You can download the PDF version of the Terms and Conditions here.
Document Version 1.0, dated 22/05/2019
General Terms and Conditions
1. Definitions and Interpretation
1.1 In these terms and conditions, the following terms shall have the following meanings:
“Affiliate” means with respect to an entity, any entity that controls, is controlled by, or is under common control with that entity, where “control” means the possession, directly or indirectly, of the power to direct the management and policies of an entity whether through the ownership of voting securities, contract or otherwise;
“Agreement” means (i) the Attachment entered into between the Client and QUANTIQ; and (ii) the latest version of these General Terms & Conditions (“General Terms & Conditions”) (including its Schedules) either provided by QUANTIQ with that Attachment or available on www.quantiq.com as at the date of execution the Attachment;
“Agreement Personal Data” means Personal Data which is to be Processed under or in connection with this Agreement as described in the Attachment;
“Attachment” means an Order Form, SOW and/or Task Order;
“Business Day” means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
“Client” shall be the legal entity detailed as the “Client” in the Attachment;
“Client Configuration and Development Documents” means all documents relating to Client configuration and development relating to the Managed Services;
“Client Customisations” means any Modifications that are created, developed and/or modified by QUANTIQ to meet Client’s specific business objectives and requirements, paid for by Client, and specifically identified as Client Customisations in the Attachment;
“Client Contact” means the designated individual at Client who shall be the first point of contact for QUANTIQ in relation to technical or operational matters as identified in the Attachment or as otherwise notified by Client to QUANTIQ in writing from to time;
“Client Data” means all data, including all text, sound, video, or image files and software that are provided to Microsoft by, or on behalf of, Client through use of the Microsoft Online Services;
“Client Materials” any data, information, text, graphics, templates and any other content in any and all media provided by Client to QUANTIQ for use in connection with the Services and/or incorporation into any Modifications or other Deliverables;
“Commitment Offering” a commitment by Client to purchase a specific quantity of Subscription Software for use during a Term;
“Consumption Subscription” means a Subscription billed based on actual usage (“pay-as-you-go”) in the preceding month.
“Confidential Information” means any business or technical information of QUANTIQ or Client that (i) is designated by a party as “confidential” or “proprietary” at the time of disclosure or (ii) due to its nature or the circumstances of its disclosure, the party receiving such information knows or has reason to know that such information should be treated as confidential or proprietary;
“Data Deliverables” means data, reports or analyses to be delivered under the Attachment;
“Data Dump” means the transfer of data to QUANTIQ, as permitted under Data Protection Laws, for the purpose of allowing QUANTIQ to assess data based issues;
“Data Protection Laws” means any laws in force in the United Kingdom from time to time that relate to data protection, the processing of personal data and privacy, including: (a) the Data Protection Act 2018; (b) the General Data Protection Regulation (EU) 2016/679; and (c) the Privacy and Electronic Communications (EC Directive) Regulations 2003; and references to “Data Subjects”, “Personal Data”, “Process”, “Processed”, “Processing”, “Processor” and “Supervisory Authority” have the meanings set out in, and will be interpreted in accordance with, such laws;
“Data Security Incident” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Agreement Personal Data transmitted, stored or otherwise Processed;
“Dedicated Services” means:
(i) a dedicated portal for Client to raise tickets;
(ii) a dedicated phone number for Client’s use to contact a support consultant; and
(iii) consultant and developer support;
“Deliverables” means Software, Modifications and Data Deliverables;
“Designated Equipment” means such equipment on which the Supported Software is installed as is approved in writing by, or conforming in all material respects to specifications provided from time to time by, QUANTIQ and/or any Third Party (which specifications may change over time for a number of reasons, including without limitation, as the amount of data throughput by Client increases or the usage or nature of the Supported Software changes);
“Designated Hours” means 09:00 to 17:30 (UK time) on Business Days or such other times as may be specified as “Designated Hours” in the Attachment;
“Effective Date” means the date of signature of the Attachment;
“Extended Hours” means such times as may be specified as “Extended Hours” in the Attachment;
“Fixed Term Subscription” means a Subscription where the duration of the Subscription is for a fixed period of time;
“Force Majeure Event” means any Act of God, war, riot, act of terrorism, outbreak of hostilities, strike or other industrial action of any kind, malicious damage, default of suppliers or sub-contractors, accident, failure or breakdown of plant or machinery, fire, flood, explosion, any act of local or national government or authority and any other cause or circumstance whatsoever outside the reasonable control of the parties;
“Intellectual Property Rights” means any and all intellectual property and/or proprietary rights of any kind, tangible or intangible, now known or hereafter existing, including copyrights, trade secret rights, know how, database rights, trademarks and patent rights, including all registrations and applications in force whether now or in the future in any jurisdiction throughout the world and any other similar rights;
“International Transfer” means a transfer to a country outside the European Economic Area (as it is made up from time to time) of Agreement Personal Data which is undergoing Processing, or which is intended to be Processed after transfer;
“Managed Services” means the managed services described in the Managed Services Schedule and the Attachment;
“Managed Service Commencement Date” means the go-live date in respect of the use of the Supported Software by Client or such other date as is specified in the Attachment;
“Managed Services Schedule” means the terms and conditions set out in Schedule 1 which are applicable where Client enters into an Attachment with QUANTIQ for the provision of Managed Services;
“Managed Service Initial Term” means twelve months from the Managed Service Commencement Date or such other period that the parties may agree in the Attachment;
“Microsoft” means Microsoft Corporation and/or any of its subsidiaries from time to time;
“Microsoft Licence” means any software license entered into between Client and Microsoft in respect of the Microsoft Software;
“Microsoft Software” means the standard software components provided to Client by Microsoft under the Microsoft Licence from time to time;
“Microsoft Minimum Support” means the base level support service which is to be provided by QUANTIQ to Client under paragraph 5.1 of Schedule 2 in relation to Microsoft Online Services;
“Microsoft Minimum Support Date” means the Subscription Start Date in respect of any Subscription Software provided by Microsoft;
“Modifications” means modifications, additions or customisations to Software developed or produced by QUANTIQ and provided to Client hereunder;
“Order Form” means an order form for provision of Software or Services to be provided by QUANTIQ to Client (either on its own behalf or on behalf of any Third Party) and executed by the parties;
“Microsoft Online Services Terms” means: (i) the agreement that Microsoft uses to convey or provide Subscription Services to Client as made available at https://msdn.microsoft.com/en-us/partner-center/agreements#europe) (or such other web address as may be notified to Client from time to time); and (ii) in respect of any Client, or any legal entity that owns or is under common ownership with Client, who is subject to oversight by a financial services regulator, the Microsoft Online Services Terms Financial Services Amendment that is made available at https://msdn.microsoft.com/en-us/partner-center/agreements#europe) (or such other website address as may be notified to Client from time to time); each as including any other documents referred to within and as varied from time to time by Microsoft;
“Microsoft Online Services” means any Subscription Software and/or other Subscription Services which is subscribed to by or on behalf of Client under the Microsoft Online Services Terms;
“Microsoft Online Services SLA” means the service level agreement commitments Microsoft makes to Client in the Microsoft Online Services Terms regarding delivery and/or performance of the applicable Subscription Services;
“Out of Hours” means any time outside the Designated Hours and Extended Hours;
“Performance Review” means a quarterly review of the systems supported under an Attachment for Managed Services including any recommendations for improvements to, and a review of any updates and patches;
“Perpetual Software” means software licensed by QUANTIQ or a Third Party to Client on a perpetual basis.
