Agreement – the agreement made between the Customer and Kerstep Consultants Limited, to include these general terms and conditions, the support agreement and/or any other related documents which may reasonably be referred to in order to establish the rights and obligations of the parties.
Agreement Term – one year from the date of commencement of a support agreement. Once this period has passed, the Agreement Term shall be taken to mean subsequent years, each starting with the anniversary of the date of commencement
Customer – the party referred to in the support agreement, order confirmation, estimate, quote or other documentation who engages Kerstep Consultants Limited to perform the services outlined therein, including its officers, employees, agents and legal representatives.
Incident – an event which triggers the Customer to require Kerstep Consultants Limited to undertake a service in accordance with a support agreement
This Agreement shall constitute the entire and complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral with respect to the subject matter of this Agreement. All terms and conditions of any purchase order or other ordering document of the Customer shall be superseded by the terms and conditions of this Agreement. Unless otherwise specified in the particular terms and conditions or in any Schedule or Addendum of or to this Agreement:
a) This Agreement shall apply to all software programs, computer hardware, equipment and services supplied by Kerstep Consultants Limited, (hereinafter on this document shown as Kerstep Consultants Limited);
b) In the event of any conflict or inconsistency between the terms of any Schedule of or addendum to this Agreement and this Agreement, the terms of any Schedule of or Addendum to this Agreement shall prevail and take precedence.
All prices specified in this Agreement are strictly net and exclusive of Tax.
Any quotations provided to the Customer by Kerstep Consultants Limited will be based on information provided by the Customer and on certain assumptions that the Customer’s existing IT equipment is of a sufficient specification and in good working order, and that any necessary follow up actions which the parties agree are to be executed by the Customer are indeed carried out. Kerstep Consultants Limited reserves the right to adjust a quotation if the Customer has not disclosed, or has not correctly disclosed, information or circumstances which affect the basis on which Kerstep Consultants Limited has prepared its quotation, or if the Customer fails to undertake some or any of its agreed actions.
The acceptance by the Customer of any goods and/or the commencement of services further to a quote from Kerstep Consultants Limited shall be a sufficient act of the acceptance by both parties of these terms and conditions.
The Customer shall not novate, assign, mortgage, charge or make over this Agreement or any part of it, without the prior express consent in writing of Kerstep Consultants Limited. Kerstep Consultants Limited shall be entitled to sub-contract the whole or any part of this Agreement or any of its rights or obligations under this Agreement.
Any notice document or request required to be given or served may be given or served by sending it pre-paid first class mail or by facsimile to the Registered office of Kerstep Consultants Limited or the address of the Customer as set out above, any such notice being specifically addressed to the Company Secretary of Kerstep Consultants Limited or the Customer as appropriate. If sent by first class mail, service shall be deemed to have occurred 48 (forty eight) hours after the posting of such notice and if sent by facsimile, upon receipt of appropriate confirmation of transmission. Either party may give written notice to the other of a change of address and after notice of such change has been served and received, any notice, document or request given or served thereafter shall be given to or served upon such party at such changed address.
Clause headings are inserted for ease of reference only, and do not form part of this Agreement for the purpose of interpretation.
This Agreement and all the terms, provisions and conditions of this Agreement and alI questions of construction, validity and performance under this Agreement, shall be governed by the laws of England and the parties agree to submit to the exclusive jurisdiction of the English courts.10) CONFIDENTIALITY
Each of Kerstep Consultants Limited and the Customer hereby undertakes to the other to keep confidential all information not in the public domain relating to the business or products of the other party and not, without the other's written consent, to disclose any such information to any other person. Kerstep Consultants Limited shall be entitled to disclose to its employees, agents or contractors any information not in the public domain relating to the Customer provided that Kerstep Consultants Limited shall have made such persons aware that such information is not in the public domain. The terms of this Clause 10 shall survive the termination of this Agreement.
Each party shall be responsible for the accuracy of the information they supply to the other and shall reimburse the other party for any additional costs incurred as a result of mistakes, errors and or omissions contained therein.
The Customer acknowledges that the advice provided by Kerstep Consultants Limited will rely heavily on the information supplied by the Customer and that the desired results will be affected by the extent to which the advice from Kerstep Consultants Limited is implemented and cannot be guaranteed.
Kerstep Consultants Limited shall not be held responsible for defects inherent in software or hardware from third parties. Kerstep Consultants Limited’s responsibility in such circumstances is limited to diagnosis of the defect and liaison with the third party on behalf of the Customer, who must notify Kerstep Consultants Limited of the defect within one month of it being installed.
This Agreement is not a substitute for a maintenance or support agreement with a provider of specialist software or hardware.
