Terms And Conditions
- The supply of all products
and services to the Customer by 4SQR is subject to a contract (the
Contract) consisting of the terms of this Master Agreement (these
Terms) and a written agreement between the Parties relating
to the supply of Services or Products which references these Terms.
- In any Contract the following
words shall have for the following meanings:
means data documentation and information including
but not limited to business professional and technical information
which is marked confidential or which is by its nature confidential,
the 4SQR Products and the terms of any Contract.
means any director or other duly authorised
employee of 4SQR or of the Customer.
means any documentation of the 4SQR Products
provided by 4SQR at 4SQRs sole discretion.
means those charges and fees for the 4SQR Products
and Services set out herein or in the relevant Specific Agreement.
means any products licensed or sub-licensed
by 4SQR as set out in the relevant Specific Agreement.
means either 4SQR or the Customer.
means any services provided by 4SQR for or
on behalf of the Customer.
means the period set out in the relevant Specific
Agreement starting upon the Commencement Date of the relevant
- The provision of all Products
and Services is subject to the terms of the Disclaimer which is hereby
acknowledged by the Customer.
- In consideration for the
payment of the Fees 4SQR shall provide the Products and Services expressly
defined in a Specific Agreement.
- These Terms are subject
to extension, amendment and qualification by the relevant Specific
Agreement. In the event of inconsistency between the terms of a Specific
Agreement and these Terms, the Specific Agreement shall prevail.
- Any supply of Products
or Services by 4SQR otherwise than under a Specific Agreement shall
be covered by these Terms.
- The Contract constitutes
the entire agreement between the Parties with respect to the subject
matter contained herein. All other terms, conditions and warranties
whether express or implied, statutory or otherwise, and all representations,
statements, negotiations, understandings and undertakings either written
or oral made before or after the date of any Specific Agreement are
excluded and superseded except where they are specifically agreed
after the date of any Specific Agreement in writing by an Authorised
Representative from both Parties; or are implied and the exclusion
of which is not permitted by law.
- No estimate, budgetary
quotation or proposal which is given to the Customer in connection
with the supply of Services or Products shall be construed as part
of the Contract unless specifically incorporated in writing into the
Contract. No estimate or budgetary quotation shall be deemed open
for acceptance by the Customer.
- Any offer by 4SQR to provide
Products or Services shall unless specified otherwise only be open
for acceptance by the Customer for 30 days from the date of issue
- 4SQR is entitled to sub-contract
all or any part of its rights and obligations herein.
- The Fees payable to 4SQR
in respect of the supply of Products or Services are calculated with
specific reference to the terms, conditions, obligations undertaken,
warranties and representations made by 4SQR. Any change in terms and
conditions agreed will entitle 4SQR to change the Fees.
- Except where otherwise
specified under the relevant Specific Agreement the Customer agrees
to pay the following:
- all mantime used in
the supply of a Service charged on a time and materials basis and
all Services and Products supplied by 4SQR charged at the then applicable
- the cost of business
class travel, transportation, costs of carriage, packaging, shipping
media and any reasonable expenses incurred by 4SQR its staff or
sub-contractors in the supply of Services or 4SQR Products. Expenses
for car travel will be incurred at a mileage rate notified by 4SQR
from time to time.
- Where Services are provided
on a time and materials basis:
- 4SQR records of the
same shall (in the absence of manifest error) be binding proof of
- fees per day shall be
for 7.5 hours work during Normal Working Hours;
- such fees shall be invoiced
monthly in arrears.
- Where 4SQR agrees to provide
Services for an agreed fixed fee (Fixed Price) the Fixed
Price relates solely to the written specification agreed between the
Parties or in the absence or ambiguity of such a specification to
4SQRs understanding of requirements for the Services at the
time of setting the Fixed Price. Additional mantime or other resources
required to provide Services in accordance with any new, changed or
more specific requirements notified or discovered after that date
will be charged on a time and materials basis at the then applicable
fees in addition to the Fixed Price.