“Professional Services” means Software or Modifications related professional services, including configuration, upgrades, support, implementation, programming and application design and development, systems analysis and design, third party program installation, conversion and implementation planning, and installation evaluation;
“QUANTIQ” means QUANTIQ Technology Ltd whose registered address is at Dawson House, 5 Jewry Street, London EC3N 2EX with Company Registration Number: 2601751;
“QUANTIQ Components” means all tools, ideas, concepts, processes, methodologies, software, and know-how developed by QUANTIQ (whether prior to or during the course of this Agreement), some of which QUANTIQ may use in its performance of Services;
“QUANTIQ Deliverable” means QUANTIQ Software, Modifications, Data Deliverables and QUANTIQ’s professional services and excludes Third Party Software;
“QUANTIQ Software” means the standard software components or modules that are owned by QUANTIQ and licensed to Client under a separate licence agreement;
“Services” means any or all of the following: supply of Deliverables, Managed Services and/ or Professional Services;
“Software” means the Perpetual Software and the Subscription Software;
“SOW” means a statement of work describing the Deliverables and/ or Services to be provided by QUANTIQ to Client and executed by the parties;
“Subscription” means the agreement for a subscription to a Subscription Service, formed in accordance with this Agreement and where the Subscription Service is the Microsoft Online Services, the Subscription Schedule and the Microsoft Online Services Terms;
“Subscription Schedule” means the terms and conditions set out in Schedule 2 which are applicable where Client enters into an Attachment with QUANTIQ for the provision of Subscription Software;
“Subscription Services” means Subscription Software and/or any other subscription service provided by QUANTIQ or any Third Party to Client;
“Subscription Software” means any software licensed by QUANTIQ or a Third Party to Client on a subscription or “as a service” basis, along with any software provided by that Third Party for installation on Client’s devices as part of its Subscription;
“Subscription Start Date” means the date specified in the Attachment from when a Subscription will commence (where applicable);
“Subscription Term” means the duration of the Agreement in relation to a specific Subscription Service;
“Sub-Processor” means any third party appointed by QUANTIQ to Process Agreement Personal Data;
“Super-User” means designated ‘super-user’ of Client;
“Supported Modifications” means changes, upgrades, enhancements and additions to the Supported Software made by QUANTIQ for Client from time to time;
“Supported Software” means any Software and Supported Modifications in respect of which Client and QUANTIQ have agreed and executed an Attachment for the provision of Managed Services;
“Task Order” means a task order describing Deliverables and/or Services to be provided by QUANTIQ to Client and executed by the parties;
“Term” means from the Effective Date until this Agreement is terminated in accordance with clause 4;
“Third Party” means any entity other than QUANTIQ (and may include Microsoft);
“Third Party Enhancement Plan” means the Microsoft Enhancement Plan and/or any other similar support services provided by third parties;
“Third Party Licence” means the Microsoft Licence, the Microsoft Online Services Terms and/or any other third party licence or purchase agreement under which a Third Party has licensed Third Party Software to Client;
“Third Party Software” means Microsoft Software and any other Software supplied by QUANTIQ in which the Intellectual Property Rights in such software is proprietary to a third party;
“Ticket Tracker” means the online tracker which provides Client visibility and tracking of the status of a ticket as part of the Managed Services;
“T&M Rates” means the time and materials rates of QUANTIQ as may be set out in the Attachment and/or updated by QUANTIQ from time to time; and
“User” means individual user authorised by Client to use the Software.
1.2 Clause headings shall not affect the interpretation of the Agreement. References to clauses and the schedules are to the clauses and the schedules of the Agreement. References to paragraphs are to paragraphs within a schedule to this Agreement.
1.3 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.4 Any words following the terms including, include, or any similar expression are illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. Order Formation
2.1 This Agreement is made on the Effective Date between Client and QUANTIQ and will apply to all Services provided by QUANTIQ to Client as described in the Attachment. The Attachment will set forth, at a minimum, a description of the Services to be performed by QUANTIQ, including (as applicable):
2.1.1 a list identifying all Software to be licensed or purchased thereunder;
2.1.2 the development and/or performance schedule for all Modifications and Data Deliverables; and
2.1.3 applicable fees.
2.2 This Agreement is binding only if the Attachment is executed by the Client and QUANTIQ and QUANTIQ will have no obligation to provide Services other than those specified in any such fully-executed Attachment.
2.3 Client may request additional Services in accordance with clause 3.1 below or by separate Attachment. If Client requests that Services be performed outside of the Designated Hours, QUANTIQ may charge a premium rate for such Services. If a separate Attachment is agreed, this will form a separate Agreement subject to the latest version of these General Terms & Conditions as are in force at the date of signature of that Attachment.
2.4 Where the parties agree in the Attachment for the provision of Third Party Software, Client acknowledges it shall also be bound by the provisions of the relevant Third Party Licence.
3. Services
3.1 If Client desires to initiate changes to an existing Attachment, it will submit a written request to QUANTIQ, setting forth the proposed changes and authorisation for QUANTIQ to proceed with a formal Change Request. Within 5 days of Client’s submission or if QUANTIQ in good faith determines that the Attachment must be revised to complete the Services, QUANTIQ will provide Client with a written Change Request, setting forth, at a minimum, any changes or additions to:
3.1.1 the delivery schedule;
3.1.2 the Services; and
3.1.3 the estimated fees in that Attachment.
3.2 Client will accept or reject the Change Request within 5 days after receipt (such consent not to be unreasonably withheld or delayed). A Change Request will be binding only if signed by both parties and, upon execution, such Change Request will be deemed an amendment to the applicable Attachment.
3.3 In each Attachment, unless otherwise agreed, QUANTIQ will provide estimates of its fees, costs and delivery dates. Client understands that:
3.3.1 QUANTIQ is not bound by any such estimate and provides Services on a time and materials basis unless otherwise expressly set forth in the Attachment;
3.3.2 any such estimate is provided only as a good faith approximation based on information furnished to QUANTIQ by Client; and
3.3.3 if any estimate set forth in the Attachment becomes materially inaccurate, QUANTIQ will notify Client in writing as soon as reasonably possible after QUANTIQ becomes aware of such change. In addition, at Client’s request, QUANTIQ will update the estimates in the Attachment.
3.4 In the case of any conflict between these General Terms & Conditions and the Attachment, these General Terms & Conditions will take precedence unless the Attachment expressly states that it is intended to amend these General Terms & Conditions.
3.5 A Client may permit the use and benefit of any Software and/or other Deliverables to any of its Affiliates (e.g. authorise its Affiliates to access and use QUANTIQ Software or Modifications installed by Client) without entering into a separate Attachment with QUANTIQ provided that:
3.5.1 QUANTIQ will have no obligation to provide any Services or Deliverables directly to that Affiliate;
3.5.2 Client and its Affiliates are solely responsible for securing any licences necessary to use any Third Party Software;
3.5.3 Client remains fully responsible and liable to QUANTIQ at all times for all acts and omissions of its Affiliates; and
3.5.4 in the event that any such Affiliate is no longer an Affiliate of Client, any rights which the Affiliate previously had to use and have the benefit of the Software and/or other Deliverables shall immediately cease.
3.6 Any dates specified by QUANTIQ for delivery in relation to the Agreement are an estimate only and in relation to the same, time shall not be of the essence nor shall time be made of the essence against QUANTIQ by notice.
4. Term and Termination
4.1 This Agreement shall take effect from the Effective Date and will continue for the Term.
4.2 The licence to any Perpetual Software delivered under the Attachment will become effective upon payment in full of the licence fees therefore as set forth in the Attachment and will continue in accordance with the terms of the applicable licence agreement.
4.3 The Agreement may be terminated by either party at any time, without cause, on 30 days’ prior written notice to the other party. In the event of termination by either party under this clause 4.3, QUANTIQ will continue to deliver all Services under the Attachment (unless otherwise agreed between the parties in writing).
