TERMS AND CONDITIONS GOVERNING ABP’S MASTER SERVICE AGREEMENT
Introduction to ABP Consultancy’s Master Service Agreement
At ABP Consultancy we generally find that we work with clients over a prolonged period or for a number of projects, even if the relationship starts with one focussed project.
We have a number of options that we can offer to clients, ranging from installation of third-party software to the development of bespoke software, and / or the provision of support services for new or legacy software. In our experience a client will often have an initial project which selects a very defined order, but as their business and requirements developed, the client will select further elements from our overall service offering.
So, to reduce the need for us and you as a client to have to redraft large parts of the “legals” as the requirements are adjusted this MSA (the “front bit”) provides a legal framework that would cover the majority of our service options. Then we agree the details of your requirements in specific Statements of Work (“SOW”’s) which will relate to specific projects. This allows you to come back and simply agree further SOWs for each new project or any extension of an existing project. Each SOW will set out the scope of the services, timelines and pricing agreed and because it is under the MSA umbrella you will not need to review and sign up to the MSA again for each piece of work.
Because of the approach above, when you first review this MSA, you may notice that its clauses cover not only the type of services you are looking for, but some additional offerings. As above, this is intentional, and the confirmation of the extent of the services you are acquiring will be in each SOW. So, if for instance you do not obtain software through us in your first SOW, because you may do at some later stage, we would not want to remove the relevant clauses from the MSA, only to risk having to reinstate them at a later stage.
These terms ("Terms") serve as a comprehensive representation of the agreed-upon MSA between the parties. You acknowledge and accept these terms by signing an ABP Consultancy MSA or by continuing to use the Services after being notified of any changes to these Terms.
1.1 The definitions and rules of interpretation in this clause apply in this Agreement.
Means the company whose details are set out against “ABP Consultancy” in the Contract Details.
“ABP Consultancy Location”
Shall be the location stated as such in the Contract Details.
"ABP Consultancy Software"
the ABP Consultancy Standard Software, the Third-Party Software, the Modified Software, the Open-Source Software, the Tools and the Bespoke Software.
"ABP Consultancy Standard Software"
the software programs proprietary to ABP Consultancy, if any, which are listed as such in any SOW, which are to be provided to the Client without modification.
“ABP Consultancy Team Members”
means any and all directors, employees and/ or consultants who participate in ABP Consultancy’s preparation and or provision of the Software and / or Services and/ or otherwise engage with the Client in relation to this Agreement.
In relation to any item of Software the date on which it is first Accepted in accordance with clause 10.
Means in relation to any item of Software that it has been or is deemed in accordance with clause 10 to have been delivered and installed in accordance with the terms and conditions of this Agreement.
Shall be any area which is the subject of a confirmation or finding of adequacy for the purposes of any part of the Data Protection Legislation or by means of any agreement between the Local Data Protection Legislation jurisdictions relevant for the purposes of this Agreement. Such adequacy confirmations are provided by the Working Party 29 under the General Data Protection Regulation of the European Union.
In relation to ABP Consultancy any entity that directly or indirectly controls, is controlled by, or is under common control with another ABP Consultancy, or in the case of the Client any entities stated as such in the Contract Details.
“Agreed Interest Rate”
The interest rate stated as such in the Contract Details.
All services offered from time to time by ABP Consultancy, including but not limited to the provision of software, and related configuration, support and/ or consultancy services.
software programs developed by ABP Consultancy specifically for the Client as part of the Software and listed in the relevant SOW.
the business of the Client as specified in the Contract Details.
Shall be those days described against “Business Days” in the Contract Details.
"Business Requirements Specification";
the specification agreed between the Client and ABP Consultancy which sets out the Client's business requirements regarding the Software, contained in any SOW.
an agreement made under clause 14.3.
Shall be the jurisdiction stated as such in the Contract Details.
The natural or legal person stated as such in the Contract Details.
all documents, information, items and materials in any form (whether owned by the Client or a third party), which are provided by the Client to ABP Consultancy in connection with the Services.
the date on which this Agreement becomes effective, as specified in the Contract Details.
In relation to any SOW, the estimated date specified in that SOW (which may be varied in accordance with clause 33) by which ABP Consultancy is to provide the Software Ready for Service.
information of commercial value, in whatever form or medium, disclosed by the party (or any of its Affiliates) to the other party (or any of its Affiliates), including commercial or technical know-how, technology, information pertaining to business operations and strategies, and information pertaining to Clients, pricing and marketing and, for clarity, including (in the case of ABP Consultancy’s information) information relating to the Software or any of its constituent parts, the Source Code relating to the Software or any such parts.
such services provided for the configuration and installation of Software in accordance with any SOW.
the table at the beginning of this Agreement.
the Initial Period or any Further Period as may be the case.
the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be construed accordingly.
"Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures";
as defined in the Data Protection Legislation.
the computers and other equipment to be used by the Client in conjunction with the Software, as specified in any SOW.
all documents, information, items and materials in any form (whether owned by the Client or a third party), which are provided by the Client to ABP Consultancy in connection with the Services.
a person duly authorised by the Client to act on its behalf for the purposes of this Agreement and identified to ABP Consultancy by written notice from the Client.
All and any consulting services stated in any SOW which shall be provided by ABP Consultancy to the Client.
"Data Protection Legislation";
the Local Data Protection Legislation and any other applicable European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).
an error in the Supported Software that causes it to fail to operate substantially in accordance with the relevant Documentation.
In relation to any Project Fee the first instalment of that Project Fee in the amount stated in the relevant SOW.
"Dispute Resolution Procedure";
the procedure for dealing with disputes under this Agreement as set out in clause 40.
the operating manuals, user instruction manuals, technical literature and all other related materials in human-readable or machine-readable forms supplied by ABP Consultancy as specified in Schedule 1.
All out of pocket expenses incurred by ABP Consultancy in relation to the delivery of the Software, Documentation, and/ or Services.
All fees and expenses to be charged by ABP Consultancy to the Client under this Agreement, including all Project Fees, Licence Fees, Time Fees and all Expenses.
In relation to any Project Fee the final instalment of that Project Fee in the amount stated in the relevant SOW.
means any circumstance not within a party's reasonable control including, without limitation:
a) acts of God, flood, drought, earthquake or other natural disaster; b) epidemic or pandemic; c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; d) nuclear, chemical or biological contamination or sonic boom; e) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition; f) interruption or failure of utility service.
Each is period of the number of months stated as such in the Contract Details the first commencing upon the expiry of the Initial Period and then upon the expiry of each subsequent Further Period.
"Good Industry Practice";
the exercise of that degree of skill, care, prudence, efficiency, foresight and timeliness as would be expected from a company within the relevant industry or business sector.
Shall be the governing law stated as such in the Contract Details.
the rate of inflation most recently calculated and announced in ABP Consultancy Location as the Inflation Rate Index expressed as an annual percentage of increase on prices.
“Inflation Rate Index”
The published inflation rate index referred to as such in the Contract Details.
The period of 12 consecutive calendar months commencing on the Commencement Date.
the estimated date by which ABP Consultancy will complete installation of a specified Software Module as specified in the Implementation Plan.
"Intellectual Property Rights";
patents, rights to inventions, copyright and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world, including the right to sue for and recover damages for past infringements.
the licence granted under clause 16.
any licence fee or fees in relation to the provision of Software to the Client which shall be calculated and fall due and payable as set out in the relevant SOW.
the Software as specified in Schedule 1 (except the Open-Source Software and the Third-Party Software) and all subsequent amendments and updates to, or new versions of, such Software as may be provided under this Agreement.
the employees and agents of the Client who use the Licensed Software, up to the maximum number specified in the Contract Details or any SOW where relevant.
"Local Data Protection Legislation";
All that data protection and privacy legislation which is in force from time to time in the ABP Consultancy Location and/ or in the Delivery Location.
the standard software programs proprietary to ABP Consultancy and/or third parties listed in any SOW, modified or to be modified by ABP Consultancy under this Agreement.
