|17 January 2017
1.1 In this Contract unless the context otherwise requires:
"Fault" means any failure of the Software to operate in accordance with the specification for the Software;
"Location" means the client location you specified in the Registration Form;
"Price List" means the current list of charges for T-Plan products and services;
"Contract" means the agreement between us and you incorporating these Conditions, the Registration Form, and the Price List;
"Licensee", "Client", "you" and "your" means the person or company we make this Contract with, as specified in the Registration Form;
"Licensor", "T-Plan", "we", "our" and "us" means T-Plan Limited and shall include the Licensor's legal personal representatives, successors and assigns;
"Registration Form" means the registration form completed when you registered to use T-Plan application software products;
"Software" means the T-Plan application software products that you use;
"Support Services" means the support service specified in Clause 2;
"Support Charge" means the current charges for the Support Services in the Price List;
"Terms and Conditions" means the T-Plan Terms and Conditions of Software Licence Agreement;
"Working Days" means Working Hours on every day other than Saturdays, Sundays and public holidays in England;
"Working Hours" means from 09:00 a.m. to 05:00 p.m. on Working Days;
"Client", "you" and "your" means the person or company we make this Contract with, as specified in the Registration Form;
"T-Plan", "we", "our" and "us" means T-Plan Limited.
2 Support Services
2.1 T-Plan will provide the Support Services to the Client to maintain the Software. The Support Services comprise:-
2.1.1 T-Plan personnel available to support the Software in accordance with Clauses 2.1.2 and 2.1.3 with a 3 hour telephone response time from the time of receipt of a call. A support call received within 2 hours of the end of the Working Hours may result in a response at the start of the next Working Day although every reasonable endeavour will be made to respond the same Working Day;
2.1.2 a telephone and email consultancy service to assist the Client to identify faults and answer questions during Working Hours;
2.1.3 a copy of the Software to be held on the premises of T-Plan.
2.2 The Support Services do not include the correction of Faults caused by:
2.2.1 misuse of the Software by the Client or its employees;
2.2.2 faults or problems occurring in the operating system or hardware;
2.2.3 use of the Software in conjunction with other software not supplied or approved by T-Plan such approval not to be unreasonably refused or delayed; or
2.2.4 any modification to the software not made or authorised and approved by T-Plan such approval not to be unreasonably refused or delayed.
2.3 T-Plan reserve the right to charge the Client at their standard rates for any costs, pre-approved by Client, reasonably incurred during the investigation of Faults arising in any of the circumstances specified in Clause 2.2.
3 Client Responsibilities
3.1 The Client will provide T-Plan and T-Plan personnel such access as is necessary to relevant hardware, operating systems and the Software (either over data communications lines or at Client's site) and any documentation or information as may be reasonably required by T-Plan to perform the Support Services.
3.2 The Client shall provide such reasonable office accommodation, facilities and services (including, without limitation, reasonable use of telephone facilities) for all T-Plan personnel working at the Location or any other premises of the Client.
3.3 The Client is responsible for:
3.3.1 maintaining the hardware and operating system software used in conjunction with the Software;
3.3.2 carrying out their normal audit controls to ensure proper use of the Software by Client personnel;
3.3.3 the accuracy and security of all data processed by the Software; and
3.3.4 all other procedures necessary for the Client's intended use of the Software.
3.4 T-Plan reserve the right to charge for any costs incurred due to the Client's failure to fulfil its responsibilities in Clause 3.3.
3.5 The Client will advise T-Plan of the names and office addresses of its personnel from time to time authorised to contact T-Plan for Support Services. T-Plan reserves the right to restrict the number of registered names to no more than four.
4 Support Charges
4.1 The Client shall pay the Support Charge annually in advance for the Support Services in accordance with the Price List.
4.2 The Support Charges are reviewed by T-Plan in accordance with the Terms and Conditions.
4.3 No refund will be made for the Support Charges for any part of any period for which the Support Charges have been paid and in respect of which the Support Services are not performed as a result of termination of this Agreement.
