In these Terms and Conditions, the following expressions shall have the following meanings:-
1.1. “this Agreement” means these Terms and Conditions, any SLA proposal, any Development Brief, any Proposal Acceptance and those parts of any Report which are incorporated by reference into any Proposal Acceptance, as the same may be varied, amended or supplemented in accordance with this Agreement.
1.2. “Complaint Form” means the form prepared by ENGINE ROOM for completion by the Customer in the event the Customer has any complaint regarding, or any incident occurs relating to the provision of, the Services, and containing full details of the complaint or incident.
1.3. “Completion Document” means the project/milestone completion document prepared by ENGINE ROOM and signed by the Customer to confirm that the Services referred to therein have been completed and accepted by the Customer and, where the Services include the provision of Developed Software, meet the requirements set out in the Development Brief.
1.4. “Customer” means the person, firm, company, organisation or other entity to whom ENGINE ROOM have agreed to provide the Services, as set out in the Proposal Acceptance.
1.5. “Customer Materials” means all software, hardware, materials and documentation provided by the Customer to ENGINE ROOM under or in connection with this Agreement.
1.6. “Development Brief” means the document agreed between ENGINE ROOM and the Customer prior to the commencement of the supply of any Developed Software setting out in detail the Customer’s requirements in relation to the Developed Software, any deliverables, any relevant assumptions and dependencies and the basis upon which ENGINE ROOM will endeavour to meet the Customer’s requirements.
1.7. “Developed Software” means the software specifically written for the Customer and supplied to it by or on behalf of ENGINE ROOM in accordance with the Proposal Acceptance, but excluding the ENGINE ROOM Software, the ENGINE ROOM Materials and Third Party Materials.
1.8. “Equipment” means the equipment, software, programs and/or applications (if any) which the Customer has agreed to purchase or take a licence of, and ENGINE ROOM have agreed to supply, licence or procure the licence of, in accordance with this Agreement as set out in the Proposal Acceptance.
1.9. “Fees” means the charges to be paid by the Customer to ENGINE ROOM for the provision of the Services (including any handling charges in respect of the supply of Equipment), details of which are set out in the Proposal Acceptance.
1.10. “Graphics” means the graphics and any artistic material forming part of the Developed Software and the front end user interface of the Developed Software, but excluding the ENGINE ROOM Software, ENGINE ROOM Materials, Third Party Materials and all other parts of the Developed Software.
1.11. “IPR” means all intellectual property of whatever nature anywhere in the world (and all applications in respect thereof) and all rights pertaining to such property whether recorded or registered in any manner or otherwise including, without limitation, patents and patent applications, trade marks (both registered and unregistered), copyright, database rights, registered designs, unregistered designs, know-how, trade secrets, technology and expertise.
1.12. “ENGINE ROOM Software” means any software, applications or programs owned by or licensed to ENGINE ROOM and/or any tools used by ENGINE ROOM in the development of the Developed Software or the provision of the Services.
1.13. “ENGINE ROOM Materials” means all materials used, developed or provided by ENGINE ROOM (including, without limitation, systems, methodologies, the Intranet, the Report and all other reports, documentation, correspondence and advice) in connection with providing the Services or otherwise owned by ENGINE ROOM, but excluding any Equipment, Customer IPR, the System, the Graphics and Third Party Materials.
1.14. “Price” means the price payable by the Customer for any Equipment to be provided by ENGINE ROOM under this Agreement.
1.15. “Report” means the ENGINE ROOM Technology Review report prepared by ENGINE ROOM comprising a technical, audit and business consultation, setting out areas for development of the Customer’s business, a proposal of the Services which ENGINE ROOM could provide to meet those development requirements and the SLA applicable to each of the relevant Services.
1.16. “Proposal Acceptance” means:
1.16.1. the acceptance of all or specified parts of the Report prepared by ENGINE ROOM and signed or accepted by email by the Customer requesting ENGINE ROOM to provide certain Services in accordance with the terms of this Agreement.
1.16.2. where a Customer has onboarded to ENGINE ROOM through normal business or through acquisition of another company and there is no ENGINE ROOM Report the Proposal Acceptance is deemed to refer to and include all items and services listed in the first invoice created by ENGINE ROOM for that customer. Such items and services are subject to ENGINE ROOM terms and conditions from the point of onboarding and thereafter.
1.17. “Response Times” means any periods of time set out in the Proposal Acceptance within which any Services (or any milestones relating to the provision of the Services) are to be performed and/or completed and/or any Equipment delivered.
1.18. “Services” means the services to be provided by ENGINE ROOM to the Customer in accordance with this Agreement as set out in the Proposal Acceptance which, subject to the terms of the Proposal Acceptance, may include the supply of Equipment, Project Services, Consulting Services, the provision of Support Services, Managed Cloud Services, Digital Services, Telecoms Services and/or the provision of Developed Software.
1.19. “Site” means the location(s) at which some or all of the Services are to be provided by ENGINE ROOM, as more particularly set out in the Proposal Acceptance.