- Except as otherwise set
out herein payment of invoices shall be made to 4SQR in full without
discount deduction or counterclaim of any kind within 30 days of the
- 4SQR shall have the right
to charge interest from the due date to the actual date payment is
received on overdue invoices without further notice at a rate of 4
per cent per annum over the base rate of National Westminster Bank
plc for the time being in force.
the event that the Customer disputes any 4SQR invoice then the Customer
shall notify 4SQR promptly and in writing of the nature and detailed
basis of the dispute, in any event such notice shall be provided within
30 days of the invoice date. In the event of such a dispute the Customer
shall be entitled to withhold the disputed amount for a further 30
days during which both Parties shall work diligently to resolve the
- The Fees are exclusive
of value added tax and other taxes duties levies or other deductions
or withholdings. The Customer shall be obliged to pay in addition
to the Fees and in accordance with clause 1.1 any such amounts notified
- In the event that the
Specific Agreement provides for the licence of a 4SQR Product the
terms of this clause 2 shall apply to the licence.
- Subject to the relevant
Specific Agreement 4SQR grants the Customer and the Customer accepts
a non-exclusive licence for the Designated Users up to the User Limit
to use the 4SQR Product for the Term in accordance with the provisions
of the Contract and to use the Documentation to support the authorised
use of the 4SQR Products. (the Licence)
- Where the relevant specific
Agreement sets out a Designated Project then the 4SQR Product may
not be used for any purpose other than fulfilling the objective of
the Designated Project.
- Except as set out in the
relevant Specific Agreement the Licence is personal to the Customer
and the Customer agrees to use the 4SQR Products for its internal
business purposes only. The Licence may not be sold, sub-licensed,
shared, or assigned to any other firm, person or corporation. Use
of the 4SQR Products for time-sharing, bureau use or outside sale
or gift and the like is expressly prohibited.
- From time to time and
at 4SQRs sole discretion, 4SQR may supply the Customer with
a release of the 4SQR Product or part thereof which enhances extends
or amends the functionality of the 4SQR Product.(4SQR Product
Upgrade). The 4SQR Product Upgrade shall be subject to the same
Licence conditions as the 4SQR Products to which it is an upgrade.
- The Licence shall commence
on the Commencement Date and continue for a period of one year unless
- The Customer shall pay
4SQR the Licence Fee set out in the Specific Agreement that shall
be invoiced upon signature by the Customer of the Specific Agreement
or first use of the 4SQR Product by or on behalf of the Customer whichever
is the sooner.
- 4SQR warrants that it
is entitled to grant the rights given in the Contract.
- 4SQR does not warrant
that the use of the 4SQR Products shall be uninterrupted or error
- The Customer
- The Customer shall supply
to 4SQR any information and data deemed necessary by 4SQR to provide
the Services or for the use of the 4SQR Products. The Customer shall
ensure any information supplied or used is complete, consistent and
accurate and shall be responsible for any deficiency in the information
and/or data supplied.
- The Customer shall make
any presentation or use of the 4SQR Product or its results subject
to the terms of the Disclaimer.
- The Customer agrees not
to use the 4SQR Products other than as set out in a Specific Agreement
- The Customer agrees to
take any reasonable action requested by 4SQR to satisfy the obligations
under the Contract with respect to use, copying, modification and
protection of the 4SQR Products and if the Customer becomes aware
that any third party is infringing any of 4SQRs intellectual
property rights in the 4SQR Products to notify 4SQR promptly of circumstances
surrounding any use, possession or knowledge of any part of the 4SQR
Products outside the terms of the Agreement and shall give to 4SQR,
at 4SQRs cost, such assistance it may reasonably require in
enforcing such intellectual property rights.
- The Customer shall ensure
that all Designated Users are competent (including being suitably
skilled and trained) to use the 4SQR Products taking account of the
purpose for which such users are making use of the 4SQR Products.
- The Customer acknowledge
that they own no copyright or other intellectual property rights in
the 4SQR Products provided under any Contract or in any modification
or extension thereof whether such modification or extension is carried
out by 4SQR, The Customer or a third party.
- Copyright and all other
intellectual property rights in any modification or extension to the
4SQR Products shall become the property of 4SQR.
- The Customer shall not
delete proprietary information, copyright or trade mark notices if
any appearing 4SQR Product. Further The Customer will ensure that
all copies of the 4SQR Products made by it under the Contract shall
carry a copyright notice in a form approved by 4SQR.
- The Customer undertakes
that it shall ensure that only those authorised under the Contract
to have access to the 4SQR Products and that those having access will
not make copies in whole or in part of any Products (except as provided
herein or under the relevant Specific Agreement) or of any know-how
relating thereto whether supplied before on or after the date of any
Specific Agreement and ownership of such copies shall vest in 4SQR.
Customer shall not reverse engineer or attempt to reverse engineer
the 4SQR Products nor shall the Customer attempt to break any security
built into the 4SQR Products.