4.4 Subject to clauses 4.6 and 4.7, and unless otherwise agreed within the Attachment, an Agreement for Professional Services (as set out in the Attachment) may be terminated by either party at any time without cause on 30 days’ prior written notice to the other party, provided that:
4.4.1 where QUANTIQ elects to terminate an Agreement for Professional Services without cause, QUANTIQ will complete its Services under such Agreement unless instructed otherwise by Client (and Client shall continue to be bound to pay all amounts due thereunder); or
4.4.2 where either party elects to terminate an Agreement for Managed Services (as set out in the Attachment) without cause, the Agreement will continue in full force and effect until terminated in accordance with Schedule 1 paragraph 2.2
4.5 Without affecting any other right or remedy available to it, either party may terminate the Agreement (in whole or in part) with immediate effect by giving written notice to the other party if:
4.5.1 the other party breaches any term or condition of this Agreement and/or the Attachment and such breach is not cured within 30 days following written notice from the party, specifying the breach;
4.5.2 the other party repeatedly breaches any of the terms of the Agreement and/or the Attachment in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Agreement;
4.5.3 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 ;
4.5.4 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
4.5.5 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
4.5.6 an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
4.5.7 the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
4.5.8 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
4.5.9 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
4.5.10 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 4.5.3 to clause 4.5.9(inclusive); and/ or
4.5.11 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
4.6 Unless otherwise provided in the Attachment, Client may terminate any Agreement up to five (5) Business Days prior to commencement of QUANTIQ’s Services thereunder provided that, on such a termination, Client will remit to QUANTIQ an amount equal to the sum of:
4.6.1 QUANTIQ’s fees for the Services it expected to perform in the first ten (10) Business Days;
4.6.2 reimbursement for any third party charges incurred under that Agreement and already paid or due and owing by QUANTIQ; and
4.6.3 the cost of any non-cancellable commitments or expenses already incurred by QUANTIQ under that Agreement.
4.7 If the Agreement is terminated less than five (5) Business Days prior to the commencement date, Client will remit to QUANTIQ an amount equal to 50% of QUANTIQ’s estimated fees for Services under that Agreement together with the other amounts listed above.
4.8 Notwithstanding anything to the contrary above, Client will not be entitled to terminate any Agreement with respect to Third Party Software already ordered by QUANTIQ from any third party vendor(s) on Client’s behalf. In the event of any termination by Client of the Agreement under this clause 4, QUANTIQ will use reasonable commercial efforts to reallocate its resources and terminate or modify any outstanding third party commitments and will pass any such savings on to Client.
4.9 Without affecting any other right or remedy available to it, QUANTIQ may terminate the Agreement with immediate effect by giving written notice to Client if for any reason Microsoft terminates Client's status as a customer of Microsoft.
4.10 Within 30 days after expiry or termination (for any reason) of this Agreement, Client will:
4.10.1 pay for all Services performed and Deliverables provided by QUANTIQ through the later of:
4.10.1.1 the effective termination date of the Agreement; or
4.10.1.2 QUANTIQ’s completion of all Services and Deliverables under the Agreement; and
4.10.2 reimburse QUANTIQ for any non-cancellable commitments incurred by QUANTIQ to date in connection with the Agreement, as applicable.
4.11 Promptly following termination of the Agreement, except as set forth herein or separately agreed, each party will return to the other party its Confidential Information (as defined below) and other property in the first party’s possession or control.
4.12 Where an Agreement is for Perpetual Software, provided that Client has paid all applicable licence fees related to any Software on termination, the licence(s) to the Software will survive termination in accordance with the terms of the applicable licence agreements.
4.13 Where an Agreement is for Subscription Services, Client’s right to use the Subscription Services shall cease immediately upon termination. Upon termination, Client may transfer its Subscription to a third party.
4.14 Any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination shall not be affected or prejudiced.
4.15 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination of this Agreement shall remain in full force and effect.
5. Fees and Payments
5.1 All amounts payable hereunder will be invoiced weekly and are due and payable within 15 days of the invoice date unless otherwise agreed in the Attachment.
5.2 Any invoice that is unpaid when due will accrue interest at the lesser of 1% monthly (12% per annum) or the maximum rate permitted by law. If an invoice is not paid by Client when due, QUANTIQ, in addition to any other available remedies, may suspend performance under this Agreement until all overdue invoices have been paid. If QUANTIQ exercises its right to suspend under this clause 5.2, all times estimated in the Attachment for performance or delivery may be extended by the number of days that any payment thereunder is late and any fee estimates may need to be revised to reflect any additional costs incurred by QUANTIQ arising from the period of suspension.
5.3 If Client repeatedly pays late, QUANTIQ reserves the right to remove any discount from the current rate card for services for open attachments and future attachments.
5.4 Client will review each invoice promptly upon receipt and will notify QUANTIQ in writing within 10 Business Days of the invoice date of any dispute as to the amount or validity of that invoice. If Client fails to timely deliver such notice, Client will be deemed to have consented to the invoiced charges; provided that, for the avoidance of doubt, Client’s failure to timely deliver the notice will not constitute a waiver of any claims by Client hereunder with respect to the Services covered by that invoice. Notwithstanding anything else herein, Client will pay the undisputed portion of any disputed invoice in accordance with clause 5.1.
5.5 Where the Attachment sets forth the agreed hourly rates between the parties for QUANTIQ’s professional services thereunder, QUANTIQ may increase its rates once a year in accordance with its normal business practices, but by no more than 10% annually, unless otherwise agreed in the Attachment.
5.6 Client will pay all reasonable travel, living and other expenses incurred by QUANTIQ in performing Services hereunder on the terms set forth in clause 5.1 above. Travel time will be billed at 50% of QUANTIQ’s applicable hourly rates for its personnel as set out in the Attachment.
5.7 Subject to the next sentence only, Client will pay any sales, use or value added taxes (but excluding taxes assessed against QUANTIQ’s income or payroll) due and owing on QUANTIQ’s Services hereunder, including any Third Party Software. Such taxes will be separately invoiced to and paid by Client or Client will provide QUANTIQ and/ or the appropriate authority with an exemption certificate.
5.8 Any advance deposits against fees for Services under the Attachment hereto will be applied to the fees invoiced for those Services only.
5.9 Save as otherwise expressly provided for in this Agreement or required by law, all payments to be made by Client to QUANTIQ under this Agreement will be made in full and without any set-off or any deduction or withholding (of any kind) including without limitation on account of any counter claim. For the avoidance of doubt (and without limitation), the prohibition on set-off, deduction or withholding under this clause 5.9 shall apply to any payments due for any Services, Deliverables or Software due and payable under or in connection with the Agreement.
5.10 Client agrees that QUANTIQ has the right at any time before delivery of the Software and/or Services to withdraw any discount and/or to revise any Price quoted if there is a change in the cost to QUANTIQ of supplying the Software and/or Services whether by reason of exchange rate fluctuations, third party charges or otherwise. If a price is increased between the Attachment being placed and delivery of the Software or Services, QUANTIQ will inform Client as soon as possible and give Client the option of reconfirming the Attachment at the new price or cancelling the Attachment.
5.11 QUANTIQ tries to ensure that all prices on its website, in its marketing materials and its price lists are accurate, but errors may occur. If QUANTIQ discovers an error in the price of the Services on the Attachment, it will inform Client as soon as possible and give Client the option of reconfirming the Agreement at the correct price or cancelling.
6. Other Obligations
6.1 Client will:
6.1.1 respond to requests from QUANTIQ on a timely basis;
6.1.2 have at least one Client Contact identified in each Attachment, available during regular business hours and authorised to approve Change Requests and provide other information and assistance to QUANTIQ;
6.1.3 provide QUANTIQ with timely, accurate and complete information and documentation;
6.1.4 make available to QUANTIQ other Client personnel familiar with Client's requirements and with the expertise to permit QUANTIQ to undertake and complete its obligations;
6.1.5 maintain a proper operating environment for the Software;
6.1.6 provide a safe area for QUANTIQ to perform any Services required to be performed at Client’s site;
6.1.7 provide for all power, environmental requirements, supplies, cabling, communications facilities, and all other equipment and facilities required;
6.1.8 regularly back up all files and data;
6.1.9 provide access to Client’s systems as reasonably requested by QUANTIQ; and
6.1.10 obtain and maintain all necessary licences, consents and permissions necessary for QUANTIQ to perform its obligations under the Agreement.