1.20. “SLA” means a description of the type of Services to be provided by ENGINE ROOM to the Customer, the level of support to be provided in connection with those Services and, if appropriate to those Services, any performance criteria to which ENGINE ROOM have agreed to adhere to. ENGINE ROOM standard SLA response times are as follows:
1.20.1. Critical Priority Incident: 100% of services failed, all users affected and business severely impacted: Response Time 30 mins.
1.20.2. Significant Priority Incident: A single core service has failed and multiple users are impacted. Response Time 2 hours.
1.20.3. Medium Priority Incident: One user unable to work or is unable to access a single service with no work around. Response Time 4 hours.
1.20.4. Low Priority: One or two users affected but a known work around is available in the interim. Response Time 8 hours.
1.21. “Supported Equipment” means any Equipment in respect of which ENGINE ROOM have agreed to provide Support Services.
1.22. “Support Services” means any Services to be provided by ENGINE ROOM for the Customer as set out in the Proposal Acceptance which involve the provision of consultancy services, advice on the implementation and/or integration of Technology systems, support of all or part of the System, the provision of any hosting and maintenance services and any services of a similar nature.
1.23. “System” means the computer system (including any hardware, software and any other related equipment) operated by the Customer at the Site.
1.24. “Third Party Materials” means any software owned by or licensed to a third party and any materials, documentation, software or applications which belong to a third party and are incorporated into or relate to the Developed Software or the provision of the Services.
2. STATUS OF AGREEMENT
2.1. Each Proposal Acceptance submitted by the Customer and signed. or approved by email, by way of acceptance by ENGINE ROOM is subject to the terms of this Agreement, which shall prevail over any other terms or conditions stipulated or incorporated or referred to by the Customer in any document or otherwise in any negotiations between the parties. ENGINE ROOM will in no circumstances be bound to provide the Services until such time as an authorised representative from ENGINE ROOM has signed the Proposal Acceptance.
2.2. Unless express provision is made to the contrary, in the event of any conflict or inconsistency between these Terms and Conditions and the Proposal Acceptance, these Terms and Conditions will prevail.
2.3. No Proposal Acceptance which has been signed by the Customer and signed by way of acceptance by ENGINE ROOM may be cancelled or amended by the Customer except with the agreement in writing of ENGINE ROOM. The Customer shall indemnify ENGINE ROOM in full against all losses (including loss of profit), costs (including the cost of all labour and materials used and hardware and software purchased), damages, charges and expenses incurred by ENGINE ROOM as a result of such cancellation or amendment or purported cancellation or amendment.
3. PROVISION OF SERVICES
3.1. The Customer appoints ENGINE ROOM to provide the Services at the Site, and ENGINE ROOM agrees to accept such appointment, upon and subject to the terms and conditions set out in this Agreement.
3.2. ENGINE ROOM undertakes to the Customer that it will:
3.2.1. in the course of providing the Services, use such standard of skill and care as is ordinarily exercised by competent organisations performing services of a similar nature to the Services;
3.2.2. use its reasonable endeavours to meet any Response Times.
3.3. ENGINE ROOM may, at its sole discretion, provide an Intranet to the Customer free of charge, solely for internal use by the Customer, and ENGINE ROOM shall have the right to update or amend the Intranet at any time.
3.4. Upon signing the Completion Document, the Customer will be deemed to have irrevocably accepted the Services and/or the Equipment referred to therein as meeting the requirements of this Agreement including, without limitation, any applicable SLA.
3.5. If there is a failure or deficiency in the provision of the Services by ENGINE ROOM, the Customer shall afford ENGINE ROOM a reasonable opportunity to correct such failure or deficiency.
3.6. Each Proposal Acceptance shall constitute a separate contract and a failure by ENGINE ROOM to:
3.6.1. perform any component part of the Services set out in a Proposal Acceptance in accordance with this Agreement shall not entitle the Customer to treat that Proposal Acceptance as a whole as repudiated;
3.6.2. perform the Services set out in a Proposal Acceptance in accordance with this Agreement shall not entitle the Customer to treat ENGINE ROOM as being in breach of any other Proposal Acceptance nor to treat this Agreement as a whole as repudiated.
3.7. ENGINE ROOM reserve the right to substitute new personnel for its personnel assigned to the Customer from time to time and the Customer may request such a substitution provided that the Customer gives valid reasons for doing so. The Customer may not refuse alternative personnel offered by ENGINE ROOM unless the Customer gives valid written reasons to ENGINE ROOM’s reasonable satisfaction within ten (10) days of meeting the proposed substitute.
3.8. ENGINE ROOM will retain master custodianship of all usernames and passwords related to Customer software systems, services and infrastructure under management at all times. Such usernames and passwords shall be updated from time to time in line with network and system security best practice. The Customer shall not be notified of changes in the course of services provision but will be provided with the latest usernames and passwords in service during any handover process at the end of any services agreement.
4. SUPPORT SERVICES
4.1. ENGINE ROOM shall provide the Support Services to the Customer as set out in the Proposal Acceptance and in doing so shall use its reasonable endeavours to adhere to any applicable SLA.
