company incorporated in England  having its registered office at 483 Green Lanes,London, N13 4BS UK Company No: 03643341(the "Provider"); and 

2. Client (the "Customer")

1.0 Definitions 

Except to the extent expressly provided otherwise, in this Agreement: 

"Agreement" means this agreement including any schedules, and any amendments to this agreement from time to time; 

"Business Day" means any weekday other than a public holiday in UK. 

"Business Hours" means the hours of 09:00 to 17:30 on a Business Day in UK. 

"Charges" means the following amounts: 

(a) the amounts specified in Schedule 1 (Software Particulars); 

(b) such amounts as may be agreed in writing by the parties from time to time; and 

(c) amounts calculated by multiplying the Provider's standard time-based charging rates (as notified by the Provider to the Customer before the date of this Agreement) by the time spent by the Provider's personnel performing the Services (rounded up by the Provider to the nearest quarter hour); 

“Confidential Information” in respect of the Customer means all Information submitted or disclosed by the Customer to the Provider at any time in connection with the subject matter of this Agreement (including during negotiations, discussions and meetings and using the Deliverables) and includes without limitation: 

(a) Information which at the time of disclosure by the Customer is identified as being confidential; 

(b) Information which is by its nature confidential; 

(c) Information which the Provider knows or ought reasonably be expected to know is confidential; 

but does not include Information which: 

(d) is in or becomes part of the public domain otherwise than as a result of a breach of the terms of this Agreement or any other obligations of confidentiality owed by the Provider; 

(e) prior to disclosure by the Customer was lawfully known to the Provider and in respect of which the Provider is not bound by any other obligations of confidentiality; or 

(f) is required by law to be disclosed. 

"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars); 

"Maintenance Services" means the services to be provided by the Provider to the Customer as set out in Schedule 2; 

"Release" means, in respect of an Update or Upgrade, the release of that Update or Upgrade (as the case may be) to the customers of the Provider generally (and "Released" shall be construed accordingly); 

"Schedule" means any schedule attached to main body of this Agreement; 

"Services" means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under this Agreement; 

"Software" means the software identified in Part 1 of Schedule 1 (Software Particulars); 

"Term" means the term of this Agreement, commencing in accordance with Clause 2; 

"Update" means a hotfix, patch or minor version update to the Software; and "Upgrade" means a major version upgrade of the Software. 

2.0 Term 

2.1 This Agreement shall come into force upon payment of initial deposit.  

2.2 This Agreement shall continue in force indefinitely, subject to termination in accordance with Clause 10. 

3.0 Maintenance Services 

3.1 The Provider shall provide the Maintenance Services to the Customer during the Term. 

3.2 The Provider shall provide the Maintenance Services in accordance with the standards of skill and care reasonably expected from a leading service provider in the Provider's industry. 

3.3 The Provider shall provide the Maintenance Services in accordance with Maintenance SLA Schedule below: 

Urgent 4-6 business hours;

High 8-14 business hours;

Medium – 5 business days;

Low – 14 business days ;

3.4 The Provider may suspend the provision of the Maintenance Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 14 days' written notice, following the amount becoming overdue, of its intention to suspend the Maintenance Services on this basis and do not receive the payment during the said notice period. However, this clause does not apply and has no effect if the parties have a dispute under clause 14.  

4.0 Customer obligations 

4.1 Save to the extent that the parties have agreed otherwise in writing, the Customer must provide to the Provider, or procure for the Provider, such: 

(a) co-operation, support and advice; 

(b) information and documentation; and 

(c) governmental, legal and regulatory licences, consents and permits, as are reasonably necessary to enable the Provider to perform its obligations under this Agreement. 

4.2 The Customer will provide to the Provider, or procure for the Provider, such access to the Customer's computer hardware, software, networks and systems (‘facilities’) and premises as may be reasonably required by the Provider to enable the Provider to perform its obligations under this Agreement, provided that the Provider complies with any relevant policies or reasonable directions of the Customer in respect of the facilities or premises. 

5.0 Confidential Information 

5.1 The Provider undertakes to keep the Customer’s Confidential Information confidential. Without limiting this obligation the Provider must not: 

(a) use or permit any person to use the Customer’s Confidential Information for any purpose other than the performance of the Services; 

(b) disclose or in any way communicate to any other person any of the Confidential Information except as authorised by the Customer; 

(c) permit unauthorised persons to have access to places where the other party’s Confidential Information is displayed, reproduced or stored; or 

(d) make or assist any person to make any unauthorised use of the Confidential Information. 

5.2 The Provider must: 

(a) take reasonable steps to enforce the confidentiality obligations imposed by clause 5.1 including diligently prosecuting, at its own cost, any breach or threatened breach of those obligations by a person to whom the Provider has disclosed the Confidential Information; and 

(b) co-operate and provide the Customer with all reasonable assistance, in any action which it may take to protect the confidentiality of the Confidential Information. 

5.3 Subject to clause 5.4, the Provider may disclose Confidential Information to its advisers in relation to its rights under this Agreement or to its employees and subcontractors on a need to know basis, solely to assist in providing the Services and on the condition such persons do not disclose the Confidential Information to any other person. 