5 Payment for Support Charges
5.1 T-Plan shall notify the Client of the following years Support charges. If we do not receive notification from you to terminate your Product Support and Maintenance contract at least thirty (30) days before, then this Agreement shall automatically renew for an annual period.
5.2 T-Plan shall quote and then invoice upon agreement the Client for the Support charges for the period to which they relate.
5.3 All other charges due to T-Plan in connection with this Agreement shall be invoiced by T-Plan as agreed by the parties.
5.4 All T-Plan invoices shall be paid by the Client before the start of the period to which they relate and no later than thirty (30) days from the date of the receipt of an undisputed invoice. In the event of late payment T-Plan reserves the right:
5.4.1 to charge interest on overdue amounts at 2.5% per annum above the prevailing base rate from time to time of Bank of England for each day or part thereof by which such payment is delayed until receipt by T-Plan of payment in full from the Client; and
5.4.2 to cease provision of all Support Services to the Client and until payment in full is received by T-Plan after notifying the Client of T-Plan's intention to do so
5.5 All charges payable in connection with this Agreement (including the Support Charges) are exclusive of Value Added Tax or any other applicable taxes or duties which shall be added to the invoice and paid by the Client at the rate and in the manner prescribed by law.
6 Agreement Term
6.1 This Agreement shall commence when the Client starts to use the Software under the terms of the Software Licence Agreement.
6.2 Either party may at any time terminate this Agreement:
6.2.1 in the event that the other party is in breach of any provision of this Agreement and, where such breach is capable of remedy, fails to remedy the same within fourteen (14) days of receiving written notice of such breach; or
6.2.2 if there is a change of control of the other party, as control is defined in Section 435(1) of the Insolvency Act 1986. In the event that there is such a change of control of either party, such party shall notify the other of the fact in writing. The right of termination of the other party may only be exercised within fourteen (14) days of receipt of the aforementioned notice and shall not be exercised if the particular change of control has been agreed in writing in advance;
6.2.3 if the other party passes a resolution or a court of competent jurisdiction makes an order that the other party be wound up, or a receiver, manager, or administrator on behalf of a creditor is appointed in respect of its business or any part thereof, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver, manager or administrator or which entitle the court otherwise than for the purpose of bona fide reconstruction or amalgamation to make a winding up order, or if the other party is unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986; or
6.2.4 upon one month's written notice to the other party.
6.3 This Agreement may be terminated by the Licensee if the Licensor is in significant breach of his obligations under Clause 11 of the Software Licence Agreement and fails to remedy the breach within 14 days of receipt of notice in writing thereof or such longer period as may be reasonable in the circumstances.
6.4 Following termination of this Agreement as provided for herein, neither party shall have any further right or obligation with respect to the other party in relation to this Agreement except as set forth in the following Clauses:
and in relation to any accrued rights in respect of any breach of any of this Agreement arising prior to the date of such termination, and any term of this Agreement which is by its terms or by implication intended to survive termination of this Agreement.
7 Intellectual Property and Disclosure
7.1 Each party warrants that it has the right for the purposes of this Agreement to provide and use any software, documentation or other materials it supplies to the other.
7.2 All rights, title and interest (including intellectual property rights) in all software, program materials, documentation, know-how, techniques, concepts, ideas, improvements, inventions or discoveries used or developed by T-Plan and supplied to the Client in the performance of the Support Services shall be governed by and subject to the Terms and Conditions.
7.3 Any confidential information (including, without limitation, the content of this Agreement, information relating to either party's business information, the personal data of its employees and other trade secrets and all Confidential Information specified in Clause 7.2) of either party ("Confidential Information") shall be kept confidential by the other and not be used or disclosed except (and insofar only as is necessary) for the purposes of this Agreement. All Confidential Information shall be maintained in confidence unless it enters the public domain other than as a result of any breach by the receiving party of its obligations under this Clause 7.
7.4 Either party may only issue publicity material relating to this Agreement, with the express written consent of the other party.
7.5 The obligations of the parties pursuant to Clauses 7.1, 7.2, 7.3, 7.4 and 7.5 shall survive any termination of this Agreement.