- This Clause 6 prevails
over all other clauses in the Contract.
Party excludes or limits its liability to the other Party for death
or personal injury caused by its negligence.
liability of either Party in respect of loss or damage to tangible
property of the other Party caused solely by its negligence shall
not exceed two hundred and fifty thousand pounds sterling (£250,000).
- 4SQR shall not be liable
for any loss of profit, production, anticipated savings, goodwill
or business opportunities or any type of indirect, economic or consequential
loss even if that loss or damage was reasonably foreseeable or that
party was aware of the possibility of that loss or damage arising.
- Except as provided in
clauses 6.2 and 6.3, 4SQR shall not be liable to The Customer for
any loss or damage however caused which may be suffered by The Customer
directly or in-directly as a result of any failure or omission by
4SQR to comply with its obligations under the Contract.
any law implies in the Contract any term, condition or warranty and
that law avoids or prohibits any provision in the contract excluding
or modifying the application of or exercise of, or liability under
such term, condition or warranty, such term, condition or warranty
shall be deemed to be included in the Contract. However, the liability
of 4SQR for any breach of such term, condition or warranty shall be
limited to the value of the fees paid to 4SQR by the Customer under
the relevant Contract .
- 4SQR shall not be liable
for any claim made more than 1 year after the date of the incident
that gave rise to the claim.
- The Customer shall fully
indemnify and hold 4SQR harmless in respect of any claims by third
parties that are caused by or arise from any act or omission of 4SQR
or of any employee, agent or sub-contractor carried out pursuant to
instructions of the Customer.
- 4SQR shall not be liable
for any loss, damage or delay in providing any Products or Services
caused by, arising from or contributed to by the Customers failure
to comply with its obligations under the Contract.
- 4SQR shall indemnify the
Customer against any claim that the normal use or possession of the
4SQR Products infringes the intellectual property rights of any third
party provided that 4SQR is given immediate and complete control of
such claim, that the Customer does not prejudice 4SQRs defence
of such claim, that the Customer gives 4SQR all reasonable assistance
with such claim and that the claim does not arise as a result of the
use of the 4SQR Product otherwise than in accordance with the terms
of the Contract or with any equipment or programs not approved by
4SQR. 4SQR shall have the right to replace or change all or any part
of the 4SQR Products in order to avoid any infringement. The foregoing
states the entire liability of 4SQR to the Reseller in respect of
the infringement of the intellectual property rights of any third
- Force Majeure
- Other than as to the payment
of Fees neither Party will be liable for delay in performing obligations
or for failure to perform obligations under these Terms if the delay
or failure resulted from circumstances beyond either Parties reasonable
control including but not limited to, act of God or governmental act,
flood, fire, explosion, accident, civil commotion, industrial dispute,
or transportation or communications problems, or impossibility of
obtaining materials (Event of Force Majeure).
- Each Party agrees to give
written notice as soon as reasonably possible to the other on becoming
aware of an Event of Force Majeure and such notice shall contain details
of the circumstances giving rise to the Event of Force Majeure.
- Data Protection
- Both Parties agree that
they will at all times comply with their obligations under the Data
Protection Act (1998). Subject to clause 6 of these Terms each party
will indemnify the other against all actions, claims and expenses
whatsoever which arises out of any breach of this provision.
- The Parties agree to treat
in confidence the other's Confidential Information and except as otherwise
agreed herein not to disclose any Confidential Information to any
person or entity other than its own employees under conditions of
confidentiality and then only to the extent required for proper execution
of any Specific Agreement.
- If 4SQR appoints a sub-contractor
to supply Products or Services then 4SQR may disclose such Confidential
Information to that sub contractor to for the purpose of such supply
under the same conditions of confidentiality.
- The Parties further agree
to ensure that those authorised under the Contract to access the other
Partys Confidential Information are contractually bound to treat
that Partys Confidential Information in confidence.
- Nothing contained herein
shall be construed to impose a confidentiality obligation on a Party
in respect of:
- any matter appearing
in public literature or otherwise within the public domain unless
the information is in the public domain as a result of a breach
of these Terms or any Specific Agreement by that Party; or
- any information or knowledge
possessed by that Party prior to disclosure to it by the other or
rightfully acquired from sources other than the other Party; or
- any information or knowledge
acquired in a bona fide arm's length transaction by the Party making
- Upon any termination of
the Contract, each Party shall cause all Confidential Information
belonging to the other Party in whatever medium it is held to be returned,
deleted or destroyed according to the written instructions of the
- Any publicity to be issued
in connection with a Contract (including any dispute arising) shall
only be issued subject to prior written consent from the Parties,
such consent shall not be unreasonably withheld.
