All contracts for the provision of services made by Hay Systems Ltd (hereinafter called “HSL”) are subject to the following conditions:-
In these Conditions and in the Schedule (as defined below) the following expressions shall unless the context otherwise requires, have the following meanings:-
“Acceptance Tests” means any tests which may be agreed by the Customer and HSL and, if so agreed, which are set out in Part 1 of the Schedule;
“Charges” means the charges to be paid by the Customer to HSL in consideration for the provision of the Services, details of which are set out in Part 2 of the Schedule;
“Contract” means the contract for the supply of the Services between HSL and the Customer as set out in these Conditions.
“Confidential Information” means any know-how, trade secrets, source code, software, Customer Data (as defined below) and any other confidential information of either party from time to time including all information marked as confidential or which is of its nature confidential including financial information, business policies, sales and marketing data which is disclosed by either party to the other pursuant to these Conditions;
“Customer” means the individual, firm, company or other organisation who agrees to acquire the Services from HSL pursuant to these Conditions;
“Customer Contact” means the Customer’s designated technical, commercial and/or other representative(s) authorised to make and communicate decisions relating to the Services;
“Customer Data” means any information sourced from the Customer and which is contained in messages transmitted to or from the Customer;
“Documentation” means any e-mail messages or documentation (in whatever medium) made available to the Customer which relate to the Services specified in Part 3 of the Schedule;
“HSL Contact” means HSL’s designated technical, commercial and/or other representative(s) authorised to make and communicate decisions relating to the Services;
“Intellectual Property Rights” means any and all patents, copyright, registered or unregistered design rights, trade marks, trade names, know-how, database rights or other intellectual property rights;
“Retail Price Index” means the General Index of Retail Prices which is published on a monthly basis by the Central Statistical Office or any other index (or table) replacing that index;
“Schedule” means the schedule annexed to these Conditions;
“Service Level Agreement” means performance criteria which may be agreed by the Customer and HSL and, if so agreed, which are set out in Part 4 of the Schedule;
“Services” means mobile device messaging services and related services to be provided by HSL to the Customer as specified in Part 3 of the Schedule;
“SMSCarrier” means those services (if provided) set out in Part 3 of the Schedule;
“SMS Gateway” means the system consisting of a networking infrastructure incorporating software operated by HSL, and used for the provision of mobile device messaging services to the Customer;
“Specification” means the general specification for SMSCarrier as set out in Part 3 of the Schedule.
2. PROVISION OF SERVICES TO THE CUSTOMER
HSL shall provide the Customer with the Services specified in Part 3 of the Schedule upon and subject to the terms and conditions set out in these Conditions.
3. OBLIGATIONS OF HSL
3.1. provide the Services with reasonable skill and care and using suitably skilled and appropriately experienced personnel;
3.2. use all reasonable endeavours to provide the Services in accordance with any timescales as may be agreed between the parties.
5. DELIVERY OF THE SERVICES
HSL shall have no liability to the Customer if there is any delay in commencing provision of the Services unless the delay exceeds three (3) months from the agreed date of commencement of the Services in which case the Customer shall be entitled to terminate the Contract.
6. ACCEPTANCE TESTING
If the parties agree to Acceptance Testing, the parties shall follow the procedures set out in Part 1 of the Schedule.
7. SERVICE LEVELS
The parties shall comply with the provisions of the Service Level Agreement as set out in Part 4 of the Schedule.
9. DURATION OF THE SERVICES
Subject to the provisions on termination contained in Condition 20 below, the Services shall be provided for the period set out in Part 5 of the Schedule.
10.1. Each of HSL and the Customer undertakes to the other that it shall at all times during and subsequent to the period of the Contract, hold any Confidential Information received from the other party or in its possession which relates to the other in strict confidence and secrecy and shall not use, disclose, publish or otherwise make available to any third party any such information save as is strictly necessary for the proper performance of its obligations under these Conditions.
10.2. Each of the parties shall ensure that its directors, officers, employees, shareholders, agents and representatives at all times fully comply with the provisions of this Condition 10.
10.3. The provisions of this Condition 10 shall not apply to information which:-
10.3.1. is or becomes public knowledge otherwise than through the fault of the party to whom the Confidential Information is disclosed;
10.3.2. is already at the date hereof in the possession of the party to whom the Confidential Information is disclosed;
10.3.3. is legally acquired from a third party by the person to whom the Confidential Information is disclosed; or
10.3.4. is required to be disclosed to other parties by law or by any government authority.
10.4. The Customer consents to their name and logo being used by HSL for the purpose of providing a list of clients on their web site and in promotional material.
