THESE ARE THE AGILE DELIVERY TERMS AND CONDITIONS REFERENCED IN THE PRINCIPAL AGREEMENT AND TO WHICH THE CUSTOMER AGREES IS IT BOUND.
1. INTERPRETATION
1.1 Definitions:
Actual Charges: Shall mean the amounts calculated and payable in line with the provisions of these Agile Delivery Terms and those of the Principal Agreement.
Ardenfort Background IPRs: All Intellectual Property Rights that are owned by or licensed to Ardenfort.
Ardenfort Employee / Representative: Shall mean an employee or a representative of Ardenfort as may be designated by Ardenfort.
Customer Background IPRs: All Intellectual Property Rights owned by the Customer or licensed to the Customer by a person who is not Ardenfort.
Customer Employee / Representative: Shall mean an employee or a representative of the Customer as may be designated by the Customer.
Customer Materials: All materials, equipment and tools, drawings, specifications and data, including Customer Background IPRs, supplied by the Customer to Ardenfort in order to provide the Services.
Deliverables: All documents, products and materials developed by Ardenfort or an Ardenfort Employee in any form, including without limitation any Releases, computer programs, software customisations, developed software data, reports and specifications (including drafts).
Foreground IPRs: All Intellectual Property Rights in the Deliverables, other than Ardenfort Background IPRs.
Intellectual Property Rights: Shall mean patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, 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.
List of Rates: The list of Hourly Rates agreed to by the Parties, and set out in the Principal Agreement.
Man Day: Shall mean and shall be equivalent to eight hours of work provided by the Ardenfort Employee when carrying out the Services. By way of example, two (2) Man Days shall be equivalent to sixteen (16) hours, and thirty two (32) hours shall be equivalent to four (4) Man Days.
Releases: means any individual or collective document, product or material which is developed, provided or produced by Ardenfort to the Customer in accordance with the definition provided above in these Agile Delivery Terms to the term ‘Deliverables’.
Resource Allocations: Shall mean the Ardenfort Employee/s / Representatives.
Statement of Work: Shall include a detailed outline of the Services to be provided by Ardenfort to the Customer which may also include a Specification/s. The Statement of Work shall be attached to the Principal Agreement.
Specification: A written specification for the Deliverable/s including the Releases. Anything which does not fall within the terms of the written specification shall be considered to be outside of the scope of the said written specification.
Services: shall be interpreted broadly as to cover any and all types of services which Ardenfort shall provide to the Customer, a more detailed reference to which shall be provided by means of the Principal Agreement.
VAT: Shall mean value added tax chargeable under English law for the time being and any similar tax.
2. THE SERVICES DEFINED
2.1 The Services shall consist in the provision of business consultancy, software development and advisory services which will be required by the Customer throughout the duration of the Principal Agreement, with particular emphasis on information technology consultancy and project management services, as shall be outlined in detail in the Statement of Work.
2.2 Throughout the execution of the Services, the Customer may be required to revise its overall software licencing infrastructure and this will therefore necessitate the sourcing and supply, by Ardenfort for the Customer’s benefit, of a number of software applications which may include customisations carried out by Ardenfort according to the needs of the Customer and of the Services as a whole.
2.3 The execution of the Services will take place in monthly stages as defined in the Scope of Work (hereinafter “Stages”) and shall be based upon broad monthly objectives (hereinafter “Objectives”) set by Ardenfort and the Customer.
2.4 The Customer shall interact promptly on request and regularly with Ardenfort throughout the duration of the Services in order to discuss the Objectives relevant to each Stage of the Services.
2.5 It is understood that the agreed Objectives are only intended to guide the activities of Ardenfort generally in the performance of the Services at each Stage. The Objectives do not create binding obligations which Ardenfort is required to fulfil within any stated period of time.
2.6 Resource Allocations for the performance of the Services shall be planned according to the Customer’s budget. However, the Customer may choose to allocate additional Resource Allocations or to decrease Resource Allocations as it wishes at any Stage of the Services provided the Customer notifies Ardenfort at least 3 weeks in advance. The resource adjustment will only be provided pending availability as mentioned in Clause 2.12.
2.7 Where required, Ardenfort shall provide the Customer with the business consultancy and project management aspect of the Services.
2.8 Where applicable, the Parties shall approve the detailed project plans for all phases within the Services as a whole, documenting all necessary additional information with regard to the organisation, work activities and phase schedule.
2.9 The Parties may agree in the Statement of Work that Ardenfort may provide and complete a number of Deliverables to the Customer.
