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Terms & Conditions

FSI (FM SOLUTIONS) LIMITED, (“FSI”) STANDARD TERMS & CONDITIONS OF BUSINESS

2/366 Iss 4 Confidential


Application of Terms and Conditions

These terms and conditions shall, where appropriate, apply to any Software Licence, Service Provision Agreement, Supply of Hardware Agreement, Software Support Services Agreement, Development Specification or any other agreement entered into between FSI and the Client to the exclusion of any other terms and conditions sought to be imposed by the Client including, without limitation, any terms or conditions which the Client purports to apply under any tender documentation, quotation, purchase order, confirmation of order, Client specification or other document or agreement whether orally or in writing.

1. Definitions

In these terms and conditions unless the context otherwise requires:
“Product” includes but is not limited to software, user licences, bespoke developments, enhancements and program documentation;

“Service” includes but is not limited to feasibility study, installation, consultancy, implementation, project management, systems analysis, data entry, data audit, training, development and other types of service provided by FSI;

“Hardware” includes but is not limited to computers, including the mechanical and electronic parts and equipment associated therewith, handheld computers, cable and other peripherals provided by FSI.

2. Purchase Orders

No purchase order for Products, Services or Hardware, until accepted by FSI, shall be deemed to be a contract of sale binding upon FSI and FSI reserves the right to accept or refuse such purchase order or any part thereof. These Standard Terms and Conditions of Business will apply to all purchase orders and none of the terms or conditions with a Client purchase order will be binding on FSI unless specifically agreed to in writing by FSI.

3. Payment

Payment shall be made in full in Pounds Sterling and in cleared funds by means of BACS cheque or credit card as follows:

3.1. UK Sales
Any Products Services or Hardware will be invoiced by FSI on delivery or when FSI notifies the Client that it is ready to deliver the Product, Services or Hardware and the Client requests a delay. Payment due in full 30 days following date of invoice. FSI reserves the right where it deems it appropriate to charge for Products, Services or Hardware in advance of delivery.
3.2 Overseas Sales
Any Products, Services or Hardware is payable in full in advance of delivery.
3.3 Software Support Services
Payment is due in full, annually in advance without prior demand. FSI reserves the right to withdraw support for Clients who do not have a current Software Support Services Agreement.
3.4 Training Courses
Payment for all training courses is due 5 working days before the commencement of the training course. FSI reserves the right to (a) refuse delegate attendance if the payment terms are not adhered to or (b) cancel any training course with insufficient bookings up to 10 days prior to the commencement date of the course. Delegates already booked will be offered places on alternative courses or receive a full refund. FSI will not be responsible for any costs incurred by the client.
3.5 Payment - General Terms
All payments due to FSI shall be made without any deduction, whether by way of set-off, counterclaim, discount, abatement or otherwise. No payment shall be considered made until it is received by FSI.
Time for payment shall be of the essence.
3.5.1. Unless specifically negotiated, FSI does not accept early payment discounts. If an early payment discount is negotiated, FSI reserves the right to invoice the Client for the discount in the event of late payment.
3.5.2. If a Client fails to pay any sum due to FSI on the due date:
3.5.3. The Client will be liable to pay interest to FSI on such sum from the due date for payment at the annual rate of 2% above the base lending rate from time to time of Barclays Bank plc, accruing on a daily basis until payment is made (whether before or after judgment);
3.5.4. FSI may, in its absolute discretion, refuse to supply Products, Services or Hardware to the Client; and
3.5.5. FSI may, in its absolute discretion, require payment in full for all future Products, Services or Hardware prior to supply.

4. Expenses

FSI shall be reimbursed for all expenses reasonably incurred by it in connection with the delivery of Products, Services or Hardware to the Client.
Expenses include mileage at 65p per mile, fares, accommodation, subsistence and any other miscellaneous expenses associated with a site visit. No expenses apply for site visits where the site is located within a 50-mile radius of FSI’s London Head office.

5. Quotations

All quotations are valid for a period of 30 days only from the date of quotation, unless stated otherwise.

6. Delivery

FSI agrees to deliver or arrange appropriate delivery of Products and Hardware in such manner as FSI decides is appropriate in the circumstances. The Client agrees to pay all costs of delivery. Within the UK delivery of software and manuals is normally by first class post.
Any dates quoted for delivery are approximate only and FSI shall not be liable for any delay in delivery howsoever caused. The time of delivery shall not be of the essence.
All goods are at the risk of the Client from the time of delivery.

7. Services (Evolution/GO Consultancy & Development)

FSI shall provide to the Client the Services set out in the Schedule. FSI requires receipt of Purchase Orders 5 working days in advance of provision of such Services. FSI warrants that it will perform its Services with reasonable care and skill.
All work estimated shall be subject to scope agreement before “FINAL” price agreement
All Work agreed shall be “FIXED PRICE” and invoiced in full. Variations shall be invoiced separately.