"Modified Software (Supplier)";
those elements of the Modified Software listed in any SOW and identified as such.
"Modified Software (Third Party)";
those elements of the Modified Software listed in any SOW and identified as such.
a new release of all or any part of the Supported Software suitable for use by the Client in which previously identified faults have been remedied or to which any modification, enhancement, revision or update has been made, or to which a further function or functions have been added.
"Normal Working Hours";
the hours stated as such in the Contract Details on any Business Day.
any software licensed under any form of open-source licence meeting the Open Source Initiative's Open Source Definition (http://www.opensource.org/docs/definition.php) or any libraries or code licensed from time to time under the General Public Licence (as described by the Free Software Foundation and set out at http://www.gnu.org/licenses/gpl.html), or anything similar, included or used in, or in the development of, the Software, or with which the Software is compiled or to which it is linked.
“Permitted Data Area”
Means that geographical area within which it is permitted for ABP Consultancy to process any personal data which is to be processed by ABP Consultancy under this Agreement in accordance with the Data Protection Legislation without obtaining further specific consents from or on behalf of the data subject, and which is understood by the parties to be the area described as such in the Contract Details.
the meaning given in clause 20.1.
The Fee stated in any SOW in relation to any of the Services where that fee is not a Time Fee, or a Licence Fee.
ABP Consultancy employee who has overall responsibility for the Work.
"Ready for Service";
installed, tested and having passed or deemed Accepted under clause 9.
Any of the Configuration or Support or Consultancy Services which are described in any SOW and are to be provided by ABP Consultancy under this Agreement.
the location(s) at which the Software is to be used as specified in each relevant SOW.
"Software Delivery Date";
the estimated delivery date specified in any SOW on which ABP Consultancy will deliver a Software Module to the Site(s).
any one of the individual software programs in the Software.
the source code of the software to which it relates, in the language in which the software was written, together with all related flow charts and technical documentation, all of a level sufficient to enable the Client's development personnel to understand, develop and maintain that software.
ABP Consultancy Standard Software, the Third-Party Software, the Modified Software, the Open-Source Software, the Tools and the Bespoke Software.
In relation to any Project Fee, each and any instalment amount stated in any SOW other than the Deposit and Final Payment in relation to the same Project Fee.
“Statement of Work” or “SOW”
Each statement of work, including the first which, if agreed at the Commencement Date is set out in Schedule 1 and labelled SOW1 and any subsequent statements of work agreed by the parties substantially in the form set out in Schedule 2;
"Support Commencement Date";
in relation to any Software to be delivered by ABP Consultancy in accordance with an SOW, the Acceptance Date or such other date as may be specified in a relevant SOW and in relation to any other Software such date as is specified in the relevant SOW.
the services to be provided by ABP Consultancy under this Agreement including any SOW.
those Software programs listed as Supported Software in any SOW and all subsequent amendments and updates to and New Releases of such programs.
those officers, employees, agents or subcontractors of ABP Consultancy of any of its Affiliates connected with this Agreement, including those individuals who perform ABP Consultancy's obligations under this Agreement.
Licences relating to all Third-Party Software, whether proprietary or Open- Source Software which is listed in each relevant SOW.
the software programs proprietary to third parties, listed in any SOW which are to be provided to the Client without modification.
all and any Fees which are charged on a time and materials basis, and which shall be calculated and shall be calculated and shall fall due and payable as set out in each SOW in each case.
any tools and know-how developed, and methods invented, by ABP Consultancy in the course of or as a result of carrying out the Work, whether or not developed or invented specifically or used exclusively to carry out the Work.
value added tax chargeable under all applicable legislation to which ABP Consultancy is subject from time to time in and shall be deemed to include any similar additional tax or any other similar turnover, sales or purchase tax or duty levied or due to be levied in relation to the subject matter of this Agreement.
all the works, duties and obligations to be carried out by ABP Consultancy under this Agreement.
1.1 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.2 Unless the context otherwise requires, words in the singular shall include the plural and, in the plural, shall include the singular.
1.3 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.4 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment, and includes any subordinate legislation for the time being in force made under it.
1.5 Except where a contrary intention appears, a reference to a clause, schedule or annex is a reference to a clause of, or schedule or annex to, this Agreement.
1.6 Clause and schedule headings do not affect the interpretation of this Agreement.
1.7 Writing or written includes e-mail but not faxes nor any other form of electronic communication, except where expressly provided to the contrary.
1.8 The schedules to this Agreement, together with any documents referred to in them, form an integral part of this Agreement and any reference to this Agreement means this Agreement together with the schedules and all documents referred to in them, and such amendments in writing as may subsequently be agreed between the parties.
1.9 If any conflict arises between the terms and conditions of this Agreement and any provision of any schedule, the terms and conditions of the schedule shall prevail.
1.10 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's personal representatives, successors or permitted assigns.
2. Commencement and Duration
2.1 This Agreement shall commence on the Commencement Date stated in the Contract Details and shall continue in force for the Initial Period and on the anniversary of the Initial Period and each Further Period shall renew for a Further Period until or unless terminated in accordance with clause 2.2 or any part of clause 28.
2.2 This Agreement may be terminated by service of notice in writing by either party upon the other of at least the Notice Period, (“Convenience Termination Notice”) which shall terminate this Agreement with effect from the later of:
2.2.1 the final day of the Initial or Further Period during which the Notice Period expires; or
2.2.2 the final day of any SOW Period which is current at the date of Convenience Termination Notice.
2.3 The parties shall not enter into any further Statements of Work after the date on which notice to terminate is served under clause 2.2 or clause 28.
2.4 The Client may procure any of the Available Services by agreeing a Statement of Work with ABP Consultancy pursuant to clause 3 (Statements of Work).
2.5 ABP Consultancy shall provide the Services from the date specified in relation to each in the relevant Statement of Work.
3. Statements of Work
3.1 Each Statement of Work shall be agreed in the following manner:
3.1.1 the Client shall ask ABP Consultancy to provide any or all of the Available Services and provide ABP Consultancy with as much information as ABP Consultancy reasonably requires in order to prepare a draft Statement of Work for the Available Services requested;
3.1.2 following receipt of the information requested from the Client ABP Consultancy shall, as soon as reasonably practicable either:
(a) inform the Client that it declines to provide the requested Available Services; or
(b) provide the Client with a draft Statement of Work.
3.1.3 if ABP Consultancy provides the Client with a draft Statement of Work pursuant to clause (b), ABP Consultancy and the Client shall discuss and agree that draft Statement of Work; and
3.1.4 both parties shall sign the draft Statement of Work when it is agreed;
3.2 Fees for each Service included in an SOW shall be charged as set out against that Service in the relevant SOW.
3.3 Once a Statement of Work has been agreed and signed in accordance with clause 3.1.4, no amendment shall be made to it except in accordance with clause 14 (Change control) or clause 33 (Variation).
3.4 Each Statement of Work shall be part of this Agreement and shall not form a separate contract to it.
4.1 ABP Consultancy grants the Licence and shall supply the Software, the Documentation and the Services described in each Statement of Work to the Client in accordance with this Agreement.
4.2 The supply under clause 4.1 and the Fees are subject to the terms and conditions set out in this Agreement.
5. Software and Documentation
5.1 ABP Consultancy shall carry out the Work with reasonable diligence and despatch, and with reasonable skill and expertise, to provide ABP Consultancy Software in accordance with the relevant SOW and by the Completion Date in each case.
5.2 ABP Consultancy shall provide the Third-Party Software and any Modified Software (Third Party) to the Client under the standard licence terms provided by the relevant third parties, copies of which shall be provided to the Client, and the Client agrees to be bound to the relevant third parties by such licence terms and in relation to each Affiliate listed in the Contract Details the Client shall procure that such Affiliate is bound by the same obligations owed to the relevant third parties.
5.3 ABP Consultancy shall provide ABP Consultancy Standard Software, the Bespoke Software and any Modified Software (Supplier) under the terms of this Agreement.
5.4 ABP Consultancy shall provide to the Client, from time to time, copies of the Documentation which is made available from time to time containing up to date information on the proper use of the ABP Consultancy Software. Such Documentation may be supplied in electronic form.