2.10 Where required, the Parties shall agree to any relevant project plan (“Project Plan”) in or as part of the Statement of Work for the stated Deliverables and Releases as may be devised for the purpose of the Services in question.
It is agreed by the Parties that any such Project Plan is merely indicative of the time-lines which it represents for Deliverables/ Releases that are not fixed price engagements. Subsequent Releases would be agreed upon in subsequent addendums to the relevant agreement. The Parties recognise that for the Services as a whole, inclusive of the Deliverables and Releases, to be successfully delivered by Ardenfort, the Parties shall act in good faith and, in furtherance of this, that they are committed to following the processes outlined in this clause and in all the other provisions of these Agile Delivery Terms.
2.11 Where required by the nature of the Services to be provided, periodic consultancy and project management meetings will be scheduled and held under the direction of the Ardenfort Representative and the Customer Representative, supported by the compilation of reports detailing status of works, forecasts (budgetary and time-frames), allocation of resources, identification of issues and risks.
2.12 Ardenfort will ensure that it shall dedicate the adequate resource capacity in all of the phases of the Services and, where personnel is unavoidably absent due to holiday or other form of leave, Ardenfort will endeavour to provide suitable substitute personnel.
2.13 Risks are potential threats to the outcome of the Services (i.e. cost, delivery time, quality or scope). If they are not managed effectively they will impact the outcome of the Services. Risks and issues therefore need to be managed in order to minimise the impact on the outcome of the phases within the Services. These will be documented in a central register to be kept on the online network site of Ardenfort (such as, but not necessarily, SharePoint). Any risks or issues requiring escalation are to be immediately identified to the Ardenfort Representative and the Customer Representative for urgent attention. The Customer acknowledges that a failure to provide immediate notification may compound the issue and cause the Customer greater remedial costs.
2.14 Both Parties are committed to the success of the Services and, therefore, both Parties recognise that to be successful they have to work together, and acknowledge that the following principles are intended to underpin this relationship and as such, both Parties acknowledge that these principles shall be followed in order to successfully meet their own obligations under the Agreement:
(a) The Ardenfort Representative shall have decision-making authority to quickly make critical decisions.
(b) The target time for making project time-critical decisions is within two (2) working days of them being raised and documented. A failure to respond within this timeframe can negatively impact the Services being delivered and Ardenfort shall have no liability for any such impact caused by the Customer’s failure to respond within the specified time.
(c) An urgent meeting between the Ardenfort Representative and the Customer Representative will be convened in a target time of within two (2) working days from the request to meet being raised in order to take escalated decisions about project strategy, business change and business policy, and to resolve decisions escalated to them.
(d) Ardenfort shall monitor, co-ordinate and oversee the performance by the Ardenfort Employees engaged in the execution of the Services of their respective terms of appointment and advise the Customer in relation thereto and use all reasonable endeavours to enable the Ardenfort Employees to comply with their obligations under their respective appointments.
(e) Both Parties shall establish and maintain procedures and lines of communication for the exchange of information reporting approvals and consents as may be required during the execution of the Services.
2.15 Where required by the Statement of Work, Ardenfort shall co-ordinate with the Customer the preparation of all drawings, Specifications and other documents necessary to enable the execution of the Services, inclusive of Deliverables and Releases, and what works to be carried out as soon as is practicable by Ardenfort and as soon as any of them have been prepared, submit the same to the Customer for approval and notify the Customer of all the requirements in connection therewith. A failure on the Customer’s part to provide approval within 7 days of request shall constitute deemed approval.
2.16 Each Statement of Work shall constitute a separate contract on its terms subject to and incorporating the terms of these Agile Project Delivery Terms (Contract). In the event of conflict between the terms of the Principal Agreement and the relevant Statement of Work the terms of the Statement of Work shall prevail.
3. GOVERNANCE
3.1 The Customer Representative and Ardenfort Representative shall meet at the intervals set out in the Statement of Work, or where such intervals are not prescribed in the Statement of Work as agreed between the parties to discuss matters relating to the Project and the provision of the Services.
3.2 Either party may propose changes to the scope or execution of the Services and/or the time estimated for delivery but no proposed changes shall come into effect until a relevant Change Order (“CO”) has been signed by both Parties. A CO shall be a document setting out the proposed changes and the effect that those changes will have on:
3.2.1 the scope of the Services and/or a Satement of Work;
3.2.2 the Charges;
3.2.3 time for delivery of the Services or any part thereof;
and
collectively “Change(s)”
3.3 If Ardenfort wishes to make a Change it shall provide a draft CO to the Customer.
3.4 If the Customer wishes to make a Change it shall notify Ardenfort and provide as much detail as Ardenfort reasonably requires of the proposed Changes and Ardenfort shall, as soon as reasonably practicable provide a draft CO to the Customer.
