THESE ARE THE CLOUD MAINTENANCE 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 Cloud Maintenance 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 Cloud Maintenance Terms to the term ‘Deliverables’.
Resource Allocations: Shall mean the Ardenfort Employee/s / Representatives.
Maintenance Work Specification: Shall include a detailed outline of the Services to be provided by Ardenfort to the Customer. The Maintenance Work Specification shall be attached to the Principal Agreement.
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 and the accompanying Maintenance Work Specification.
VAT: Shall mean value added tax chargeable under English law for the time being and any similar tax.
2. THE MAINTENANCE SERVICES DEFINED
2.1 The Services shall consist in the provision of cloud maintenance services which will be required by the Customer throughout the duration of the Principal Agreement, with particular emphasis on management of cloud services, as shall be outlined in detail in the Maintenance Work Specification attached to the Principal Agreement.
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 stages and, where the context so allows, any such stage shall be deemed to be part of the Services for the purposes of these Cloud Maintenance Terms.
2.4 Where required by the nature of the Services to be provided, periodic meetings will be scheduled and held under the direction of the Ardenfort Representative and the Customer Representative, supported by the compilation of reports.
2.5 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.
2.6 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 should 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.
2.7 Where required by the Maintenance Work Specification, Ardenfort shall co-ordinate with the Customer the preparation of all planned Releases, 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
3. INTELLECTUAL PROPERTY
3.1 Ardenfort shall retain ownership of all Ardenfort Background IPRs and shall have no claim in respect of the Customer Background IPRs.
3.2 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.
3.3 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.
3.4 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.
3.5 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 3 in respect of the Foreground IPRs, the Deliverables and/or Releases.
3.6 This Clause 3 shall survive the termination of this agreement and /or the Principal Agreement.
4. ACTUAL CHARGES AND FINANCIAL CONSIDERATIONS
4.1 The Parties agree that other than what is contained in these Cloud Maintenance Terms, the resource allocations, the applicable List of Rates / Hourly Rates, Actual Charges and other financial considerations for the Maintenance Work Specification and for the Services, including any Deliverables and Releases, will be outlined in the Principal Agreement.
4.2 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.
4.3 Retainer: A monthly retainer charge, in British Pounds (£) will be specified in the Maintenance Work Specification (the “Retainer”). This amount covers the activities listed in the Maintenance Work Specification (“Activities”). The Retainer shall be charged yearly in advance. Some of these Activities may have a yearly cap of hours (“Coverage”). When exceeding this cap, then the additional work shall charged per hour in accordance with Clause 4.4.
4.4 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 Retainer and Hourly Rates shall be increased by up to a maximum of three percent (3%) 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.
4.5 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 4.5 and 4.6 below.
4.6 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.
4.7 Further to Clause 4.5 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.
4.8 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.
4.9 Invoices shall be issued by Ardenfort on a yearly basis covering the Retainer and on monthly basis on the basis of the Actual Charges incurred by the Customer. Payment of such invoices shall be settled by the Customer by no later than fifteen (15) days of the date of the invoice.
4.10 If the Customer fails to pay any Charges on a due date Ardenfort shall be entitled to suspend the Services immediately until such time as it receives payment, and without liability to the Customer for any direct or indirect consequence and/or loss arising from suspension of the Services.
4.11 If the Customer fails to make any payment due to Ardenfort by the due date for payment, then, without limiting Ardenfort’s legal and/or equitable remedies the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day pursuant to the Late Payment of Commercial Debts Regulations 2013.All amounts due in connection with the Principal Agreement 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).