4.2. For the avoidance of doubt, the following services shall not be deemed to be Support Services and fall outwith the scope of this Agreement:
4.2.1. supply of consumable items or accessories as defined by the manufacturer, opc belts, laser drums, fuser units, monitor crt, laptop screens and batteries, ups and cmos batteries, ac power leads, ribbons, toner paper, mouse units and print-heads;
4.2.2. rental charges for replacement Supported Equipment;
4.2.3. replacement of magnetic media or selenium drums;
4.2.4. parts for printers or plotters which are out of or not covered by warranty;
4.2.5. services or replacement of spare parts deemed necessary due to:
22.214.171.124. Supported Equipment not meeting the criteria specified in Clause 5.13;
126.96.36.199. the Supported Equipment being obsolete or incapable of economic repair (which, for these purposes, shall include, without limitation, where the cost to ENGINE ROOM of carrying out such repair is in ENGINE ROOM’s reasonable opinion likely to exceed seventy-five per cent of the cost of the written down value of such Supported Equipment at that time);
188.8.131.52. problems not identified in the Report including, without limitation, any ill-configuration of the System at the date of ENGINE ROOM’s commencement of the performance of the Services or any virus damage;
184.108.40.206. any damage (including, without limitation, as a result of spillages) caused by the Customer or a third party or as a result of any upgrade or modification to the Supported Equipment and/or the System;
220.127.116.11. wilful acts, defaults or negligent use of the Supported Equipment and/or the System outwith the manufacturer’s operating instructions;
18.104.22.168. faults with software due to its connection with other Equipment;
22.214.171.124. use of destructive or faulty software.
4.3. In the event that the Customer refuses or fails to follow advice given by ENGINE ROOM in respect of any aspect of the Services (including, without limitation, the need to replace Supported Equipment) and, as a consequence, the cost to ENGINE ROOM of providing the Services and/or the period required to perform the Services is increased, then the parties will meet as soon as reasonably practicable to discuss the impact of such refusal or failure on the provision of the Services and the level of Fees with a view to agreeing any necessary changes to the Services and/or the Fees. If no such agreement is reached within 1 month of the meeting (or, where no meeting has taken place, within 1 month of a request by ENGINE ROOM for a meeting), ENGINE ROOM shall be entitled to either:-
4.3.1. cease providing those Services; or
4.3.2. charge the Customer for providing those Services at ENGINE ROOM’s prevailing standard hourly rates from time to time.
5.1. ENGINE ROOM shall supply to the Customer the Equipment and/or provide Support Services in respect of the Supported Equipment and/or the System, in each case in accordance with and subject to the terms of this Agreement.
5.2. ENGINE ROOM may deliver the Equipment by separate instalments and each separate instalment shall be invoiced and paid for in accordance with this Agreement. Where the Equipment is to be delivered in instalments, each delivery shall constitute a separate contract and failure by ENGINE ROOM to deliver any one or more of the instalments in accordance with this Agreement or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat this Agreement as a whole as repudiated.
5.3. If ENGINE ROOM is unable, by reason of the Customer’s actions, instructions or lack of instructions, to deliver the Equipment to the Customer then, without prejudice to any other right or remedy available to ENGINE ROOM, ENGINE ROOM may:-
5.3.1. store the Equipment on behalf of the Customer (and at the risk of the Customer) until actual delivery and charge the Customer for the costs (including, without limitation, any insurance premiums) of storage; or
5.3.2. sell the Equipment at the best price readily obtainable and (after deducting all storage and selling expenses) charge the Customer for any shortfall below the Price payable in respect of that Equipment.
5.4. Risk of damage to or loss of the Equipment shall pass to the Customer at the time of delivery or, if the Customer wrongfully fails to take delivery of the Equipment, the time when ENGINE ROOM has tendered delivery of the Equipment.
5.5. Notwithstanding delivery and the passing of risk in the Equipment or any other provision of this Agreement, ownership of and property in the Equipment shall remain with ENGINE ROOM (or, if applicable, the licensor or manufacturer) until ENGINE ROOM has received in cash or cleared funds payment of the Price in respect of that Equipment and all other Equipment agreed to be supplied by ENGINE ROOM to the Customer for which payment is then due.
5.6. Until such time as ownership of and property in the Equipment passes to the Customer, the Customer shall hold the Equipment as ENGINE ROOM’s trustee and agent and shall keep the Equipment separate from other goods in the Customer’s possession so that they are readily identifiable as ENGINE ROOM’s goods and the Customer shall properly store, protect, insure and identify as ENGINE ROOM’s property all of the Equipment. If the Customer sells any of the Equipment prior to paying the Price in full, the proceeds of any such sale shall be held by the Customer in trust for ENGINE ROOM and the Customer shall record such proceeds separately in its books of account and shall account to ENGINE ROOM with such proceeds within three business days of receipt.