3.5 If the parties agree to a CO, they shall sign it and that CO shall amend the relevant Statement of Work upon the terms of the CO.
3.6 If the Parties cannot agree to a CO then the matter shall be escalated as between the responsible Directors. They shall have a period of seven (7) days to meet and attempt resolution, both parties shall act demonstrably in good faith in pursuit of a solution.
3.7 If despite the efforts at 3.6 above no resolution arises, then Ardenfort shall to the extent it is able continue to provide the Services in the manner originally contemplated on signature of the Statement or Work. If it cannot do so then Ardenfort may but shall not be obliged to suspend or terminate the Services delivered under the affected Statement of Work and without liability.
4. INTELLECTUAL PROPERTY
4.1 Ardenfort shall retain ownership of all Ardenfort Background IPRs and shall have no claim in respect of the Customer Background IPRs.
4.2 The ownership, including any and all Intellectual Property Rights in and to any Foreground IPRs, Deliverables and/or Releases shall solely vest in Ardenfort. Notwithstanding this, the Customer shall have a perpetual, non-exclusive royalty-free licence to use the Foreground IPRs and the Deliverables / Releases soley for those purposes connected with the Services.
Provided that the Customer shall not during or at any time after the completion, expiry or termination of the Principal Agreement in any way question or dispute the ownership by Ardenfort of the Foreground IPRs and Deliverables / Releases.
Provided further that Ardenfort and the Customer hereby agree to do all such things and to sign and execute all such documents and deeds as may reasonably be required, at the cost of Ardenfort, in order to perfect, show and confirm Ardenfort’s sole ownership in respect of the Foreground IPRs and Deliverables / Releases.
Provided further that the Customer shall not be entitled to create any derivative works of the Foreground IPRs or the Deliverables and/or Releases and the Customer shall not be entitled to sub-licence, assign or otherwise transfer the non-exclusive royalty-free license mentioned further above in this Clause 4 in respect of the Foreground IPRs or the Deliverables / Releases.
4.3 This Clause 4 shall survive the termination of this agreement and/or the Principal Agreement.
5. RESOURCE ALLOCATIONS, ACTUAL CHARGES AND FINANCIAL CONSIDERATIONS
5.1 The Parties agree that other than what is contained in these Agile Delivery Terms, the resource allocations, the applicable List of Rates / Hourly Rates, Actual Charges and other financial considerations for the Statement of Work and for the Services, including any Deliverables and Releases, will be outlined in the Principal Agreement, provided that these may vary at each Stage of the Services.
5.2 Actual Charges: Subject to the above, the charges, in British Pounds (£), payable by the Customer to Ardenfort for the Services rendered under the terms of the Principal Agreement shall be calculated and invoiced on the basis of the following terms.
5.3 Hourly Rates:
(a) Business Day Office Hours (office hours being 09.00 to 17.00): this shall be the Hourly Rate specified above in the Principal Agreement (the “Hourly Rate”).
(b) Saturday / Out of office hours: The applicable rate is the Hourly Rate plus fifty percent (50%), per hour.
(c) Sunday / Public or National Holidays: The applicable rate shall be the Hourly Rate plus one hundred percent (100%) per hour.
The Hourly Rates shall be increased by up to a maximum of five percent (5%) at the end of each calendar year.
The advance approval of Ardenfort shall be required in the event that an Ardenfort Employee will be required to work outside of office hours (as outlined above) or on a non-Business Day.
5.4 The calculation of Actual Charges shall be determined by Ardenfort on the basis of:
(a) the List of Rates stipulated in the Principal Agreement;
(b) the actual recorded hours worked by the Ardenfort Employee/s; and
(c) the subsequent approval of these recorded hours by the Customer in line with the provisions of Clauses 5.5 and 5.6 below.
