Terms and Conditions
These are the terms and conditions of supply by Vensis Ltd in relation to the provision of Database Systems development services and other related services. These terms shall be deemed accepted by our Clients upon their placing an order or agreeing to proceed with engaging with Vensis by any other means:
1.1 “Acceptance Date” means the date on which the Database System is accepted by the Client;
1.2 “Acceptance Tests” means the tests specified in the Specification and/or such other tests as may be agreed in writing between the Client and Vensis for the purposes of confirming that the Database System operates according to the functional requirements in the Specification;
1.3 “Additional Services” means any additional services requested by the Client to be provided by Vensis as set out in the Specification;
1.4 “Agreement” means these Terms and Conditions together with the terms of any applicable Specification;
1.5 “Annual Support Fee” means a fee, subject to a separate commercial quotation, to be charged for the optional provision of support services to the Client by Vensis;
1.6 “Change Request” means a documented request for a change to the Specification or Database System or Project Plan or other of the Deliverables made by the Client or by Vensis;
1.7 “Confidential Information” shall include, but not necessarily be limited to, all information which is not publicly known regarding the business, finances, technology, trade secrets, and any other commercially sensitive information of either party regardless of its nature;
1.8 “Cost” means the aggregate cost for the provision of the Deliverables as set out in the Specification;
1.9 “Cost Schedule” means the schedule of payments set out in the Specification;
1.10 “Database System” means the databases, compiled object code of the software, scripts and installation programs being developed or customised by Vensis for the Client, as set out in the Specification, including any enhancements and modifications made;
1.11 “Deliverables” means the Database System and Additional Service to be delivered by Vensis to the Client in fulfilment of this Agreement as set out in the Specification.
1.12 “Intellectual Property Rights” means all copyright and other intellectual property rights, howsoever arising and in whatever media, whether or not registered, including (without limitation) patents, trademarks, service marks, trade names, registered design and any applications for the protection or registration of these rights and all renewals and extensions thereof throughout the world;
1.13 “Live Operational Use” means the use of the Database System in pursuance of the business of the Client;
1.14 “Mis-use” means use of the Database System in a way for which it was not intended to be used according to the Specification;
1.15 “Planned Acceptance Date” means the date specified in the Project Plan on which the Database System is intended to be accepted by the Client in accordance with this Agreement;
1.16 “Project” means the System development, delivery and testing of the Database System and the other Deliverables;
1.17 “Rates” means the rates set out in the Cost Schedule;
1.18 “Specification” means all or any of the following documents: proposal, cost schedule documents, statement of work, project plan, quotation or other similar documents supplied to the Client describing the services to be provided by Vensis;
1.19 “Specified Equipment” means the configuration of computer or computers, including operating systems, on which the Database System is to function as specified in the Specification;
1.20 “Standard Working Hours” means the hours of 8.30 to 5.00pm UK time Monday through to Friday excluding UK Bank Holidays.
1.21 “Warranty Period” means the period of four weeks immediately following the Acceptance Date;
2.1 These Terms and Conditions shall apply to all contracts for the supply of services by Vensis to the Client.
2.2 Before the commencement of the services Vensis shall submit to the Client a Specification and Cost Schedule which shall specify the services to be performed and the fees payable. The Client shall notify Vensis immediately if the Client does not agree with the contents of the Specification or Cost Schedule documents. All Specification and Cost Schedule documents shall be subject to these Terms and Conditions.
2.3 Vensis shall use all reasonable endeavours to complete the services within estimated timeframe but time shall not be of the essence in the performance of any services.
3 The Project
3.1 Vensis shall provide the Client with development services for the purpose of creating the Database System, Additional Services and other Deliverables as detailed in the Specification, in accordance with the terms and conditions of this Agreement.
3.2 Vensis shall provide to the Client the Deliverables when requested by the Client subject to full payment having been received by Vensis for the Deliverables or part of the Deliverables being provided.
3.3 Unless explicitly itemised in the Specification, Vensis shall not be responsible for any other services including, without limitation, hardware and software installation, systems integration, data conversion, data import and training.
3.4 For the avoidance of doubt, Vensis shall not be responsible under any circumstances for backup and archiving of the Database System or of any data used by the Database System on computer equipment belonging to the Client or the Client’s appointed computer hosting supplier.