Both parties agree that while the Services are being provided by HSL to the Customer, and for a period of one (1) year after the Services cease to be provided, each of the parties will not employ or otherwise contract for the services of, whether indirectly or directly:-
11.1. an employee of the other party; or
11.2. a former employee of the other party, unless the offer of employment or offer to contract services was made more than six (6) months after the previous employment with the other party has come to an end.
12.1. The Customer shall pay the Charges to HSL. The Charges shall be payable in accordance with the following provisions:-
12.1.1. Standard accounts: Payment in respect of the Message Charges for the SMSCarrier Service as set out in Part 2 of the Schedule shall be paid in arrears within fourteen (14) days of the invoice date unless otherwise agreed.
12.1.2. Prepay accounts: Payment in respect of the Message Charge for the SMSCarrier Service as set out in Part 2 of the Schedule shall be paid in advance and credited to the Customer’s account. Message Charges will be deducted from this credit until there are insufficient funds available at which point the Customer will be required to make another payment to allow further messages to be sent.
12.2. At the sole discretion of HSL will credit terms be provided to the Customer and invoices from HSL paid within fourteen (14) days unless otherwise agreed. If credit terms are not provided to the Customer then the account will be operated on prepay terms.
12.3. For the purposes of these Conditions all Charges, expenses and other costs are exclusive of value added tax or any other similar taxes.
12.4. If at any time during the period of the Contract HSL is required to make any changes to the Specification as a result of any circumstances beyond its control HSL shall be entitled to make a corresponding variation to the level of the Charges.
13. OBLIGATIONS OF THE CUSTOMER
13.1. The Customer shall:-
13.1.1. provide all reasonable assistance to HSL as HSL may reasonably require for the purposes of performing its obligations under these Conditions;
13.1.2. pay the Charges and any other sums due under these Conditions on the dates provided;
13.1.3. take all reasonable precautions to protect the health and safety of HSL’s personnel whilst at the Customer’s premises or any other location of the Customer;
13.1.4. allow HSL and its authorised representatives access to the Customer’s premises and any other premises in the possession or under the control of the Customer to enable HSL to fulfil its obligations under these Conditions;
13.1.5. promptly provide HSL, on request, with all information and assistance that HSL may reasonably require;
13.1.6. keep all allocated user name(s) and password(s) secure and shall not disclose to any third party any such information;
13.1.7. inform HSL immediately if any password used in connection with the Services becomes known to any unauthorised user.
13.2. The Customer shall not:-
13.2.1. authorise (or permit any other party to) use the Services to receive or transmit material which is in violation of any law, regulation or HSL’s Acceptable Use Policy (as published from time to time) or which is obscene, threatening, menacing, offensive, defamatory, in breach of confidence, in breach of any intellectual property right (including copyright) or otherwise unlawful;
13.2.2. knowingly or recklessly transmit any electronic material (including viruses) which shall cause or be likely to cause detriment or harm, in any degree, to computer systems owned by HSL, other customers of the SMS Messaging Service, or any other users;
13.2.3. allow the Services to be used in such a way as to hide the identity of the originator or assume the identity of another individual, organisation or other entity without having authority to do so;
13.2.4. send unsolicited commercial messages using HSL’s network and systems.
13.3. The Customer accepts that failure to comply with these obligations may result in the suspension or termination of the SMS Messaging Service provided to them.
HSL shall provide all Documentation which in the reasonable opinion of HSL is necessary to enable the Customer to use the Services in accordance with these Conditions. If HSL provides standard form user manuals to the Customer, the Customer may copy extracts from HSL’s manuals for the Customer’s own internal use only. The Customer agrees to treat any such copies, including those that are modified or customised, as Confidential Information and subject to the provisions on confidentiality contained in Condition 10.
15. INTELLECTUAL PROPERTY
The Customer acknowledges that any and all Intellectual Property Rights arising from or relating to the Documentation and the Service are and shall remain at all times the exclusive property of HSL.
HSL shall, throughout the period when the Services are being provided to the Customer by HSL, take out and maintain appropriate professional indemnity insurance cover.
The Customer hereby agrees to fully indemnify HSL from and against any claim brought by a third party resulting from the use of the Services by the Customer and to fully indemnify HSL in respect of all losses, costs, actions, proceedings, claims, damages, expenses (including reasonable legal costs and expenses) or liabilities whatsoever suffered or incurred directly by HSL in consequence of the Customer’s breach or non observance of these Conditions.
