APPENDIX 1
SYSTEM SUPPLY TERMS AND CONDITIONS

1. DEFINITIONS

In this Agreement the following terms shall have the meanings set out below: -

 

"Agreement" the Agreement comprising the Appendices and Schedules
"Appendices" the Appendices to this Agreement
"Customer" the party to whom Dynamic Networks is supplying the System and/or Services under this Agreement
"Documentation" information supplied with the Dynamic Networks Software in printed or machine readable form
"Equipment" the Customer’s computer System on which the Software is to function comprising the Hardware and such other equipment items as Dynamic Networks may have approved
"Hardware" those items of computer and other equipment referred to in Schedule 1
"Licensed Materials" the Dynamic Networks Software and the documentation
"License" the Licence granted to the Customer at clause 3.1 of this Appendix 1
"Maintenance" those Maintenance services to be provided or procured to be provided by Dynamic Networks in respect of the Hardware and/or the Software under the terms of Appendix 2
"Maintenance Charge" the annual charge for the Maintenance specified in Schedule 4 as increased from time to time pursuant to clauses 6.3 and 6.5 of Appendix 2
"Maintenance Contract" those parts of the Agreement relating to the provision of Maintenance
"Normal Working Hours" the hours between 08:00hrs and 18:00hrs on each working day
"Packages" computer Software produced to provide general solutions to tasks which are intended to be the subject matter of such Software but not specifically produced (in its entirety) to comply with any specific need of the Customer
"Dynamic Networks" Dynamic Networks Limited
"Dynamic Networks Software" those Packages proprietary to Dynamic Networks and/or any bespoke software written for the Customer by Dynamic Networks or its Third Party Suppliers referred to in Schedule 2 and supplied under this Agreement in either unmodified or modified form
"Services" the Maintenance, the training and any other services which Dynamic Networks is to provide to the Customer under this Agreement as set out in Schedules 3, 4 and 6
"Site" the location at a premises owned and/or controlled by the Customer which has been approved by Dynamic Networks and at which the System is to be installed and used
"Software" the Dynamic Networks Software and the Third Party Software
"Special Item" an item of Hardware or Software indicated as such in Schedule 5
"System" the Hardware and/or the Software
"Third Party Software" Packages other than Dynamic Networks Software referred to in Schedule 2
"Training" the training services to be provided by Dynamic Networks as set out in Schedule 3
"Use Dynamic Networks Software" to load, store and run the Dynamic Networks Software on the equipment
"Use Licensed Materials" to Use Dynamic Networks Software, to read and possess the documentation for the use of the Dynamic Networks Software and to possess the media upon which the Dynamic Networks Software is stored and delivered to the Customer
"Working day" any weekday other than a statutory, bank or public holiday

 

 

1.2 In this Agreement
1.2.1 reference to any statutory provision includes a reference to that provision as from time to time amended, extended or re-enacted;
1.2.2 words importing the singular include the plural and words importing persons include bodies corporate and unincorporate and (in each case) vice versa;
1.2.3 the headings of clauses are for ease of reference only and shall not affect the interpretation or construction of this Agreement. Reference in this Appendix to a clause shall be to a clause of this Appendix unless otherwise stated.

 

2. DYNAMIC NETWORKS OBLIGATIONS

 

2.1 Dynamic Networks shall supply the System and/or the Services to the Customer at the prices set out within the Schedules.
2.2 Each party shall keep confidential all information that it may acquire from the other in the course of this Agreement, use the same exclusively for the purposes of this Agreement and disclose the same only to those of its employees, contractors and advisers to whom and to the extent that such disclosure is reasonably necessary for the purpose of this Agreement.
2.3 The obligations of clause 2.2 shall continue after termination of this Agreement but shall not apply to information which:
2.3.1 prior to a party’s receipt was already in its possession and at its free disposal;
2.3.2 is subsequently disclosed to the recipient without obligations of confidence by a third party who has not derived it directly or indirectly from the disclosing party;
2.3.3 is or becomes generally available to the public through no act or default of the recipient, contractors or employees.
2.4 Each party shall ensure that its employees, contractors and advisers who under this Agreement gain access to information of the other to which clause 2.2 applies shall be made aware of and subject to those obligations.
2.5 Notwithstanding anything else contained in this Agreement, neither party shall be liable for delay in performing its obligations under this Agreement if such delay is caused by circumstances beyond its reasonable control (including without limitation any delay caused by any act or omission of the other party). Subject to the delaying party promptly notifying the other party in writing of the reasons for the delay (and its likely duration), the performance of such party’s obligations shall be suspended whilst the said circumstances persist and such party shall be granted an extension of time for performance equal to the period of the delay. Save where such delay is caused by the act or omission of the other party (in which event the Rights, remedies and liabilities of the parties shall be those conferred and imposed by the other terms of this Agreement and by law):
2.5.1 any costs arising from such delay shall be borne by the party incurring the same;
2.5.2 the non-delaying party may, if such delay lasts for more than 90 days, terminate the Agreement forthwith on giving notice in writing to the other in which event neither party shall be liable to the other by reason of such termination save for any Rights accruing prior to the occurrence of such event of delay.
2.6 The Customer may at any time and from time to time prior to completion of the Services (other than Maintenance) issue change Requests setting out in full detail the nature of any changes to the System and/or Services (other than Maintenance) that it desires (a “Change Request”). Within 28 days of receipt of a Change Request, Dynamic Networks shall respond in writing stating whether it is prepared to do such work and, if so quoting any variation to the sums payable by the Customer under this Agreement and the impact on any approximate timetable previously indicated by Dynamic Networks. This Agreement shall be considered amended to take account of the changes Requested by the Customer and the impact described by Dynamic Networks if Dynamic Networks indicates in writing that it is prepared to do the work and the Customer authorises Dynamic Networks in writing to undertake such changes within 5 working days of the Customer’s receipt of Dynamic Networks response. In no other circumstances shall a Request to change the System and/or the Services operate to amend this Agreement. The Customer acknowledges that the need for Dynamic Networks to consider and prepare a response to a Change Request may result in a delay to the delivery of the System and/or the provision of Services. Dynamic Networks shall be entitled to charge the Customer for its work in connection with a Change Request in accordance with its standard rates from time to time in force.