5.5 The Client may make such further copies of the Documentation as are reasonably necessary for the use of the Software, and where training services are stated as included in the Contract Details or SOW, for training the Client's personnel in use of the ABP Consultancy Software. The Client shall ensure that all of ABP Consultancy's proprietary notices are reproduced in any such copy.
5.6 The Client may provide copies of the Documentation to any third party who needs to know the information contained in it, provided that such third party first enters into a confidentiality obligation in accordance with clause 20.3.3.
6.1 To the extent specified in each SOW ABP Consultancy shall:
6.1.1 deliver and install the Software listed in each SOW at the Site(s);
6.1.2 provide each of the other Services specified in each SOW; on the terms and conditions set out in this Agreement.
6.2 To the extent specified in each SOW, ABP Consultancy shall:
6.2.1 provide maintenance and support in accordance with this Agreement (“Support Service”);
6.2.2 make available to the Client suitably qualified personnel to carry out such tasks on a consultancy basis as are stated in that SOW (“Consultancy Services”).
6.3 In performing the Services, ABP Consultancy shall comply with the Client's reasonable instructions to ensure minimal disruption to the Business.
6.4 The Client agrees to provide ABP Consultancy with prompt assistance and instructions when requested to do so by ABP Consultancy and acknowledges that ABP Consultancy will require such assistance and instructions in order to provide the Services in accordance with this Agreement.
7.1 ABP Consultancy shall submit invoices for Fees in accordance with the invoicing and payment details set out in each SOW. The Client shall pay each invoice as and when the Fee which it relates to shall fall due and payable as stated in the relevant SOW.
7.2 The Client shall pay each invoice for instalments of any Fees on or before the date stated in the relevant SOW.
7.3 If the Client considers that there may be an error in relation to any part of Fees or Expenses included in an invoice the Client must notify ABP Consultancy in writing specifying the part of the Fees or Expenses concerned and explaining the nature of the Client’s concern (“Invoice Query Notice”) within five (5) Business Days of receipt of that invoice. The Client shall pay the remaining part of the Fees and Expenses pending resolution of the query in accordance with clause 7.4
7.4 On receipt of an Invoice Query Notice ABP Consultancy will liaise in good faith with the Client to resolve the concern.
7.5 The Client shall be deemed to have confirmed its agreement to all parts of the Fees and Expenses in any invoice for which the Client does not serve an Invoice Query in accordance with clause 7.3.
7.6 All Fees, including Expenses are net of tax. The Client shall, in addition, pay to ABP Consultancy the amount of any tax, duty or assessment, including any applicable VAT, which ABP Consultancy is obliged to pay and/or collect from the Client in respect of any supply under the agreement (other than tax on ABP Consultancy's income).
7.7 If the Client fails to make any payment due to ABP Consultancy under this Agreement by the due date for payment, then, without limiting ABP Consultancy's remedies under clause 28, the Client shall pay interest on the overdue amount at the Agreed Interest Rate. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount.
7.8 ABP Consultancy’s Fees shall automatically increase by the Inflation Rate on each anniversary of the Commencement Date.
7.9 If ABP Consultancy wishes to increase its Fees or any part thereof other than in accordance with clause 7.8 ABP Consultancy may do so with effect from the end of the Initial Period and/ or any subsequent anniversary of the Commencement Date provided ABP Consultancy has first provided the Client with notice in writing at least 30 days longer than the Notice Period stated in the Contract Details.
7.10 All invoices issued by ABP Consultancy under or in connection with this Agreement shall be accompanied by a sufficiently detailed breakdown of the matters being invoiced (including any additional costs under clause 7.11).
7.11 Reasonable Expenses may be charged by ABP Consultancy on production of reasonable evidence of expenditure to the Client.
7.12 If ABP Consultancy visits the Site at the Client's request to investigate a failure of the Software, which proves in ABP Consultancy's reasonable opinion not to have been caused by a Defect, ABP Consultancy may charge the Client for the time spent on such visit on a time-and-materials basis at its standard rates then in force.
8. Software Delivery
8.1 ABP Consultancy shall deliver each Software Module to the Site(s) by the applicable Software Delivery Date.
8.2 ABP Consultancy shall supply to the Client, within a reasonable time before any Software Delivery Date, such information and assistance as may be necessary to enable the Client to prepare the Site(s) for the installation of the relevant Software Module.
8.3 The Client shall, at its own expense, prepare the Site(s) in accordance with the information provided by ABP Consultancy in advance of each Software Delivery Date. On completion of such preparation, ABP Consultancy specify, within a reasonable time before the Software Delivery Date, any corrections or modifications required. ABP Consultancy shall in no circumstances be liable for remedying any deficiency in the Site(s) preparation that is discovered at a Site at any time during this Agreement, and the Client shall promptly procure an appropriate remedy at its own expense as soon as the Client first becomes aware of such a deficiency, whether on receipt of notice
8.4 ABP Consultancy shall deliver each Software Module to the Site(s) on or before the Delivery Date for that item.
8.5 ABP Consultancy shall complete installation of each Software Module at the Site(s) by the Installation Date for that Software Module.
8.6 The Client shall be responsible for ensuring that each item of Computer Hardware is installed and is in working order and available to ABP Consultancy no later than the relevant date specified in the relevant SOW.
8.7 If any delivery is delayed at the request of the Client, or because of his acts or omissions, the Implementation Plan shall be amended to take account of such delay in accordance with clause 11.4. If ABP Consultancy can demonstrate that the delay has resulted in an increase in cost to ABP Consultancy of carrying out its obligations under this Agreement, ABP Consultancy may, at its sole discretion, notify the Client that it wishes to increase the Price by an amount not exceeding any such demonstrable cost. ABP Consultancy may invoice the Client for any additional monies that become payable in this way, within 30 days of demonstrating the increase in costs.
8.8 If any delivery is delayed because of the acts or omissions of ABP Consultancy, ABP Consultancy shall be liable for any reasonable costs that the Client can demonstrate it incurred as a direct result of such delay.
9. Software: Project Management
9.1 The Client Contact and the Project Manager respectively shall be the individuals stated in the Contract Details unless in relation to any SOW a different individual is nominated as Project Manager. The Client shall ensure that the Client Contact and each Project Manager have sufficient authority to bind the Client to decisions in relation to this Agreement, and that each has sufficient experience, qualifications and expertise to provide ABP Consultancy with efficient and effective instructions and assistance in relation to this Agreement. The Client shall notify ABP Consultancy in writing of the name and qualifications of the person appointed as the Client Contact and of each Project Manager.
9.2 ABP Consultancy shall appoint the Account Manager, who shall have the responsibility and commensurate authority for the overall progress of the Work and to whom all questions regarding this Agreement can be referred. The name and qualifications of the appointed individual shall be notified in writing to the Client Contact.
9.3 The Client Contact shall co-operate with the Account Manager and shall attend meetings scheduled by the Account Manager at reasonable intervals not less than once a week to advise and assist ABP Consultancy on all matters relating to the Work.
9.4 The provision of employees, subcontractors and agents of ABP Consultancy to carry out the Work shall be at the discretion of ABP Consultancy.
9.5 The Client shall consult with the Account Manager about the identity of a suitable replacement for either the Client Contact or any Project Manager. In the absence of a Project Manager in relation to any SOW, the Client Contact shall be deemed to be the Project Manager for that SOW.
9.6 ABP Consultancy shall:
9.6.1 take all reasonable steps to maintain continuity in relation to the ABP Consultancy Team Members providing any Support Services; and
9.6.2 to the extent possible, give the Client reasonable written notice of any proposed holiday or leave of absence to be taken by the Account Manager.
10.1 Acceptance of the Software shall be deemed to have occurred on whichever is the earliest of:
10.1.1 the expiry of ten days after the Installation Date of the final Software Module if during that period the Client has not notified ABP Consultancy of any Defects; or
10.1.2 the use of the Software by the Client or any of its Affiliates in the normal course of the Business.