5.7. Until such time as ownership of and property in the Equipment passes to the Customer (and provided the Equipment is still in existence and has not been resold), ENGINE ROOM shall be entitled at any time to require the Customer to deliver up the Equipment to ENGINE ROOM and, if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the Equipment is stored and repossess the Equipment.
5.8. The Equipment will, where possible, be provided to the Customer with the benefit of the manufacturer’s warranty (if any). In the event that the Customer wishes to make a claim under the manufacturer’s warranty and such warranty is in the name of ENGINE ROOM, ENGINE ROOM shall, at the Customer’s sole cost and expense, either assign (to the extent permitted) the warranty to the Customer or (provided the Customer provides an indemnity to ENGINE ROOM in terms satisfactory to ENGINE ROOM in respect of all costs, damages, claims, expenses and/or liabilities suffered or incurred by ENGINE ROOM as a consequence of taking such steps) take such steps as the Customer may reasonably require in order to make a claim under the warranty.
5.9. All Equipment will be provided in accordance with the manufacturer’s or licensor’s published specifications from time to time and subject to any conditions of sale or licence terms imposed by such manufacturer or licensor.
5.10. Unless the Price quoted by ENGINE ROOM is expressly stated to be fixed, the Price may be increased by ENGINE ROOM to reflect the actual price charged by the supplier or manufacturer of the Equipment at the time of despatch of the Equipment.
5.11. In the event that the Customer reports a fault with any Supported Equipment, the Customer shall provide ENGINE ROOM with the Supported Equipment’s identification number and the Customer’s reference number, following which ENGINE ROOM will issue a fault reference number.
5.12. Where ENGINE ROOM is requested to provide Support Services in respect of any of the matters referred to in Clause 4.2 or any of the following matters, the cost of providing such Support Services shall be charged at ENGINE ROOM’s standard hourly rates from time to time:-
126.96.36.199. remedial maintenance for Supported Equipment which has not been the subject of a maintenance agreement since the date of its purchase or has been maintained by a party other than ENGINE ROOM;
188.8.131.52. Supported Equipment damaged by physical or electrical stress or fluctuation of electrical power or normal use including damage to hard disks caused by the use of storage media not approved by ENGINE ROOM;
184.108.40.206. material components concealed in the Supported Equipment which are not listed in the Proposal Acceptance;
220.127.116.11. software, hardware, equipment or services not listed in the Proposal Acceptance.
5.13. In respect of each category of Supported Equipment, the Customer confirms that each item of Supported Equipment is substantially equivalent in all material respects including, without limitation, with regard to quality and state of repair as those exhibited to ENGINE ROOM immediately prior to ENGINE ROOM signing the Proposal Acceptance.
5.14. ENGINE ROOM will use its reasonable endeavours to correct all faults ascertained by or intimated to it in the course of providing Support Services in such manner as it may reasonably see fit. In the event that ENGINE ROOM deems a fault to be irreparable, it shall notify the Customer in writing specifying the reasons which preclude rectification of the fault.
5.15. ENGINE ROOM shall be entitled to make or procure third parties make any repairs to Supported Equipment with the benefit of any manufacturer’s warranty which relates to such Supported Equipment and the Customer shall provide all necessary co-operation to enable ENGINE ROOM to rely upon such warranty.
6. DEVELOPED SOFTWARE
6.1. ENGINE ROOM shall provide any Developed Software set out in the Proposal Acceptance and will do so on the basis of the Development Brief and subject to the terms of this Agreement.
6.2. The Customer will be given a reasonable period of time (not exceeding five business days) following the completion of the Developed Software during which to undertake any appropriate tests to establish that the said Developed Software complies in all material respects with the Development Brief and the Proposal Acceptance. In the event that the Customer signs the Completion Document or does not submit a Complaint Form to ENGINE ROOM within the said period of five business days, the Customer will be deemed to have irrevocably accepted the Developed Software as meeting the requirements of this Agreement including, without limitation, the relevant Development Brief.
6.3. In the event the Customer submits a Complaint Form in accordance with Clause 6.2, ENGINE ROOM shall use its reasonable endeavours to correct any faults correctly specified in the Complaint Form such that it meets in all material respects the requirements set out in the Development Brief. In the event that ENGINE ROOM fails to do so within a reasonable period of time (such period to be not less than thirty business days), the Customer’s sole remedy shall be to reject the deliverables (or relevant part thereof) set out in the Development Brief, return them to ENGINE ROOM, terminate this Agreement in so far as (and only to the extent that) it relates to the deficient Developed Software and to receive a refund of any sums paid to ENGINE ROOM in respect of those deliverables returned to ENGINE ROOM.
6.4. ENGINE ROOM warrants that the Developed Software shall be free from material programming errors, save that no warranty is given that it will be error free on the basis some bugs or errors which do not substantially affect the use or functionality of the Developed Software may exist.
