Contract
This Managed Service Agreement ( "Agreement") is made and effective ___________,
BETWEEN: DINGPAN Ltd (company number 06297800) also trading as Ecommerce Supermarket (the "Provider"), a corporation organized and existing under the laws of England and Wales, with its head office located at: 24 Luna Close, Swindon, Wiltshire SN25 2LZ, United Kingdom
AND: Customer name, company number - optional (the "Customer"), with their head office located at: customer address
RECITALS
WHEREAS Customer wishes to operate an Online Ecommerce System, and wants the Provider to make this Available to Users over the Public Internet and to provide Hosting, Maintenance and Support for it;
WHEREAS Provider desires to make the Online Ecommerce System available for Customer to make Available to Users over the Public Internet and to provide Hosting, Maintenance and Support for it:
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto, intending, to be legally bound, agree as follows:
1. PURPOSE OF AGREEMENT
Customer desires to retain Provider as an independent contractor to provide a Managed Service and a Managed Service Environment within which to operate Applications Software and/or Bespoke Applications Software as an Online Ecommerce System.
Online Ecommerce System is specified to be a Fully Operational System providing Live Operational Service.
Terms and conditions and further definitions are provided in the following Schedules attached to and made part of this Agreement. Provider is ready, willing and able to provide the Managed Service and Managed Service Environment and agrees to do so under the terms and conditions and definitions set forth in this Agreement.
2. PAYMENT
Customer agrees to pay go-live fee (if applicable) and then regularly pay monthly fee (if applicable). Amount of go-live and monthly fees is determined separately according to the Customer's choice of Ecommerce products and services offered by Provider.
Provider will be sending invoices to Customer on the 1st day of every month according to the list of products and services used by Customer during the last billable period. Customer agrees to pay the invoiced amount within 5 business days since the receipt of the invoice. Alternatively the Customer agrees to pay by automatic recurring monthly payments from his /her Debit or Credit card according to the list of products and services used by Customer during the last billable period.
Products and services used only during a part of the last billable period will be billed for accordingly. I.e. Customer will be billed for only a part of corresponding monthly fee.
Payment methods accepted by Provider are: bank transfer, cheque, PayPal, Moneybookers, PacNet (recurring if applicable) card payment services, or other online payment gateway as may be provided by the Provider.
3. LATE FEES
Late payments by Customer shall be subject to late penalty fees of 15% per month of gross outstanding balance from the due date until the amount is paid.
Provider has the right to suspend all and any services until the amount outstanding is paid in full.
3. SERVICES AND RESOURCES PROVIDED UNDER THIS AGREEMENT
Services and Resources provided under this Agreement vary and are determined by Customer's choice of products and services offered by Provider.
It is understood that Customer uses products and services offered by Provider to run an online store or a system based on business model similar to online store. Provider offers Customer a wide range of products and services required to run an online store.
Provider reserves the right to change the offer without prior notifying Customer.
Provider shall at all times try to avoid disabling certain products and services available to Customer unless such are replaced by a better / newer version.
Provider shall at all times try to support backward compatibility if a product or service is replaced by a newer version
Customer may choose to change products and services at any time. Customer may stop or start using certain products or services.
Customer confirms content of the customer's online store, any and all products, services and materials offered on the Customer's online store are sold or offered legally the UK according to English law. Provider reserves the right to disable Customer's online store if proven otherwise.
4. WARRANTIES
Provider warrants to Customer that System will perform without Defect or Malfunction at all times while this Agreement lasts.
In the event that it does not so perform in any particular the Provider will fix the issue at its own expense as soon as it is possible.
The warranty is limited to System as provided under this Agreement.
The warranty doesn't cover the cases when modifications to System are performed by either the Customer, or any 3d party without permission of the Provider.
5. INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS
Provider warrants that Provider will not knowingly infringe the copyright or trade secrets of any third party in performing services under this Agreement. To the extent any material used by Provider contains matter proprietary to a third party, Provider shall obtain a license from the owner permitting the use of such matter and granting Provider the right to sub-license its use. Provider will not knowingly infringe any existing patents of third parties in the performance of services required by this Agreement, but Provider MAKES NO WARRANTY OF NONINFRINGEMENT of any COUNTRY.