6.2 Each party will comply with all laws applicable to the performance of its obligations hereunder and to the Software, including laws and regulations relating to the import or export of software or technical data related thereto, including, without limitation, English import/export laws and US import/export laws (including the U.S. Export Administration Regulations and U.S. International Traffic in Arms Regulations).
7. Confidential Information
7.1 Each party acknowledges that it may receive or have access to the other party’s Confidential Information during the Term. Each party will maintain the confidentiality of the other party’s Confidential Information, will not use such Information other than to perform its obligations hereunder and will not disclose such Information to any third party, excluding only any employee, consultant and advisor who needs access to the Confidential Information to perform his or its obligations to QUANTIQ or Client and who has executed an agreement under which he or it is fully bound by the receiving party’s obligations hereunder. On termination of the Agreement, the receiving party will promptly deliver to the disclosing party or destroy all notes, memoranda and all other media and materials containing the disclosing party’s Confidential Information and will not retain any copies thereof other than solely for archival, disaster recovery and compliance purposes, which copies will remain wholly subject to this clause 7.
7.2 Confidential Information does not include information that the receiving party can document:
7.2.1 was generally available to the public at the time received from the disclosing party or becomes generally available to the public thereafter without breach of this clause 7;
7.2.2 was known to it, without restriction, at the time of disclosure;
7.2.3 is disclosed to the receiving party by a third party who may transfer or disclose such Information without restriction; or
7.2.4 was independently developed by it without any use of the disclosing party’s Confidential Information.
7.3 Further, the restrictions on disclosure of Confidential Information will not apply to the extent disclosure is required by a court, administrative agency or other governmental body with jurisdiction; provided that the receiving party uses diligent efforts to:
7.3.1 provide prompt notice of the required disclosure to the disclosing party; and
7.3.2 limit disclosure and obtain confidential treatment for such Confidential Information.
8. Data Protection and Information Security
8.1 Client authorises QUANTIQ to Process the Agreement Personal Data during the term of this Agreement as a Processor for the purpose set out in the relevant Attachment.
8.2 Client warrants to QUANTIQ that:
8.2.1 it has all necessary rights to authorise QUANTIQ to Process Agreement Personal Data in accordance with this Agreement and the Data Protection Laws; and
8.2.2 its instructions to QUANTIQ relating to Processing of Agreement Personal Data will not put QUANTIQ in breach of Data Protection Laws, including with regard to International Transfers.
8.3 If QUANTIQ considers that any instructions from Client relating to Processing of Agreement Personal Data may put QUANTIQ in breach of Data Protection Laws, QUANTIQ will be entitled not to carry out that Processing and will not be in breach of this Agreement or otherwise liable to Client as a result of its failure to carry out that Processing.
8.4 Each party will comply with the Data Protection Laws in respect of Agreement Personal Data.
8.5 QUANTIQ will not engage any third party for the Processing of Agreement Personal Data without the prior written consent of Client (such consent not to be unreasonably withheld or delayed) other than:
8.5.1 Microsoft; and
8.5.2 any other third party listed in the Attachment.
8.6 Where Microsoft appoints any sub-processor and provides notice of this to QUANTIQ, QUANTIQ shall notify Client.
8.7 If QUANTIQ appoints a Sub-Processor, QUANTIQ will put a written contract in place between QUANTIQ and the Sub-Processor that specifies the Sub-Processor’s Processing activities and imposes on the Sub-Processor substantially similar protective terms to those imposed on QUANTIQ in this clause 8. QUANTIQ will remain liable to Client for performance of the Sub-Processor’s obligations.
8.8 QUANTIQ will:
8.8.1 process the Agreement Personal Data only on documented instructions from Client (unless QUANTIQ or the relevant Sub-Processor is required to Process Agreement Personal Data to comply with applicable laws, in which case QUANTIQ will notify Client of such legal requirement prior to such Processing, unless such applicable laws prohibit notice to Client. For the purpose of this clause 8, the obligations on QUANTIQ to perform the Services are documented instructions. Nothing in this clause 8 will permit Client to vary QUANTIQ’s obligations under this Agreement other than in accordance with clause 3.1;
8.8.2 without prejudice to clauses 8.2.2 and 8.3, immediately inform Client if, in its reasonable opinion, any instruction received from Client infringes any Data Protection Laws;
8.8.3 ensure that any individual authorised to Process Agreement Personal Data:
8.8.3.1 is subject to confidentiality obligations or is under an appropriate statutory obligation of confidentiality;
8.8.3.2 complies with clause 8.8.1; and
8.8.4 at the option of Client, delete or return to Client all Agreement Personal Data after the end of the provision of Services relating to Processing, and delete any remaining copies. QUANTIQ will be entitled to retain any Agreement Personal Data which it has to keep to comply with any applicable law or which it is required to retain for insurance, accounting, taxation or other record keeping purposes. This clause 8 will continue to apply to retained Agreement Personal Data.
8.9 QUANTIQ will only make an International Transfer if:
8.9.1 a competent authority or body of the United Kingdom or the European Commission (as applicable) makes a binding decision that the country or territory to which the International Transfer is to be made ensures an adequate level of protection for Processing of Personal Data;
8.9.2 QUANTIQ or the relevant Sub-Processor provides adequate safeguards for that International Transfer in accordance with Data Protection Laws, in which case Client will execute any documents (including data transfer agreements) relating to that International Transfer which QUANTIQ or the relevant Sub-Processor requires it to execute from time to time; or
8.9.3 QUANTIQ or the relevant Sub-Processor is required to make the International Transfer to comply with applicable laws, in which case QUANTIQ will notify Client of such legal requirement prior to such International Transfer unless such applicable laws prohibit notice to Client on public interest grounds.
8.10 QUANTIQ will:
8.10.1 implement appropriate technical and organisational measures in respect of the Agreement Personal Data;
8.10.2 notify Client without undue delay after becoming aware of a Data Security Incident;
8.10.3 provide reasonable assistance to Client (at Client’s cost) in:
8.10.3.1 complying with its obligations under the Data Protection Laws relating to the security of Processing Agreement Personal Data;
8.10.3.2 responding to requests for exercising Data Subjects’ rights under the Data Protection Laws;
8.10.3.3 documenting any Data Security Incidents and reporting any Data Security Incidents to any Supervisory Authority and/ or Data Subjects; and
8.10.3.4 conducting privacy impact assessments of any Processing operations and consulting with Supervisory Authorities, Data Subjects and their representatives accordingly.
8.11 QUANTIQ will:
8.11.1 make available to Client all information necessary to demonstrate compliance with the obligations set out in this clause 8; and
8.11.2 allow for and contribute to audits, including inspections, conducted by Client or another auditor mandated by Client, provided that Client gives QUANTIQ at least 30 days’ prior written notice of each such audit and that each audit is carried out at Client’s cost, during business hours, so as to cause the minimum disruption to QUANTIQ’s business and without Client or its auditor having any access to any data belonging to a person other than Client or confidential information of a third party. Any materials disclosed during such audits and the results of and/or outputs from such audits will be deemed to be Confidential Information of QUANTIQ and the provisions of clause 7 will apply to them.
9. Intellectual Property
9.1 Subject to this clause 9, QUANTIQ will own all rights, including all Intellectual Property Rights, in and to all Modifications and Deliverables, tangible or intangible, created or produced by QUANTIQ in performing the Services, save that upon delivery by QUANTIQ and payment in full of all relevant fees by Client, Client will own all right, title and interest in and to any Data Deliverables under the Attachment.
9.2 Provided that Client is not in breach of this Agreement and has paid all amounts related to the Modifications due to QUANTIQ and subject to clauses 9.7 and 9.8 below, QUANTIQ hereby grants Client a perpetual and irrevocable, non-transferable and non-assignable, non-exclusive, worldwide, royalty-free and fully-paid licence to use, install and execute, reproduce, modify and create derivative works from the Modifications solely for Client’s internal business purposes or as otherwise separately agreed in writing. QUANTIQ will deliver the Modifications to Client in source code and object code format subject to Client keeping such source code in strict confidence and using it for its own internal business purposes only. Client may not distribute, sub-licence or disclose any such Modifications, other than to any third party that provides technical or other services to Client and solely and exclusively to provide services for Client’s internal business purposes.
