Short Form Contract
Background
This Letter Of Agreement (the “Agreement”) sets out the terms and conditions (the “Conditions”) on which Simpson Associates Information Services Limited (“Simpson Associates”) will provide services as set out in each Statement of Work which shall be sent under separate cover, as an example of which is attached at Schedule 1 to this Agreement (the “Services”) to assist {{$co }} (the “Customer”) (company number – {{$cn }}). In the event of any conflict between the terms of this Agreement and the Statement of Work, the terms of the Statement of Work shall prevail. These Conditions apply to the Agreement and any agreed Statement of Work (the “Statement of Work”) to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. The Services as defined in the Statement of Work will be delivered by Simpsons Associates, in consideration for which, the Customer undertakes to pay Simpson Associates the fees as agreed in the Statement of Work.
Terms and Conditions
1. Customer and Simpson Associates agree that:
a. Simpson Associates shall supply the Services to the Customer in accordance with the agreed Statement of Work in all material respects;
b. Simpson Associates shall use commercially reasonable endeavours to meet any performance timelines specified under Statement of Work but any such timelines shall be estimates only and time shall not be of the essence for the performance of the Services;
c. Simpson Associates warrants to the Customer that the Services will be provided using reasonable care and skill. In the event the Customer obtains third party support, Simpson Associates shall not be liable for any costs or damages for such third party support; and
d. in the event the Customer identifies any non-conformity with the Services, it shall promptly notify Simpson Associates of any such non- conformities and Simpson Associates shall rectify the non-conformity within a reasonable time frame from the date Simpson Associates received the complaint.
2. The Customer shall:
a. co-operate with Simpson Associates in all matters relating to the Services including, but not limited to, ensuring that remote access is in place, if applicable;
b. provide Simpson Associates with such information and materials as Simpson Associates may reasonably require in order to supply the Services, and to ensure that such information is accurate in all material respects and provided within the timescales agreed;
c. obtain all necessary licenses, permissions, consent and applicable software and systems which may be required before the date on which the Services are to start;
d. appoint a designated manager who manages any escalation (“Designated Manager”) and who shall be the key person for Simpson Associates to co-ordinate with;
e. promptly respond to escalation issues and correspond such issues to Simpson Associates in a timely manner;
f. give Simpson Associates a minimum of four weeks notice if they wish to cancel or postpone delivery of the Services (“Notice of Cancellation”). If Notice of Cancellation is not given Simpson Associates may charge the Customer for all such cancelled or postponed days already scheduled to be delivered (“Cancelled Days”). Cancelled Days shall be charged to the Customer (and the Customer shall pay) on the basis of the day rates as set out in the relevant Statement of Work, or if a rate hasn’t been agreed, at £1,500 per day.
g. (for procurement of Microsoft products only) adhere to the Microsoft Customer Agreement, which is a direct agreement between Customer and Microsoft and is a condition of Cloud Solution Provider Program that the Customer enters into this agreement, the terms of which are found at https://www.microsoft.com/licensing/docs/customeragreement and which may be updated from time to time;
h. provide the minimum level of access to the Customer’s relevant Microsoft cloud services portals as required to deliver the Services for the duration of the Agreement and sign and deliver the Proof of Execution (“POE”) on the last day of scheduled work (in respect of any Microsoft funded services);
i. maintain appropriate and adequate information security, back-up, data recovery, disaster recovery and policies and procedures in accordance with good practice;
j. provide a reasonable level of assistance in implementation and testing; and
k. comply with Intellectual Property obligations as set out in Schedule 2- Intellectual Property below.
3. In consideration of the performance of the Services:
a. Customer shall pay to Simpson Associates the fees, in accordance with any agreed Statement of Work (the “Fees”). Unless otherwise agreed, the Fees are on a time and materials basis and are exclusive of any Value Added Tax and travel related expenses; and
b. invoices will be raised on a monthly basis in arrears. All invoices shall be payable 30 days from date of invoice and time for payment shall be of the essence under this Agreement.