11. Configuration Services
11.1 ABP Consultancy shall use its reasonable endeavours to provide the Configuration Services specified in each SOW as described and by the date by the date specified in that SOW, subject to clause 11.2.
11.2 ABP Consultancy shall be given an extension of the timetable of any one or more of the stages in an SOW if one or more of the following events occurs:
11.2.1 a variation to the Software is made at the Client's request under the change control procedures set out in clause 14;
11.2.2 a force majeure event occurs as described in clause 38;
1.2.3 a delay is caused in whole or in part by an action or omission of the Client or its employees, agents or third-party contractors.
11.3 If ABP Consultancy is entitled to an extension of time under clause 11.2, it shall give written notice to the Client not later than seven days after the beginning of the event. Such notice shall specify the event relied on and, in the case of a force majeure event under clause 38, shall estimate the probable extent of the delay.
11.4 The Client Contact and the Account Manager shall use best endeavours to agree in writing, signed by both parties, what extension of time is reasonable in the circumstances. The SOW shall be deemed amended accordingly.
12. Support Services
12.1 ABP Consultancy shall supply such Support Services set out in the relevant SOW and where such Support Services are included in any SOW, they will be provided in accordance with this clause 12 and that SOW.
12.2 Where New Releases are to be provided ABP Consultancy shall provide New Releases in machine-readable form together with related amendments to the Documentation. ABP Consultancy may make such New Releases available for downloading over the internet and will promptly notify the Client when such downloads are available.
12.3 ABP Consultancy shall notify the Client promptly in writing of the issue of any New Version, specifying the following:
12.3.1 the charge for delivery and installation of the New Version;
12.3.2 the licence fee payable for the New Version;
12.3.3 in what way the New Version differs from the previous version in terms of functionality, performance and compatibility.
12.4 For the avoidance of doubt, nothing in this Agreement shall oblige the Client to take any New Version.
12.5 ABP Consultancy shall ensure that Support Services may be accessed during Normal Working Hours by the Client via the online ticketing system to provide assistance to the Client in respect of the following:
12.5.1 remedying Defects in the Supported Software; and
12.5.2 providing advice on the use of the Supported Software.
12.6 ABP Consultancy shall use reasonable endeavours to correct Defects notified to it by the Client in a timely manner appropriate to the seriousness of the circumstances in accordance with the following procedure:
12.6.1 the Client shall promptly notify ABP Consultancy of all Defects. Where such notification is made orally, the Client shall provide written confirmation (which may be sent by e-mail) of the notification within one Business Day;
12.6.2 within one Business Day of such notification, ABP Consultancy shall acknowledge receipt of the notification and shall determine, in consultation with the Client, how seriously the Defect affects the Client's operations;
12.6.3 if a notified Defect halts or substantially impairs the Client's operations which use the Supported Software, ABP Consultancy shall:
(a) start work on correcting the Defect;
(b) use all reasonable efforts to correct the Defect as soon as possible; and
(c) keep the Client informed of progress towards correction of the Defect.
12.6.4 if a notified Defect, while not halting or substantially impairing the Client's operations, causes those operations to become significantly slowed or causes substantial inconvenience, ABP Consultancy shall commence work on correcting the Defect within the time frame provided in the SOW in relation to Service Levels following receipt of such notification and shall use all reasonable efforts to correct the Defect as soon as possible; and
12.6.5 in the case of Defects other than those specified in clause 12.6.3 and clause 12.6.4, ABP Consultancy shall start work on correcting the Defect as soon as ABP Consultancy's workload allows and shall use commercially reasonable efforts to correct the Defect.
12.7 ABP Consultancy shall use reasonable efforts to ensure the accurate migration of any data but gives no warranties as to the completeness or accuracy of such migration. The Client shall be responsible for checking the accuracy and completeness of the migrated data and shall promptly give sufficient details to ABP Consultancy of any inaccuracies or omissions in order to permit ABP Consultancy to correct them. If such data includes personal data, ABP Consultancy shall return all copies of such personal data to the Client on completion of the data migration process.
13. Support Services: Client's Obligations
13.1 During the term in which the Support Services are to be provided in accordance with any SOW the Client shall not, without ABP Consultancy's prior written approval, allow any person other than a representative of ABP Consultancy to modify, repair or maintain any part of the Supported Software.
13.2 The Client shall co-operate with ABP Consultancy in any manner reasonably required by ABP Consultancy in order to carry out the Work, including provision of information and data, making available suitably qualified employees and contractors of the Client and, subject to ABP Consultancy's compliance with the Client's normal security requirements as notified to ABP Consultancy in writing:
13.2.1 provide access to the Client's systems for the purpose of carrying out diagnostics and correction of Defects, provided that system access shall be direct or remote, at the Client's option, and that, in the latter case, such access will be subject to ABP Consultancy's compliance with any additional requirements for security and encryption techniques or software which may from time to time be specified by ABP Consultancy.
13.2.2 provide such further access for the Support Staff to the Site(s) as is necessary to carry out ABP Consultancy's obligations under this Agreement. The Client shall obtain for ABP Consultancy all permissions necessary to obtain such access.
13.2.3 when the Support Staff are working on the Site(s), provide facilities and supplies reasonably required by ABP Consultancy, such as power and computer consumables.
13.3 The Client shall, at its own expense, provide the equipment necessary at the Site(s) to enable the access referred to in clause 13.2.1 in accordance with the specifications set out in the Business Requirements Specification, but all other costs and expenses for such access shall be borne by ABP Consultancy.
13.4 The Client may restrict access to certain areas of its premises or systems on security grounds.
13.5 The Client shall, no later than the Support Commencement Date, appoint and maintain for the duration of this Agreement an individual to serve as primary contact with ABP Consultancy for the purpose of the provision of the Services, and a deputy to that individual, and shall notify ABP Consultancy of the names of those individuals promptly on their appointment.
13.6 The Client shall comply, as soon as reasonably practicable, with all ABP Consultancy's reasonable requests for information or assistance.
14. Change Control and Technology Substitution
14.1 The Client may, by giving written notice to ABP Consultancy at any time during the term of this Agreement, request a change to the Software.
14.2 Within 7 Business Days of receipt of such notice, ABP Consultancy shall, at its standard rates then in force, prepare for the Client a written estimate of any increase or decrease in the Fees, and of any effect that the requested change would have on the SOW.
14.3 Within 14 Business Days of receipt of the written estimate referred to in clause 14.2, the Client shall inform ABP Consultancy in writing of whether or not the Client wishes the requested change to be made. If the change is required, ABP Consultancy shall not make the requested change until the parties have agreed and signed a written agreement (Change Agreement) specifying, in particular, any changes to the SOW and Fees.
14.4 ABP Consultancy undertakes to offer to the Client, and the Client may at any time before the relevant Software Delivery Date and at its sole discretion choose to obtain from ABP Consultancy, any item of software in substitution for any corresponding item of Software where the substitute item contains new technology or has better performance characteristics than such Software. As part of the offer, ABP Consultancy shall notify the Client of any change in the Price which would result from such substitution. If the Client chooses to obtain any such substitute item, the parties shall use best endeavours to agree and execute a Change Agreement in accordance with clause 14.3.
15.1 The Intellectual Property Rights in the ABP Consultancy Software (other than the Open-Source Software, the Bespoke Software and the Third-Party Software) are, and shall remain, the property of ABP Consultancy, and ABP Consultancy reserves the right to grant a licence to use such Software to any other party or parties.
15.2 The Licensed Software and the Documentation are the property of ABP Consultancy (or the appropriate third-party rights-owner(s)) and the Client acquires no rights in or to the Licensed Software or the Documentation other than those expressly granted by this Agreement.
15.3 Upon condition of and following the payment in full by the Client of all Fees relating to the Bespoke Software, all the Intellectual Property Rights in the Bespoke Software (other than those comprised in any Third-Party Software or Open-Source Software included in or used with the Bespoke Software) shall transfer to and remain with the Client.
