Please find below our standard SQLWorks Terms and Conditions – Lineal Software Solutions Ltd.
Additional Policies & Procedures:
RELATIONSHIP OF PARTIES:
The Client wishes to procure hardware and software products and maintenance services from the Service Provider and the Service Provider agrees to provide hardware and software products and maintenance services under the terms and conditions set out in this Agreement.
The Service Provider is engaged in the business of supplying maintaining and servicing computer hardware and software.
IT IS AGREED as follows:
1 Definitions and Interpretation
In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
|“Defect”||means any material difference between the actual performance, utility and functionality of the Software and that which can be reasonably expected based upon the manufacturer’s description of the software, taking into account the specifications of the relevant computer systems;|
|“Hardware & Services “||means the hardware maintenance services to be provided to the Client by the Service Provider as defined at Clause 4 on the equipment listed in Schedule 2 of this Agreement;|
|“Software Licence”||means the license documentation accompanying software setting out the relevant permissions, rights and restrictions over the user’s use of that software: and|
|“Software Services”||means the software maintenance services to be provided to the Client by the Service Provider as defined at Clause 5 of this Agreement.|
2.1 – The Services will be provided by the Service Provider during the term of this agreement (the “Term”), which shall commence on the Contract Start Date on page 2 of this agreement and will continue until the Contract Renewal Date shown on page 2 of this agreement, unless otherwise terminated in accordance with Clause 11 of this Agreement.
2.2 – The Term will be renewed on the same conditions as set out in this Agreement for a further period of 12 months at each subsequent annual anniversary date following the Contract Renewal Date shown on page 2 of this agreement, unless otherwise terminated in accordance with Clause 11 of this agreement. The terms may be varied, or the contract terminated, at each anniversary. Notice of any variation or cancellation must be given in writing at least 2 months prior to each anniversary.
3 Fees and Payment
3.1 – The Client shall pay the Total Quarterly Service Fee shown on page 2 of this Agreement to the Service Provider on the 1st day of each calendar quarter throughout the Term in consideration of the Services.
3.2 – The Client shall be invoiced separately for any new Hardware, Software or configuration that is supplied by the Service Provider.
3.3 – Travel and overnight costs will be charged as detailed on page 2 of this agreement.
3.4 – The Service Provider reserves the right to increase the annual fee in line with inflation at each anniversary.
3.5 – All invoices shall be sent to the Client at the address detailed in the preamble to this Agreement unless otherwise agreed by the Parties and shall be paid as shown on each invoice.
3.5 – All sums specified in this Agreement are exclusive of any value added tax unless expressly stated otherwise.
4 Hardware Services
4.1 – The Hardware Services shall be deemed to include the following:
4.1.1 – Initial commissioning of new or replacement Hardware supplied by the Service Provider including installation and configuration where this equipment replaces existing failed Hardware. This agreement must have been in force for a minimum of 4 weeks prior to such requests;
4.1.2 – Installation of network patch cable connections where required;
4.1.3 – Repair of faults in Hardware, but does not include parts or labour from 3rd parties. Lineal will notify the customer of any hardware deemed to be becoming unreliable, due to age, damage or general expiry, with due notice. If the Client chooses to continue using equipment that has been so notified, without adequate backup hardware available on the Client’s site, any labour required to rectify or replace such hardware will be charged at prevailing rates;
4.1.4 – Preventative maintenance for all Hardware to take place 1 time per site per annum, such maintenance to include (but not be limited to) testing, adjusting, cleaning. The provision of such maintenance shall take place at times agreed between the Parties and may be subject to travel costs as outlined on page 2 of this agreement;
4.2 – Where the Hardware Services required involve the unavailability of installed Hardware either due to the failure of that Hardware or due to the nature of the Hardware Services being provided, the Service Provider shall respond within 4 working hours. All hardware covered will have a fix time of 8 working hours, subject to the availability of parts. A request for an onsite visit within 4 working hours will incur an additional charge as detailed on page 2 of this agreement.
4.3 – This agreement shall not be deemed automatically to cover any additional Hardware that the Client may purchase during the Term. Extension of the Hardware Services to cover such new Hardware shall occur only by agreement between the Parties and may result in an increase in the Service Fee, such increase being at the discretion of the Service Provider.
4.4 – The following are expressly excluded from the Hardware Services and shall only be undertaken at the discretion of the Service Provider at extra cost to the Client:
4.4.1 – Repairs to Hardware damaged deliberately by the Client, as a result of vandalism war, terrorism, fire, explosion or natural disaster;
4.4.2 – Repairs to printers damaged as a result of use of non-genuine consumables;
4.4.3 – Repairs to Hardware which has been modified, moved, reinstalled or repaired by the Client or any third party without the prior written approval of the Service Provider.