 

3. LICENCE OF DYNAMIC NETWORKS SOFTWARE

 

3.1 Subject to the Customer paying the Licence fees specified in Schedule 2 and the annual licence fee specified in Schedule 4, Dynamic Networks grants to the Customer a non-exclusive and non-transferable Licence (without the right to grant sub-Licences) to Use Licensed Materials subject to the terms of this Agreement. The Customer acknowledges that it is licensed to Use Licensed Materials under the express terms of this Agreement but not further or otherwise. In consideration of your acceptance of the terms of this Agreement, Dynamic Networks grants to the Customer a Licence for which the Customer has paid the relevant Annual Licence Fee for the Licence Period. Thereafter, the Licence will be renewed on the Renewal Date for a further period of 12 months, subject to payment by the Customer of the then current Annual Licence Fee. Such payment shall be due and payable in accordance with the terms of Dynamic Networks invoice.
2.2 Each party shall keep confidential all information that it may acquire from the other in the course of this Agreement, use the same exclusively for the purposes of this Agreement and disclose the same only to those of its employees, contractors and advisers to whom and to the extent that such disclosure is reasonably necessary for the purpose of this Agreement.
3.2 The Customer may use the Licensed Materials only at the Site or such alternative location as it shall first have notified to Dynamic Networks in writing.
3.3 The Customer shall Use Licensed Materials for processing its own data for its own internal purposes only. The Customer shall not permit any third party to use the Licensed Materials in any way whatever nor use the Licensed Materials on behalf of or for the benefit of any third party in any way whatever.
3.4 The Customer shall keep exclusive possession of and control over the copies of the Licensed Materials provided to it and shall effect and maintain adequate security measures to safeguard the Licensed Materials from access or use by any unauthorised person.
3.5 The Licence is limited to the use of the Licensed Materials upon the maximum number of servers and with access to the same by the maximum number of client PC’s or laptops (“Clients”) specified in Schedule 2. The Customer acknowledges that an additional Licence fee is payable for each additional Client having access to the Licensed Materials.
3.6 The Licensed Materials and all Rights therein (including Rights in any modifications carried out by or on behalf of the Customer) shall remain the property of Dynamic Networks. The Customer shall notify Dynamic Networks immediately if it becomes aware of any unauthorised use of the whole or any part of the Licensed Materials by any person. The Customer will permit Dynamic Networks to check the use of the Licensed Materials by the Customer at reasonable times and for that purpose Dynamic Networks, its employees and agents shall be entitled to enter any of the Customer’s premises.
3.7 The Customer may make only so many copies of the Dynamic Networks Software as are reasonably necessary for back up purposes. Such copies and the media on which they are stored shall be the property of Dynamic Networks and the Customer shall ensure that all such copies bear Dynamic Networks proprietary notices. The Licence shall apply to all such copies as it applies to the Dynamic Networks Software. No copies may be made of the Documentation without Dynamic Networks prior written consent.
3.8 Save to the extent and in the circumstances expressly permitted by law, the Customer shall not alter, modify, adapt or translate the whole or any part of the Licensed Materials in any way whatever nor permit the whole or any part of the Software to be combined with or become incorporated in any other computer programs nor decompile, disassemble or reverse engineer the same nor attempt to do any of such things.

 

4. RISK AND TITLE

 