7.1. Scoping Study
Unless otherwise agreed, all work undertaken greater than an estimated value of £5,000 shall require a scoping study to be undertaken. This scoping study shall constitute an initial study, in collaboration with the client, and two “change iterations”. Subject to scope agreement, the price may vary. Work will not commence until formal agreement has been reached by scope sign off.
7.2. Project Management
Subject to agreement, see schedule with Professional Services Agreement a project plan will be submitted for approval by client. Project commencement is subject to Project plan sign off. As a minimum, project planning will include Task activity and Key payment Milestones agreed by date. During this phase each milestone shall be signed off and agreed by the client within 10 days of notification of achieved milestone.
7.3. Variation Process
Once formal sign off has been agreed in writing then variation requests may be scoped, quoted and considered for implementation/development. Subject to sign off and price agreement the work shall be completed and agreed complete as previous.
In all instances a new Purchase order stating Variation reference shall be issued. Variations may be covered by a single Purchase order but referenced individually.
Any additional Services requested by the Client shall be provided at the applicable rates prevailing from time to time.
7.4. Implementation
Works will commence on sign off of both the scoping study and project plan.
During the period of implementation any deviation from the signed scope shall be considered a variation. Unless otherwise agreed any variation will be documented and require a separate quote and associated purchase order.
7.5. Project Sign off
Subject to “user acceptance test” or as specified project deliverables the client will sign off the agreed scope and project as complete.

8. Value Added Tax

All costs quoted by FSI are exclusive of VAT at the applicable rate which shall be payable by the Client.

9. Intellectual Property Rights

All intellectual property rights in the Products and/or Services provided by FSI (including all patents, trade or service marks, registered design rights or applications for any of the foregoing, copyright, design rights, database rights or other industrial and intellectual property rights) belong to and remain vested in FSI.


The Client shall not:
9.1 make back-up copies of the Products save for where so provided in the Software Licence;
9.2 copy, reproduce or distribute to a third party in any way any documentation provided by FSI in terms of Products or the provision of a Service;
9.3 reverse compile, copy or adapt the whole or any part of the Products;
9.3.1 assign transfer sell lease rent charge or otherwise deal in or encumber the Products or use the Products on behalf of any third party or make available the same to any third party without the previous consent in writing of FSI; or
9.4 remove or alter any copyright or other proprietary notice on any of the Products.
The Client shall:
9.5 keep confidential the Products and limit access to the same to those of its employees agents and sub-contractors who either have a need to know or who are engaged in the use of the Products ;
9.6 reproduce on any copy (whether in machine readable or human readable form) of the Products FSI’s copyright and trade mark notices;
9.7 notify FSI immediately if the Client becomes aware of any unauthorised use of the whole or any part of the Products by any third party; and without prejudice to the foregoing take all such steps as shall from time to time be necessary to protect the confidential information and intellectual property rights of FSI in the Products;
9.8 inform all relevant employees agents and sub-contractors that the Products constitute confidential information of FSI and that all intellectual property rights therein are the property of FSI and the Client shall take all such steps as shall be necessary to ensure compliance by its employees agents and sub-contractors with the provisions of this clause.

10. Confidentiality


Each of the parties undertakes to the other to keep confidential all information (written or oral) concerning the business and affairs of the other that it shall have obtained or received as a result of the discussions leading up to or the entering into agreement between the parties save that which is:
10.1 trivial or obvious;
10.2 already in its possession other than as a result of a breach of this clause; or
10.3 in the public domain other than as a result of a breach of this clause;
10.4 such information required to be disclosed by law, regulation or any governmental or competent regulatory authority, as long as the Client consults FSI as far as is practicable on the proposed form, timing, nature and purpose prior to disclosure.
Each of the parties undertakes to the other to take all such steps as shall from time to time be necessary to ensure compliance with the provisions of this clause by its employees, agents and sub-contractors.

11. Client’s Representatives


The Client shall communicate to FSI the identity of the persons or the department within its undertaking who shall act as the sole contact point and channel of communication for the provision by FSI of the Products, Services or Hardware. The Client shall forthwith inform FSI of any change in the identity of any such persons or department.