The liability of Kerstep Consultants Limited to the Customer and the liability of the Customer to Kerstep Consultants Limited for death or personal injury arising from its negligence or that of its employees, agents or subcontractors shall not be limited but subject thereto Kerstep Consultants Limited shall not, in any circumstances, be liable whether in contract, tort or otherwise, for any indirect or consequential loss or damage howsoever arising and of whatsoever nature suffered or incurred by the Customer including (without limitation) loss of profits, loss of contracts, loss of data, loss of operation time or loss of the use of any equipment or process suffered directly or indirectly by the Customer and loss of anticipated savings. Save for liability for death or personal injury arising from the negligence of Kerstep Consultants Limited, its employees, agents or sub-contractors for which no limit applies, the liability of Kerstep Consultants Limited to the Customer for any direct loss or damage whether in contract, tort or otherwise, arising out of or in connection with its performance or its total or partial failure to perform in accordance with the terms of this Agreement shall in respect of any one incident or series of incidents attributable to the same cause be limited to and shall not in any circumstances exceed a sum equal to the amount actually paid to Kerstep Consultants Limited by the Customer under this Agreement.
This Agreement shall come into force upon the date countersigned by an authorised signatory of Kerstep Consultants Limited.
Neither party shall be liable to the other for failure or delay in the performance of a required obligation if such failure or delay is caused by strike, riot, fire, flood, natural disaster or other similar cause beyond such party's reasonable control.
Kerstep Consultants Limited shall not be liable to the Customer for loss arising from, or in connection with, any representations agreements, statements or undertakings made prior to the date of the execution of this Agreement.
The waiver by Kerstep Consultants Limited of a breach or default of any of the provisions of this Agreement by the Customer shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of Kerstep Consultants Limited to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the Customer.
If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable provision.
Nothing in this Agreement is intended to, or does, confer any right on a third party.
If there is a support agreement in place between Kerstep Consultants Limited and the Customer, the support agreement shall be for a minimum period of one year, from the date of commencement. Unless otherwise agreed between the parties, the support agreement will automatically renew on the anniversary of the date of commencement, and will continue to do so on an annual basis, subject to clauses 23 and 24 below.
Without prejudice to any of the provisions in this Agreement either Party may terminate the Agreement immediately by giving the other Party written notice if the other Party:
a) fails to remedy any failure to observe and perform the provisions of the Agreement within 14 days of receiving a notice to remedy;
b) becomes bankrupt, has a receiving order made against it or takes the benefit of any Act for the time being in force for the relief of insolvent debtors or is unable to pay its debts when due;
c) is convicted of any criminal offence or commits any serious misconduct which in the reasonable opinion of the terminating party may prejudicially affect that Party’s reputation or business;
d) engages in conduct prejudicial to the best interests or good name and reputation of the other Party;
e) Is in breach of any of its obligations under this Agreement. If there is a support agreement in place between Kerstep Consultants Limited and the Customer, once the minimum term has passed either party shall be entitled to terminate the support agreement without cause or penalty in writing with three month’s notice.
Kerstep Consultants Limited reserves the right to review the payment details in a support agreement after the minimum period. Any variation to the payment details will be subject to three month’s notice in writing from Kerstep Consultants Limited to the Customer. Kerstep Consultants Limited shall satisfy the Customer that the variation is reasonable, prior to its implementation.
Kerstep Consultants Limited is to supply the Customer with services as and when required by the Customer and will undertake such services with skill and care. The nature and cost of these services will be as agreed between the Customer and Kerstep Consultants Limited and documented in a support agreement, an assignment schedule, quote or estimate to the Customer.
Kerstep Consultants Limited reserves the right to determine the allocation of Kerstep Consultants Limited personnel in furnishing services under this Agreement.
Kerstep Consultants Limited agrees that for a period of 12 (twelve) months from the date hereof it will not approach or solicit the personnel of the Customer with a view to offering them employment without the written consent of the Customer.
Kerstep Consultants Limited will defend at its cost any claims brought against the Customer that any Software Products supplied by Kerstep Consultants Limited to the Customer pursuant to this Agreement infringes any patent, trademark, copyright or other intellectual property of third parties. Kerstep Consultants Limited will pay those costs and damages finally awarded or settled by negotiations against the Customer on any action based on any such claim provided that:
a) The Customer promptly notifies Kerstep Consultants Limited in writing of any such claim.