4 The Client’s Obligation
4.1 The Client shall:
4.1.1 Make available to Vensis, free of charge, such computer facilities and resources, (including but not limited to, unhindered access to the Specified Equipment including remotely for access at Vensis’s premises), power and computer consumables and office and administrative resources as are reasonably necessary, to enable Vensis to carry out its obligations under this Agreement;
4.1.2 make available suitably qualified employees, as may be required for Vensis to carry out its obligations under this Agreement, and ensure that its employees and other independent contractors co-operate reasonably with Vensis and its employees in carrying out the Project;
4.1.3 promptly furnish Vensis with such information and documents as it may reasonably request for the proper performance of its obligations under this Agreement;
4.1.4 ensure that its representative is available as reasonably required by Vensis; and
4.1.5 use best endeavours to co-operate with and assist Vensis to such extent as Vensis may reasonably require to perform Vensis’s obligations under this Agreement.
4.2 Vensis reserves the right to initiate a Change Request if the project is delayed by the failure of the Client to carry out its obligations under this Agreement or if the project is delayed by the acts or omissions of an employee, agent or third party supplier of the Client, or if the project is delayed by circumstances beyond the reasonable control of Vensis.
4.3 It is hereby acknowledged that by legal precedent computer software inherently contains from time to time defects, faults and difficulties however well developed and supported, and acceptance of Deliverables under this Agreement shall not be unreasonably withheld due to minor faults in the Database System.
4.4 The Client acknowledges that all and any Deliverables from Vensis to the Client in respect of this Agreement are of specific importance to Vensis meeting the agreed schedule in the Project Plan and accepts full responsibility for any delay in accepting the Deliverables.
5 Change Control
5.1 If either party identifies a requirement for a change to the Specification or the Database System or the Project Plan, a Change Request shall be sent to the other party detailing the change requirements. If sent by Vensis, the Change Request shall state the effect such a change shall have on the Specification, the Project Plan and the Cost. If sent by the Client, the receipt of the Change Request by Vensis shall constitute a request to Vensis to state in writing the effect such a change shall have on the Specification, the Project Plan and the Cost. Vensis shall use all reasonable endeavours to supply the necessary details within ten working days from receipt of the Change Request or such other period as may be agreed.
5.2 Where a change to the Cost is required, the rates used as the basis for the additional cost for the Change Request shall be the Rates as detailed in the Specification. The parties shall then decide whether or not to implement the change.
5.3 If Vensis in its sole discretion deems that more than one working hour is required to investigate and estimate a Change Request initiated by the Client then Vensis reserves the right to produce a quotation for the investigation work for the Client’s approval before commencing investigation work.
5.4 Vensis shall not implement any changes to the Database System specified in a Change Request unless the Change Request has been agreed by both of the Parties in writing.
5.5 If a Change Request is agreed in writing by both Parties, the change shall then be deemed to form part of the Specification, Project Plan and Cost for the purpose of the meaning of these terms in the Agreement.
6 Acceptance Tests
6.1 It shall be the sole responsibility of the Client to execute the Acceptance Tests.
6.2 The Client shall accept the Database System immediately after the Database System has passed the Acceptance Tests and shall notify Vensis in writing without delay.
6.3 If the Database System fails to pass the Acceptance Tests, repeat tests shall be carried out without delay following the release of corrected Database System by Vensis until the Database System passes the Acceptance Tests.
6.4 If at any time the Client or any of its appointed agents, contractors or Clients under its authority shall commence Live Operational Use of the whole or any part of the Database System then the Client shall be deemed to have accepted the Database System in its entirety.
6.5 If at any time the Client shall distribute all or any part of the Database System for commercial use by any of its staff, appointed agents, contractors or Clients then the Client shall be deemed to have accepted the Database System in its entirety.
6.6 If following one month after the delivery of the Database System, there are no unresolved fault reports logged by the Client with Vensis or evidence that the Database System does not pass the Acceptance Tests then the Client shall be deemed to have accepted the Database System in its entirety.
6.7 The Client shall provide test data within the timescales of the Project Plan that accurately reflect the type and range of the data used during Live Operational Use.
6.8 It shall be the responsibility of the Client to create suitable Acceptance Tests that accurately reflect the use of the System for comparison to the agreed Specification.
7 Representatives and Progress Meetings
7.1 Each party shall nominate, the person who shall act as its representative for the purposes of this Agreement and who shall be responsible for providing any information which may be required by the other party to perform its obligations under this Agreement.
7.2 The parties shall procure that their respective representatives shall meet by physical meeting or conference telephone call, as agreed, at least once a month (or as otherwise may be agreed) between the date of this Agreement and the Planned Acceptance Date to discuss and minute the progress of the Project.