4.1 Title to the Hardware shall not pass to the Customer until all moneys due to Dynamic Networks under the terms of this Agreement have been paid in full.
4.2 For those parts of the System supplied to Dynamic Networks on Licence only or with any form of restricted title, the Customer shall only have such Licence or title in such parts as Dynamic Networks is granted by the supplier of such parts. The Customer shall prior to delivery enter into such Licence or other arrangement denoting any restriction on title or otherwise required by the supplier of such parts and shall abide by the terms of such arrangement. For Third Party Software which is licensed to the user by virtue of the user removing the packaging from such Software or by the user downloading such Software onto a computer System, or any such other act or thing (the “Act”) as may be specified by the producer of such Software the Customer irrevocably appoints Dynamic Networks to be its agent to undertake the Act and enter into such Licence and the Customer shall abide by the terms of such Licence as if it had undertaken the Act itself. The Customer shall fully indemnify Dynamic Networks against all costs, expenses or other liabilities which Dynamic Networks may incur or suffer as a result of the Customer’s non-compliance with this clause 4.2. For the avoidance of doubt, nothing contained in this clause 4.2 shall be treated as relieving Dynamic Networks from any liability for any breach of the warranty given by Dynamic Networks under clause 7.5.1 of this Appendix 1.
4.3 Risk in each item of Hardware shall pass to the Customer, even where title may not have passed to the Customer, as soon as such item (or an appropriate part of it) has been delivered by Dynamic Networks to the Site.
4.4 Constituent parts of the System shall be deemed accepted by the Customer upon that part’s delivery to the Customer.
4.5 Until title in the Hardware passes to the Customer:
4.5.1 the Customer shall hold the Hardware as the fiduciary agent and Bailee of Dynamic Networks, and shall, so far as is reasonably practicable, keep the Hardware separate from equipment owned by the Customer or third parties which is located at the Site and properly stored, protected and insured and, so far as is reasonably practicable, identified as the property of Dynamic Networks, but the Customer shall be entitled to use the Hardware for its own internal business purposes.
4.5.2 Dynamic Networks may require the Customer to deliver up such Hardware to Dynamic Networks and, if the Customer fails to do so forthwith, enter upon any premises where the Hardware is located and repossess the same.
3.8 Save to the extent and in the circumstances expressly permitted by law, the Customer shall not alter, modify, adapt or translate the whole or any part of the Licensed Materials in any way whatever nor permit the whole or any part of the Software to be combined with or become incorporated in any other computer programs nor decompile, disassemble or reverse engineer the same nor attempt to do any of such things.

 

5. CUSTOMER OBLIGATIONS

The Customer shall:

 

5.1 ensure (at its own expense) that any room or other location in which Hardware is to be placed has the power supply, equipment and environmental conditions which comply with the requirements of the Hardware manufacturer.
5.2 provide promptly such office accommodation, computer equipment, office machinery and other facilities, staff and documentation as Dynamic Networks may from time to time reasonably require in connection with the provision of the System and/or the Services.
5.3 nominate a representative to liaise with Dynamic Networks on all matters relating to the System and/or the Services and whose instructions, decisions and Requests shall (where the same are agreed to by Dynamic Networks) be binding upon the Customer.
5.4 ensure (at no cost to Dynamic Networks) that those members of its staff who are allocated for Training attend those training sessions held by Dynamic Networks at such places as may be agreed by Dynamic Networks.
5.5 provide promptly all information, data and assistance which Dynamic Networks reasonably considers necessary in connection with the selection and/or modification of any Packages and the provision of the Services including, without prejudice to the generality of the foregoing, details of volumes of transactions, numbers of users, timescales relating to a requirement for processing data, proposed methods and sequences of operation and ageing requirements for data and the Customer shall allow Dynamic Networks to interview such of its employees as Dynamic Networks considers reasonably necessary in connection with any of the foregoing.
5.6 ensure prior to the date on which Dynamic Networks anticipates starting any Services at the premises of the Customer that:
5.6.1 such premises provide adequate working space and facilities as Dynamic Networks employees, contractors or agents may reasonably require to carry out such Services;
5.6.2 access to and from the premises remains clear at all times in accordance with the Customer’s site and security policies;
5.6.3 it has obtained all necessary consents to enable Dynamic Networks, its employees, contractors and agents to enter onto and remain upon the premises to carry out such Services; and
5.6.4 such premises are safe and all Dynamic Networks employees, contractors and agents are protected from all reasonably foreseeable dangers, the Customer effecting and maintaining throughout the provision of such Services full insurance cover for the benefit of Dynamic Networks, its employees, contractors and agents against such risks.

 

6. PRICES AND PAYMENT

 

6.1 The Customer shall make payments for the provision of the System and/or Services to Dynamic Networks at such time or times as are set out in the Schedules and without any deduction or set-off whatsoever. Where no such time or times are so specified, payment for any such provision shall be made within 30 days of the date of Dynamic Networks invoice therefor.
6.2 If the Customer Requests Dynamic Networks to carry out services for a duration in excess of that set out in Schedule 3 the Customer shall pay Dynamic Networks its charges therefor at its then current rate for the provision of such training.
6.3 All prices are quoted exclusive of value added tax or any replacement tax thereof (“VAT”) and the Customer shall pay VAT at the appropriate rate from time to time in force in addition to payment of all other sums.
6.4 If the Customer fails to make any payment to Dynamic Networks under this Agreement (including, without limitation, any payment due under the terms of any other Appendix) on the due date then, without prejudice to any other right or remedy available to it, Dynamic Networks may:
6.4.1 suspend performance or further performance of any of its obligations under this Agreement without liability to the Customer (Dynamic Networks obligations under any timetable being amended accordingly to reflect such suspension); and
6.4.2 Dynamic Networks reserves the right to claim statutory interest at 8% above the Bank of England reference rate on force on the date the debt becomes overdue and at any subsequent rate where the reference rate changes and the debt remains unpaid in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 as amended and supplemented by the Late Payment of Commercial Debts Regulations 2002. Administration charges will also be applied at a rate of £150.00.