7. CUSTOMER’S OBLIGATIONS
7.1. The Customer undertakes to ENGINE ROOM that it will:-
7.1.1. at the Customer’s sole expense, provide ENGINE ROOM (and its agents and sub-contractors) with such information, documentation, co-operation, assistance, access to the System, facilities and computer resources as ENGINE ROOM reasonably requires to enable it to perform the Services and fulfil its obligations under this Agreement;
7.1.2. ensure the Site and the System are prepared for the delivery and/or installation of any Equipment and that the System and the environment within which it operates is safe, secure and adequate for its purpose;
7.1.3. at the Customer’s sole expense, care for and operate any Supported Equipment in accordance with the manufacturer’s specifications and will only use such Supported Equipment for the purpose for which it was designed, and the Customer will not move, alter, attach anything, repair or adjust such Supported Equipment or any part thereof without the prior written consent of ENGINE ROOM (save in order to attach the terminals to use and allocate the serial ports and cabling);
7.1.4. ensure that any Supported Equipment is operated in a proper manner and by persons trained to a competent standard;
7.1.5. ensure that a manager or other duly authorised individual is available at the Site to facilitate access to the Site, respond to any queries raised by ENGINE ROOM’s employees or consultants and to sign any Completion Document (or similar documents) issued by ENGINE ROOM;
7.1.6. comply with any laws, rules or regulations applicable to the Customer’s business and to advise ENGINE ROOM to the extent that such laws, rules or regulations may in any way affect the provision of the Services;
7.1.7. maintain throughout the term of this Agreement appropriate insurance cover at its own expense in respect of public liability, employers liability, product liability and any other risks which are reasonably necessary having regard to the Customer’s obligations under this Agreement;
7.1.8. (if so requested by ENGINE ROOM) prior to the commencement of and during the provision of the Services, permit ENGINE ROOM or its duly appointed contractors to have access to the Site.
7.2. The Customer shall be responsible for ensuring the accuracy of the terms of the Proposal Acceptance and for giving ENGINE ROOM any necessary documentation, approvals, consents and/or information relating to the System and/or its business within a sufficient period of time to enable ENGINE ROOM to perform the Services in accordance with this Agreement.
7.3. The Customer acknowledges that it is responsible for ensuring it has adequate back-up copies of all data, applications and information and that ENGINE ROOM will in no event be responsible for loss, destruction or damage to such data, applications or information.
7.4. In the event that the Customer has a complaint regarding any aspect of the Services or any incident occurs relating to the provision of the Services, the Customer shall complete and submit to ENGINE ROOM a Complaint Form (containing full details of the complaint or incident) to allow ENGINE ROOM to investigate the relevant complaint and, if appropriate, endeavour to resolve the relevant matter.
7.5. The Customer shall provide ENGINE ROOM with any rules, regulations and practices relating to security and health and safety applicable to the Site and in respect of which ENGINE ROOM’s personnel are to comply when on the Site. The Customer shall take appropriate steps to safeguard the health and safety of ENGINE ROOM’s personnel at the Site and, if ENGINE ROOM are required by the Customer to enter into the premises of a third party, the Customer shall procure that the third party also affords such protection to ENGINE ROOM’s personnel.
7.6. The Customer represents and warrants to ENGINE ROOM that it has the right to use, disclose and disseminate the information, software, specifications, System, Customer Materials and data that it has provided or will provide to ENGINE ROOM in order for ENGINE ROOM to perform the Services and that possession and use of the same by ENGINE ROOM under this Agreement will not constitute an infringement of any IPR of any third party.
7.7. The Customer shall indemnify ENGINE ROOM on demand (and shall keep ENGINE ROOM fully indemnified) from and against all claims, demands, costs, liabilities, losses, expenses and damages (including legal fees properly and reasonably incurred) which ENGINE ROOM may sustain or incur arising out of or in connection with any breach or any non-performance by the Customer of any of its obligations under this Agreement or any claim made against ENGINE ROOM by a third party.
8. Intellectual property rights
8.1. All IPR in the ENGINE ROOM Software, ENGINE ROOM Materials, Developed Software and the Intranet will be owned by ENGINE ROOM and the Customer shall obtain no rights in or to same save as expressly granted by this Agreement.
8.2. Subject to payment in full of all sums due by the Customer to ENGINE ROOM under this Agreement, ENGINE ROOM hereby:
8.2.1. assigns to the Customer all IPR in the Graphics;
8.2.2. grants to the Customer a non-exclusive, non-transferable, royalty-free licence to use the Intranet during the term of this Agreement or for such other period as ENGINE ROOM at its absolute discretion may decide;
8.2.3. grants to (or shall procure that there is granted to) the Customer a non-exclusive, non-transferable, perpetual, royalty-free licence to use the IPR of ENGINE ROOM in the Developed Software and the ENGINE ROOM Software, and any Third Party Materials to the extent the same are required for the sole purpose of using the Developed Software for the Customer’s own internal business purposes.
8.3. The Customer undertakes to ENGINE ROOM that it will not:
8.3.1. translate, modify, attach or create derivative works based upon the Developed Software, the ENGINE ROOM Software, any Third Party Materials, the Intranet or in each case any part thereof except as expressly permitted pursuant to this Agreement;
8.3.2. decompile, reverse engineer or disassemble the Developed Software, the ENGINE ROOM Software, any Third Party Materials, the Intranet or in each case any part thereof (whether in whole or in part) except to the extent permitted by applicable law.