4. Confidential Information
Each party (“Receiving Party”) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature (“Confidential Information”) and have been disclosed to the Receiving Party by the other party (“Disclosing Party”), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its Services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such Confidential Information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Agreement, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. The Receiving Party may also disclose such Confidential Information as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
5. Termination
Either party may terminate a Statement of Work by giving four week’s written notice to the other without penalty. If less than 4 week’s written notice is given by the Customer, Simpsons Associates may charge the Customer, and the Customer shall pay, for Cancelled Days on the basis set out in paragraph 2 (f) above. On termination of this Agreement, the Customer shall be liable to pay to Simpson Associates all the Fees incurred for the Services provided up to the date of termination. Clauses 3,4,5 and 6 shall survive termination of this Agreement.
6. Liability
a. nothing in this Agreement excludes either party’s liability for: (i) death or personal injury; (ii) fraud or fraudulent misrepresentation; or (iii) any other liability which by law cannot be excluded;
b. neither party shall be liable to the other for any loss of profits, business, revenue, goodwill, anticipated savings, data, or for any category of indirect, special or consequential loss or damage; and
c. either party’s liability under this Agreement shall not in any circumstances exceed the total Fees payable.
7. Data Protection
Both parties agree that they will comply with their obligations with regards to the processing of Personal Data as set out in Data Processing Schedule – https://simpsons.igoodev.com/simpson-associates-data-processing-agreement/.
8. Change Request
For any minor changes to an existing Statement of Work, the parties may alter such Statement of Work by agreement in writing which shall include email provided clear instructions and acceptance to the changes have been made by both parties.
9. Governing Law and Jurisdiction
This Agreement is governed by English law and the parties hereby submit to the exclusive jurisdiction of the English Courts.
Schedule 2
Intellectual Property
Definitions:
Intellectual Property Right means all patents, trade marks, trade or business names, logos or strap lines, domain names, copyright, moral rights, know-how, rights to prevent passing off or unfair competition, database rights, rights in designs, rights in computer software, database rights, rights in confidential information and all other intellectual property rights, in each case whether registered or unregistered and including applications or rights to apply for such rights and all extensions and renewals of such rights.
Deliverable means all documentation, products and materials developed by Simpson Associates or its agents, subcontractors, consultants and employees in relation to the Services in any form, including computer programs, data, reports and specifications (including drafts).
Customer Materials any software, forms, manuals, records or other documents in each case owned by and/or licensed to the Customer and made available by any of them, from time to time, to Simpson Associates in connection with this Agreement.
Permitted Subcontractors any subcontractor which Simpson Associates appoints following the date of signature of the Agreement.
1. Intellectual Property
In relation to the Deliverables:
a. Simpson Associates shall retain ownership of all Intellectual Property Rights in the Deliverables, excluding the Customer Materials;
b. Simpson Associates grants the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of this Agreement to use the Deliverables (excluding the Customer Materials) for the purpose of receiving and using the Services and the Deliverables in its business; and
c. the Customer shall not sub-license, assign or otherwise transfer the rights granted in Clause 1b unless permitted by Simpson Associates.
In relation to the Customer Materials, the Customer:
d. and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials; and
e. grants Simpson Associates a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Customer Materials for the term of this Agreement for the purpose of providing the Services to the Customer.
2. Customer Material
a. The Customer grants Simpson Associates a non-exclusive, transferable and royalty-free licence (including the right to grant sub-licences to the Permitted Subcontractors) to use the Customer’s system(s), Customer Materials for the Term to the extent required to enable Simpson Associates to perform its obligations under this Agreement. As between the Customer and Simpson Associates, the Customer shall own all Intellectual Property Rights and title in the Customer Materials.
b. The Customer will indemnify and hold harmless Simpson Associates from and against all liabilities which Simpson Associates incurs or suffers in respect of any claim or action brought against it by any third party during the Term, claiming that the use of any Customer Material provided or made available to Simpson Associates by or on behalf of the Customer under or in connection with this Agreement infringes a third party’s Intellectual Property Rights.