7.3 The representative of Vensis shall maintain a log of issues, risks and actions that affect the project. The representative of the Client shall exercise due diligence in co-operatively assisting the representative of Vensis to mitigate risks, resolve issues and complete actions in a timely fashion.
8.1 If Support is specified in the Specification and Cost Schedule, (and only on payment of an Annual Support Fee defined in the Payment Schedule), Vensis shall provide the Client with the following support commencing on the Support Commencement Date for one year and renewable thereafter:
8.1.1 Vensis shall provide the Client with reasonable assistance regarding the installation and use of the System, and the identification and diagnosis of faults. Vensis shall attempt to resolve any support questions posed by the Client.
8.1.2 Vensis may, in its sole discretion, correct errors by providing a patch or by releasing a new version of Database System.
8.2 The Client shall supply in writing to Vensis a detailed description of any fault requiring support and the circumstances in which it arose, and shall submit sufficient material and information as requested by Vensis including screenshots and log files to enable Vensis’s support staff to duplicate the problem and shall allow Vensis sufficient access to the Client’s systems to enable diagnosis of the fault.
8.3 Vensis shall respond to calls and progress calls during Standard Working Hours.
8.4 Where possible, Vensis’s response to a fault report shall include an estimate of how long a problem may take to resolve. Vensis shall keep the Client informed of the progress of problem resolution.
8.5 All support shall be provided by electronic or other communication methods. Vensis shall not provide on-site support under this Agreement.
8.6 Vensis shall be under no obligation to provide support in respect of:
8.6.1 problems resulting from any modifications or customisation of the System not authorised in writing by Vensis. For the avoidance of doubt, modifications to the Database System shall include but not be limited to changes to the logical or physical database schema of the Database System, changes to the computer hardware configuration, and hand-modified changes to the data within the database;
8.6.2 any software other than the Database System;
8.6.3 incorrect or unauthorised use of the Database System or Misuse of the Database System or operator error;
8.6.4 any fault in the Specified Equipment or any other computer or network hardware;
8.6.5 any programs or software used in conjunction with the Database System which have not been supplied by Vensis;
8.6.6 use of the elements of the Database System in any combination other than those specified in any operating instructions supplied by Vensis;
8.6.7 use of the Software with computer hardware, operating systems or other supporting software other than the Specified Equipment; and
8.6.8 The Client’s failure to install and use any new release of the Database System within 5 days of its receipt from Vensis.
8.7 Any time spent by Vensis investigating any fault pursuant to the circumstances described in clause 8.6 shall be chargeable at Vensis’s then current rates. Vensis shall invoice such charges at its discretion and such shall be paid within 30 days of the date of said invoice.
8.8 Vensis reserves the right to discontinue the Support and Maintenance for any prior version of the Database System if a superseding version has been available to the Client.
8.9 Vensis shall not be obliged to make modifications or provide Support in relation to the Client’s computer hardware, operating system software, third party software or any data feeds or external data.
8.10 The Client shall:
8.10.1 operate the Database System, maintain data and the database in accordance with all instructions issued by Vensis;
8.10.2 by arrangement, grant access to premises and/or systems at all times for support;
8.10.3 make hardware accessible to Vensis’s support staff and, when required, enable logons or passwords with suitable access permissions required for such support staff;
8.10.4 permit Vensis to install the current version of the Database System from time to time when upgrades or fixes occur;
8.10.5 provide notice of intention to change hardware or operating system or data-feeds. If any of these changes have a major effect on the Database System then Vensis reserves the right to increase its charges.
8.11 The Client shall pay to Vensis the Annual Support Fee on or before the Support Commencement Date. No support services shall be provided before the Annual Support Fee has been paid in full.
8.12 The Client shall renew the support annually by paying the Annual Support Fee to Vensis on or before the anniversary of the Support Commencement Date unless 90 days’ notice in writing is provided to Vensis to cancel the renewal of the service.
8.13 The support service may be cancelled at any time during the supported year but no refund of the Annual Support Fee or part thereof shall be payable to the Client.
8.14 Vensis may increase the Annual Support Fee for any annual renewal of the support by providing not less than 120 days notice in writing to the Client before the anniversary of support renewal.