15.4 ABP Consultancy shall at the Client’s expense do and execute or arrange for the doing and executing of each necessary act, document and thing that the Client may consider necessary or desirable to perfect the right, title and interest of the Client in and to the Intellectual Property Rights in the Bespoke Software.
15.5 The Client shall use reasonable endeavours to prevent any infringement of ABP Consultancy's Intellectual Property Rights in the Licensed Software and shall promptly report to ABP Consultancy any such infringement that comes to its attention. In particular, the Client shall:
15.5.1 ensure that each Licensed User, before starting to use the Licensed Software, is made aware that the Licensed Software is proprietary to ABP Consultancy and that it may only be used and copied in accordance with this Agreement;
15.5.2 implement suitable disciplinary procedures for employees who make unauthorised use or copies of the Licensed Software, except as provided for in clause 17.1; and
15.5.3 not permit third parties to have access to the Licensed Software without the prior written consent of ABP Consultancy, who may require that such third party executes a written confidentiality agreement before being given access to the Licensed Software.
16. Software Licence and Documentation
16.1 ABP Consultancy grants, subject to the terms of this Agreement, the Client the non-exclusive, non-transferable right (subject to clause 27): to use the Licensed Software and the Documentation for any purpose related to the Business (Licensed Purposes).
16.2 The Licensed Software may be used only by Licensed Users except as follows:
16.2.1 the Licensed Software may be used on any replacement for all or any part of the Computer Hardware;
16.2.2 the Licence may, with the prior written consent of ABP Consultancy, be extended to additional Licensed Users, and the relevant SOW may be amended accordingly, provided that any appropriate additional fee is paid to ABP Consultancy before such use;
16.2.3 if the Client transfers the whole of the Business permanently to another site, the Licensed Software may be used at the new site by the Licensed Users, provided that ABP Consultancy is informed in writing of the change of site provided always that new site is within the same country as the original Site before use of the Licensed Software commences at the new site. If a proposed new site is in a different country than the original Site, or is “cloud based” then the Client shall seek ABP Consultancy’s consent in writing to use the Licensed Software at that new site;
16.2.4 if the Computer Hardware becomes inoperable for any reason, the Licensed Software may be temporarily used on backup equipment until the Computer Hardware is repaired, and the Client may use the Licensed Software for the purpose of testing whether any such backup equipment is suitable for use while the Computer Hardware is inoperable; and
16.2.5 if any Site becomes temporarily unusable due to flood, fire or similar damage, or an emergency situation, the Licensed Software may be used at an alternative site until the Site is again usable, provided that the Client gives ABP Consultancy notice of such alternative site and permits ABP Consultancy to inspect such site once the Licensed Software is again in use at the Site to ensure that no copy of all or any part of the Licensed Software remains at the temporary site. If the alternative site is managed by a third party, the third party must have signed a confidentiality undertaking addressed to ABP Consultancy to protect ABP Consultancy's Confidential Information before the Licensed Software is transferred to the alternative site.
16.3 The Client shall comply with the Third-Party Licences and shall indemnify and hold ABP Consultancy harmless against any loss of damage which it may suffer or incur as a result of the Client's breach of such terms howsoever arising.
16.4 ABP Consultancy may treat the Client's breach of any Third-Party Licence as a breach of this Agreement.
17. Transfer or Reproduction of Licensed Software
17.1 The Client may make such copies of the Licensed Software as are reasonably necessary for use in accordance with this Agreement and for the purposes of backup and security. The Client has no right to make, or authorise the making of, any other copies of the Licensed Software.
17.2 ABP Consultancy shall at all times own all copies of all or any part of the Licensed Software. For copies recorded on a tangible medium, the Client shall place on each copy of all or any part of the Licensed Software a clearly visible label indicating that the copy is the property of ABP Consultancy, and reproducing ABP Consultancy's proprietary rights notice. For electronic copies, the Client shall ensure that all proprietary notices contained in the Licensed Software shall be maintained in such copies and shall display when the software is run, in the same way as in the case of the Licensed Software as supplied by ABP Consultancy. The Client shall keep all copies of the Licensed Software in a secure place when not in use and shall, at all times, keep all such copies in its possession or control.
17.3 The Client shall not:
17.3.1 sub-license, rent, lend, assign or transfer in any other way this Agreement or the Licensed Software to any person without the prior written consent of ABP Consultancy; and
17.3.2 give access to the Licensed Software through any network of computers to users who are not employees or agents of the Client.
18. Use and Adaptation of Licensed Software
18.1 The Client may use the Licensed Software with other software.
18.2 The Client may not make adaptations or variations of the Licensed Software without the prior consent of ABP Consultancy.
18.3 The Client may not disassemble, decompile, reverse translate or in any other manner decode the Licensed Software, except as permitted by law.
19. Supplier Personnel
19.1 ABP Consultancy undertakes that its employees and contractors, while on the Site(s) or any other premises of the Client, will comply with all relevant rules and regulations laid down by the Client from time to time for the behaviour of its own employees and contractors, as notified to ABP Consultancy in writing to ABP Consultancy from to time.
19.2 ABP Consultancy alone shall be responsible for the supervision, direction, control, wages, taxes, national insurance and benefits of all ABP Consultancy Team Members. ABP Consultancy assumes full responsibility for their acts and omissions and acknowledges that they are not employees or agents of the Client.
20. Confidentiality and Publicity
20.1 Each party undertakes not to use the Confidential Information otherwise than in the exercise and performance of its rights and obligations under this Agreement (Permitted Purposes).
20.2 In relation to the Client's Confidential Information:
20.2.1 ABP Consultancy shall treat as confidential all Confidential Information of the Client supplied under this Agreement. ABP Consultancy shall not divulge any such Confidential Information to any person, except to its own employees and then only to those employees who need to know it for the Permitted Purposes. ABP Consultancy shall ensure that its employees are aware of, and comply with, this clause 20; and
20.2.2 ABP Consultancy may provide any subcontractor authorised under clause 27 with such of the Client's Confidential Information as it needs to know for the Permitted Purposes, provided that such subcontractor has first entered into a written obligation of confidentiality owed to ABP Consultancy in terms similar to clause 20.2.1 (which ABP Consultancy shall ensure is adhered to).
20.3 In relation to ABP Consultancy's Confidential Information:
20.3.1 the Client shall treat as confidential all Confidential Information of ABP Consultancy contained or embodied in the Software or Documentation, or otherwise supplied to the Client during the performance of this Agreement;
20.3.2 the Client shall not, without the prior written consent of ABP Consultancy, divulge any part of ABP Consultancy's Confidential Information to any person other than:
(a) the Client's Representative; and
(b) other employees of the Client [or any of its Affiliates] who need to know it for the Permitted Purposes; and
20.3.3 the Client undertakes to ensure that the persons mentioned in clause 20.3.2 are made aware, before the disclosure of any part of ABP Consultancy's Confidential Information, that the same is confidential and that they owe a duty of confidence to the Client in terms similar to clause 20.3.1 (which the Client shall ensure is adhered to).
20.4 The restrictions imposed by clause 20.1, clause 20.2 and clause 20.3 shall not apply to the disclosure of any Confidential Information which:
20.4.1 is now in or hereafter comes into the public domain otherwise than as a result of a breach of this clause 20;
20.4.2 before any negotiations or discussions leading to this Agreement was already known by the receiving party (or, in the case of the Client, any of its Affiliates) and was obtained or acquired in circumstances under which the receiving party was (or, in the case of the Client, the Client and its Affiliates were) not bound by any form of confidentiality obligation; or
20.4.3 is required by law or regulation to be disclosed to any person who is authorised by law or regulation to receive the same (after consultation, if practicable, with the disclosing party to limit disclosure to such authorised person to the extent necessary).
20.5 Each party shall notify the other party if any of its staff connected with the provision or receipt of the Services becomes aware of any unauthorised disclosure of any Confidential Information and shall afford reasonable assistance to the other party, at that other party's reasonable cost, in connection with any enforcement proceedings which that other party may elect to bring against any person.