 

7. WARRANTIES

 

7.1 In respect of the Hardware, Dynamic Networks gives the same warranties (subject to the same conditions, limitations and exclusions) as are given by the supplier of the Hardware to Dynamic Networks.
7.2 In respect of the Software Packages, as at the date of delivery Dynamic Networks warrants that all such Packages will provide the facilities and functions stated in the relevant product literature. No specific fitness for purpose is implied or given under this Agreement.
7.3 Dynamic Networks warrants that, as at the date of delivery to the Customer of any Dynamic Networks Software which has been modified by or on behalf of Dynamic Networks, such modifications will permit such Software to perform in all material respects those functions stated in Dynamic Networks quotation (subject to such modified Software having been used on the Equipment and in accordance with Dynamic Networks instructions and recommendations made from time to time) PROVIDED ALWAYS that if Dynamic Networks shall be in breach of this warranty its sole liability shall be limited to making corrections or alterations to such modified Software at its own cost in order to ensure that the same comply with the terms of this warranty.
7.4 Dynamic Networks warrants that, as at the date of delivery, unmodified Dynamic Networks Software will provide, in all material respects, the facilities and functions stated in the relevant product specification provided always that if in breach of this warranty Dynamic Networks sole liability shall be limited to making corrections or alterations to such Software at its own cost in order that the same complies with this warranty.
7.5 Dynamic Networks warrants to the Customer that: -
7.5.1 it has the right to grant all the Rights and Licences granted or purported to be granted under this Agreement;
7.5.2 the Customer's use and operation of the System in accordance with the terms of this Agreement shall not infringe any Rights (wherever arising) of any third party;
7.5.3 the Services shall be performed with reasonable skill and care.
7.6 except as provided in this clause 7 and where otherwise specifically provided in this Agreement all conditions warranties and other terms in respect of the System and/or the Services whether express or implied statutory or otherwise are excluded to the fullest extent permitted by law.

 

8. LIABILITY

 

8.1 The following provisions set out Dynamic Networks entire liability (including any liability for the acts and omissions of its employees’ agents and sub-contractors) to the Customer in respect of:
8.1.1 any breach of its contractual obligations arising under this Agreement; and
8.1.2 any representation statement or tortuous act or omission including negligence arising under or in connection with this Agreement
8.2 Save in respect of death or personal injury caused by Dynamic Networks negligence or liability (which liability shall be unlimited) and save as aforesaid, the entire liability of Dynamic Networks (including any liability for the acts and omissions of its employees, agents and sub-contractors) to the Customer whether in respect of any breach of any term of this Agreement or any representation, statement or tortuous act or omission including negligence arising under or in connection with this Agreement shall be as follows:
8.2.1 in respect of direct damage to the physical property of the Customer resulting from the negligence of Dynamic Networks, its employees or agents, Dynamic Networks liability shall not exceed £1m in respect of any one event or a series of connected events;
8.2.2 8.2.2 in respect of the provision of Maintenance, Dynamic Networks liability shall not exceed the price paid or payable under the Maintenance Contract during the preceding 12 month period; and
8.2.3 in all other cases, Dynamic Networks liability shall not exceed the price paid or payable in respect of the System and the Services under this Agreement.
8.3 Under no circumstances shall Dynamic Networks be liable to the Customer in respect of any loss of profits, goodwill or any type of special, indirect or consequential loss (including business interruption, loss of business information or data or damage suffered by the Customer as a result of any action brought by a third party) even if such loss was reasonably foreseeable or Dynamic Networks had been advised at any time of the possibility of the Customer incurring the same.
8.4 Dynamic Networks shall have no liability (whether for breach of warranty or representation or otherwise) arising from the Customer’s use of the System (or any part thereof) other than in accordance with the provisions of this Agreement or resulting in particular from:
8.4.1 use of the Software with equipment other than the Equipment;
8.4.2 the Customer’s non-compliance with any instruction or recommended procedure of Dynamic Networks; or
8.4.3 any repair, adjustment, alteration or modification of any part of the System not undertaken by Dynamic Networks or the merger, incorporation or use of any part of the System with any Software, Hardware or other equipment not supplied or approved in writing by Dynamic Networks for use in connection with the System.

 

9. INTELLECTUAL PROPERTY RIGHTS INDEMNITY

 

9.1 Dynamic Networks shall procure the defence or (at its option) the settlement of any claim or legal action brought against the Customer alleging that the normal use of the System infringes the Rights of any third party provided that: -
9.1.1 Dynamic Networks is given all information and assistance reasonably required by it and the sole authority to procure the defence or settlement of the claim;
9.1.2 the Customer notifies Dynamic Networks promptly in writing of any alleged infringement and makes no admissions in respect thereof; and
9.1.3 Dynamic Networks shall pay the reasonable costs of the Customer of providing information and assistance under this clause 9.1.
9.2 If any claim arises to which clause 9.1 refers Dynamic Networks may at its option: -
9.2.1 procure for the Customer the right to continue to use the System;
9.2.2 modify the System so that it is non-infringing; or
9.2.3 remove the System and refund the sums paid by the Customer in respect of the same.
If any such claim results in an injunction restraining the Customer’s normal use of the System and such injunction remains in place for a period of 28 days, Dynamic Networks shall exercise one of the options referred to above.
9.3 Subject to the Customer complying with its obligations under clause 9.1, Dynamic Networks shall indemnify the Customer against (i) all damages and costs awarded against the Customer or agreed by Dynamic Networks by way of settlement and (ii) all losses, damages, costs and expenses incurred by the Customer arising by reason of any such infringement or alleged infringement.
9.4 Dynamic Networks obligations under clauses 9.1 to 9.3 shall not apply if the claim results from: -
9.4.1 use of other than the current corrected level of Dynamic Networks Software where use of such level would avoid the infringement or alleged infringement;
9.4.2 use of the System or any part thereof with any equipment and/or Software not supplied or approved in writing by Dynamic Networks for use in connection with the System; or
9.4.3 use of the System other than as authorised under this Agreement.
9.5 The provisions of clauses 9.1 to 9.3 above state Dynamic Networks sole liability for infringement of Third Party Rights.