8.4. The Customer hereby grants to ENGINE ROOM a non-exclusive right to use the Customer Materials solely in connection with the provision of the Services under the terms of this Agreement.
9.1 Subject to Clauses 6.3 and 11 and anything expressly to the contrary within the Proposal Acceptance, this Agreement shall remain in force for an initial period of 24 months from the commencement date set out in the Proposal Acceptance (“Initial Term”), which will equate to the 1st day of the month and year of the first ENGINE ROOM invoice, and shall continue for subsequent 24 month periods thereafter unless or until terminated by either party giving not less than 3 months prior written notice, such notice not to expire before the end of the Initial Term or the relevant anniversary thereof.
9.2 Notice of Termination can only be given on the 90th day preceding the end of the Initial Term or the relevant anniversary thereof. Where the 90th day does not land on a standard business day notice of termination can be given only on the next immediate business day following the 90th day.
9.3 Where a Customer has onboarded to ENGINE ROOM as a result of a company acquisition or where there is ambiguity over the services start date, the Proposal Acceptance commencement date (“Initial Term”) will be the 1st day of the relevant month and year that services were invoiced out of ENGINE ROOM and Clauses 9.1 and 9.2 will apply.
10.1. Within three business days after it has signed the Proposal Acceptance, the Customer shall put in place a direct debit mandate with its bank in terms of which any Fees payable by the Customer are deducted from the Customer’s bank account on the due date for payment.
10.2. The Customer hereby acknowledges that the Fees will be paid in Sterling and on the following basis:
10.2.1. in respect of the supply of Equipment, subject to Clause 10.3, on the earlier of (i) the delivery of the Equipment to the Customer, and (ii) (where the Equipment has been ordered from a third party) receipt of the Equipment by ENGINE ROOM;
10.2.2. in respect of the provision of Support Services or any services charged at ENGINE ROOM’s standard hourly rates from time to time, monthly in advance on such date in each month as the parties may agree and in such amount as is set out in the Proposal Acceptance;
10.2.3. in respect of the provision of Developed Software, on such date(s) as are specified in the Proposal Acceptance.
10.3. ENGINE ROOM may require full or partial payment of the Price prior to delivery of that Equipment or, alternatively, the provision of security for payment by the Customer in a form acceptable to ENGINE ROOM. In the event of partial payment having been made by the Customer prior to delivery of the Equipment, the balance of the Price will be payable by the Customer on delivery of the Equipment.
10.4. All monies payable to ENGINE ROOM by the Customer under this Agreement shall be paid without any deduction, withholding, set-off or counter-claim whatsoever. For the avoidance of doubt, and without limiting the foregoing, the Customer shall not be entitled to withhold Fees payable in respect of:
10.4.1. any component part of the Services set out in a Proposal Acceptance as a result of a failure by ENGINE ROOM to perform any other component part of those Services set out in that Proposal Acceptance;
10.4.2. a Proposal Acceptance as a result of a failure by ENGINE ROOM to provide the Services set out in any other Proposal Acceptance.
10.5. Any VAT or other duty, levy or tax applicable to the Services or the Equipment shall be payable by the Customer.
10.6. ENGINE ROOM shall be entitled to vary monthly billing to reflect increases in item volumes and services provided to the Customer, for example Managed Services, using the prevailing Fees that apply for such Managed Services at such a given time.
10.7. ENGINE ROOM reserves the right to vary Fees charged for Services provided to the Customer to reflect increases in third party sourcing costs and other operating cost increases that are incurred from time to time.
10.8. If the Customer fails to make any payment due to ENGINE ROOM under this Agreement on the due date then, without prejudice to any other right or remedy available to ENGINE ROOM under this Agreement or at law, ENGINE ROOM shall (at its sole discretion) be entitled to charge the Customer interest (both before and after any decree or judgement) on the amount unpaid, at the rate of four per cent per annum above The Royal Bank of Scotland plc base rate from time to time, from the date such payment falls due until payment is made in full.
11. Termination AND SUSPENSION
11.1. A Customer may not service notice to terminate this Agreement if there are any accrued or unpaid balances. Such accrued or unpaid balances must to be cleared in full before a Customer can serve notice of termination.
11.2. ENGINE ROOM or the Customer (as appropriate) may terminate this Agreement with immediate effect by giving notice to the other (“the Defaulting Party”) if:
11.2.1. the Defaulting Party is in material breach of any of its obligations under this Agreement and, if the breach is capable of remedy, it has continued unremedied for a period of thirty (30) days after the other party has given written notice to the Defaulting Party specifying the breach and the steps required to remedy it; or
11.2.2. the Defaulting Party shall have a liquidator, receiver or an administrative receiver appointed over it or over any part of its undertaking or assets 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 Defaulting Party shall become subject to an administration order or shall enter into any voluntary arrangement with its creditors or shall cease or threaten to cease to carry on the whole or a substantial part of its business or takes or suffers any analogous action in any jurisdiction in the world.