9.1 Vensis warrants that the Database System shall perform substantially in accordance with the Specification on the Specified Equipment, minor interruptions and errors excluded;
9.2 Vensis shall not be liable under clause 9 if a failure to meet the warranties set out in it is caused by:
9.2.1 computer equipment or computer software, other than the Database System delivered by Vensis; or
9.2.2 modifications or customisation made by or on behalf of the Client to the Database System, without the authorisation of Vensis; or
9.2.3 Misuse use of the Database System; or
9.2.4 Force Majeure.
9.3 If Vensis receives a written notice from the Client identifying a breach of the warranties set out in clause 9.1, or otherwise becomes aware of its failure to comply with the warranties set out in clause 9.1, then Vensis shall, at its own expense, promptly remedy such breach or failure provided that Vensis shall have no liability or obligations under the warranties unless it shall have received written notice of the defect or error within the Warranty Period.
10 Licence and Ownership
10.1 On full payment of the fees in the Cost Schedule Vensis grants to the Client non-exclusive, perpetual, non-transferable rights for the Database System, to be used by the staff of the Client as defined in the Specification. The Client may not disclose or make available for use the Database System or any of the Deliverables to any entity other than the staff of the Client as defined in the Specification, who have agreed to those licence terms. For the avoidance of doubt, the licence may not be transferred from the Client to any other company entity, individual, partnership, including any company entity, individual or partnership that may gain ownership or part-ownership, of the Client or the business or assets of the Client at a future date. The ownership of the Intellectual Property Rights in the Database System including the source code, object code, methods, algorithms and programming logic shall be and remain vested in Vensis.
11 Charges and Expense
11.1 In consideration of Vensis carrying out the Project, the Client shall pay to Vensis the Cost which shall be invoiced to the Client in the specified proportions set out in the Cost Schedule and subject to the terms set out in clause 12.
11.2 In consideration of any Additional Services, the Client shall pay to Vensis the amounts invoiced by Vensis to the Client using the Rates set out in the Specification.
11.3 Except as otherwise agreed in writing, The Client shall pay to Vensis all reasonable travelling, accommodation and other reasonable out-of-pocket expenses incurred by Vensis staff in the course of the Project at rates specified in the Cost Schedule where applicable.
12 Terms of Payment
12.1 Payment of sums due by the Client to Vensis shall be made within the time set out in the Payment Schedule. All payments under this Agreement shall be made in Pounds Sterling unless otherwise agreed in writing between the Parties.
12.2 With effect from the beginning of each year commencing on the Acceptance Date, Vensis may, at is sole discretion, increase the Rates in effect during the previous year.
12.3 All monetary amounts stated within this Agreement are exclusive of VAT, which shall be payable by the Client at the rate and in the same manner for the time being prescribed by law against submission of a valid tax invoice.
12.4 Without prejudice to any other right reserved by Vensis in this Agreement, if any sum payable under this Agreement is in arrears for more than fourteen (14) days from the due date of payment then Vensis shall be entitled to charge interest on a day-to-day basis on any such arrears as from the invoice date at the rate permitted from time to time under the provisions of the Late Payment of Commercial Debts (Interest) Act 1998.
13.1 This Agreement shall continue until completion of the Project unless either party gives to the other not less than 90 days’ prior written notice of termination or unless the Agreement is terminated in accordance with any of the provisions of this clause 12.4 or any other clause of this Agreement.
13.2 Either party shall be entitled to terminate this Agreement forthwith at any time by written notice to the other party if:
13.2.1 the other party commits a breach of any of the terms of this Agreement (and if the breach is capable of remedy) fails to remedy the breach within 30 days after receipt of notice in writing to do so; or
13.2.2 the other party becomes subject to an administration order; a receiver or administrative receiver or similar is appointed over, or an encumbrancer takes possession of any of the other party’s property or assets; the other party enters into an arrangement or composition with its creditors, ceases or threatens to cease to carry on business, becomes insolvent, or ceases to be able to pay its debts as they fall due.
13.3 Forthwith upon the termination of this Agreement, Vensis shall return to the Client any materials and documentation and any Confidential Information belonging to the Client and all copies of the whole or any part thereof or, if requested by the Client, shall destroy the same and certify in writing to the Client that it has been destroyed.
13.4 Any termination of the Licence or this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
13.5 In the event of termination of this Agreement however occasioned, Vensis shall sum the time expended on the Project. The Client shall then pay to Vensis the Costs for the time expended at the Rate shown in the Cost Schedule. Vensis shall evidence the time expended by presenting timesheet data.
14.1 Both during this Agreement and after its termination, the parties shall treat as confidential (and shall procure that its personnel and each of them treat as confidential) and shall not (and shall procure that their personnel and each of them does not) other than in the proper provision of the services required to fulfil the Project, use or disclose to any person, firm or company, any Confidential Information belonging to the other party or its Clients, suppliers or Clients, nor permit its use or disclosure.