 

10. TERMINATION

 

10.1 Dynamic Networks may forthwith by written notice to the Customer terminate this Agreement if the Customer fails to make any payment due to Dynamic Networks under this or any other Agreement (whose subject matter relates or is connected specifically to the System or the Services) by its due date.
10.2 Either party may terminate this Agreement forthwith by written notice (90 Days) to the other if the other shall commit a material breach of this Agreement and shall (in the case of a remediable breach) fail to remedy the same within a reasonable period of receipt of a written notice from the other party specifying the breach and requiring it to be remedied.
10.3 Either party may terminate this Agreement forthwith by written notice to the other if the other party shall have a receiver or administrative receiver appointed or shall have a bankruptcy order made against it or one of its partners or shall pass a resolution for winding-up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if the other party shall become subject to an administration order or shall enter into any voluntary arrangement with its creditors or shall become unable to pay its debts or shall cease or threaten to cease to carry on business or shall suffer any similar or analogous event in any jurisdiction.
10.4 Termination for any reason shall not affect either party’s Rights and remedies accruing up to termination.
10.5 If this Agreement is terminated, then save in the circumstances mentioned at clause 10.6 below, the Customer shall immediately cease using the Licensed Materials and return to Dynamic Networks or destroy (as Requested by Dynamic Networks) the originals and all copies of the same. Upon Dynamic Networks Request to destroy such materials the Customer shall certify in writing that it has done so.
10.6 Notwithstanding the other provisions of this clause 10, termination of this Agreement shall not affect the continuance of this Agreement insofar as it relates to the Licence granted to the Customer at clause 3.1 above where the Agreement is terminated by Dynamic Networks on grounds which relate solely to the Customer’s non-performance of its obligations under Appendix 2.

 

11. GENERAL

 

11.1 Dynamic Networks may subcontract all or any of its obligations under this Agreement. All applicable terms of this Agreement shall apply notwithstanding that any services (or any part thereof) shall be carried out by sub-contractors. The Customer may not assign this Agreement (in whole or in part) without the prior written consent of Dynamic Networks.
11.2 The terms and conditions of this Agreement shall prevail notwithstanding any variance with the terms of any order or contract submitted by the Customer in respect of the System and/or the Services. No variations to the terms of this Agreement shall be binding upon either party unless the same shall have been confirmed in writing by a director of that party
11.3 The terms and conditions of this Agreement shall prevail in relation to any future orders placed by the customer, and the customer agrees that all future orders or contracts submitted will be subject to these terms and conditions.
11.4 All notices or other documents to be given under this Agreement shall be in writing and either delivered by hand or sent by registered post or facsimile to the party concerned at the address set out in this Agreement or such other address as one party may from time to time designate by written notice to the other. Any such notice shall be deemed to have been received by the addressee if delivered by hand, upon delivery; if posted, on the 2nd working day following the date of posting; and if sent by facsimile, when the communication is transmitted to the recipient's fax number PROVIDED THAT a copy of the communication is sent by registered post or delivered by hand as soon as practicable thereafter.
11.5 This Agreement shall be governed exclusively by English Law. The parties agree to submit all matters in dispute under or in connection with this Agreement to the exclusive jurisdiction of the English courts.
11.6 Each provision of this Agreement shall be construed separately and notwithstanding that the whole or any part of any such provision may prove to be illegal or unenforceable the other provisions of this Agreement and the remainder of the provision in question shall continue in full force and effect.
11.7 The waiver by either party of a breach or default of any term of this Agreement by the other party must be in writing and shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall a delay or omission on the part of either party to exercise or avail itself of any right or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.

 

11. ARBITRATION

Dynamic Networks reserves the right, without prejudice to any other remedies Dynamic Networks may have, to refer any dispute between Dynamic Networks and the Customer arising in any way in connection with the Agreement or the Rights and duties of the parties to an individual acting as expert and not as arbitrator who shall decide the dispute in hand to be agreed between the parties hereto or in default of Agreement to be appointed on the application of either party by the Chief Executive Officer for the time being of the National Computing Centre. The decision of any expert appointed hereunder shall, save in the case of manifest error, be final and binding on the parties. The charges of the expert shall be borne as the expert, in its absolute discretion, determines.

12. ENTIRE AGREEMENT

This Agreement sets out the entire Agreement between the parties and supersedes all prior Agreements, understandings and arrangements between them, and representations by them, whether oral or written, which relate to the subject matter of this Agreement PROVIDED THAT this clause shall not exclude or limit liability for fraud. In the event of any conflict or inconsistency between the terms of the Appendices and the Schedules, the terms of the Appendices shall prevail.