11.3. ENGINE ROOM shall (at its sole discretion) be entitled, without prejudice to its other rights and remedies under this Agreement or at law, either to immediately terminate this Agreement or to suspend the provision of any Services under this Agreement, by providing notice of one business day, without incurring any liability to the Customer in any of the following events:-
11.3.1. if any monies due and payable by the Customer to ENGINE ROOM are not paid on the due date for payment; or
11.3.2. the direct debit mandate referred to in Clause 10.1 is revoked or cancelled.
12. Consequences of termination
12.1. In the event that this Agreement is terminated or expires as provided for herein:
12.1.1. the Customer shall immediately return to ENGINE ROOM in such format as ENGINE ROOM may specify (or, at the sole option of ENGINE ROOM, destroy) all documents, data, ENGINE ROOM Materials, Third Party Materials and all other information relating to ENGINE ROOM in its possession and all copies thereof which are owned by ENGINE ROOM and/or which have been provided to the Customer in connection with this Agreement;
12.1.2. the Customer shall immediately cease all use of the Intranet and shall return to ENGINE ROOM any software or materials relating to the Intranet;
12.1.3. ENGINE ROOM shall return to the Customer all documents, data, Customer Materials and all other information belonging to the Customer and provided to ENGINE ROOM by the Customer in connection with this Agreement;
12.1.4. neither party shall at any time thereafter represent or hold itself out as being connected with the other.
12.2. The termination of this Agreement (howsoever caused) shall: (i) be without prejudice to any other rights or remedies which either party may be entitled to under this Agreement or at law; (ii) not affect any accrued rights or liabilities which either party may then have; and (iii) not affect any Clause which is expressly or by implication intended to continue in force after such termination including, without limitation, Clauses 2.3, 5.6, 5.7, 5.8, 7.3, 7.7, 8, 10.4, 10.7, 12, 13, 14, 16.2, 16.3, 16.5 and 16.10.
13.1. Neither party’s liability to the other for any death or personal injury caused by the negligence of that party or its employees shall be limited in any way.
13.2. Subject to Clause 13.1 above, ENGINE ROOM’s entire liability to the Customer in respect of any loss or damage arising from any breach of ENGINE ROOM’s contractual obligations under this Agreement or any representation, statement or delictual or tortious act or omission by ENGINE ROOM including negligence arising in connection with this Agreement shall be limited to an amount equal to that element of the Fees received by ENGINE ROOM from the Customer during the twelve month period immediately preceding the act or omission which has caused the breach which relate solely to the performance of the Services set out in the SLA (and not, for the avoidance of doubt, the Price or any Fees which relate to the sale or supply of Equipment).
13.3. Subject to Clause 13.1 above, ENGINE ROOM shall not be liable to the Customer in respect of:-
13.3.1. any loss of profits, loss of goodwill, loss of business, loss of revenue, loss of contracts, loss or corruption of data, loss of availability, loss of anticipated savings; or
13.3.2. any type of special, indirect or consequential loss or damage, suffered or incurred by the Customer howsoever caused.
13.4. The Customer acknowledges that in entering into this Agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this Agreement and any conditions, warranties, representations (excluding fraudulent misrepresentations), understandings or other terms, whether express or implied, statutory or otherwise (including, without limitation, implied warranties of satisfactory quality or fitness for a particular purpose with respect to the provision of the Services and/or the supply of the Equipment or any warranty that the Equipment is error free or will work in conjunction with any third party software or hardware configuration) are excluded from this Agreement to the fullest extent permitted by law. The Customer also acknowledges that, subject to Clause 16.1, ENGINE ROOM will in no circumstances be responsible for any loss or damage suffered or incurred by the Customer which is caused by or is otherwise attributable to the act or omission of a third party.
13.5. Any dates quoted for the delivery of any Equipment or the completion of the performance of any Services are (unless the parties expressly agree otherwise in writing) estimates only and ENGINE ROOM shall not be liable for any loss, damage or expense arising directly or indirectly from any delay or failure to meet such delivery or completion dates howsoever caused.
13.6. Subject to the foregoing provisions of this Clause 13, ENGINE ROOM shall indemnify the Customer from and against all valid claims, costs, liabilities and damages (including legal fees properly and reasonably incurred) which the Customer may sustain by reason of any infringement in the United Kingdom of any IPR of any third party in consequence of the proper use by the Customer of the Developed Software or the Graphics, provided always that the Customer:
13.6.1. gives notice to ENGINE ROOM of any such third party claim as soon as is reasonably practicable on becoming aware of the same;
13.6.2. gives ENGINE ROOM the sole right to conduct the defence of any such claim and does not at any time without reasonable cause admit liability or attempt to settle or compromise the said claim without ENGINE ROOM’s prior written consent; and
13.6.3. acts in accordance with the reasonable instructions of ENGINE ROOM and gives to it such assistance as shall reasonably be required in respect of the conduct of the said defence, including (without prejudice to the generality of the foregoing) the filing of all pleadings and other court processes and the provision of all relevant documents.
