1. THE CUSTOMER AGREES
(a) To pay the maintenance charges prescribed in the Agreement in all circumstances, within thirty (30) days of the commencement date (for the first year) and the renewal date for all subsequent years. Renewal date is defined as the first day of the anniversary month of commencement date (commencement date as detailed in the Agreement). If at any time should the whole or any part thereof be in arrears then NHD shall be entitled to suspend all services hereunder until payment is made in full.
(b) To notify NetHelpDesk immediately either by e-mail or verbally of any error, flaw, failure, or fault in the NetHelpDesk software that produces an incorrect or unexpected result, or causes it to behave in unintended ways, and provide NHD at all reasonable times with access to the installation environment, allow NHD to carry out diagnosis and remedy of the NetHelpDesk software and/or database as necessary under the terms of this Agreement.
(c) Not to maintain, relocate, service, enhance, repair, adjust, tamper or alter the NetHelpDesk software installation environment without first consulting with NHD directly, or following recommended detailed guides in doing so.
(d) To pay NHD’s Standard Charge on presentation of an invoice for resolving issues originating as a result of the Customer requesting service, whether the fault is either customer induced due to misuse, or a programming error affected by the customer or his agent, or caused by an unsanctioned third party integration.
(e) Not to assign the benefit of this Agreement without prior written consent from NHD.
(f) Any maintenance calls where service is requested and supplied outside Agreement hours defined in the Service Level Agreement stated below, will incur additional charges at NHD’s Standard Charges.
(g) To pay for additional charges in accordance with these terms and conditions on presentation of an invoice. NHD may, having previously advised the Customer, suspend its obligations under this agreement for any period during which any amount owed by the Customer to NHD remains unpaid for more than 30 days.
2. NETHELPDESK AGREES
(a) To maintain the NetHelpDesk software that is installed and present at the installation address in the Agreement (or such other address as may be agreed in writing with NHD) in efficient working order, and during the continuance of this Agreement to execute by its servants, agents or contractors all repairs to code arising during proper use of the NetHelpDesk software, or necessitated in accordance with clause (c) hereof: Throughout the term of this Agreement, NHD shall provide the appropriate maintenance service listed in the Agreement, subject to the provisions of these terms and conditions. Provided however that NHD (without prejudice to the terms and conditions of this Agreement, or the Customer's liability for payment of maintenance charges) shall not be obliged to service the NetHelpDesk software if any such maintenance charge is overdue, or not paid.
(b) At the expense of the Customer, to provide service where failure of the NetHelpDesk software is subsequently found to be due to disoperation, misuse, unauthorised relocation, enhancement, repair, adjustment, tampering or altering of the NetHelpDesk software, installation or environment without first consulting with NHD directly, carried out by the Customer’s servants, agents, contractors or third party service providers, and/or if any person not authorised by NHD to do so shall have tampered with the NetHelpDesk software.
(c) At the request and expense of the Customer, to carry out any enhancements to the NetHelpDesk Software code that directly or indirectly affects the intended use of the NetHelpDesk Software.
(d) At the request and expense of the Customer to move the NetHelpDesk software installation to alternative premises, for any reason.
(e) At the request and expense of the Customer, to escalate the time frame of resolution of any error, flaw, failure, or fault in the NetHelpDesk software that produces an incorrect or unexpected result, or causes it to behave in unintended ways.
(f) At the request and expense of the Customer, to provide detailed training of the Customer’s servants, agents, contractors or third party service providers, in the use and configuration of the NetHelpDesk software, and/or any consultancy of use of the NetHelpDesk software.
(g) To provide, upon request, details of current Standard Charges.
3. DURATION OF THIS AGREEMENT
(a) The term of this Agreement shall be the Agreement term of maintenance of three (3) years, and thereafter from year to year unless either party shall give the other written notice of termination, no less than sixty (60) calendar days prior to the renewal date in the third (3rd) year or subsequent anniversary of the renewal date. Written notice is conditional upon being received via recorded delivery by NHD. Provided that if the Customer has committed any breach of the Agreement, and has not remedied such breach within fourteen (14) days after notice to that effect from NHD, this Agreement may be terminated by notice from NHD to the Customer at their last known address, and provided that if the Customer shall be adjudged insolvent or bankrupt, or shall be unable to pay its debts as they fall due, or shall make assignment for the benefit of its creditors generally, or have a receiver appointed for it or for any of its property or assets, or if it shall discontinue or abandon or dispose of the whole or a substantial part of its business, or shall have a petition presented or a resolution passed for its winding up, or if a notice is issued convening a meeting for the purpose of passing any such resolution, NHD shall have the right at any time thereafter to terminate this Agreement immediately by notice to the Customer.