14.2 The provisions of clause 14.1 shall not apply where Confidential Information is divulged to:
14.2.1 either party’s own employees and then only to those employees who need to know the same;
14.2.2 either party’s auditors, an officer of HM Customs and Excise, a court of competent jurisdiction, governmental body or applicable regulatory authority and any other persons or bodies having a right, duty or obligation to know the business of the other party and then only in pursuance of such right, duty or obligation.
14.3 Both parties undertake to ensure that persons and bodies referred to in clause 14.2 are made aware before the disclosure of any part of the Confidential Information that the same is confidential and that they owe a duty of confidence to the other party.
14.4 Each party to this Agreement shall promptly notify the other party if it becomes aware of any breach of confidence by any person to whom it divulges all or any part of the Confidential Information and shall give the other party all reasonable assistance in connection with any proceedings which the other party may institute against such person for breach of confidence.
14.5 The provisions of this clause shall survive the termination of this Agreement but the restrictions contained in clause 14.1 shall cease to apply to any information which may come into the public domain otherwise than through unauthorised disclosure.
14.6 Nothing in this clause 14 shall prevent Vensis from exploiting any inventions or software that it develops during the term of this Agreement.
15 Non-Hiring of Personnel
15.1 For the duration of this Agreement and for a period of twelve months thereafter neither Party shall employ or make an offer of employment to any employee of the other Party without the express permission in writing of the other Party. “Employ” means the engagement of such person as an employee, director, contractor or sub-contractor directly or indirectly including via an employment agency or other company.
16 Data Protection
16.1 The parties undertake to comply with the provisions of the Data Protection Act 1998, General Data Protection Regulations and any related legislation in so far as the same relates to the provisions and obligations of this Agreement.
16.2 It is the sole responsibility of the Client to ensure that the Database System is not used in any way that infringes data protection legislation at the time being. For the avoidance of doubt, Vensis accepts no responsibility whatsoever for any such infringement or alleged infringement.
17.1 In this Agreement unless the context otherwise requires:
17.1.1 words importing any gender include every gender;
17.1.2 words importing the singular number include the plural number and vice versa;
17.1.3 words importing persons include firms, companies and corporations and vice versa;
17.1.4 references to numbered clauses and schedules are references to the relevant clause in or schedule to this Agreement;
17.1.5 reference in any schedule to this Agreement to numbered paragraphs relate to the numbered paragraphs of that schedule;
17.1.6 the headings to the clauses, schedules and paragraphs of this Agreement shall not affect the interpretation;
17.1.7 any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment;
17.1.8 any obligation on any party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
17.1.9 any party who agrees to do something shall be deemed to fulfil that obligation if that party procures that it is done.
17.2 In the case of conflict or ambiguity between any provision contained in the body of this Agreement and any provision contained in any Schedule, the provision in the body of this Agreement shall take precedence.
18 Agency, Partnership
18.1 This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in this Agreement.
18.2 This Agreement shall not establish the relationship of master and servant as between the Client and Vensis or its personnel. The Client shall not be entitled to require Vensis or its personnel to carry out any work other than as provided for by this Agreement.
19.1 This Agreement may not be released, discharged, supplemented, interpreted, amended, varied or modified in any manner except by an instrument in writing signed by a duly authorised officer or representative of each of the parties.
20.1 This Agreement is personal to the parties and, subject to clause 20.2 below, neither this Agreement nor any rights, licences or obligations under it may be assigned by either party without the prior written approval of the other party.
20.2 Notwithstanding the foregoing, either party may assign this Agreement to any acquirer of all or of substantially all of such party’s equity securities, assets or business relating to the subject matter of this Agreement or to any entity controlled by, that controls, or is under common control with a party to this Agreement. Any attempted assignment in violation of this clause shall be void and without effect.
21 Entire Agreement
21.1 This Agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the subject matter of this Agreement. However, the obligations of the parties under any pre-existing non-disclosure agreement shall remain in full force and effect in so far as there is no conflict between the same. The parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement.
22 Force Majeure
22.1 Neither Party shall be liable for any delay in meeting, or failure to meet, its obligations under this Agreement due to any cause outside its reasonable control including (without limitation) acts of God, war, riot, malicious acts of damage, fire, acts of any government authority, failure of the public electricity supply, strike, lock-out or labour dispute or apprehension thereof (whether or not the settlement of the matter is at the discretion of the Party in question).