9.3 Client’s rights in the QUANTIQ Software will be as provided in the applicable QUANTIQ licence agreement. Any associated media, printed material and online or electronic documentation for the QUANTIQ Software will be deemed QUANTIQ Software hereunder. Client acknowledges that the QUANTIQ Software is licensed to Client, not sold.
9.4 Client’s rights in any Third Party Software and any other data, programs and other materials provided by third parties, regardless of whether or not obtained with the assistance of QUANTIQ, will be as provided in the applicable Third Party Licence and Client is solely responsible for compliance with such third party agreements and policies. QUANTIQ shall have no responsibility or liability to Client in respect of the Third Party Software and Client’s sole remedy shall be to the Third Party under the relevant Third Party Licence.
9.5 Client acknowledges and agrees that QUANTIQ will retain exclusive ownership of all QUANTIQ Components and will be entitled to use any and all QUANTIQ Components in connection with the performance of Services for other parties. Provided that Client has paid QUANTIQ for the QUANTIQ Components provided under this Agreement, QUANTIQ hereby grants Client a perpetual and irrevocable, non-transferable and non-assignable, non-exclusive, worldwide, royalty-free and fully-paid licence to use any QUANTIQ Component incorporated in Client’s Services under the Attachment to the fullest extent necessary for Client’s operation and maintenance of any Software, Modifications or other Deliverables included in the Services. Client will not use or distribute any QUANTIQ Component on a standalone basis in any manner. Client may also allow third parties to exercise the foregoing rights solely and exclusively for Client’s benefit, including any third party that provides technical or other services to Client.
9.6 For the avoidance of doubt, Client retains all right, title and interest in and to any Client Materials. QUANTIQ’s ownership rights as set forth above are subject to Client’s underlying rights in and to Client Materials. Client hereby grants a fully paid up, perpetual, royalty free, worldwide licence to QUANTIQ to use Client Materials for the purposes of providing the Services.
9.7 Client will own and retain all right, title and interest in and to any Client Customisations, subject to the underlying and continuing rights of QUANTIQ or any third party in and to the underlying QUANTIQ Software, QUANTIQ Components or Third Party Software incorporated therein, as the case may be (the “Underlying Rights”). QUANTIQ hereby irrevocably assigns and will assign, to Client, without further consideration, all right, title and interest in and to such Client Customisation, excluding any Underlying Rights, and QUANTIQ will sign any documents and assist Client with any necessary filing to establish or maintain Client’s right in and to any Client Customisation, excluding any Underlying Rights.
9.8 The parties acknowledge and agree that certain product and software components consist or will consist of original work and materials undertaken by QUANTIQ either previously or in performing its obligations under this agreement (together “QUANTIQ Intellectual Property”). The parties acknowledge and agree that the copyright and all other Intellectual Property Rights in respect of such QUANTIQ Intellectual Property shall remain the exclusive property of QUANTIQ.
9.9 The provisions of this clause 9 shall continue upon expiration or termination of this Agreement.
10. Personnel
10.1 QUANTIQ personnel performing Services for Client under this Agreement may perform similar services for others during or after the Term. QUANTIQ will make reasonable efforts to honour specific requests of Client regarding the assignment of QUANTIQ personnel; however, QUANTIQ reserves the sole right to make and change all such assignments. On receipt of a written request by Client detailing lawful reasons for removal of any QUANTIQ personnel, QUANTIQ will promptly withdraw or replace such personnel at no additional cost to Client.
10.2 QUANTIQ will use diligent efforts to provide personnel in accordance with the estimates and schedules provided to Client in the Attachment. Should any personnel be unable to perform scheduled Services because of illness, resignation or other causes beyond QUANTIQ’s control, QUANTIQ will promptly replace such unavailable personnel and familiarise and/ or train such replacement personnel as necessary at no cost to Client.
11. Non-Solicitation
During the Term and for 12 months thereafter, neither party, directly or indirectly, will solicit for employment or for engagement as an independent contractor, or encourage leaving its employment or engagement, any employee or independent contractor of the other party known to the soliciting party solely through this Agreement. For the avoidance of doubt, general public advertisements for employment or engagement and any individual’s response thereto will not be deemed a violation of this clause 11. Any breach of this clause 11 would damage the other party in an amount difficult to ascertain with certainty; therefore, on any breach hereunder, the breaching party will pay to the other party an amount equal to the annual compensation (with the non-breaching party) of the applicable employee or independent contractor.
12. Representations and Warranties
12.1 QUANTIQ will perform the Services in a professional manner using reasonable skill and care and in accordance with generally-accepted industry standards.
12.2 Subject to the terms herein, QUANTIQ warrants to Client that the QUANTIQ Software and Modifications will perform substantially in accordance with the specifications contained in their respective documentation for a period of 30 days after delivery to Client (the “Warranty Period”); provided that the QUANTIQ Software and Modifications are used only on the equipment and in the environment for which they were respectively designated and configured and further provided that QUANTIQ will have no responsibility for problems or errors resulting from Third Party Software or from incompatibility of the QUANTIQ Software or Modifications with any Third Party Software where the use thereof is not specified in the applicable Attachment. This limited warranty is given to Client only and may not be transferred to any other person. Except as specifically set forth in the Attachment, QUANTIQ does not warrant that the Software, Modifications and/ or other Deliverables will meet Client’s requirements or perform continuously without error.
12.3 QUANTIQ does not provide any warranty in relation to Third Party Software. All Third Party Software provided under this Agreement is licensed directly to Client by or purchased directly by Client from the manufacturer of such Third Party Software, and Client will receive warranties, if any, for Third Party Software as provided by the licensors, manufacturers or vendors thereof. QUANTIQ will not be liable for any errors or defects in any Third Party Software or Third Party Subscription Services or for any non-performance thereof. Any claim based on, related to or arising out of the use of any Third Party Software will be governed exclusively by the terms of Client’s agreement with that third party.
12.4 QUANTIQ’s warranties will be void if Client or any third party uses and/or modifies the Services, including without limitation Software, Modifications or Deliverables, in any manner other than as authorised by QUANTIQ.
12.5 The warranties set forth in this clause 12 are in lieu of and exclude (to the fullest extent permitted by law), any and all other representations, conditions and warranties with respect to the Services, including without limitation the Software, Modifications, Client Customisations, QUANTIQ Components and other Deliverables, whether expressed or implied by statute, common law or otherwise, oral or written, including any warranty or condition of merchantability, satisfactory quality, fitness for a particular purpose, compatibility with other software products or non-infringement.
12.6 Client represents that it has and will maintain or will acquire sufficient quantities of fully valid licences (e.g. software licences, client access licences, subscription agreements for cloud-based software and/ or service plans) for all Third Party Software to fully support its requisite number of users thereof under Client’s agreement with QUANTIQ and/ or the Third Party Software licensor.
13. Remedies; Limitation of Liability
13.1 Either party’s breach of its obligations under clauses 7 or 9 or Client’s breach of any restriction on its use, copying or transfer of Software under this Agreement would irreparably injure the other party, which could not adequately be compensated by monetary damages. Accordingly, each party may seek and obtain injunctive relief from the breach or threatened breach of such provisions in addition to and not in limitation of any other legal remedies.
13.2 QUANTIQ’s sole liability and Client's sole and exclusive remedies under QUANTIQ’s limited warranty in clause 12.2 above are as follows: if notified by Client in writing of a problem during the Warranty Period, QUANTIQ will use all commercially reasonable efforts at no charge to repair or replace each item of QUANTIQ Software and/or Modification (including without limitation Client Customisations) to make the item operate as warranted; provided that, if QUANTIQ is unable to make the affected item operate as warranted within a reasonable time, QUANTIQ, at its sole option, may instead refund to Client the licence or other fees paid by Client to QUANTIQ for the non-conforming item to the extent paid by Client.