(b) The parties hereto hereby agree that if the Customer terminates the Agreement within three years of the Commencement Date or NHD terminates because the Customer commits a breach of any provision of the Agreement, NHD shall, in addition to all other rights available to it, be entitled to liquidated damages calculated at the rate of seventy five per cent (75%) of the total of the annual charges for the period from the date of termination or breach to the third anniversary or the earliest effective date of termination pursuant to clause 3 (a) above, whichever shall be the later, and the Customer accepts that the percentage used in the computation of the liquidated damages represents a fair measure of the losses and damages to NHD.
(c) The NetHelpDesk maintenance contract must be purchased by any Customer who places an order for NetHelpDesk, based on the number of licences being ordered.
4. VARIATION OF MAINTENANCE CHARGE
NHD will vary the maintenance charge payable annually by five percent (5%) or the retail price index (RPI), whichever is the higher, provided that no such variation shall take effect earlier than one (1) year after the commencement of the term of this Agreement, or less than one (1) year after a preceding variation. The Annual Service Charge will also be amended on the anniversary date to include additional annual maintenance as a result of system enhancements, in accordance with the details on enhancement sales orders authorised by the Customer.
5. PROHIBITION OF ORAL VARIATIONS
The terms and conditions of this Agreement are the sole terms and conditions of the Agreement between NHD and the customer. No variation or modification of these terms or conditions, and no agreement made or purported to be made between NHD and the Customer inconsistent with these terms and conditions, shall be valid or of an effect, unless made in writing and signed by the Managing Director of NHD. No representation relating to, or in any way connected, with the NetHelpDesk software shall be deemed to be made on behalf of NHD, nor shall any such representation bind NHD unless such representation is made in writing, and signed by the Managing Director of NHD.
(a) In no circumstances shall NHD be liable for any loss of profit, business or production or any similar loss or damage whether direct, indirect or consequential howsoever caused.
(b) NHD shall in no circumstances be liable for any losses due to the NetHelpDesk software in its entirety, and/or environment being compromised, altered or hacked by any third party.
(a) NHD's rights hereunder shall not be affected by granting of any time or indulgence to the Customer.
(b) All charges under this Agreement are subject to tax, where applicable, including Value Added Tax (VAT) to the Customer if located in the United Kingdom (UK). This Agreement is not a VAT invoice. An invoice will be sent to the Customer for all payments under this Agreement, with relevant taxes applied, where applicable.
(c) NHD may assign all rights together with all obligations under this Agreement at any time, and may also subcontract any of its obligations at any time.
8. MATTERS BEYOND REASONABLE CONTROL
If either party is unable to perform any obligation under this Agreement because of a matter beyond that party's reasonable control, such as lightning, flood, exceptionally severe weather, fire, explosion, war, civil disorder, industrial disputes, act of terrorism (whether or not involving that party's employees) or acts of local or central Government, or other competent authorities, or events beyond the reasonable control of that party's Suppliers, that party will have no liability to the other for that failure to perform.
NHD reserves the right to charge interest at the rate of 5% above the published Bank of England base rate on a daily basis on any overdue amounts until payment in full is received, together with any third party costs e.g. debt collection cost, bailiff costs, solicitors costs and disbursements on the indemnity losses involved in enforcing payment, whether before or after judgement.
10. SERVICE LEVEL AGREEMENT
NHD will provide support for the NetHelpDesk software in accordance with the following Service Level Agreement terms. Any variations required by the Customer must be agreed, in writing, by both parties prior to an order being placed.
11. NUMBER OF HOURS COVERED
(a) The NHD “Working Week” is Monday through until Friday for the fifty two (52) weeks in the civil Calendar year.