18. LIMITATION OF LIABILITY
18.1. The maximum aggregate liability of HSL to the Customer in respect of breach of contract, negligence or otherwise shall, be limited to the sum set out in Part 5 of the Schedule, except for circumstances in which such acts result in death or personal injury in which case liability shall be unlimited.
18.2. HSL shall in no circumstances be liable to the Customer for any indirect, consequential or pure economic loss, loss of profit, loss of business, goodwill or any other anticipated profits.
18.3. The Customer shall only be entitled to bring a claim against HSL if the Customer issues legal proceedings against HSL within a period of twelve (12) months after the date upon which the Customer ought reasonably to have known of its entitlement to bring such a claim.
18.4. All conditions and warranties which are to be implied by statute or otherwise by general law into these Conditions or otherwise relating to the Services are, to the fullest extent permissible by law, hereby excluded.
18.5. HSL will not be liable for any losses arising as a result of delays in transmission of or loss or missed deliveries of Customer Data or service interruptions caused by events beyond its control including but not limited to loss of data by third party mobile networks or errors or omissions of the Customer. HSL excludes any warranty as to the accuracy of information received by the Customer in the course of provision of the Service.
18.6.HSL will not be liable, where in HSL’s opinion, any employee or representative of the Customer, has been incapable of following reasonable instruction given by HSL, and an act or omission of any employee or representative of the Customer has resulted in a material adverse effect on the performance of the Services;
18.7. HSL will not under any circumstances be liable to the Customer for any losses arising as a result of:-
18.7.1. an employee or representative of the Customer using the Services for a purpose for which it was not designed;
18.7.2. failure of or surges in electrical power or failures arising from air conditioning, humidity or other environmental controls;
18.7.3. communications breakdown due to failures in links to or from a third party network including, but not limited to the Customer’s link to the internet.
19. FORCE MAJEURE
Neither party shall be liable to the other party in any manner whatsoever for any failure or delay in performing its obligations under these Conditions due to force majeure which expression for the purposes of these Conditions means any cause beyond the reasonable control of the party in question and which, for the avoidance of doubt and without prejudice to the generality of the foregoing, shall include any government actions, labour disputes, flood, fire or Act of God.
The Services may be terminated by either party if:-
20.1. the other party commits any material breach of any obligation under these Conditions and fails to remedy such breach within thirty (30) days of a written request to remedy the same by the other party; or
20.2. the other party (being an individual) becomes bankrupt or threatens to become bankrupt or makes any voluntary arrangement with its creditors; or
20.3. the other party becomes insolvent, has a receiver appointed over the whole or any part of its assets, enters into any arrangement or compounds with its creditors generally or has an order made or resolution passed for it to be wound-up (otherwise than in furtherance of a scheme for a solvent amalgamation or reconstruction).
The Services may be terminated by HSL if:-
20.4. the Customer remains suspended for a consecutive period of 6 months or more due to non-payment of invoices; or
20.5. the Customer incurs nil charging for a consecutive period of 6 months or more.
21. CONSEQUENCES OF TERMINATION
21.1. The provisions of Conditions 10 (Confidentiality), 11 (Non-Competition) and 18 (Limitation of Liability) shall survive termination of the Contract.
21.2. The Customer shall return to HSL (or at HSL’s option destroy) all Documentation and certify in writing to HSL that such return (or destruction) has taken place.
21.3. On reasonable notice being given to the Customer, HSL shall be entitled to exercise rights of entry over the Customer’s premises or any other premises in the possession or control of the Customer to ensure that the Customer has complied with its obligations to return to HSL (or at HSL’s option destroy) all copies of the Documentation.
21.4. All outstanding Charges due to HSL by the Customer shall become immediately due and payable.
22.1. If any provision of these Conditions is held by any court or other competent authority to be void and unenforceable in whole or part, these Conditions shall continue to be valid as to the other provisions thereof and the remainder of the affected provision.
22.2. The headings in these Conditions are for convenience only and are not intended to have any legal effect.
22.3. A failure by either party to exercise or enforce any rights conferred upon it by these Conditions shall not be deemed to be a waiver of any such rights or operate so as to bar the exercise or enforcement thereof at any subsequent time or times.
23.1. Any notice required to be given under these Conditions shall be in writing and shall be served by either party sending the same by registered or recorded delivery post or facsimile transmission to the Customer Contact or the HSL Contact, as appropriate, at the address of the other party or to such other address as that party may have previously notified to the party giving notice as its address for such service.
23.2. Any notice so given by registered or recorded delivery post shall be deemed to have been served three (3) days after it shall have been posted.
The Customer shall not be entitled to assign its rights or obligations under these Conditions without the prior written consent of HSL.