13.3 Further to clause 12.3, Client’s sole remedy with respect to Third Party Software will be to the licensor, manufacturer or vendor of such Software and as provided in the agreement between Client and such third party. Client acknowledges and agrees that it shall have no remedy against QUANTIQ (and QUANTIQ shall have no liability to Client) in respect of the Third Party Software.
13.4 Neither party will be liable for any Force Majeure Event. The affected party will promptly inform the other party of any Force Majeure Event, and either party may require a renegotiation of the schedules set forth in any open Attachments. If a Force Majeure Event continues for more than 60 days, either party may terminate the Agreement or any open Attachment.
13.5 No action, regardless of form, relating to or arising out of the Services under this Agreement may be brought by either party more than two years after the date of completion of the Services.
13.6 Neither party will be liable to the other party for any loss of profits (except in the case of Client’s liability, in respect of any profit element within any fees that would have become due to the QUANTIQ if the Agreement and/or Attachment had been properly performed in accordance with its terms by Client) , loss of revenue, loss of anticipated savings, loss of goodwill, loss of or corruption of or damage to any data (in each case whether those losses are direct or indirect) or for any indirect, consequential, special or punitive damages incurred or suffered by the other party in any circumstances. Subject to the following sentence and clause 13.3, each party’s total liability to the other under each Attachment to this Agreement, whether arising in contract, tort or otherwise, will be limited to the total monies paid or payable under the relevant Attachment. Nothing in this clause 13.6 or elsewhere in the Agreement shall exclude or limit either party’s liability for death or personal injury resulting from negligence, or in relation to any claim based on fraud, or in relation to any claim for breach or misuse of Intellectual Property Rights or Confidential Information, or a breach of the obligations imposed by s12 Sale of Goods Act 1979 or s2 Supply of Goods and Services Act 1982, or for any claim under a party’s indemnification obligations under this agreement or in respect of any liability which cannot be limited or excluded by law.
13.7 QUANTIQ shall not be liable under or in connection with this Agreement, whether for any delay or failure to provide any Software and/or Services or otherwise, caused by:
13.7.1 any act or omission of Client which is contrary to its obligations under the Agreement;
13.7.2 any failures of any Third Parties to provide the Software and/or Services; and/or
13.7.3 any disruption to Client's system which occurs while any Software or Subscription Services are being installed.
13.8 Client acknowledges that QUANTIQ cannot select Software on its behalf and that QUANTIQ shall have no liability in respect of the suitability of any selected by Client. In the event that any advice was provided to Client by QUANTIQ, Client acknowledges that advice was not intended to be relied up on and was provided as is without any warranty of any kind from QUANTIQ and shall have no liability in relation thereto.
13.9 QUANTIQ shall not be liable for defects in Software resulting from abnormal conditions of use or any act, neglect or default of Client or any third party.
13.10 Except as expressly and specifically provided in the Agreement, Client assumes sole responsibility for results obtained from the use of the Software and/or Services by Client, and for conclusions drawn from such use. QUANTIQ shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to QUANTIQ by Client in connection with the Software and/or Services, or any actions taken by QUANTIQ at Client's direction.
13.11 This Agreement sets out the full extent of QUANTIQ’ obligations and liabilities in respect of the supply of the Software and the Services.
14. Indemnification
14.1 QUANTIQ will indemnify, defend and hold Client (and its officers, directors and employees) (“Client Indemnitees”) harmless from and against any and all claims, losses, liabilities, damages, costs and expenses sought or otherwise claimed by a third party (including reasonable legal fees incurred by Client in connection therewith) (each, a “Third Party Claim”) to the extent arising out of an allegation that any QUANTIQ Deliverable provided to Client hereunder infringes on any copyright, patent or other proprietary right of any third party or misappropriates any trade secret of a third party (each, an “Infringement Claim”).
14.2 If an Infringement Claim results in Client’s use of any QUANTIQ Deliverable being enjoined or otherwise precluded, QUANTIQ, at its sole option, will
14.2.1 replace the affected QUANTIQ Deliverable with a compatible, functionally-equivalent and non-infringing product;
14.2.2 modify the QUANTIQ Deliverable to create a compatible, functionally-equivalent and non-infringing QUANTIQ Deliverable; or
14.2.3 obtain a licence for Client to continue to use the affected QUANTIQ Deliverable. Provided that, if none of the foregoing is commercially practicable as determined by QUANTIQ, Client’s licence or other right to use the affected QUANTIQ Deliverable will terminate and QUANTIQ will refund the fees paid by Client for the QUANTIQ Deliverable, amortised on a straight line basis over 36 months.
14.3 QUANTIQ’s performance of its obligations under this clause 14 represents Client’s sole remedy and QUANTIQ’s total liability and full obligation to Client with respect to any Infringement Claim, and Client will have no other claims against QUANTIQ in connection with or as a consequence of any such Infringement Claim.
14.4 QUANTIQ will have no obligation hereunder for any Infringement Claim which arises by reason of:
14.4.1 the modification of or the misuse of any QUANTIQ Deliverable by Client or a third party;
14.4.2 the combination, operation or use of any QUANTIQ Deliverable by Client or a third party with equipment, software or data not supplied by QUANTIQ if an Infringement Claim would not have occurred but for such combination, operation or use; or
14.4.3 Client’s failure to use an updated or modified QUANTIQ Deliverable provided by QUANTIQ to avoid an Infringement Claim.
14.5 Client will defend, indemnify and hold harmless QUANTIQ (and its officers, directors and employees) (“QUANTIQ Indemnitees”) from and against any and all Third Party Claims to the extent arising out of:
14.5.1 Client’s installation of Third Party Software or any Third Party Subscription Services without QUANTIQ’s assistance; or
14.5.2 any allegation that QUANTIQ’s use of Client Materials infringes on any copyright, patent or other proprietary right of any third party or misappropriates any trade secret of a third party (each, a “Client Infringement Claim”).
14.6 Client’s performance of its obligations under this clause 14.6 represents QUANTIQ’s sole remedy and Client’s total liability and full obligation to QUANTIQ with respect to any claim or demand described under this clause 14.6 and QUANTIQ will have no other claims against Client in connection with or as a consequence of any Client Infringement Claim. Client will have no obligation hereunder for any Client Infringement Claim which arises by reason of:
14.6.1 the modification or misuse of any Client Materials by QUANTIQ;
14.6.2 the combination, operation or use of any Client Materials by QUANTIQ with equipment, software or data not supplied by Client if a Client Infringement Claim would not have occurred but for such combination, operation or use; or
14.6.3 QUANTIQ’s failure to use updated or modified Client Materials provided by Client to avoid a Client Infringement Claim.
14.7 The indemnified party will provide prompt written notice of any Third Party Claim subject to indemnity to the indemnifying party; provided that failure to give such notice will not reduce the indemnifying party’s obligations under this clause 14 except to the extent that the indemnifying party is prejudiced thereby. The indemnifying party will control the defence and settlement of any Third Party Claim hereunder; provided that the indemnified party may participate in the defence and settlement of such Third Party Claim with its own counsel at its own expense. The indemnified party will provide all reasonable cooperation and assistance requested by the indemnifying party in the defence and settlement of any Third Party Claim at the indemnifying party’s expense. The indemnifying party will not be responsible for any costs incurred or compromise made by the indemnified party without the indemnifying party's prior written consent. The indemnifying party may not enter into any settlement that imposes a financial obligation on or otherwise materially adversely impacts the indemnified party without the indemnified party’s prior written consent.
15. QUANTIQ Right to Vary these General Terms & Conditions
15.1 Subject to Clause 15.3, QUANTIQ may at its sole discretion update and/ or amend these General Terms & Conditions at any time, including but not limited to, in the following circumstances:
15.1.1 changes in relevant laws and regulatory requirements; and/or
15.1.2 changes imposed by Microsoft and/or any other Third Party.