APPENDIX 2
MAINTENANCE TERMS AND CONDITIONS

The terms of this Appendix shall apply to any Maintenance provided by Dynamic Networks under this Agreement in addition to the other terms of this Agreement (in so far as those are applicable to the provision of such Maintenance). Clauses referred to in this Appendix shall unless otherwise stated relate to clauses of this Appendix.

1. HARDWARE MAINTENANCE

 

1.1 Dynamic Networks shall upon receipt of notification from the Customer that an item of Hardware has failed or is malfunctioning carry out such repairs and adjustments to or the replacement of such parts of the said item as may be necessary to restore it to its proper operating condition. Such Maintenance (“Hardware Maintenance”) shall be carried out during Normal Working Hours. Should a Dynamic Networks Engineer, at the Customer’s request, remain on site after Normal Working Hours Dynamic Networks reserves the right to charge the Customer for that time at its prevailing hourly rate. Where any work is beyond the scope of this agreement then it will be chargeable at Dynamic Networks normal rates.
1.2 On receipt of a Request for Hardware Maintenance, Dynamic Networks shall endeavour to respond to that Request within four Normal Working Hours.
1.3 Where contracted to do so, Dynamic Networks will provide technical support for the Operating System of a supported server, provided that the said Operating System is at the time recognised by Microsoft as a supported system. Dynamic Networks will not provide support for any applications software on a machine unless it is listed in the Software section in Schedule 2.
1.4 Hardware Maintenance does not include any Maintenance of the Hardware which is necessitated as a result of any cause other than fair wear and tear or the customers neglect or fault including without limitation, failure or fluctuation of electric power, air conditioning, humidity control or other environmental conditions; accident, transportation, neglect, misuse, or default of the Customer, its employees or agents or any third party; act of God, fire, flood, war, act of violence, or any other similar occurrence; any virus or hacker attack or any attempt by any person other than Dynamic Networks personnel to adjust, repair or maintain the Hardware; or any head crash or failure of fixed or removable storage media.
1.5 Dynamic Networks will (if it is able to do so) at the Request and expense of the Customer repair or replace any part of the Hardware which has failed due to a cause other than fair wear and tear or due to Dynamic Networks neglect or fault subject to the Customer accepting Dynamic Networks written quotation therefore prior to the commencement of work.
1.6 Replacement parts, where necessary, will be charged to the customer (at cost plus 20%), unless Dynamic Networks is previously expressly advised that it is covered by manufacturer’s warranty, or if the service level selected by the Customer is “Parts Inclusive”.
1.7 Hardware Maintenance does not include service other than at the Site; repair or renewal of tapes, disk packs; print heads, printing cartridges or other consumable supplies; Maintenance or support of the operating System of any computer; electrical or other environmental work external to the Hardware; or recovery or reconstruction of any data or programs lost or spoiled as a result of any breakdown of or fault in the Hardware.
1.8 Dynamic Networks may at its option provide a temporary substitute unit for all or any of those comprised in the Hardware and remove any part of Hardware for repair or rectification at Dynamic Networks premises.
1.9 Dynamic Networks reserves the right to replace any unit of Hardware which may be found to be faulty or in need of investigation with a unit of a specification at least equal in all material respects to the replaced item. In such a case, the replacement unit shall become the property of the Customer and the replaced unit shall become the property of Dynamic Networks.
1.10 Where a machine is beyond practical or economic repair, Dynamic Networks will advise the Customer of the fact and source new equipment at competitive prices if required. The new equipment will then be unpacked, installed and configured at no further charge. It is at Dynamic Networks discretion when to deem a machine “beyond practical or economic repair”. This agreement does not cover the replacement of an entire machine.
1.11 If during a maintenance visit the Dynamic Networks Engineer’s performance is delayed or prevented by the Customer, Dynamic Networks at its option shall be entitled to make an extra charge in respect of the duration of such delay or prevention at its prevailing hourly rate.
1.12 The provisions of this clause 2 of Appendix 2 do not apply to Special Items as listed in Schedule 3.

 

2. SOFTWARE MAINTENANCE

 

2.1 Save in the case of Special Items Dynamic Networks shall during Normal Working Hours provide Maintenance for the Software as follows: -
2.1.1 provide advice and assistance in response to telephone enquiries of the Customer on program and/or data errors.
2.1.2 where Dynamic Networks considers reasonably necessary, a visit to the Customer’s premises to use, inspect and/or test the Software with a view to seeking to rectify (or, in the case of Third Party Software, seeking the rectification of) programming errors.
2.1.3 the supply of updated versions of the Software released by or, in the case of Third Party Software, supplied to Dynamic Networks (“Updates”). All Software and/or operating Systems supplied are provided under the terms and conditions of the relevant authors’ Software Licence. This includes policies for upgrades. Support of Microsoft products does not include the supply of Software updates.
2.1.4 where Requested by the Customer and subject to the Customer paying an additional charge in accordance with Dynamic Networks standard rates for installation from time to time in force, Dynamic Networks shall carry out the installation of updates.
2.2 If any part of such Maintenance as is referred to at clause 2.1 of this Appendix 2 is required or carried out outside Normal Working Hours, Dynamic Networks may make additional charges therefor at its then current rate.