HSL shall be entitled to sub-contract any of its obligations under these Conditions but shall give reasonable prior notice of any sub-contracting arrangements to the Customer.
26. DISPUTE RESOLUTION
The parties will attempt to resolve any dispute or claim arising out of or relating to these Conditions promptly through negotiations. If the matter is not resolved within fourteen (14) days through negotiation, the parties will attempt to resolve the dispute or claim through the Alternative Dispute Resolution (ADR) procedure as recommended to the parties by the Centre For Dispute Resolution. If the matter has not been resolved by an ADR procedure within thirty (30) days of the initiation of such a procedure, or if either party will not participate in ADR procedure within such thirty day period, the dispute shall be referred to litigation in which case the parties hereto submit to the jurisdiction of the Scottish courts. Notwithstanding the foregoing it is acknowledged and agreed that either party shall be entitled to seek interdict and/or similar injunctive relief if the other party is in breach of any of the terms hereof in any court of competent jurisdiction.
27. GOVERNING LAW
These Conditions shall be governed by the laws of Scotland and the parties submit to the non-exclusive jurisdiction of the Scottish Courts.
THIS IS THE SCHEDULE REFERRED TO IN THE FOREGOING TERMS AND CONDITIONS OF HAY SYSTEMS LIMITED
SCHEDULE – PART 1
- The Acceptance Tests will be carried out in accordance with the provisions of this Part 1 of the Schedule.
- If, in the reasonable opinion of HSL, the Services comply with the Specification, HSL shall notify the Customer accordingly and then demonstrate to the Customer that the Services meet the standard acceptance criteria as defined by HSL. If the demonstration shows that the Services meet all of the acceptance criteria, the Customer shall deliver a completed Acceptance Checklist that acknowledges the same to HSL, such acknowledgement not to be unreasonably withheld. In such circumstances the Services shall be deemed to have successfully completed Acceptance Tests.
- In the event that the System fails to pass the Acceptance Tests then the parties will make such necessary arrangements to enable repeat tests to be carried out on the same basis and within a reasonable period thereafter but in any event no later than fourteen (14) days after HSL has been notified by the Customer that there are unresolved issues in relation to the provision of the Services.
- If, due to the default of HSL, the Services do not pass such repeat Acceptance Tests, the Customer shall have the right:-
4.1 to require HSL to carry out (at HSL’s own expense) such remedial works as are necessary for the provision of the Services to comply with the Specification and meet the acceptance criteria and to resubmit for testing when it has done so; or
4.2 to terminate the Contract without further liability to HSL.
- If the Customer chooses to require HSL to carry out further work in accordance with Paragraph 4.1 it may stipulate a reasonable period within which the Services must comply with the Specification and meet the acceptance criteria. If the Services fail to meet the Specification and acceptance criteria within such period, the Customer shall be entitled to exercise any of the rights set out in Paragraph 4 above.
SCHEDULE – PART 2
All pricing is in GBP (UK Pounds Sterling) unless otherwise stated.
Variation of Charges
All charges are subject to variation, including the introduction of charges. Thirty (30) days notice will be given by email of any change in the above charges.
SCHEDULE – PART 3
SMS Messaging Service
- SMSCarrier Service
1.1. HSL contracts to provide mobile messaging services to the Customer.
1.2. Access is provided to the Customer to the SMS Gateway operated by HSL for communicating messages or data between the computer systems of the Customer, or systems acting on behalf of the Customer, and mobile devices using the Short Message Service (SMS).
1.3. Access to HSL’s SMS Gateway will be made using links over the Internet.
Maintenance and Support Services
1. HSL agrees to provide the following services to the Customer in respect of the Services:-
1.1. reasonable assistance and the resolution of queries via a telephone call originated by the Customer;
1.2. recommendations relevant to the course of action necessary to recover from a fault, error or failure emanating from the Services or their respective use;
2. The Customer shall supply HSL with a detailed description of the fault requiring maintenance and support services as outlined above and the circumstances in which the fault arose immediately upon becoming aware of such circumstances.
Location of Support
3. Ongoing maintenance and support services may be performed at HSL’s premises or via a modem link or at the Customer’s premises or such other premises as HSL may determine.
4. HSL will use all reasonable endeavours to ensure that support is carried out as quickly as possible between the hours of 8am to 6pm Monday to Friday inclusive or, agreed as in accordance with the Service Level Agreement set out in Part 4 of the Schedule.
5. From time to time certain mobile networks, network links, servers, or the SMS Messaging Service may be closed down in whole or in part for routine repair and maintenance work. HSL shall give as much notice as in the circumstances is reasonable and shall endeavour to carry out such works during the scheduled maintenance periods as notified to the customer by HSL from time to time.