20.6 The Client hereby authorises ABP Consultancy to include the Client’s name and a copy of the Client’s logo in ABP Consultancy’s list of clients displayed on ABP Consultancy’s website and or other marketing materials and to confirm to other clients or prospective clients that the Client is a client of ABP Consultancy, during the term of this Agreement. ABP Consultancy shall not disclose any details of the scope and nature of the work undertaken for the Client in this respect without the prior consent of the Client.
20.7 Subject to clause 20.6 neither party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including any relevant securities exchange), any court or other authority of competent jurisdiction.
20.8 This clause 20 shall remain in full force and effect, despite any termination of the Licence or this Agreement.
21. Data Protection
21.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 21 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.
21.2 The parties acknowledge that if ABP Consultancy processes any personal data on the Client's behalf when performing its obligations under this Agreement, the Client is the controller and ABP Consultancy is the processor for the purposes of the Data Protection Legislation.
21.3 The nature and purpose of ABP Consultancy’s processing of personal on behalf of the Client and the type of personal data and categories of data subjects are set out in the relevant SOW.
21.4 Without prejudice to the generality of clause 21.1, the Client will ensure that it has all necessary legal basis, including appropriate consents and notices in place to enable lawful transfer of the personal data to ABP Consultancy for the duration and purposes of this Agreement so that ABP Consultancy may lawfully use, process and transfer the personal data in accordance with this Agreement on the Client's behalf.
21.5 Without prejudice to the generality of clause 21.1 ABP Consultancy shall, in relation to any personal data processed in connection with the performance by ABP Consultancy of its obligations under this Agreement:
21.5.1 process that personal data only on the documented written instructions of the Client unless ABP Consultancy is required by the laws of any member of the European Union or by the Local Data Protection Legislation and any other law to which ABP Consultancy is subject in relation to the processing of personal data for the purposes of this Agreement (Applicable Laws). Where ABP Consultancy is relying on Applicable Laws as the basis for processing personal data, ABP Consultancy shall promptly notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit ABP Consultancy from so notifying the Client;
21.5.2 ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Client, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).
21.5.3 not transfer any personal data outside of the Permitted Data Area unless the following conditions are fulfilled:
(a) the Client or ABP Consultancy has provided appropriate safeguards in relation to the transfer;
(b) the data subject has enforceable rights and effective legal remedies;
(c) ABP Consultancy complies with its obligations under the Local Data Protection Legislation including where so required by providing an adequate level of protection to any personal data that is transferred; and
(d) ABP Consultancy complies with reasonable instructions notified to it in advance by the Client with respect to the processing of the personal data;
21.5.4 assist the Client, at the Client's cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
21.5.5 ensure only to grant access to the personal data being processed on behalf of the Client to persons under the ABP Consultancy’s authority who have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality and only on a need to know basis.
21.5.6 notify the Client without undue delay and in any event within 2 Business Days on becoming aware of a personal data breach;
21.5.7 at the written direction of the Client, delete or return personal data and copies thereof to the Client on termination of the Agreement unless required by Applicable Law to store the personal data;
21.5.8 maintain complete and accurate records and information to demonstrate its compliance with this clause 21 and allow for audits by the Client or the Client's designated auditor and immediately inform the Client if, in the opinion of ABP Consultancy, an instruction infringes the Data Protection Legislation; and
21.5.9 indemnify the Client against any loss or damage suffered by the Client in relation to any breach by ABP Consultancy of its obligations under this clause 23.
21.6 ABP Consultancy shall not engage any third-party processor (sub-processor) of personal data under this Agreement without the Client’s prior specific written authorisation.
21.7 Where the Client has provided ABP Consultancy with a specific written authorisation to engage a sub-processor for carrying out specific processing activities on behalf of the Client, the same data protection obligations as set out in this clause 21 shall be imposed on that sub-processor by way of a contract or other legal act under EU or Member State law, in particular providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of this clause 21. ABP Consultancy shall therefore be responsible for requiring that the sub-processor at least complies with the obligations to which ABP Consultancy is subject pursuant to this clause 21.
21.8 Either party may, at any time on not less than 30 days' notice, revise this clause 21 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this Agreement).
21.9 Without prejudice to the generality of clause 21.1ABP Consultancy shall
21.9.1 take reasonable precautions to preserve the integrity of any data which it processes and to prevent any corruption or loss of such data;
21.9.2 make a backup copy of such data every week and record the copy on media from which the data can be reloaded if there is any corruption or loss of the data.
22.1 Neither party shall in any circumstances export, directly or indirectly, any technical data acquired from the other party under this Agreement (or any products, including software, incorporating any such data) in breach of any applicable laws or regulations (Export Control Laws), including United States export laws and regulations, to any country for which the United States or any other government or any agency thereof at the time of export requires an export licence or other governmental approval without first obtaining such licence or approval.
22.2 Each party undertakes:
22.2.1 contractually to oblige any third party to whom it discloses or transfers any such data or products to make an undertaking to it in similar terms to the one set out above; and
22.2.2 if requested, to provide the other party with any reasonable assistance, at the reasonable cost of the other party, to enable it to perform any activity required by any competent government or agency in any relevant jurisdiction for the purpose of compliance with any Export Control Laws.
23.1 ABP Consultancy warrants and represents that:
23.1.1 the Bespoke Software, ABP Consultancy Standard Software and Documentation are proprietary to ABP Consultancy (except where otherwise stated in any SOW) and that it has the right to license all Intellectual Property Rights in and to the Bespoke Software, ABP Consultancy Standard Software and Documentation to the Client, and to provide the Support Services to the Client;
23.1.2 none of the New Releases, New Versions and Documentation supplied by ABP Consultancy under this Agreement infringes the Intellectual Property Rights of any third party;
23.1.3 ABP Consultancy Software at the Acceptance Date, and for six months after that date, will perform substantially in accordance with the relevant SOW;
23.1.4 it will perform the Support Services quickly and in a reliable and professional manner, in conformity with Good Industry Practice, by a sufficient number of competent personnel with appropriate skills, qualifications and experience and has, and will at all times have, the ability and capacity to meet such requirements;
23.1.5 it is in compliance with, and will perform the Support Services in compliance with, all applicable law and regulations; and
23.1.6 the Client will receive good and valid title to all deliverables in connection with the Support Services, free and clear of all encumbrances and liens of any kind.
23.2 The sole remedies for breach of the warranties in clause 23.1.1 and clause 23.1.2 are set out in clause 24.
23.3 The sole remedy for breach of the warranty under this clause 23 shall be correction of Defects by ABP Consultancy within a reasonable time from notification by the Client of the Defect that constitutes such breach.
23.4 The warranties set out in clause 23.1 are in lieu of all other express or implied warranties or conditions, including implied warranties or conditions of satisfactory quality and fitness for a particular purpose, in relation to this Agreement. Without limitation, ABP Consultancy specifically denies any implied or express representation that the ABP Consultancy Software will be fit:
23.4.1 to operate in conjunction with any hardware items or software products other than with those that are identified in the Documentation as being compatible with the Software; or
23.4.2 to operate uninterrupted or error-free.
23.5 ABP Consultancy does not warrant or guarantee that it will be able to rectify all Defects, nor that any Defect which does not materially affect the Client's operations using the Supported Software will be corrected before the issue of the next New Release.
23.6 Any unauthorised modifications, use or improper installation of the Software by, or on behalf of, the Client shall render all ABP Consultancy's warranties and obligations under this Agreement null and void.
23.7 ABP Consultancy shall not be obliged to rectify any particular Defect if attempts to rectify such Defect other than normal recovery or diagnostic procedures have been made by the Client's personnel or third parties without the permission of ABP Consultancy.
23.8 The Client acknowledges that the only warranties in relation to the Third-Party Software and the Modified Software (Third Party), or the supply thereof, are those contained in the licence from the third-party supplier(s) of the same, and that to the extent that any of such warranties are given to ABP Consultancy, it will pass on the benefit of such warranties to the Client.
23.9 Any Open-Source Software provided by ABP Consultancy may be used according to the terms and conditions of the specific licence under which the relevant Open-Source Software is distributed, but is provided "as is" and expressly subject to the disclaimer in clause 23.4.