8.1 T-Plan warrants that it shall use the reasonable care and skill expected of a competent supplier of software and services in providing the Support Services but does not warrant that any software supplied or maintained by it pursuant to this Agreement (including the Software) will operate without interruption or free from error.
8.2 Other than as is expressly set out in this Agreement, all warranties, conditions, representations and undertakings, whether express or implied by common law or statute are hereby excluded to the fullest extent permitted by law.
8.3 T-Plan shall endeavour to meet any estimates of time which may be given by it in connection with this Agreement but such estimates are not binding and are for information purposes only, unless express written agreement has been made between the authorised representatives. T-Plan shall not be liable for any delay in providing the Support Services, whether resulting from the negligence of T-Plan, its employees or agents.
9.1 Subject to Clause 9.2, the liability of each party to the other shall not exceed the following financial limits:
9.1.1 in respect of all direct loss or damage to tangible property (including real property) caused by the Client's negligence the Client's liability shall be limited to fifty thousand pounds (£50,000);
9.1.2 in respect of all other loss or damage caused by either party the total of all Support Charges paid and payable hereunder, as determined at the date when the liability arose.
9.2 Neither party excludes or limits any liability to the other party for personal injury (including sickness and death) to the extent that such injury results from the negligence of its servants, agents or sub-contractors.
9.3 Except as provided in this Clause 9, the parties, their employees, agents or sub-contractors shall have no liability to the other party or any third party for any loss or damage whatsoever no matter when or how arising in connection with or out of the Support Services or this Agreement, the performance or breach thereof, whether direct, incidental, indirect, special, consequential or contingent (including without limitation, lost profits, loss of data, loss of use) and whether foreseeable or not.
10.1 It is an express condition that for the duration of this Agreement and for a period of twelve (12) months thereafter neither party shall not, without the written agreement of the other party, employ nor make any offers of employment to any of the personnel of the other party, except under the circumstance that either party shall become bankrupt or make an arrangement with its creditors or go into liquidation. 'Employ' means the engagement of such person as an employee, director, sub-contractor or independent contractor.
10.2 Each Party's estimate of the impact that a breach of Sub-Clause 10.1 would have upon its business is herein specified as liquidated damages in the amount of twelve (12) months of the full value of the remuneration package that the employee was receiving. Both parties accept that this is a genuine pre-estimate of loss that would be suffered by one party in the event of breach by the other party of Clause 10.1 and agrees to pay the same on demand in the event of a breach by it of this Clause. This provision shall be without prejudice to the right of the non-breaching party to seek injunctive relief. Nothing herein shall affect the rights of either party's employees to apply for publicly advertised employment opportunities.
11.1 Neither party may assign or otherwise transfer its rights and obligations (or any of them) in connection with this Agreement without the prior written consent of the other party.
11.2 No amendment of this Agreement shall be effective unless it is made by a written instrument which is executed by an authorised representative of both parties.
11.3 No waiver of any of its rights under this Agreement by either party shall constitute a continuing waiver or a waiver of any subsequent rights.
11.4 Notice from the Client to T-Plan is effective if in writing and delivered to the Support Services Manager of T-Plan personally, or by recorded delivery to the address specified at the front of this Agreement.
11.5 Notice from T-Plan to the Client is effective if in writing and delivered to the Client's authorised representative personally, or by recorded delivery to the address specified at the front of this Agreement.
11.6 No claim, demand or action in connection with this Agreement may be brought by either party more than two years after the party concerned becomes aware or should reasonably have become aware of the facts constituting the cause of the claim, demand or action.
11.7 The validity, construction and performance of this Agreement shall be governed in accordance with the laws of England and Wales and the parties submit to the exclusive jurisdiction of the Courts of England.
11.8 This Agreement and Schedules Terms and Conditions shall constitute the entire understanding and agreement between the parties in relation to the subject matter hereof and supersede all prior and contemporaneous proposals, representations, negotiations and communications relating to this Agreement. In the case of conflict between this Agreement and the Terms and Conditions this Agreement shall prevail.
11.9 This obligation shall not apply to information which enters the public domain other than as a result of the disclosure by one party of such information in breach of its obligations under this Clause 11 or as may be required by law or the requirements of a regulatory authority.