5.4 If as a result of this Agreement the Customer acquires information which is confidential to the Provider (“the Provider’s confidential information”), then the Customer must: 

(a) keep secret and protect and preserve the confidential nature and secrecy of the Provider’s confidential information; 

(b) not disclose such confidential information except to its advisers, contractors or representatives for the purposes of this Agreement, and on the basis that those persons are subject to the same obligations of confidentiality as the Customer. 

5.5. The obligations of confidentiality under this Agreement shall survive expiration or earlier termination of this Agreement. 

6.0 Charges 

6.1 The Customer shall pay the Charges to the Provider in accordance with this Agreement. 

6.2 If the Charges are based in whole or part upon the time spent by the Provider performing the Services, the Provider must obtain the Customer's written consent before performing Services that result in any estimate of time-based Charges given to the Customer being exceeded or any budget for time-based Charges agreed by the parties being exceeded; and unless the Customer agrees otherwise in writing, the Customer shall not be liable to pay to the Provider any Charges in respect of Services performed in breach of this Clause. 

6.3 All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, stated exclusive of any applicable taxes, which will be added to those amounts and payable by the Customer to the Provider. 

6.4 The Provider may elect to vary any element of the Charges by giving to the Customer not less than 90 days’ written notice of the variation. 

7.0 Payments 

7.1 The Provider shall issue invoices for the Charges to the Customer from time to time during the Term. 

7.2 The Customer must pay the Charges to the Provider within the period of 14 days following the issue of an invoice in accordance with this Clause 6. 

7.3 The Customer must pay the Charges by bank transfer (using such payment details as are notified by the Provider to the Customer from time to time). 

7.4 If the Customer does not pay any amount properly due to the Provider under this Agreement, the Provider may charge the Customer interest on the overdue amount at the rate of 8% per annum above the base rate as set by the Bank of England (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month). 

8.0 Warranties 

8.1 The Provider agrees and warrants to the Customer that: 

(a) the Provider has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement; 

(b) the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider's rights and the fulfilment of the Provider's obligations under this Agreement]; and 

(c) the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under this Agreement. 

(d) the data provided by or stored on behalf of the Customer under or as contemplated by this agreement will be dealt with and stored in a secure manner which complies any relevant Data Protection Legislation and the Customer’s Data Protection policy and any policy documents issued under that policy. 

(e) the data stored on behalf the customer shall be delivered (within 14 days of request) to the customer in a SQL Server database format or Spreadsheet (as per customer request).   

(f) the Provider shall not access, use, manipulate or otherwise act on the data stored on behalf of the Customer except for the purposes of delivering the Services to the Customer or with Customer’s instructions.  Ownership of data stored on behalf of the Customer remains property of said Customer at all times.  The Provider further acknowledges that the said data is the Customer’s Confidential Information and will be dealt with in accordance with clause 5, in addition to any other obligation the Provider has under this Agreement.  

(g) the Customer shall ensure (excluding any Force Majeure Event) that the system is available for use at least 99% of the time within a given month.  The Customer shall ensure that all usernames, passwords and access codes necessary are provided to the Provider for access to the Customer’s hosting account. 

8.2 The Customer warrants to the Provider that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement. 

8.3 All of the parties' warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law and subject to clauses 8.1 and 8.2, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract. 

9.0 Indemnities 

9.1 The Provider indemnifies and will keep indemnified the Customer and its officers, employees, agents, subcontractors and Providers from and against all actions, claims, proceedings or demands (including those brought by third parties) which may be brought against it or them, whether on their own or jointly with the Provider in respect of any loss, death, injury, illness, damages, costs or expenses (whether to person or property) where caused by: 

(a) any unlawful or negligent act of the Provider, its officers, employees, agents, subcontractors or Providers;  

(b) breach of Intellectual Property rights of any third party; or 

(c) breach of any warranty contained in this Agreement; 

arising from the Provider’s exercise of its rights or obligations under this Agreement or from any other loss which may arise from or as a result of any breach of the terms of this agreement by the Provider, its officers, employees, agents, subcontractors or consultants. 

9.2 The Provider’s indemnity in clause 9 is a continuing obligation separate and independent from the Provider’s other obligations and will survive expiration or earlier termination of this Agreement. 

10.0 Limitations and exclusions of liability 

10.1 Nothing in this Agreement will: 

(a) limit or exclude any liability for death or personal injury resulting from negligence; 

(b) limit or exclude any liability for fraud or fraudulent misrepresentation; 

(c) limit any liabilities in any way that is not permitted under applicable law; or 

(d) exclude any liabilities that may not be excluded under applicable law. 

10.2 The limitations and exclusions of liability set out in this Clause 10 and elsewhere in this Agreement:  

(a) are subject to Clause 10; and 

(b) govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in Agreement, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement. 