23.10 Each party warrants that it has full capacity and authority, and all necessary licences, permits and consents to enter into and perform this Agreement and that those signing this Agreement are duly authorised to bind the party for whom they sign.
24. Intellectual Property Rights Indemnity
24.1 ABP Consultancy shall indemnify the Client against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Client arising out of or in connection with any claim made against the Client for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with use of the ABP Consultancy Software, any New Release, New Version or Documentation, or receipt of the benefit of the Services, provided that, if any third party makes a claim, or notifies an intention to make a claim, against the Client which may reasonably be considered likely to give rise to a liability under this indemnity (Claim), the Client: 24.1.1 as soon as reasonably practicable, gives written notice of the Claim to ABP Consultancy, specifying the nature of the Claim in reasonable detail;
24.1.2 does not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of ABP Consultancy (such consent not to be unreasonably conditioned, withheld or delayed);
24.1.3 gives ABP Consultancy and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Client, so as to enable ABP Consultancy and its professional advisers to examine them and to take copies (at ABP Consultancy's expense) for the purpose of assessing the Claim; and 24.1.4 subject to ABP Consultancy providing security to the Client to the Client's reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, takes such action as ABP Consultancy may reasonably request to avoid, dispute, compromise or defend the Claim.
24.2 Without prejudice to clause 23.6, ABP Consultancy shall not in any circumstances have any liability for any claim of infringement of Intellectual Property Rights:
24.2.1 caused or contributed to by the Client's use of the Software or any New Release (as the case may be) in combination with software not supplied or approved in writing by ABP Consultancy (other than the operating system of any Computer Hardware, provided that ABP Consultancy was notified in writing of the identity of this operating system before this Agreement was entered into);
24.2.2 based on use of any version of the Software other than the latest version supplied by ABP Consultancy, if such claim could have been avoided by the use of such supplied version; or
24.2.3 where the claim for infringement arises in respect of a feature of the Software which was specified by the Client in the Business Requirements Specification.
24.3 if use of the Software or receipt of the benefit of the Support Services becomes, or in the opinion of qualified legal counsel is likely to become, the subject of any such claim, ABP Consultancy may:
24.3.1 replace all or part of the Software, the New Releases or New Versions (as the case may be) with functionally equivalent software or documentation without any charge to the Client;
24.3.2 modify the Software, the New Releases or New Versions (as the case may be) as necessary to avoid such claim, provided that the Software, the New Releases or New Versions (as amended) functions in substantially the same way as the Software, the New Releases or New Versions (as the case may be) before modification;
24.3.3 procure for the Client a licence from the relevant claimant to continue using the Software or the New Releases (as the case may be).
24.4 If: 24.4.1 use of the Software or any New Release (as the case may be) is determined in a court of law to be infringing;
24.4.2 ABP Consultancy is advised by a certified Danish IT Attorney that use or possession by the Client or any of its Affiliates of the Licensed Software and/or the Documentation in accordance with this Agreement is likely to constitute infringement of a third party's rights; or
24.4.3 if an injunction or similar order is granted in connection with a claim of the types referred to in clause 24.1 which prevents or restricts the use or possession by the Client or any of its Affiliates of the Licensed Software and/or the Documentation in accordance with this Agreement; and ABP Consultancy is unable, after best efforts, to procure for the Client the right to continue using the Software, the New Releases or New Versions (as the case may be) or to provide the Client with functionally equivalent non-infringing software, this Agreement and the Licence will be terminated.
24.5 Notwithstanding any other provision in this Agreement, clause 24.1 shall not apply to the extent that any claim or action referred to in that clause arises directly or indirectly through the possession, use, development, modification or maintenance of any Open-Source Software or through the breach of any Third-Party Licence relating to any Open-Source Software by the Client or any of its Affiliates.
24.6 If a payment due from ABP Consultancy under this clause is subject to tax (whether by way of direct assessment or withholding at its source), the Client shall be entitled to receive from ABP Consultancy such amounts as shall ensure that the net receipt, after tax, to the Client in respect of the payment is the same as it would have been were the payment not subject to tax.
24.7 Nothing in this clause shall restrict or limit the Client's general obligation at law to mitigate a loss it may suffer or incur as a result of an event that may give rise to a claim under this indemnity.
25. Non- Solicitation
25.1 To the extent enforceable under Danish law the Client undertakes that during the term of the Agreement duration and for a period of 12 calendar months following the termination or expiry of the Agreement duration, the Client shall not and shall procure that none of its Affiliates shall, either directly or indirectly, on its own behalf or on behalf of any other person to solicit or seek to solicit or entire any ABP Consultancy Team Member in any matter whatsoever. The foregoing shall, however, not prevent the Client from employing any ABP Consultancy Team Member that responds to a generally published advertisement.
25.2 In the event that the Client solicits any ABP Consultancy Team Member in breach of clause 25.1 and such ABP Consultancy Team Member subsequently leaves their employment or terminates their engagement with ABP Consultancy or any of its Affiliates, the Client shall compensate ABP Consultancy by the immediate payment upon receipt of a written request from ABP Consultancy to do so, of an amount equal to 25% of the ABP Consultancy Team Member’s annual salary including benefits or if they were engaged as a consultant, or similar their total fees in the last period of 12 months immediately prior to the date on which their employment or engagement was terminated.
25.3 The Client acknowledges that in the event of breach or the threat of breach of the undertaking at clause 25.1 damages may not be adequate remedy and ABP Consultancy shall also be entitled to seek injunctive relief.
26. Limitation of Liability
26.1 Except as expressly provided in this Agreement and to the fullest extent permitted by applicable law:
26.1.1 the Client shall be solely responsible, as against ABP Consultancy, for any opinions, recommendations, forecasts or other conclusions made or actions taken by the Client, any client of the Client or any other third party based (wholly or in part) on the results obtained from the use of the Software or the Services by the Client;
26.1.2 ABP Consultancy shall have no liability for any damage caused by errors or omissions in any information or instructions provided to ABP Consultancy by the Client in connection with the Services; and
26.1.3 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are excluded from this Agreement.
26.2 Neither party excludes or limits liability to the other party for:
26.2.1 fraud or fraudulent misrepresentation;
26.2.2 death or personal injury caused by negligence; or
26.2.3 any matter for which it would be unlawful for the parties to exclude liability.
26.3 Subject to clause 26.2, ABP Consultancy shall not in any circumstances be liable whether in contract, tort (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for:
26.3.1 any loss (whether direct or indirect) of profits, business, business opportunities, revenue, turnover, reputation or goodwill;
26.3.2 any loss or corruption (whether direct or indirect) of data or information;
26.3.3 loss (whether direct or indirect) of anticipated savings or wasted expenditure (including management time); or
26.3.4 any loss or liability (whether direct or indirect) under or in relation to any other contract.
26.4 Clause 26.3 shall not prevent claims, which fall within the scope of clause 26.5, for:
26.4.1 direct financial loss that are not excluded under any of the categories set out in clause 26.3.1 to clause 26.3.4; or
26.4.2 tangible property or physical damage.
26.5 Subject to clause 26.2, ABP Consultancy's total aggregate liability in contract (including in respect of the indemnity at clause 24.1) tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement and/ or any collateral contract shall be limited to £1 million.
26.6 The parties acknowledge and agree that any dates quoted for delivery of the Work or the Support Services are approximate only, and that the time of delivery is not of the essence. ABP Consultancy shall not be liable for any delay in delivery of the Work or the Support Services that is caused by an event, circumstance or cause within the scope of clause 38 or the Client's failure to provide ABP Consultancy with adequate delivery instructions.
27. Assignment and Other Dealings
27.1 Subject to clause 27.2 this Agreement is personal to the parties and the Client shall not assign, transfer, mortgage, charge, subcontract, declare a trust of or deal in any other manner with any or all of its rights and obligations under this Agreement without the prior written consent of ABP Consultancy (such consent not to be unreasonably withheld or delayed).