12. Termination

Any agreement (including a Software Support Services Agreement) may be terminated by a party giving not less than 90 days Notice to the other.
Any agreement (including a Software Support Services Agreement) may be terminated forthwith:
12.1 by FSI if the Client fails to pay any sum due thereunder within 30 days of the due date therefore;
12.2 by either party if the other commits any material breach of any term of any agreement between the parties and which (in the case of a breach capable of being remedied) shall not have been remedied within 30 days of a Notice being given to remedy the same;
12.3 by either party if the other shall convene a meeting of its creditors or if a proposal shall be made for a voluntary arrangement within Part 1 of the Insolvency Act 1986 or a proposal shall be made for a voluntary arrangement with (or assignment for the benefit of) its creditors or if the other shall be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or if a trustee receiver administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the other or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the other or for the making of an administrative order (otherwise than for the purpose of an amalgamation or reconstruction).
The Termination of any agreement pursuant to this clause shall be without prejudice to any other rights or remedies a party may be entitled to hereunder, other agreement between the parties, or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision hereof or such other agreement which is expressly or by implication intended to come into or continue in force on or after such Termination.

13. Force Majeure

Neither party shall be liable for any breach of its obligations resulting from causes beyond its reasonable control including but not limited to fires strikes (of its own or other employees) insurrection or riots embargoes container shortages wrecks or delays in transportation inability to obtain supplies and raw materials requirements or regulations of any civil or military authority (an “Event of Force Majeure”).
Each of the parties agree to give Notice forthwith to the other upon becoming aware of an Event of Force Majeure such Notice to contain details of the circumstances giving rise to the Event of Force Majeure.
If a default due to an Event of Force Majeure shall continue for more than 26 weeks then the party not in default shall be entitled to Terminate any agreement. Neither party shall have any liability to the other in respect of the Termination of any agreement as a result of an Event of Force Majeure.


14. GDPR
In the following provisions:
“FSI” means the FSI group company with whom you have an agreement with.
“Client” means your company.
“Data Protection Legislation” means all applicable laws and regulations relating to the processing of personal data and privacy, including where applicable the guidance and codes of practice issued by any Supervisory Authority (including the UK Information Commissioner), and the equivalent of any of the foregoing in any relevant jurisdiction, and which includes (a) the Data Protection Act 1998; (b) unless and until the General Data Protection Regulation ((EU) 2016/679) (“GDPR”) is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK; and (c) any successor legislation to the GDPR or the Data Protection Act 1998.
14.1 Both FSI and the Client agree to comply with all applicable requirements of the Data Protection Legislation. This agreement in this letter is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.
14.2 Both FSI and the Client acknowledge that for the purposes of the Data Protection Legislation, the Client is the data controller and FSI is the data processor (where data controller and data processor have the meanings as defined in the Data Protection Legislation).
14.3 Without prejudice to the generality of clause 1 above:
14.4 the Client will ensure that it has all necessary and appropriate consents and notices in place to enable lawful transfer of any personal data to FSI for the duration and purposes of its agreement with FSI; and
14.5 FSI shall, in relation to any personal data processed in connection with the performance by FSI of its obligations under that agreement:
14.5.1 process that personal data only on the written instructions of the Client unless FSI is permitted or required by the laws of any member of the European Union or by the laws of the European Union applicable to FSI to process personal data (Applicable Laws). Where FSI is relying on laws of a member of the European Union or European Union law as the basis for processing personal data, FSI shall notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit FSI from so notifying the Client;
14.5.2 ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data, 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);
14.5.3 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; and
14.5.4 notify the Client without undue delay on becoming aware of a personal data breach unless the breach is unlikely to result in a risk to the data subject.
14.6 The Client hereby consents to FSI appointing IDE Group, Virtus, Level 3 or CenturyLink (including their subsidiaries or other affiliates) and other third party sub-processors (and shall promptly confirm the appointment of such persons as FSI requires in writing) provided that such sub-processors will not store personal data outside of the European Economic Area unless FSI has provided appropriate safeguards in relation to the transfer (which it can demonstrate to the Client), the data subject has enforceable rights and effective legal remedies and FSI complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred.

15. Waiver

The waiver by FSI of a breach or default by the Client of any of these terms and conditions or of that contained in any other agreement between the parties shall not be construed as a waiver of any breach of the same or other terms and conditions nor shall any delay or omission on the part of FSI to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the Client.

16. Notices

Any notice, request, instruction or other document to be given hereunder shall be delivered or sent by first class post or by electronic mail (such electronic mail notice to be confirmed by letter posted within 12 hours) to the address or to the e-mail of the other party set out in this agreement (or such other address or numbers as may have been notified hereunder) and any such notice or other document shall be deemed to have been served (if delivered) at the time of delivery or (if sent by post) upon the expiration of 48 hours after posting.

FSI:


Address: Bellesduna House, Chester Hall Lane, Basildon, Essex, SS14 3BG e-mail: info@fsifm.com

The Client: Address: e-mail :

17. Invalidity and Severability

If any provision of these Standard Terms and Conditions of Business or terms and conditions contained in any other agreement between the parties shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such term or condition shall not affect other terms and conditions and all such others not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable term or condition a valid or enforceable term or condition which achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable term or condition.