 

3. CUSTOMER OBLIGATIONS (GENERAL)

During the continuance of the Maintenance Contract, the Customer shall: -

 

3.1 Ensure that environmental and electrical supply conditions suitable for the Hardware are maintained in accordance with the recommendations set out by the manufacturer, and will keep the Hardware clean, and in good condition.
3.2 Allow Dynamic Networks access to the Hardware for Maintenance purposes, provide adequate working space and facilities for Dynamic Networks personnel and co-operate with them in the diagnosis of Hardware malfunction.
3.3 Ensure that only properly trained persons use the System and that such persons at all times follow Dynamic Networks recommendations and requirements from time to time regarding the use of the same and the provision of security and backup copies.
3.4 Use the Hardware in a proper and careful manner and use only such media as Dynamic Networks shall from time to time approve.
3.5 Nominate a System supervisor who will handle all communications between the Customer and Dynamic Networks regarding the use of the System and the provisions of the Maintenance.
3.6 Promptly notify Dynamic Networks if any part of the System is not operating properly.
3.7 Make available to Dynamic Networks free of charge all facilities and services reasonably required by Dynamic Networks to enable Dynamic Networks to perform the Maintenance.
3.8 Make available to Dynamic Networks such programs, operating manuals and information as may be necessary to enable Dynamic Networks to perform its obligations under the Maintenance Contract.
3.9 Provide at its own expense such telecommunication facilities as are reasonably required by Dynamic Networks for testing and diagnostic purposes.
3.10 Keep full security copies of the customer’s programs, databases and computer records in accordance with best computing practice.

 

4. CUSTOMER OBLIGATIONS (GENERAL)

 

4.1 During the continuance of the Maintenance Contract, the Customer shall:
4.1.1 provide all information and facilities reasonably required by Dynamic Networks to enable Dynamic Networks to diagnose errors in the Software.
4.1.2 use the latest correction level of the latest or immediately preceding development release of the Software.
4.1.3 provide upon Request by Dynamic Networks, the applicable Licence number(s) for the Software.
4.1.4 maintain compatibility between any modifications to the Software and subsequent Updates (as defined at clause 2.1.3 of this Appendix 2).
4.1.5 use the Software (and the Equipment upon which the same is run) in a proper and careful manner and upon such media only as Dynamic Networks may from time to time approve in connection with such Software.

 

5. SPECIAL ITEMS

 

5.1 Where an item of Hardware or Software is referred to as a “Special Item” in Schedule 5, then Maintenance of such item shall be performed by a third party contractor (a “Maintenance Provider”) procured by Dynamic Networks. The Customer agrees that such Maintenance shall (save as mentioned at clause 5.3 below) be provided in accordance with the Maintenance Provider’s standard terms for the provision of Maintenance/support as the same may be amended or varied from time to time in accordance with its terms (the “Terms of Support”). The Customer shall comply in all respects with such Terms of Support as if the Maintenance Provider were Dynamic Networks.
5.2 The Customer shall fully and effectively keep Dynamic Networks indemnified on demand against any losses, claims, damages, costs, charges, expenses, liabilities, demands, proceedings and actions which Dynamic Networks may suffer or incur, or which may be brought or established against it by the Maintenance Provider or any other person and which in any case arises from any breach by the Customer of the Terms of Support.
5.3 Notwithstanding clause 5.1 above the provisions of this Appendix shall apply to the Maintenance of the Special Items insofar as they relate to the amount and payment of the Maintenance Charge. In addition, the Customer shall comply with such of its obligations set out at clauses 3 and 4 above as are not inconsistent or in conflict with the Terms of Support. Further, any liability of Dynamic Networks in connection with the Maintenance of the Special Items shall always be subject to the limitations set out in clause 8 of Appendix 1.

 

6. DURATION AND CHARGES

 

6.1 The Maintenance Contract shall be for the initial contract term as defined in Schedule 4 commencing from the commencement date indicated in that Schedule (“Commencement Date”) or from the date agreed in the project plan or if neither of these then the commencement date shall be the date of delivery of the software licence (with delivery being as defined in Schedule 7). Beyond the initial contract term the maintenance contract will renew automatically (subject to clause 6.2) year on year and be for a twelve-month period unless agreed otherwise in writing.
6.2 Either party shall be entitled to terminate the Maintenance Contract by giving to the other at least three months’ written notice of termination prior to renewal, this being a minimum of three months before the expiry of the whole contract term as set out in Schedule 4 or the rolling contract term thereafter.
6.3 Where during the Maintenance Contract the Customer obtains from Dynamic Networks Additional Hardware or Software, Dynamic Networks shall inform the Customer of the additional charges payable for incorporating such additional items within the Maintenance Contract for the remainder of the year up to the next renewal date. Upon payment of such charges such additional items shall become the subject of the Maintenance Contract.
6.4 Save insofar as indicated in Schedule 4, the Maintenance Charge shall be payable annually in advance on the Commencement Date and each anniversary thereof. Any additional charges payable under the Maintenance Contract shall be payable within 30 days of the date of Dynamic Networks invoice therefor.
6.5 Dynamic Networks shall be entitled to increase the Maintenance Charge for any year of the Maintenance Contract beginning with an anniversary of the Commencement Date by giving the Customer written notice of the increase (“Notice of Increase”) prior to such anniversary. Should such increase be greater (in percentage terms) than twice the percentage increase in the Retail Prices Index published by the Central Statistical Office during the period since the previous increase (or, where there has been no previous increase, the Commencement Date), then the Customer shall be entitled to terminate the Maintenance Contract by giving Dynamic Networks written notice which is received by Dynamic Networks within 14 days of the Customer’s receipt of the Notice of Increase