27.2 Both parties acknowledge that pursuant to The Business Contract Terms (Assignment of Receivables) Regulations 2018 (SI 2018/1254) the Supplier may at its option assign to another natural or legal person all or any receivables arising and or accruing pursuant to this Agreement.
27.3 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
27.4 Notwithstanding clause 20, a party assigning any or all of its rights under this Agreement may disclose to a proposed assignee any information in its possession that relates to this Agreement or its subject matter, the negotiations relating to it and the other party which is reasonably necessary to disclose for the purposes of the proposed assignment, provided that no disclosure pursuant to this clause 27.4 shall be made until notice of the identity of the proposed assignee has been given to the other party.
28.1 Without affecting any other right or remedy available to it, either party may terminate the Agreement made with immediate effect by giving written notice to the other party if:
28.1.1 the other party commits a material breach of any term of this Agreement and such breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 28 days after being notified in writing to do so;
28.1.2 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 (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of the Danish Insolvency Act;
28.1.3 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 any of its creditors other than (being a company) 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;
28.1.4 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 (being a company);
28.1.5 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;
28.1.6 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 28.1.2 to clause 28.1.8(inclusive); or
28.1.7 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
28.2 For the purposes of clause 28.1 material breach means a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which the terminating party would otherwise derive from:
28.2.1 a substantial portion of this Agreement; or
28.2.2 any of the obligations set out in clauses 7 (Payment), 15 (Ownership) 16 to clause 18 inclusive, clause 20 (Confidentiality and Publicity) clause 22 (Export), and clause 25 ( Non- Solicitation)
over the term of this Agreement. In deciding whether any breach is material no regard shall be had to whether it occurs by some accident, mishap, mistake or misunderstanding.
28.3 Without affecting any other right or remedy available to it, ABP Consultancy may terminate this Agreement with immediate effect by giving at least 90 days’ written notice to the Client if there is a change of Control of the Client.
28.4 Without affecting any other right or remedy available to it, ABP Consultancy may terminate this Agreement with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment.
28.5 Without affecting any other right or remedy available to it, either party may terminate this Agreement by service of notice on the other in accordance with clause 2.2
29. Consequences of Termination
29.1 On termination or expiry of the Agreement:
29.1.1 all existing Statements at Work shall terminate automatically;
29.1.2 the Client shall immediately pay to ABP Consultancy all of ABP Consultancy’ s outstanding unpaid invoices and interest and, in respect of the Works supplied but for which no invoice has been submitted, ABP Consultancy may submit an invoice, which shall be payable immediately on receipt;
29.1.3 the Client shall, within 10 Business Days return all of ABP Consultancy’ s Equipment. If the Client fails to do so, then ABP Consultancy may enter the Client's premises and take possession of ABP Consultancy’ s Equipment. Until ABP Consultancy's Equipment has been returned or repossessed, the Client shall be solely responsible for its safe keeping;
29.1.4 ABP Consultancy shall on request return any of the Client Materials not used up in the provision of the Works; and
29.1.5 the following clauses shall continue in force: clause 1 (Interpretation), clause 15 (Ownership), clause 20 ( Confidentiality and Publicity), clause 25 (Non-solicitation), clause 26 (Limitation of liability), clause 29 (Consequences of termination), clause 30 (Waiver), clause 34 (Severance), clause 40 (Dispute resolution) , clause 41(Governing law) and clause 43 (Jurisdiction).
29.2 Termination or expiry of the Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
31. Rights and Remedies
Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
32. Entire Agreement
32.1 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
32.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
Whenever we make changes, we provide a summary of the most notable changes to the current Master Services Agreement. We will also continue to provide a summary of the changes to the previous version, and a link to the previous version, of the Services Agreement on the Summary of Changes.
34.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.
34.2 If any provision or part-provision of this Agreement is deemed deleted under clause 34.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
35.1 The Master Services Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
35.2 Transmission of an executed counterpart of the Agreement but for the avoidance of doubt not only the executed signature page of a counterpart of the Agreement by (a) original hard copy or b) e-mail (in PDF, JPEG or other agreed format) shall take effect as delivery of an executed counterpart of the Agreement. If either method of delivery is adopted, without prejudice to the validity of the agreement thus made, each party shall provide the others with the original of such counterpart as soon as reasonably possible thereafter.
35.3 No counterpart shall be effective until each party has executed and delivered at least one counterpart.
36. Third-Party Rights
36.1 It is agreed that it is intended to confer a benefit on ABP Consultancy and its Affiliates under this Agreement, provided that the rights of such Affiliates under this Agreement shall only be enforceable by ABP Consultancy on their behalf. ABP Consultancy will owe no duty to enforce such rights and it may conduct or compromise any relevant proceedings as it sees fit.
36.2 Except as expressly provided in clause 36.1 a person who is not a party to this Agreement shall not have any rights to enforce any term of this Agreement, but this does not affect any right or remedy of a third party which exists, or is available, according to specific Danish legislation, if any.
36.3 The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this Agreement is not subject to the consent of any person that is not a party to this Agreement.
37. No Partnership or Agency
37.1 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
27.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
38. Force Majeure
38.1 Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from any Force Majeure. In such circumstances, the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 180 days, the party not affected may terminate this Agreement by giving 30 days' written notice to the affected party.
38.2 If termination occurs under clause 38.1 all sums paid to ABP Consultancy by the Client under this Agreement shall be refunded to the Client, except that ABP Consultancy shall be entitled to payment on a quantum meruit basis for all work done before termination, provided that ABP Consultancy takes all reasonable steps to mitigate the amount due.
39.1 Any notice required to be given under this Agreement, shall be in writing and shall be delivered personally, or sent by pre-paid first-class post or recorded delivery or by commercial courier, to each party at its registered office address or at the email address of the Account Manager (in the case of ABP Consultancy) or the Client Contact (in the case of the Client), or any substitute email address as may be specified by the relevant party by notice in writing to each other party.
39.2 Any notice shall be deemed to have been duly received:
39.2.1 if delivered personally, when left at the address and for the contact referred to in this clause;
39.2.2 if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting; or
39.2.3 if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed.
39.3 A notice required to be given under this Agreement shall not be validly given if sent by fax.
39.4 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
40. Dispute Resolution
40.1 Nothing in this clause 40 shall prejudice the rights of either party to commence proceedings and or take steps in such proceedings.
40.2 Any dispute which may arise between the parties concerning this Agreement shall be determined as provided in this clause 40.
40.3 For the purpose of this clause 40, a dispute shall be deemed to have arisen when one party serves on the other a notice in writing stating the nature of the dispute.
40.4 Unless before the date of the notice of dispute this Agreement has already been terminated, or before that date ABP Consultancy has served notice of termination in accordance with clause 28.1.1 where the stated breach is a failure by the Client to make any payment under this Agreement when it fell due and payable, ABP Consultancy shall, in every other case, continue with the Work with all due diligence regardless of the nature of the dispute and the Client shall continue to make payments (excluding any disputed sums) in accordance with the SOW.
40.5 After service of the notice of dispute, the following procedure shall be followed by the parties (all periods specified in this clause 40.5 shall be extendable by mutual agreement):
40.5.1 within 2 Business Days, the Account Manager and the Client Contact shall meet to attempt to settle the dispute;
40.5.2 if the Account Manager and the Client Contact are unable to reach a settlement within 5 Business Days from the date of service of the notice, the managing directors of each of the parties shall meet within the following 5 Business Days to attempt to settle the dispute;
40.5.3 If no settlement is reached under clause 40.5 either party may commence proceedings in relation to the and the parties agree to co-operate in the speedy conduct of such legal proceedings.
41.1 This Agreement is drafted in the English language.
42.2 Any notice given under or in connection with this Agreement shall be in English. All other documents provided under or in connection with this Agreement shall be in English, or accompanied by a certified English translation.
43.3 The English language version of this Agreement and any notice or other document relating to this Agreement shall prevail if there is a conflict except where the document is a constitutional, statutory or other official document.
42. Governing law
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the Governing Law.
The parties irrevocably agree that the courts of the Chosen Jurisdiction shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).