5 Software Services
5.1 – The Software Services shall be deemed to include the following:
5.1.1 – Installation of Software supplied by the Service Provider on any and all computers as directed by the Client at the Site(s), such computers to include servers, workstations and company-owned mobile computers;
5.1.2 – Analysis of software, compatibility, error messages, upgrades and other relevant information in order to take preventative and/or remedial action in relation to Defects;
5.1.3 – Periodic updates of Software; and
5.1.4 – Installation of new versions of Software, such installation to be at the sole discretion of the Client.
5.2 – Where the Services required involve the unavailability of installed Software either due to errors in or failure of that Software or due to the nature of the Services being provided, the Service Provider shall use its best and reasonable endeavours to complete all work required within 8 working hours.
5.3 – This Agreement shall not be deemed automatically to cover any additional Software that the Client may purchase during the Term. Extension of the Software Services to cover such new Software shall occur only by agreement between the Parties and may result in an increase in the Service Fee, such increase being at the discretion of the Service Provider.
5.4 – Under no circumstances shall the Service Provider undertake any work that may result in the infringement of Software Licences, such work to include, but not be limited to the unauthorised modification of Software and the installation of multiple copies of Software in excess of any quantity permitted by the relevant Software Licence.
5.5 – The following are expressly excluded from the Software Services and shall only be undertaken at the discretion of the Service Provider at extra cost to the Client:
5.5.1 – Rectification of Defects in Software caused by the installation of unofficial upgrades;
5.5.2 – Rectification of Defects in Software which has been modified, installed, or reinstalled by the Client or any third party without the prior written approval of the Service Provider;
5.5.3 – Installation and maintenance of beta or other pre-release software;
5.5.4 – Rectification of Defects in Software caused by the installation of beta or other pre-release software;
5.5.5 – Data recovery services;
5.5.6 – Installation and maintenance of Software on computer equipment that is not owned by the Client.
5.5.7 – Corrective work due to virus installation on each desktop or server.
6.1 – Lineal agrees to provide support to the Customer for its SQLWorks database system specified in Schedule 4 on the basis hereafter disclosed (the “Services”)
6.2 – Lineal’s response to requests from the Customer for support shall be received by the Customer no later than eight working hours after the initial contact. Lineal’s normal working hours are 9.30 am to 4.30 pm, Monday to Friday, excluding Bank Holidays.
6.3 – The response is to include, at the least, a specific indication of when Lineal will address the problem. The specific response times will be dependent on the priority assigned to them and Lineal will comply with the times set.
6.4 – Lineal will provide software corrections (other than requests for support) and maintenance on an ad hoc basis at its discretion without further charge to the Customer for the duration of the licence. These amendments cover reports and minor input procedures. Minor updates to the core SQLWorks DB engine will be provided within the scope of this agreement.
6.5 – This licence is provided for the duration of the terms as laid out in Section 2.
6.6 – Internet access is required for the continued daily use of the system by each workstation.
6.7 – Workstation, server, backup and network performance is not covered by this agreement and is the responsibility of the Customer’s technical support dept.
6.8 – USERS: The number of users allowed at any one time (Concurrent users) is set out in Schedule 4. This does not include the version that is installed on the server.
6.9 – SERVER: The SQLWorks server will be supplied by the user and maintained by the user to the required specification provide by Lineal. Adequate performance will only be achieved by following guidelines from Lineal, if these guidelines are ignored, then Lineal will not be responsible for any performance degradation.
6.10 – BACKUP: The user will provide adequate backup facilities for the SQLWorks database. SQLWorks will provide 2 complete backups every day for the customer to the local hard drive of the server. The customer is responsible for the long term storage of these backup sets. In the event of server failure, Lineal will not be held responsible for the recovery of data if the backup sets are unavailable. Cloud backup storage facilities are available from Lineal as a separate cost per month.
6.11 – REMOTE ACCESS: Remote access will be available for Lineal technical staff to monitor and operate the SQLWorks sever at all times. If this access is unavailable, then any delays in establishing an operational system will be the responsibility of the customer and any costs incurred by Lineal in both travel and time will be reclaimed by Lineal from the Customer at our prevailing rate for emergency support.
6.12 – REMOTE USERS: SQLWorks supports remote access by VPN for sales agents, etc. Access to the SQLWorks database will the responsibility of the Customer. Performance is set by the access speed of the remote user, and the minimum speed for direct connection is a 700 kbps upstream / 4 Mbps downstream ADSL connection at each end of the connection or better. RDC or Terminal Server users are also supported, again with the above minimum speed for ADSL.