5.5 The Parties agree that all hours worked by a Ardenfort Employee, irrespective of the person behind the position of Ardenfort Employee and irrespective of the fact that different persons might have taken up such a position, in connection with the Services shall be accurately recorded via time-sheets on the computer system maintained by Ardenfort for this express purpose. Consequent to this, the Parties agree that, at the end of each working week, the Customer shall be entitled to:
(a) review the hours recorded for that week prior to approving them for the purpose of calculating the Actual Charges; and
(b) raise any reasonable objection with Ardenfort in relation thereto, and withhold said approval until the issue forming this objection has been satisfactorily resolved and, in this regard, the Parties expressly agree that: (i) the Ardenfort recorded hours as demonstrated by the time sheets shall be conclusive of the hours spent unless and to the extent the Customer establishes manifest error; and (ii) they will both use their best endeavours to resolve any such objection in a timely manner and in good faith.
5.6 Further to Clause 5.5 above, the Customer however accepts that if it fails to raise an objection within 3 Business Days of the Customer being notified in writing by Ardenfort with a request to approve the hours recorded for the week in question, then the hours recorded for that prior work shall irrevocably be deemed to have been approved by the Customer.
5.7 The Customer agrees that the Ardenfort Employee/s carrying out the service shall be given the opportunity to work five (5) days a week with the exception of Saturdays, Sundays, national, public and religious holidays, thereby generally equating to an overall total of a forty (40) hour week.
5.8 The Customer agrees that travelling time will be recorded as working hours for the purpose of calculating the Actual Charges, and shall be chargeable at 60% of the relevant Hourly Rate stipulated in the Principal Agreement. All travel related costs and expenses associated with the provision of the Services, including the Deliverables and Releases shall be borne by the Customer. In this regard, all travel related costs and expenses including but not limited to travel and parking expenses and, where international travelling is required, all costs associated with flights, transportation, reasonable accommodation and meals shall be borne by the Customer.
5.9 The Parties agree that where the Ardenfort Employee is working onsite at the Customer, then there will be an applicable travel fee chargeable at a rate of GBP 0.45 (forty five pence) per kilometre of distance between Ardenfort’s offices and the relevant location where the Services are from time to time to be carried out, which rate shall be revisable at the end of every calendar year by Ardenfort, and may thus be increased by up to 5% at the end of each calendar year, provided that all related expenses including but not limited to parking fees, ferry fees and other travel costs, shall also be paid by the Customer.
5.10 The travel associated costs mentioned above in Clause 5.8 and Clause 5.9 shall be invoiced by Ardenfort to the Customer and the Customer shall pay such invoices within a period of fifteen (15) calendar days of receipt. The amount in any such invoices shall not be offset from the Deposit amount referred to further below.
5.11 Ardenfort shall prepare proper estimates for the execution of the Services detailed in the Statement of Work and for any Deliverables including the Releases.
5.12 Fifty percent (50%) of the total estimated fees for the Services shall be paid up front by the Customer, to be held on account by Ardenfort (the “Deposit”). Ardenfort shall raise a request for payment which is to be paid by the Customer within a period of fifteen (15) calendar days.
5.13 Invoices shall be issued by Ardenfort on a monthly basis on the basis of the Actual Charges incurred by the Customer. Payment of such invoices shall be effected as follows:
(i) Fifty percent (50%) of the amount on each monthly invoice shall be immediately settled by and in favour of Ardenfort out of the Deposit that is held on account in line with the above provisions.
(ii) The remaining fifty percent (50%) on each monthly invoice will be settled by the Customer by no later than fifteen (15) days of the date of the invoice.
5.14 If the Customer fails to pay any Charges on a due date Ardenfort shall be entitled to suspend and/or terminate the Services until such time as it receives payment, and without liability to the Customer for any consequence arising from suspension of the Services.
5.15 If the Customer fails to make any payment due to Ardenfort by the due date for payment, then, without limiting Ardenfort’s remedies at law or in equity Interest will accrue each day pursuant to the Late Payment of Commercial Debts Regulations 2013.All amounts due in connection with the Principal Agreement and/or a Statement of Work shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
5.16 Should the Customer wish to abandon or to terminate any particular ongoing project on the basis of an agreed Statement of Work inclusive of any Project Plan, then it shall be liable to pay Ardenfort all the payments that would have been due by the Customer to Ardenfort for the period of three (3) months following such abandonment or termination, which amount shall be derived from the figures that the Parties agreed to by way of estimates, in the Statement of Work or in the Project Plan in question. For the avoidance of doubt termination of a single Statement of Work shall not constitute a termination of any other Statement of Work or the Principal Agreement.
6. INSURANCE
6.1 During the term of this agreement and for a period of 12 months after the expiry or termination of this agreement, Ardenfort shall maintain in force, with a reputable insurance company, professional indemnity insurance at an amount not less than €1,000,000 and shall, on the Customer’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium.