Provider shall indemnify Customer against all claims, liabilities and costs, including reasonable attorney fees, of defending any third party claim or suit arising from copyright and license infringements and manifest within or caused by supplied materials, products and services, whether or not such infringements or the 'possibility' of infringements might be reasonably known to the Provider prior to delivery of the System.
This indemnification obligation shall be effective only if:
A. Customer has made all payments of all undisputed Fees required by this Agreement
B. Customer has given prompt notice of the claim and permitted Provider to defend, and
C. The claim does not result from Customer's modification or use of the System made without Providers agreement.
To reduce or mitigate damages, Provider may at its own expense replace any part of System with a non infringing product.
Customer shall indemnify Provider against all claims, liabilities and costs, including reasonable attorney fees, of defending any third party claim or suit arising from copyright and license infringements and manifest within or caused by materials entered into the system by Customer, whether or not such infringements or the 'possibility' of infringements might be reasonably known to the Customer prior to entering materials into the System.
This indemnification obligation shall be effective only if:
A. Provider has given prompt notice of the claim and permitted Customer to defend, and
B. The claim does not result from Provider's modification of the System made without Customer's agreement.
To reduce or mitigate damages, Customer may at its own expense replace any material entered into the System with a non infringing data.
Provider may at its own discretion suspend or delete Customer's account in the System if so requested by decision of Court of Law or if obvious evidences of intellectual property infringements are provided by a 3d party.
6. LIMITATION OF LIABILITY
A. In no event shall either party be liable to the other for lost profits, or special or consequential damages, even if the claimant party has been advised of the possibility of such damages.
B. Each party's total liability under this Agreement for damages, costs and expenses, regardless of cause, shall not exceed the total amount of fees paid to Provider by Customer under this Agreement.
C. Provider shall not be liable for any claim or demand made against Customer by any third party except to the extent such claim or demand relates to the breach or infringement of that parties copyright, trade secret or other proprietary or intellectual property rights. In this case Provider shall indemnify Customer against all claims, liabilities and costs, including reasonable attorney fees, of defending any third party claim or suit arising. Customer shall promptly notify Provider in writing of any third party claim or suit and Provider shall have the right to fully control the defence and any settlement of such claim or suit
D. Customer shall not be liable to Provider except for all claims, liabilities and costs, including reasonable attorney fees, of defending any third party claim or suit arising out of the misuse by Customer of the Service provided under this Agreement. Provider shall promptly notify Customer in writing of any third party claim or suit and Customer shall have the right to fully control the defence and any settlement of such claim or suit.
E. In no event shall any claim be excluded that may not be excluded by law
7. CONFIDENTIALITY
During the term of this Agreement and for five years afterwards, all parties acting as Information Recipients will use Reasonable Care as to prevent the unauthorized use or dissemination of Confidential Information belonging to other party acting as Information Provider.
8. TERM OF AGREEMENT
The term of this Agreement is from Commencement until Termination in accordance with Clause 9 - Termination of Agreement.
9. TERMINATION OF AGREEMENT
This Agreement may be terminated by Customer for its convenience upon thirty days' prior written notice to Provider. Upon such termination, all amounts owed to Provider under this Agreement for accepted work shall immediately become due and payable, and all rights and licenses granted by Provider to Customer under this Agreement shall immediately terminate until those amounts are paid in full to Provider.
If Provider terminates this Agreement because of Customer's default, all of the following shall apply:
A. All amounts payable or accrued to Provider under this Agreement shall become immediately due and payable unless different has been agreed with the Customer.
B. Customer shall immediately cease use of the Managed Service until all outstanding fees have been paid.
C. All rights and licenses granted to Customer under this Agreement shall immediately terminate until all outstanding fees have been paid.
In the event of Bankruptcy of Receivership of either party, this agreement shall terminate and any amounts owed settled during normal proceedings.
In the event of Bankruptcy or Receivership of Provider then Customer shall be granted access to Source Code & Data held under escrow by Provider.
10. Force Majeure
A. No Party shall be liable for any failure to perform its obligations where such failure is as a result of Acts of Nature and no Party will have a right to terminate this Agreement under Clause 9 (Termination) in such circumstances
B. Any Party asserting Acts of Nature as a reason for non-performance of its obligations shall have the burden of proving that reasonable steps were taken (under the circumstances) to minimize delay or damages caused by foreseeable events, that all non-excused obligations were substantially fulfilled, and that the other Party was timely notified of the likelihood or actual occurrence which would justify such an assertion, so that other prudent precautions could be contemplated.