10.3 Neither party shall be liable to the other in respect of any loss of profits or anticipated savings. 

10.4 Neither party shall  be liable to the other in respect of any loss of revenue or income. 

10.5 Neither party shall  be liable to the other in respect of any loss of use or production, e.g.  not responsible  for any additional costs born by the other party due to using the software or not, such as not but limited to  extra costs in staffing, losses in efficiency. 

10.6 Neither party shall  be liable to the other in respect of any loss of business, contracts or opportunities. 

10.7 Neither party shall be liable to the other in respect of any loss or corruption of any data, database or software, unless proven to be caused by the actions or negligent inactions of the Provider. 

10.8 Neither party shall be liable to the other in respect of any special, indirect or consequential loss or damage. 

11. Force Majeure Event 

11.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event. 

11.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement, must: 

(a) promptly notify the other; and 

(b) inform the other of the period for which it is estimated that such failure or delay will continue. 

11.3 A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event. 

12. Termination 

12.1 The Customer may terminate this Agreement by giving to the Provider at least 60 days' written notice of termination. 

12.2 The Provider may terminate this Agreement by giving to the Customer at least 3 months' written notice of termination. 

12.3 Either party may terminate this Agreement immediately by giving written notice of termination to the other party if the other party commits a material breach of this Agreement. 

12.4 Either party may terminate this Agreement immediately by giving written notice of termination to the other party if: 

(a) the other party: 

(i) is dissolved; 

(ii) ceases to conduct all (or substantially all) of its business; 

(iii) is or becomes unable to pay its debts as they fall due; 

(iv) is or becomes insolvent or is declared insolvent; or 

(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors; 

(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party; 

(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under this Agreement).

13. Effects of termination 

13.1 Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have effect, save that the following provisions of this Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): [Clauses 1, 5, 6, 8d, 8e,8f, 9, 12, 13 and 16]. 

13.2 The termination of this Agreement shall not affect the accrued rights of either party. 

13.3 Within 30 days following the termination of this Agreement for any reason: 

(a) the Customer must pay to the Provider any Charges in respect of Services provided to the Customer before the termination of this Agreement; and 

(b) the Provider must refund to the Customer any Charges paid by the Customer to the Provider in respect of Services that were to be provided to the Customer after the termination of this Agreement, without prejudice to the parties' other legal rights. 

14. Notices 

14.1 Any notice from one party to the other party under this Agreement must be given by one of the following methods (using the relevant contact details set out in Clause 14):  

(a) delivered personally by email or sent by courier, in which case the notice shall be deemed to be received upon delivery ; or 

(b) sent by recorded signed-for post, in which case the notice shall be deemed to be received 2 Business Days following posting, providing that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time. 

14.2 The parties' contact details for notices under this Clause 14 are set out in Schedule 3.   

14.3 The addressee and contact details set out in Clause 14.2 may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 14. 

15. Subcontracting 

15.1 The Provider may subcontract any of its obligations under this Agreement, providing that the Provider must give to the Customer, promptly following the appointment of a subcontractor, a written notice specifying the subcontracted obligations and identifying the subcontractor in question. 

15.2 The Provider shall remain responsible to the Customer for the performance of any sub-contracted obligations.  

16. Dispute Resolution 

16.1 If a difference or dispute (together called a ‘dispute’) between the parties arises in connection with the subject matter of this letter then either party may, by hand or by registered post, give the other a written notice of dispute adequately identifying and providing details of the dispute. 

16.2 Notwithstanding the existence of a dispute, the parties shall, subject to clause 12, continue to perform the Agreement. 

16.3 Within 14 days after receiving a notice of dispute, the parties shall confer at least once to resolve the dispute. At every such conference each party shall be represented by a person having authority to agree to such resolution or methods. All aspects of every such conference except the fact of occurrence shall be privileged. 

16.4 If the dispute has not been resolved within 28 days of service of the notice of dispute, that dispute shall be and is hereby referred to mediation. 

16.5 If within a further 14 days the parties have not agreed upon a mediator, the mediator will be nominated by mutual agreement.   

17. General 

17.1 A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy.  A single or partial exercise of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy.  A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver. 

17.2 If any term or part of any terms is in any way unenforceable, invalid or illegal, it is to be read down so as to be enforceable, valid and legal. If this is not possible, the term (or where possible, the offending part) is to be severed from this agreement without affecting the enforceability, validity or legality of the remaining terms (or parts of those terms) which will continue in full force and effect. 

17.3 This Agreement may not be varied except by a written document signed by or on behalf of each of the parties. 

17.4 Neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under this Agreement. Such consent will not be unreasonably withheld.  

17.5 This Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.  

17.6 This Agreement shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter, except for any Non-Disclosure Agreement past agreed.  

18.7 This Agreement shall be governed by and construed in accordance with English Law 

18. Interpretation 

18.1 In this Agreement, a reference to a statute or statutory provision includes a reference to:  

(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and 

(b) any subordinate legislation made under that statute or statutory provision. 

18.2 The Clause headings do not affect the interpretation of this Agreement. 

18.3 In this Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things. 

EXECUTION

Both parties inditcate their acceptance of this Agreement once initial deposit is paid by the ‘Customer’ and accepted by the ‘Provider’.