6.13 – ACCESS: Access to the SQLWorks database is restricted to users of the SQLWorks client software. Users may also use Crystal Reports XI to print data, all results will be the gathered for the Customer and Lineal cannot take any responsibility for the accuracy of this data. If the customer causes structural damage or halts the SQLWorks DB through software errors, Lineal will not be responsible. Any costs incurred by Lineal in both travel and time will be reclaimed by Lineal from the Customer at our prevailing rate for emergency support.
6.14 – DISTRIBUTION: Distribution is allowed to all workstations on the customer’s site, but may not be given to other users outside of the Customer.
7 Client’s Obligations
7.1 – The Client shall enable the Service Provider to access the Sites at all times during which the Service Provider may reasonably require such access in order to provide the Services. Such access shall include use of and access to HVAC systems, lighting, electrical, infrastructure, and outlets, computer networks, telephones and any other facilities which the Service Provider may reasonably require.
7.2 – The Client shall provide the Service Provider with detailed reports of any and all problems that require remedy within the Services.
7.3 – The Client shall ensure that suitable, current antivirus and antispam protection is in place. Remedial action is chargeable for issues arising due to inadequate protection.
7.4 – The Client permits the Service Provider to use its company logo on relevant publications demonstrating the Service Provider’s client base, during the term of this and subsequent contracts.
7.5 – The Client accepts that in the event of payments to the Service Provider being outside the invoiced terms (normally 30 days), the Service Provider reserves the right to reduce the services detailed in this agreement until payment is received, in addition to interest charges stated on all Lineal invoices.
7.6 – The Client agrees to allow the Service Provider access to, plus secure storage of, passwords and other information relevant to enable them to carry out the services detailed in this agreement.
7.7 – The Client accepts that changes in their circumstances, such as change of users, workstations, hardware, software, home support, sites, changes in internet, telephone or third party support, must be reported to the Service Provider in advance. Such changes may result in the price of the agreement being re-calculated, with 2 months’ notice being given in advance of any change in the terms of this agreement.
8 Service Provider’s Obligations
8.1 – The Service Provider shall use its best and reasonable endeavours to provide the Services in a timely manner and in accordance with prevailing best practices in the industry.
8.2 – Where the nature of the Services dictates that such work takes place on an on-demand basis, the Service Provider shall make reasonable effort to provide the Services within 5 working days of receipt of notice from the Client that such Services are required.
8.3 – The Service Provider shall use its best and reasonable endeavours to ensure that it does not:
8.3.1 – Create any unsafe or hazardous conditions as the Sites;
8.3.2 – Materially interfere with or impair the operation of HVAC systems, lighting, electrical infrastructure, plumbing, fire protection systems, safety systems or security systems at the Sites; or
8.3.3 – Impose any expense upon the Client in connection with its use or operation of the Sites.
9.1 – The Service Provider warrants to the Client that the Services supplied under this Agreement will be carried out with reasonable care and skill by personnel whose qualifications and experience will be appropriate for the tasks to which they are allocated.
9.2 – Except as expressly provided in this Agreement, no warranty, condition, undertaking or term, express or implied, statutory or otherwise, as to the satisfactory quality, fitness for purpose, or ability to achieve a particular result, of the Services is given or assumed by the Service Provider, and all such warranties, conditions, undertakings and terms are excluded.
9.3 – The Client agrees that its sole remedy in respect of any non-conformance with any warranty in this Agreement is that the Service Provider will remedy such non-conformance (either by itself or through a third party) and if, in the Service Provider’s reasonable opinion, it is unable to remedy such non-conformance, the Service Provider will refund the Service Fee for the month in which the Services, the subject of such claim, were supplied, if paid, whereupon this Agreement shall immediately terminate.
9.4 – The Service Provider does not warrant that all problems can and will be corrected. The Service Provider shall use its best and reasonable endeavours to correct problems so long as the problems are replicable or otherwise identifiable by the Service Provider.
9.5 – The Client must promptly notify the Service Provider of any non-conformance to the above warranties in order to benefit from the remedy set out in sub-Clause 9.4, and in any event within 3 months.
10.1 – The Service Provider shall during the term of this Agreement, maintain employer’s liability and third party liability insurance cover in respect of its liabilities arising out of or connected with this Agreement, such cover to be to a minimum value of £1,000,000 and with an insurance company of repute. The Service Provider shall on request supply copies of the relevant certificates of insurance to the Client as evidence that such policies remain in force. The Service Provider undertakes to use reasonable commercial efforts to pursue claims under such insurance policies.