Without in any way restricting the right of an employee freely to accept employment and change employment, neither party shall (during the term of the Agreement and for six (6) months thereafter), without the other party’s prior written consent, solicit any of the personnel of the other party who have at any time been engaged or involved in the performance of the Services. The foregoing undertaking shall not apply in respect of any person who (without having been previously approached directly or indirectly) responds to a general recruitment advertisement placed by (or on behalf of) the new employer. If either party breaches this Clause, then it shall pay to the other an amount equivalent to the employee’s annual salary (net of benefits) paid by the other party immediately prior to the date of employment by the new employer in recognition of the disruption that such breach would cause to the efficient conduct of the other party’s business. Each party acknowledges that this provision is a fair and reasonable term intended to be a genuine assessment of the loss likely to be suffered as a result of breach of this Clause.
15. FORCE MAJEURE
Neither party shall be liable to the other or be deemed to be in breach of this Agreement by reason of any delay in performing, or any failure to perform, any of its obligations under this Agreement if the delay or failure was due to any act of God, riot, strike, lockout, trade dispute or labour disturbance, telecommunications failure, accident, breakdown of plant or machinery, fire, flood, war, terrorism, difficulty in obtaining workmen, materials or transport or any other cause beyond its reasonable control.
16.1. The Customer shall not be entitled to assign or otherwise dispose of its rights or obligations under this Agreement without the prior written consent of ENGINE ROOM. The Customer acknowledges that ENGINE ROOM shall be entitled to sub-contract all or any part of its obligations under this Agreement to any third party, provided that ENGINE ROOM shall remain primarily liable to the Customer in respect of its obligations under this Agreement.
16.2. Each party shall at all times, both before and after termination of this Agreement, keep private and confidential (save as required by law) and shall not use or disclose to any other person any Confidential Information which has come to its attention as a result of or in connection with this Agreement. In this Agreement “Confidential Information” means all confidential information of either party from time to time including, without limitation, all information marked as confidential or which is of its nature confidential and whether or not such information is recorded in writing and, in the case of ENGINE ROOM’s Confidential Information, shall include the ENGINE ROOM Materials and, in the case of the Customer’s Confidential Information, shall include the Customers Materials.
16.3. ENGINE ROOM shall not be obliged to establish that any individual purporting to act on behalf of the Customer has the requisite authority and all actions of such individual shall be binding on and enforceable against the Customer.
16.4. All notices to be given under this Agreement shall be in writing and shall be sent by email. Any notice given under this Agreement which is sent by email in accordance with this Clause which is not returned to the sender as undelivered on the day of sending shall be deemed to have been received.
16.5. This Agreement supersedes any prior agreements and arrangements between ENGINE ROOM and the Customer and constitutes the entire agreement between ENGINE ROOM and the Customer relating to the subject matter of this Agreement. It is acknowledged and agreed by both parties that no representations (whether written or oral) made by or on behalf of the other party, other than those expressly set out or referred to herein have been relied upon. Both parties hereby irrevocably and unconditionally waive any right it may have to claim damages for any misrepresentation not expressly set out or referred to herein, unless such misrepresentation was made fraudulently.
16.6. Save as expressly provided in this Agreement, no addition to or modification of this Agreement nor any variation to the Services to be provided shall be effective unless approved by a duly authorised representative of ENGINE ROOM.
16.7. Nothing in this Agreement shall create, or be deemed to create, a partnership or joint venture between ENGINE ROOM and the Customer or the relationship of principal and agent between ENGINE ROOM and the Customer, and neither party shall have any authority to act on behalf of or otherwise to legally bind the other in any way.
16.8. No delay or failure on the part of either party to exercise or to enforce any right given to it by this Agreement or at law, or any custom or practice of ENGINE ROOM and/or the Customer at variance with the terms of this Agreement shall constitute a waiver of either ENGINE ROOM’s or the Customer’s respective rights under this Agreement or operate so as to prevent the exercise or enforcement of any such rights at any time.
16.9. If any provision of this Agreement is held to be invalid or unenforceable, in whole or in part, that provision or part shall to that extent be deemed not to form part of this Agreement. However, the validity and enforceability of the remainder of this Agreement shall not be affected.
16.10. ENGINE ROOM reserves the right to transfer its obligations under this agreement to another Party through a part or full Trade Sale should ENGINE ROOM at any stage in the future and at its sole discretion deem this the best future option and progress with such an option. The Customer agrees to support any such change together with the transfer of this agreement to the other Party.
16.11. ENGINE ROOM reserves the right to amend and update this agreement from time to time in line with business requirements and industry best practice. The latest updated version of this agreement can be accessed at any time from the ENGINE ROOM website.
16.12. This Agreement shall be governed by and construed in accordance with the law of Scotland and ENGINE ROOM and the Customer hereby submit to the non-exclusive jurisdiction of the Scottish courts.
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Please note: by signing up for any of our services you agree to be bound by all Engine Room Technology Ltd terms and conditions.
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