 

7. TERMINATION

 

7.1 Dynamic Networks may forthwith by written notice to the Customer terminate the Maintenance Contract if the Customer fails to make any payment due to Dynamic Networks under the Maintenance Contract (or under any other Agreement whose subject matter is or relates specifically to the System or the Services) by its due date.
7.2 Either party may terminate the Maintenance Contract forthwith by written notice to the other if the other shall commit a material breach of the Maintenance Contract and shall (in the case of a remediable breach) fail to remedy the same within a reasonable period of receipt of a written notice from the other party specifying the breach and requiring it to be remedied.
7.3 Either party may terminate the Maintenance Contract forthwith by written notice to the other if the other party shall have a receiver or administrative receiver appointed or shall have a bankruptcy order made against it or one of its partners or shall pass a resolution for winding-up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if the other party shall become subject to an administration order or shall enter into any voluntary arrangement with its creditors or shall become unable to pay its debts or shall cease or threaten to cease to carry on business or shall suffer any similar or analogous event in any jurisdiction.
7.4 Termination of the Maintenance Contract for any reason shall not affect either party’s Rights and remedies accruing up to termination.
7.5 Termination or rescheduling of confirmed planned or ad-hoc maintenance and general works are subject to a fourteen day cancellation period where compensation will be apportioned to the loss.

 

8. EXCLUSIONS AND LIMITATIONS OF LIABILITY

 

8.1 Dynamic Networks sole obligation under the Maintenance Contract is to provide Maintenance as referred to in this Appendix 2, which it shall endeavour to do reasonably promptly. /td>
8.2 Under no circumstances shall Dynamic Networks be under any liability under the Maintenance Contract (whether to carry out the service or otherwise) in respect of any faults, defects, damage or loss arising directly or indirectly from:
8.2.1 operator error, failure or error in operational Software (other than where such operational Software is the subject of the Maintenance) or any defect in the Equipment on which the Dynamic Networks Software is run (other than where such Equipment is the subject of Maintenance);
8.2.2 the Customer’s failure to copy data or provide restorable back-up and/or security copies of data or programs; or
8.2.3 any of the circumstances set out at clause 8.3 below.
8.3 Under no circumstances shall Dynamic Networks be liable to reinstate or assist in the reinstatement of (or be responsible for the cost of reinstatement of) any data lost by the Customer, save where such data loss is caused by the provision of negligent Maintenance by Dynamic Networks, whereby Dynamic Networks shall be responsible for the restoration of secured data only (stored on media approved by Dynamic Networks) but not for any re-keying of data lost, which has not been secured on restorable tape or disk.

 

APPENDIX 3
SUPPLY OF INFRASTRUCTURE

The terms and conditions of this Appendix 3 shall apply to any Infrastructure Services (as defined below) to be provided by Dynamic Networks under this Agreement in addition to the other terms of this Agreement (insofar as applicable to the provision of such Infrastructure Services).

1. DEFINITIONS

In this Appendix 3, the following defined terms shall have the meanings set out below: -

 

"Infrastructure Services" those items specified or referred to as such in Schedule 6 comprising the carrying out of certain works at the Site to inter alia prepare the Site for the installation of the System or to provide infrastructure for the System.
"Materials" the materials and components used by Dynamic Networks to carry out any Infrastructure Services.
"Works" those structures and other works created as part of the Infrastructure Services.

 

2. RISK AND TITLE

In this Appendix 3, the following defined terms shall have the meanings set out below: -

 

2.1 Title to Materials shall not pass until all monies due to Dynamic Networks in respect of the same under the terms of this Agreement have been paid in full.
2.2 The risk in the Materials shall pass to the Customer in respect of each part thereof (and notwithstanding that title may not have passed to the Customer) as soon as such Materials have been delivered by Dynamic Networks to the site.

 

Until such time as title in the Materials passes to the Customer, the Customer shall hold the Materials as the fiduciary agent and Bailee of Dynamic Networks, and shall, so far as is reasonably practicable, keep the Materials separate from equipment owned by the Customer and third parties located at the Site and properly stored, protected and insured and, so far as is reasonably practicable, identified as the property of Dynamic Networks.

Until such time as title in the Materials passes to the Customer, Dynamic Networks shall be entitled at any time to require the Customer to deliver up such Materials to Dynamic Networks and, if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the Materials are located and repossess such Materials.

3. WARRANTY

Dynamic Networks warrants that any Works shall be free from defects in workmanship and materials and remain so for a period of 90 days following the date that Dynamic Networks informs the Customer that such Works have been completed PROVIDED ALWAYS that if Dynamic Networks shall be in breach of this warranty its liability shall be limited to attending the Site with all reasonable speed (bearing in mind its other obligations) and carrying out such additional works and/or supplying replacement Materials as are required to rectify any defects.

4. EXTENDED WARRANTY

In certain circumstances Dynamic Networks will extend and offer product warranties outside the standard terms. These will always be qualified and clearly outlined within the agreement.