6. Maintenance and support does not include service, repair or maintenance arising out of:-
6.1. failure by the Customer to implement recommendations previously advised by HSL;
6.2. use by any employee or representative of the Customer who is not reasonably competent in the use of any element of the Services;
6.3. use of the Service for a purpose for which it was not designed;
6.4. failure of or surges in electrical power or failures arising from air conditioning, humidity or other environmental controls;
6.5. operator error or omission or failure to follow normal operating procedures.
7. Support and maintenance services do not include:-
7.1. diagnosis and/or rectification of problems arising from the operating environment;
7.2. rectifying any failure caused by the presence or introduction of any third party component parts or software;
7.3. repair or damage caused by any virus;
7.4. delivery, installation or training.
8. HSL shall not be liable to the Customer for any failure or delay in providing maintenance or support arising from any inability or delay in obtaining any Services from Third Party service providers.
9. The Customer shall notify HSL with details of three individuals, a technical contact, a billing contact and a commercial contact (the Customer Contact) to be the main point of contact at the Customer’s premises.
SCHEDULE – PART 4
SERVICE LEVEL AGREEMENT
SLA for SMSCarrier Service
100% service availability when connection to HSL is through the Internet and customer ensures that their application connects with more than one HSL site. HSL service availability is measured by an independent monitoring organisation external to HSL.
HSL’s Availability Guarantee is to have the Service available as above and, as set forth below, HSL will calculate customer’s network unavailability in a calendar month. Service unavailability consists of the number of whole minutes the Service was not available to customer, but will not include unavailability resulting from (a) customer applications, (b) acts or omissions of the customer, or customer supplier, or any use or user of the service authorised by customer or (d) reasons beyond HSL’s reasonable control (as defined in the applicable terms and conditions).
For each cumulative hour of service unavailability or fraction thereof in any calendar month as determined herein, customer’s account shall be credited for the pro-rated amount for one day of the HSL compensation rate with respect to which this Guarantee has not been met.
HSL’s Reporting Guarantee is to notify the customer within 15 minutes after HSL’s determination that customer’s service is unavailable. When HSL deem the service unavailable they will contact customer’s designated point of contact by a method elected by HSL (telephone, e-mail, fax or pager). Where possible HSL will contact the customer by telephone in the first instance or follow-up a contact via another method (e-mail, fax, pager) with a telephone call to the customer’s designated point of contact.
The customer is solely responsible for providing HSL accurate and current contact information for the customer’s designated point of contact. HSL will be relieved of its obligation under this Reporting Guarantee if HSL’s contact information for customer is out of date or inaccurate due to customer action or omission or if HSL’s failure is due to reasons beyond HSL’s reasonable control (as defined in the applicable terms and conditions).
If HSL fails to meet this Reporting Guarantee the customer’s account shall be credited the pro-rated amount for one day of the HSL compensation rate with respect to which this Guarantee has not been met; provided that the customer may obtain no more than one credit per day.
HSL will act on valid support request from the customer within 30 minutes of receiving such a request by telephone during normal office hours (0800-1800 Monday-Friday UK local time). Support requests received by email will be acted on within 45 minutes during the above times.
Voice: +44 (0)1506 605 260
Out of office normal hours HSL will act on valid support requests from the Customer within 30 minutes of receiving such a request by telephone to the dedicated OOH Support Telephone Number. Support out of normal office hours does not cover issues affecting individual mobile numbers and is for reporting priority; service affecting issues only.
If HSL fails to meet this Support Guarantee the customer’s account shall be credited the pro-rated amount for one day of the HSL compensation rate with respect to which this Guarantee has not been met; provided that the customer may obtain no more than one credit per day.
This service level may be updated from time-to-time with the written acceptance of both HSL and the Customer.
The HSL compensation rate is set as £1500 per month. The Customer can receive a maximum of one credit per day and the maximum compensation provided during any calendar month is limited to i) the HSL compensation rate herein defined, or ii) the total charges for the calendar month, whichever is less.
SCHEDULE – PART 5
Provision of the Services by HSL shall commence within three (3) working days of the latest date of signature on this contract and shall, subject to the provisions of Condition 20, continue until terminated. The contract may be terminated by either party giving at least 14 days notice.
Subject to the provisions of Condition 18, the maximum aggregate liability of HSL to the Customer arising from breach of contract, negligence or otherwise shall be limited to £100,000 or the total charges billed to the Customer in the preceding 12 months, whichever the lesser, in respect of all claims made during any period of one year forming part of the period of the Contract.