10.2 – Save in respect of claims for death or personal injury arising from the Service Provider’s negligence, in no event will the Service Provider be liable for any damages resulting from loss of data or use, lost profits, loss of anticipated savings, nor for any damages that are an indirect or secondary consequence of any act or omission of the Service Provider, whether such damages were reasonably foreseeable or actually foreseen.
10.3 – The Parties acknowledge and agree that the limitations contained in this Clause 10 are reasonable in the light of all the circumstances.
11.1 – The Service Provider shall be entitled to terminate this Agreement in the event that:
11.1.1 – The Client has failed to pay the Service Fee to the Service Provider for a period exceeding 3 consecutive months and fails or refuses to do so following the expiry of a written notice from the Service Provider requesting such payment within 21 days; or
11.11.2 – The Client demands services which do not form part of the Services and which are not covered by this Agreement.
11.2 – The Client shall be entitled to terminate this Agreement in the event that:
11.2.1 – The Service Provider fails on more than 3 consecutive occasions within a period of 3 consecutive months to render the required Services to the Client in a timely manner and in accordance with the terms of this Agreement; or
11.3 – Either Party has the right to terminate the agreement immediately if the other:
11.3.1 – has committed a material breach of this agreement unless such breach is capable of remedy, in which case the right to terminate immediately will be exercisable if the other Party has failed to remedy the breach within 14 days after a written notice to do so; or
11.3.2 – goes into bankruptcy or liquidation either voluntary or compulsory (save for the purposes of bona fide corporate reconstruction or amalgamation) or if receiver is appointed in respect of the whole or any part of its assets.
11.4 – In the event of termination for default committed by the Client, all payments required under this Agreement shall become due and immediately payable.
11.5 – Any and all obligations of the Parties which either expressly or by their nature continue beyond the termination, cancellation or expiration of this Agreement shall survive termination under this Clause 11.
12.1 – Each Party undertakes that, except as authorised in writing by the other Party, it shall, at all times during the continuance of this Agreement and for 3 years after its termination:
12.1.1 – Keep confidential all Confidential Information;
12.1.2 – not use any Confidential Information for any purpose other than as contemplated by and subject to the terms of this Agreement;
12.2 – Either Party may:
12.2.1 – Disclose any Confidential Information to:
12.2.2 – any sub-contractor or supplier of that Party;
12.2.3 – any governmental or other authority or regulatory body; or
12.2.4 – any employee or officer of that Party or of any of the aforementioned persons;
to such extent only as is necessary for the purposes contemplated by this Agreement, or as required by law, and in each case subject to that Party first informing the person in question that the Confidential Information is confidential, to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made; and
12.3 – The provisions of this Clause 12 shall continue in force in accordance with their terms, notwithstanding the termination if this Agreement for any reason.
All notices under this Agreement shall be in writing.
14 Relationship of Parties
Nothing in this Agreement shall create, or be deemed to create, a partnership, the relationship of principal and agent, or of employer and employee between the Service Provider and the Client.
Neither Party shall assign, transfer, sub-contract, or in any other manner make over to any third party the benefit and/or burden of this Agreement without the prior written consent of the other, such consent not to be unreasonably withheld.
16 Force Majeure
Neither Party to this Agreement shall be liable for any failure of delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
The Parties agree that, in the event that one or more of the provisions of this Agreement is found to be unlawful, invalid or otherwise unenforceable, that those provisions shall be deemed severed from the remainder of this Agreement. The remainder of this Agreement shall be valid and enforceable.
18 Entire Agreement
This Agreement embodies and sets forth the entire agreement and understanding between the Parties and supersedes all prior oral or written agreements, understandings or arrangements relating to the subject matter of this Agreement. Neither Party shall be entitled to rely on any agreement, understanding or arrangement not expressly set forth in this Agreement, save for any representation made fraudulently.
Unless otherwise expressly provided elsewhere in this Agreement, this Agreement may be varied only by a document signed by both of the Parties.
19 No Waiver
The Parties agree that no failure by either Party to enforce the performance of any provision in this Agreement shall constitute a waiver of the right to subsequently enforce that provision or any other provision of this Agreement. Such failure shall not constitute a continuing waiver.
The relationship between the Parties under this Agreement is and shall remain non-exclusive. Both Parties are free to enter into similar relationships with other parties.
21 Law and Jurisdiction
21.1 – This Agreement shall be governed by the laws of England and Wales.
21.2 – Any dispute between the Parties relating to this Agreement shall fall within the jurisdiction of the courts of England and Wales.