- Nothing herein shall prevent
4SQR from announcing the existence of a Contract and the nature and
value of the Products and Services to be provided to the Customer.
- The provisions of this
clause 9 shall survive termination of the Contract.
- Without in any way restricting
the right of an employee freely to accept and change employment neither
Party shall induce an employee of the other Party to enter its service
at any time during the supply of the Services or Products.
- In the event that a Party
is found to be in breach of clause 10.1 then that Party shall pay
the other Party by way of liquidated damages an amount equal to the
gross annual salary, as at the time of the breach, of the employee
concerned. Such a payment shall not prejudice to the other Partys
right to seek injunctive relief.
- The Customer shall take
all reasonable precautions to ensure the health and safety of 4SQR
personnel, agents and sub-contractors while they are on the Customer's
- The Customer shall be
responsible to ensure that an appropriate representative of the Customer
shall be present at all times that the Services are being performed
by 4SQR on the Customers premises.
- 4SQR shall be entitled
to terminate any contract or suspend the provision of any Services
or supply and licence of Products
- if settlement of any
invoice from 4SQR is overdue and the Customer continues to be in
default for 30 days after written notice of default has been given
to it by 4SQR;
- immediately if the Customer
is in breach of clause 5.5.
- Without prejudicing any
rights hereunder either Party shall be entitled to terminate forthwith
any Contract by notice in writing upon any one of the following:
- the other Party has
committed a material breach or persistent breaches of the Contract
and continues such default for 30 days after written notice has
been given to such Party with a request that such breaches are rectified
and no such rectification takes place;
- the other Party passing
a resolution for winding up (save for the purpose of bona fide amalgamation
or reconstruction and where the amalgamated or reconstructed company
agrees to adhere to these Terms and any Specific Agreement) or suffering
a winding-up order being made against it or going into administration;
- a receiver or administrative
receiver being appointed or an encumbrancer takes possession of
the undertaking or assets (or any part thereof) of the other Party;
- the other Party being
unable to pay its debt (within the meaning of section 123 of the
Insolvency Act 1986 or any statutory re-enactment or modification
thereof) or ceases to or threatens to cease to carry out its business
or enters into a composition with its creditors;
- within six (6) months
of distress or execution being levied against any property of the
termination of the Contract however occasioned shall affect any accrued
rights or liabilities of either party.
- Upon termination of any
Contract for any reason the Customer agrees
- to return all copies
of the 4SQR Products and other Confidential Information
- delete the same from
any equipment upon which it has been installed by the Customer within
7 days of termination and provide 4SQR with confirmation signed
by a Director of The Customer that this has been done within 7 days
of a request for such by 4SQR.
- Any notice given under
these Terms must be given in writing and sent or delivered by hand,
post, or fax to the other Party at the registered address or such
other address that that Party may notify to the other from time to
time provided that any notice;
- delivered by hand shall
be deemed to have been given when deposited at the appropriate address;
- sent by post shall be
deemed to have been given 2 days after a first class registered
letter is posted to the appropriate address;
- sent by fax shall be
deemed to have been given on transmission to the correct number
provided that such notice is confirmed within 2 days as in a) or
- No failure, delay or indulgence
on the part of either Party in exercising any power or right under
the Contract shall operate as a waiver of such power or right.
- If any provision of the
Contract shall be held by a court of competent jurisdiction to be
invalid or voidable such provision shall be struck out and the remainder
thereof shall stand in full force and effect.
- Neither Party may assign
any Contract or any of its rights and obligations thereunder without
the prior written consent of the other save that 4SQR may assign any
Contract relating to a 4SQR Product to any company that becomes the
owner of the 4SQR Product.
- In these Terms or any
- any singular shall be
deemed to include the plural and the plural shall be deemed to include
the singular unless the context requires otherwise;
- where a word or a phrase
is defined, its other grammatical forms have a corresponding meaning;
- a reference to gender
includes all genders;
- clause headings are
inserted for convenience of reference only and shall have no effect
in interpreting the Contract;
- a reference to a person
includes a body corporate, an unincorporated body or other entity
and vice versa unless the context requires otherwise..
These Terms and any Contract shall be governed
by English law and the Parties agree to submit to the non-exclusive
jurisdiction of the English courts.