15.2 Any change to these General Terms & Conditions made by QUANTIQ shall be made without notice to the Client by updating the version of the General Terms & Conditions provided at www.quantiq.com.
15.3 QUANTIQ confirms and agrees that the version of the General Terms & Conditions applicable to any Attachment shall be the latest version of the General Terms & Conditions in force as at the date of execution of the Attachment and shall not be varied during the Term. Any change to the General Terms & Conditions shall not affect any Agreement in force as at the date the change is made and the updated General Terms & Conditions shall only apply to any subsequent Agreements entered into between the parties pursuant to a new Attachment.
16. General
16.1 This Agreement (including any executed Attachments):
16.1.1 embodies the final, complete and exclusive understanding between the parties with respect to its subject matter;
16.1.2 replaces and supersedes all previous oral or written agreements, understandings or arrangements between the parties;
16.1.3 may be signed in counterparts, each of which will be an original and both of which will constitute one and the same document; and
16.1.4 may only be amended in a writing signed by each party hereto.
16.2 Each party acknowledges that in entering into the Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Agreement.
16.3 The failure of either party to enforce a provision of this Agreement will not be deemed a waiver of such provision or of the right of such party thereafter to enforce such provision.
16.4 The parties expressly exclude the application of the 1980 United Nations Convention on Contracts for the International Sale of Goods.
16.5 Notices hereunder will be effective when received and will be sufficient if given in writing, hand-delivered, sent by email with confirmation of receipt, sent by first class mail, return receipt requested and postage prepaid, or sent by overnight courier service and addressed to the signatories below at the addresses set forth on the cover page above.
16.6 The parties hereto are independent of each other, and no agency, partnership, joint venture or employer-employee relationship is intended or created by this Agreement. Neither party will have the power to obligate or bind the other party.
16.7 This Agreement will be governed by and construed in accordance with the laws of England and any claim or matter arising under or in connection with this Agreement shall be subject to the exclusive jurisdiction of the English courts.
16.8 If any term of this Agreement is or becomes unenforceable or invalid, such invalidity or unenforceability shall not affect the other terms of this Agreement which shall remain in full force and effect.
16.9 If any term of this Agreement is or becomes invalid or unenforceable but would be valid or enforceable if some part of it were deleted or modified by the parties, the term in question shall apply with such modification as may be necessary to make it valid and enforceable. The parties shall act reasonably and in good faith to agree any such modification.
16.10 With Client’s prior written consent, QUANTIQ may use Client’s name in describing or promoting QUANTIQ’s Services on QUANTIQ’s Website and in its marketing materials or other documents listing QUANTIQ’s qualifications, experience and companies for which QUANTIQ has provided professional services. Client also acknowledges its willingness to discuss its participation in case studies with QUANTIQ on QUANTIQ’s request. Client will receive and approve the final version of any and all such materials prior to public release.
16.11 Either party may assign this Agreement in its entirety, whether by operation of contract, law or otherwise, to any entity that acquires control of the assigning party, whether by merger, sale or otherwise, and QUANTIQ, on written notice to Client, may assign this Agreement in its entirety to any of its affiliates. Any other assignment of the Agreement will require the prior written consent of the other party, which will not be unreasonably withheld or delayed. This Agreement will bind each party’s successors and assigns and will inure to the benefit of each party’s successors and assigns.
16.12 The parties do not intend that any term of this Agreement will be enforceable under the Contracts (Rights of Third Parties) Act 1999 by any person.
SCHEDULE 1 – MANAGED SERVICES SCHEDULE
1. Services
1.1 The terms set out in this Schedule 1 shall apply to Managed Services provided by QUANTIQ to Client under the Attachment.
1.2 The Managed Services shall comprise:
1.2.1 Under the “base management fee” QUANTIQ shall:
1.2.1.1 provide the Dedicated Services;
1.2.1.2 conduct periodic Performance Reviews;
1.2.1.3 retain all Client Configuration and Development Documents;
1.2.1.4 train and support Client on Client configuration; and
1.2.1.5 arrange for remote access to the systems provided under the Attachment.
1.2.2 Under the “bank of hours” or “time and materials” provision, QUANTIQ shall provide:
1.2.2.1 telephone assistance in the use of Supported Software during the Designated Hours in accordance with the service request procedure set out in the QUANTIQ Support Client Operations Manual;
1.2.3 telephone assistance in the use of Supported Software during Extended Hours and Out of Hours, subject to agreement with QUANTIQ via the service request procedure detailed in the QUANTIQ Support Client Operations Manual;
1.2.4 standard available corrections for any errors in Supported Software made known to QUANTIQ in accordance with the service request procedure in the QUANTIQ Support Client Operations Manual;
1.2.5 software code error determination and resolution on QUANTIQ Software and Supported Modifications. QUANTIQ will continue to support legacy versions of the QUANTIQ Software and Supported Modifications for a minimum of two prior releases;
1.2.6 software configuration error resolution and resolution status reports on QUANTIQ Software and Supported Modifications;
1.2.7 software licensing error resolution and resolution status reports on QUANTIQ Software and Supported Modifications;
1.2.8 software performance resolution and resolution status reports on QUANTIQ Software and Supported Modifications; and
1.2.9 reasonable assistance with the rectification of database corruption caused by an error in Supported Software provided that Client carries out the recommended data backups and restore test procedures.
1.3 The Managed Services do not include:
1.3.1 the diagnosis and rectification of any fault resulting in any way from any software other than the Supported Software or any computer or communications hardware or cabling and equipment or any facilities or infrastructure or anything affecting any relevant computer system or environment of Client;
1.3.2 the use of the Supported Software on equipment other than on the Designated Equipment;
1.3.3 any services supplied which arise from any failure of Client to implement QUANTIQ’s recommendations of which Client has been notified in respect of solutions to faults in the Supported Software;
1.3.4 any services supplied which arise from any breach by Client of any of its obligations under any maintenance agreement in respect of computer hardware or other equipment used in conjunction with the Supported Software;
1.3.5 rectification of data mis-postings caused by any person other than QUANTIQ;
1.3.6 detailed analysis of data postings;
1.3.7 support of modifications to Supported Software made by Client and any consequences arising;
1.3.8 training;
1.3.9 database administration or system training for Supported Software; and/ or
1.3.10 any services to enable or maintain the use by Client of any QUANTIQ product modules or components thereof contained within QUANTIQ Software that have not been authorised and activated by QUANTIQ for use by Client and which are not specified in the supported services or otherwise agreed with QUANTIQ in writing.
1.4 QUANTIQ shall have no responsibilities in connection with the Supported Software other than as expressly assumed by it under this Agreement or otherwise in writing signed by the parties. Client will need to enter into a separate technical services agreement with QUANTIQ if it requires technical software services not contemplated by this Agreement.
2. Term and Termination
2.1 The Managed Services will commence on the Managed Service Commencement Date and will continue for the Managed Service Initial Term. Unless terminated by either party in accordance with clause 4, the Managed Services shall renew for an additional 12 month period (“Managed Services Renewal Term”).
2.2 Either party may terminate an Attachment for Managed Services on the expiry of the Managed Service Initial Term, or the anniversary of each Managed Services Renewal Term, by serving written notice, such written notice to be served no less than 3 months prior to the expiry of the Managed Service Initial Term or the expiry of the Managed Services Renewal Term (as applicable).
3. Conditions for Providing the Services
3.1 QUANTIQ shall confirm ability to perform the Managed Services when the Support Transition Process, as detailed in the QUANTIQ Support Client Operations Manual, has been completed.
3.2 For any business processes, system configuration and bespoke system developments that have not been subjected to an agreed support transition to QUANTIQ, QUANTIQ will use reasonable endeavours to resolve any support incidents logged by Client with QUANTIQ and will charge for this at the T&M Rates.