C. In the event that Acts of Nature continue for more than 30 days either Party may terminate this Agreement.
11. TAXES
All Providers charges relating to the provision of the Managed Service are inclusive of all tax (including UK VAT where applicable).
12. RELATIONSHIP OF THE PARTIES
Nothing contained herein will be construed as creating any agency, partnership, joint venture or other form of joint enterprise between the parties. Provider is an independent contractor, and neither Provider nor Provider's staff is, or shall be deemed, Client's employees. In its capacity as an independent contractor, Provider agrees and represents, and Customer agrees, as follows:
A. Provider has the right to perform services for others during the term of this Agreement subject to non-competition provisions set out in this Agreement, if any.
B. Provider has the sole right to control and direct the means, manner and method by which the Managed Services required by this Agreement will be performed.
C. Provider has the right to perform the services required by this Agreement at any place or location and at such times as Provider may determine.
D. Provider will furnish all equipment and materials used to provide the services required by this Agreement
E. The services required by this Agreement shall be performed by Provider, or Provider's staff, and Customer shall not be required to hire, supervise or pay any assistants to help Provider.
F. Provider is responsible for paying all ordinary and necessary expenses of its staff.
G. Neither Provider nor Provider's staff shall receive any training from Customer in the professional skills necessary to perform the services required by this Agreement.
H. Neither Provider nor Provider's staff shall be required to devote full-time or over-time to the performance of the services required by this Agreement.
I. Customer shall not provide insurance coverage of any kind for Provider or Provider's staff.
13. NON-SOLICITATION OF PROVIDER'S EMPLOYEES AND SUBCONTRACTORS
Customer agrees not to knowingly hire or solicit Provider's employees or sub-contractors during performance of this Agreement and for a period of five years after termination of this Agreement without Provider's written consent.
For the avoidance of doubt this shall not exclude employment of any such individual pursuant to an advertisement made generally, by either party, for personnel to which such individual makes an otherwise unsolicited response.
14. MEDIATION AND ARBITRATION
If a dispute arises under this Agreement, the parties agree to first try to resolve the dispute with the help of a mutually agreed-upon mediator in England. Any costs and fees other than attorney fees associated with the mediation shall be shared equally by the parties. If it proves impossible to arrive at a mutually satisfactory solution through mediation, the parties agree to submit the dispute to binding arbitration in England under the rules of English law.
15. ATTORNEY FEES
If any legal action is necessary to enforce this Agreement, each party is responsible for meeting it's own costs alone, with no further liability or responsibility on either party for the costs of the other, unless determined otherwise by agreed Arbitration and Mediation or by a Court of Law.
16. COMPLETE AGREEMENT
This Agreement together with all exhibits, appendices or other attachments, which are incorporated herein by reference, is the sole and entire Agreement between the parties. This Agreement supersedes all prior understandings, agreements and documentation relating to such subject matter. In the event of a conflict between the provisions of the main body of the Agreement and any attached exhibits, appendices or other materials, the Agreement shall take precedence.
17. MODIFICATIONS TO AGREEMENT
Modifications and amendments to this Agreement, including any exhibit or appendix hereto, shall be enforceable only if they are in writing and are signed by authorized representatives of both parties.
18. GOVERNING LAW
This Agreement shall be interpreted under English law. Any and all legal actions relative hereto shall be in English courts of law.
19. NOTICES
All notices and other communications given in connection with this Agreement shall be in writing and shall be deemed given as follows:
A. When delivered personally to the recipient's address as appearing in the introductory paragraph to this Agreement;
B. Three days after being deposited in the UK mails, postage prepaid to the recipient's address as appearing in the introductory paragraph to this Agreement, or
C. When sent by fax or telex to the last fax or telex number of the recipient known to the party giving notice. Notice is effective upon receipt provided that a duplicate copy of the notice is promptly given by first-class or certified mail, or the recipient delivers a written confirmation of receipt. Any party may change its address appearing in the introductory paragraph to this Agreement by giving notice of the change in accordance with this paragraph.
20. ASSIGNMENT
The rights and obligations set out in this agreement are not assignable by either party other than with prior written permission of the non-assigning party.
21. SIGNATURES
Each party represents and warrants that on this date they are duly authorized to bind their respective principals by their signatures below.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates set forth first above, with full knowledge of its content and significance and intending to be legally bound by the terms hereof.