18. Successors

These terms and conditions together with those contained in any other agreement between the parties shall be binding upon and endure for the benefit of the successors in title of the parties hereto.

19. Assignment and Sub-Licensing

The Client shall not be entitled to assign or otherwise transfer any agreement with FSI nor any of its rights or obligations thereunder nor sub-licence the use (in whole or in part) of any Products without the prior written consent of FSI.

20. Headings

Headings to clauses in these Standard Terms and Conditions of Business or other agreement between the parties are for the purpose of information and identification only and shall not be construed as forming part thereof.

21. Limitation of Liability


20.1 The following provisions set out FSI’s entire liability (including any liability for the acts and omissions of its employees agents and sub-contractors) to the Client in respect of:
20.1.1 any breach of its contractual obligations arising under these Standard Terms and Conditions of Business, Software Licence, Service Provision Agreement, Supply of Hardware Agreement, Software Support Services Agreement, Development Specification or any other agreement entered into between FSI and the Client; and
20.1.2 any representation statement or tortious act or omission including negligence arising under or in connection with these Standard Terms and Conditions of Business, Licence, Service Provision Agreement, Supply of Hardware Agreement, Software Support Services Agreement, Development Specification or any other agreement entered into between FSI and the Client AND THE CLIENT’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISION OF THIS CLAUSE.
20.2 Any act or omissions on the part of FSI or its employees agents or sub- contractors falling within clause 20.1 above shall for the purposes of this clause 20 be known as an “Event of Default”.
20.3 FSI’s liability to the Client for death or injury resulting from its own or that of its employees’ agents’ or sub-contractors’ negligence shall not be limited.
20.4 FSI shall not be liable to the Client for loss of data (including loss or damage suffered as a result of an action brought by a third party) even if such loss was reasonably foreseeable or FSI had been advised of the possibility of the Client incurring the same.
20.5 Subject to the provisions of clause 20.3 above FSI’s entire liability in respect of any Event of Default shall be limited to damages of an amount equal to the aggregate of the Licence Fee paid in the immediately preceding period of 12 months.
20.6 Subject to clause 20.3 above the FSI shall not be liable to the Client in respect of any Event of Default for loss of profits goodwill or any type of special indirect or consequential loss (including loss or damage suffered by the Client as a result of an action brought by a third party) even if such loss was reasonably foreseeable or FSI has been advised of the possibility of the Client incurring the same.
20.7 If a number of Events of Defaults give rise substantially to the same loss then they shall be regarded as giving rise to only one claim.
20.8 The Licensee hereby agrees to afford FSI not less than 30 days (following Notice thereof by the Client) in which to remedy any Event of Default hereunder.
20.9 Except in the case of an Event of Default arising under clause 20.3 above FSI shall have no liability to the Client in respect of any Event of Default unless the Client shall have served Notice of the same upon FSI within 3 months of the date it became aware of the circumstances giving rise to the Event of Default or the date when it ought reasonably to have become so aware.
20.10 Nothing in this clause shall confer any right or remedy upon the Client to which it would not otherwise be legally entitled.
20.11 Paymech/PFI/PPP solutions will be delivered to an agreed interpretation of the contractual requirements of each project. FSI will require agreement from the Client that the contractual interpretation is correct, meaning FSI accepts no responsibility for the resulting output calculations. FSI will not be responsible for the resulting output calculations for contractual interpretations carried out by the Client.
21. Disputes Any dispute which may arise between the parties shall be determined as follows:
21.1 if the dispute shall be of a technical nature concerning Products , Services or Hardware provided or any similar or related matter then such dispute shall be referred for final settlement to an expert nominated jointly by the parties or, failing such nomination within 14 days of either party’s request to the other therefor, nominated at the request of either party by the President from time to time of the British Computer Society. Such expert shall be deemed to act as expert and not as arbitrator. His decision shall (in the absence of clerical or manifest error) be final and binding on the parties and his fees for so acting shall be borne by the parties in equal shares unless he determines that the conduct of either party is such that such party should bear all of such fees;
21.2 in any other case the dispute shall be determined by the High Court of Justice in England.
English Law will govern all contractual agreements entered into by FSI and the Client hereby agrees to submit to the non-exclusive jurisdiction of the English courts.
22. Agreement between the Parties This agreement together with the Licensor’s Software License, Service Provision Agreement, Supply of Hardware Agreement, Software Support Services Agreement, Development Specification or any other agreement entered into between FSI and the Client shall form the entire agreement between the parties and no addition to or modification of these shall be binding upon the parties unless made by a written instrument signed by a duly authorised representative of each of the parties.


SIGNED


For and on behalf of FSI (FM Solutions) Ltd

Signature

Name

Title

Date

SIGNED

For and on behalf of

Signature

Name

Title

Date

2/366 Iss 4 Confidential