3.3 QUANTIQ shall provide the Services to Client subject to the following conditions:
3.3.1 that Client provides QUANTIQ with remote access to either enable QUANTIQ to copy Client’s database or view remotely on screen any reported problem with the Supported Software;
3.3.2 that QUANTIQ is able to replicate Client’s problem as reported using reasonable efforts to do so and that printouts and other relevant information available to Client and reasonably required by QUANTIQ are made available to QUANTIQ;
3.3.3 that any Client employee requesting a Managed Service is sufficiently trained to enable QUANTIQ to provide the Managed Service and in particular, but without limiting the generality of the foregoing, is:
3.3.3.1 capable and trained to copy files and use Windows Explorer;
3.3.3.2 capable and trained to import and export Supported Software objects;
3.3.3.3 qualified with “Super-User” or other adequate permission to debug and solve problems with the help of QUANTIQ staff;
3.3.3.4 familiar with the functions and operation of that part of Client’s computer system in respect of which the Managed Services are required; and
3.3.4 that if the query in respect of which Client requests support from QUANTIQ is a matter which has been fixed in a later version of the Supported Software to the version installed on Client’s computer system then QUANTIQ may suggest that Client install and use such later version of the Supported Software provided this is the only practical way of providing a solution. Upgrading Client’s software shall be part of the Services supplied pursuant to this Agreement but will be subject to additional charges as detailed in the Attachment (or otherwise in writing) that Client would need to first approve. In such circumstances, should Client not choose to upgrade their system, then QUANTIQ may not be able to provide further assistance with this particular issue.
3.4 The Managed Services will be provided by telephone, email or remote access. Where Client requests Managed Services to be provided from its premises, QUANTIQ may agree to provide this subject to agreement of any additional fees at the T&M Rates plus expenses.
3.5 This Agreement does not grant to Client any rights to use Third Party Software. Any such rights are subject to a separate agreement between Client and the Third Party. If at any time Client does not have a licence to use all components of the Supported Software then QUANTIQ may suspend the provision of the Managed Services under this agreement during any such period.
3.6 Where Client has a licence to use Perpetual Software licensed by a Third Party, it will also be required to enrol in the Third Party Enhancement Plan as a pre-condition to receiving the Managed Services. Payments for the Third Party Enhancement Plan are due and payable to the relevant Third Party (via QUANTIQ) twelve months in advance. Should such payments not be received by QUANTIQ by the relevant renewal date, QUANTIQ shall not be able to continue to provide Managed Services to Client. Client may be able to reactive the Third Party Enhancement Plan and the Managed Services by paying a re-activation fee (as set by the Third Party from time to time).
4. Responsibilities of Client
4.1 Unless QUANTIQ otherwise agrees in writing, Client shall install the Supported Software on the Designated Equipment in accordance with instructions and recommendations given by QUANTIQ.
4.2 Client agrees to use the Supported Software in accordance with good industry practice.
4.3 Client acknowledges and accepts that the efficient use and operation of the Supported Software may be dependent on the installation by Client of upgrades and enhancements to the Supported Software.
4.4 Client confirms that it is fully aware that Client’s failure to fully train sufficient staff both on initial installation of the Supported Software and subsequently during its use, will jeopardise the efficient use and operation of the Supported Software and the effective provision of Managed Services.
4.5 Client shall provide a copy of Client’s database to QUANTIQ as reasonably requested in the event that remote access cannot be provided to QUANTIQ by Client.
4.6 Client shall test upgrades, fixes and enhancements to the Supported Software on a test system in accordance with QUANTIQ’s reasonable instructions before installing the same on the Designated Equipment and going live (which Client accepts is an industry standard practice) and QUANTIQ shall have no responsibilities or liability under this Agreement in the event of Client not doing reasonable testing and proceeding to install and use the Supported Software on the Designated Equipment in a live commercial production environment without such testing.
4.7 Client agrees that to cover the event of any failure, it is Client’s responsibility to check that it can reinstall the Supported Software and restore backups of its data in accordance with good industry practice. Client acknowledges and agrees it is entirely responsible for the security of its computer systems and data, to maintain sufficient and regular security copies of its data and to implement disaster recovery plans that are in line with the risk posed by any potential loss of data. Client accepts that any data lost from the time of the last restorable backup and any failure of the Supported Software may have to be re-entered and that QUANTIQ has no responsibility for any loss of data or the effects thereof.
4.8 Any Attachment entered into for Managed Services shall be exclusive and Client shall not request, permit or authorise any Third Party to provide Managed Services (or services similar to the Managed Services) in respect of all or part of the Supported Software during the Services Term.
4.9 Client shall cooperate fully with QUANTIQ’s personnel in the diagnosis of any error or defect in the Supported Software.
4.10 Client shall make available to QUANTIQ free of charge all information facilities and services reasonably required by QUANTIQ to enable QUANTIQ to perform the Managed Services including without limitation computer runs, memory dumps, printouts and data preparation.
4.11 Client shall provide at Client’s expense such telecommunication and network facilities as are reasonably required by QUANTIQ for testing and diagnostic purposes by remote access.
4.12 Client shall, for the purposes of this Agreement, afford to the authorised personnel of QUANTIQ during normal working hours or as otherwise agreed access to any of Client’s relevant premises and shall provide adequate free working space and such other facilities at such premises as may be reasonably requested by QUANTIQ where these are required to provide the Managed Services. Client shall comply with its obligations under applicable health and safety regulations with respect to the provision of such access and facilities to QUANTIQ.
5. Responsibilities of QUANTIQ
5.1 QUANTIQ will employ personnel with skill, knowledge and training required for the performance of the Services and the Services will be performed in a professional manner in accordance with standard software industry practices in the United Kingdom.
5.2 QUANTIQ will take all practical steps to ensure that its personnel and agents will, whenever on Client’s premises or using remote Client system access facilities for testing or diagnostic purposes, obey all reasonable security and health and safety standards, procedures and directions notified to it by Client.
5.3 QUANTIQ shall provide the Managed Services during the Designated Hours. Where Client requests Managed Services during Extended Hours or Out of Hours, QUANTIQ shall be entitled to apply additional charges beyond its standard rate card for work done during these times, unless agreed otherwise in the Attachment.
6. Charges
6.1 Work which is out of scope of the Managed Services will be quoted for separately at the T&M Rates.
Retainer plus T&M
6.2 Where the Attachment specifies that pricing is “Retainer plus T&M Rates”, the Charges will comprise a base management fee plus time actually spent by QUANTIQ in resolving any open support issues. The base management fee (the retainer element) will be billed annually in advance and the T&M Rates will be billed monthly in arrears.
Premium Pricing
6.3 Where the Attachment specifies that pricing is “Premium”, Client shall be entitled to receive the Managed Services up to the number of pre-bought hours (the “Bank of Hours”). Usage above the Bank of Hours will be subject to additional charges.
6.4 A base management fee, as set out in the Attachment, shall be charged for the “Premium” service, plus the costs of the Bank of Hours selected by Client, and shall be invoiced quarterly in advance.
6.5 Changes to the installed license base, modification and customisations between contract execution date (regardless of whether it is before or after the Full Support Commencement Date) may result in an increase in the Charges.
6.6 QUANTIQ shall, as soon as it is able, notify Client Contact where it is close to or has reached the threshold of the Bank of Hours and/ or if excessive usage is noted and shall work to identify root cause.
6.7 Where additional resource by QUANTIQ is being expended on a continued basis then QUANTIQ reserves the right to increase the maintenance fees and charge for on-going over-use.
6.8 Client is liable for additional costs if QUANTIQ’s recommended method for diagnosis and access is not followed.
Schedule A: Service Level Agreement
Super-Users will be authorised to log incident calls with the QUANTIQ ServiceDesk. All incidents logged to the QUANTIQ ServiceDesk will be entered into a Call Management system and the call reference will be given to the caller for future reference.
Call Priority
Call priority will be determined by Client at the time of logging the incident call. The call priority may be changed by Client with agreement from QUANTIQ or by QUANTIQ from time to time in consideration of any change in the actual circumstances.
In the event that an open ticket is with Client awaiting response for 14 days, the incident may be closed at QUANTIQ’s sole discretion.