b) Kerstep Consultants Limited has sole control of the defence of any such claim and all related settlement negotiations, and
c) the Customer provides Kerstep Consultants Limited with the assistance, information and authority necessary to perform Kerstep Consultants Limited's obligations under this Clause 28. Kerstep Consultants Limited shall have no liability for any claim of infringement based on
a) use of a superseded or altered release of the Software Product if the infringement would have been avoided by the use of a current unaltered release of the Software Product that Kerstep Consultants Limited provides to the Customer; or
b) the combination, operation or use of any Software Product supplied under this Agreement with software, hardware or other materials not supplied by Kerstep Consultants Limited under this Agreement if such infringement would have been avoided by the use of the Software Product without such software, hardware or other materials. If a judgement against Kerstep Consultants Limited for any such claim has occurred, or in Kerstep Consultants Limited's opinion is likely to occur, the Customer agrees to permit Kerstep Consultants Limited, at its expense, either:
a) to procure for the Customer the right to continue using the Kerstep Consultants Limited Software Products or;
b) to modify the same so that they become non-infringing or;
c) to replace the same by non-infringing material so that the material as modified or replaced performs the same functions as the infringing material; or
d) to terminate the licence for the infringing Software Products and refund the licence fees paid for those Software Products pro-rated over a 5 (five) year term from the date of this Agreement. This Clause 28 states Kerstep Consultants Limited's entire liability and the Customer's exclusive remedy for infringement.
The Customer agrees that it shall, subject to its prior agreement, provide such access to its premises and facilities as Kerstep Consultants Limited may reasonably require in order to carry out the services as detailed in the support agreement and/or order documentation.
The Customer agrees that, for a period of 12 (twelve) months from the date of most recent invoice it will not approach or solicit the personnel of Kerstep Consultants Limited with a view to offering them employment without the written consent of Kerstep Consultants Limited.
The Customer grants to Kerstep Consultants Limited the right to use the Customer's name as a Customer of Kerstep Consultants Limited. However, before Kerstep Consultants Limited uses the Customer's name in publicity, advertising releases and other materials prepared by or on behalf of Kerstep Consultants Limited, prior written approval by the Customer of the wording to be used must be obtained, such approval not to be unreasonably withheld.
a) The Customer warrants that it has the necessary permission, express or otherwise, to enable any programs owned by third parties which Kerstep Consultants Limited is not obliged to supply under the express terms of this Agreement and necessary for Kerstep Consultants Limited to fulfil its obligations to the Customer to be copied and modified and run on the specified equipment during the use of the Software Product(s) without infringing third party copyright or any other rights and that the disclosure or use of such third party programs by Kerstep Consultants Limited will not involve or result in any breach of confidence or contract.
b) The Customer will hold Kerstep Consultants Limited indemnified against any such claim and the costs of defending such a claim arising out of the breach by the Customer of the warranty set out in this Clause 32.
The Customer reserves the right to purchase new IT related equipment/software from Kerstep Consultants Limited or any other source they deem appropriate, and this shall not invalidate any of its rights under this Agreement. However, the Customer acknowledges its responsibility to inform Kerstep Consultants Limited of its intent to purchase new equipment/software so that Kerstep Consultants Limited may advise as to its suitability prior to implementation and whether it will necessitate a change to any existing quote and/or support agreement.
Unless otherwise expressly agreed in writing by Kerstep Consultants Limited as a specific responsibility of Kerstep Consultants Limited under this Agreement, the Customer will be responsible for the provision of the necessary environmental and operational conditions for their IT equipment to function correctly; including (but not limited to) the provision of adequate, appropriate and sufficient i) machine configuration and System Software Products, ii) installation and audit controls iii) procedures and checkpoints to satisfy the Customer's requirements in relation to security and accuracy of input and output data including restart and recovery in the event of a computer malfunction and iv) methods and equipment for backing up all data in accordance with good computing practice. The Customer shall also be responsible for providing suitably qualified user personnel to run their computers and related IT equipment.
Following delivery of goods and/or supply of services, from time to time, delivery notes, acceptance certificates or timesheet documentation will be submitted, by Kerstep Consultants Limited, for the Customer to acknowledge satisfactory delivery and/or satisfactory completion of supplied goods and/or services. In the case of written documentation, a signature from the Customer will constitute acceptance of delivery and/or completion to a satisfactory standard. In the case of electronic documentation, including but not limited to e-mail and facsimile transmissions, a replied acknowledgement from the Customer will constitute acceptance of delivery and/or completion to a satisfactory standard.
Except as otherwise provided herein, the Customer agrees to pay all invoices within 30 days of submission by Kerstep Consultants Limited. Title to goods supplied by or via Kerstep Consultants Limited shall only pass to the Customer once the related invoice has been paid in full. Kerstep Consultants Limited reserves the right to charge interest on overdue balance in accordance with the Late Payment of Commercial Debts (Interest) Act 1998, as amended by the Late Payment of Commercial Debts Regulations 2002. The Customer acknowledges that payments made pursuant to this Agreement in no circumstances constitute refundable deposits.