Terms – Supplier

SERVICES AGREEMENT

is BETWEEN

  1. Embedded IT Limited, a company registered in England and Wales, with registered number 9054394 whose registered office is Forum 3, Solent Business Park, Whiteley, Fareham, PO15 7FH; ‘Embedded’,

and

  1. [Supplier], a company registered in [COUNTRY], with registered number [Number] whose registered office is at [Address], the ‘Supplier’

WHEREAS

  1. Embedded maintains a database of IT and Telecoms Suppliers, and provides an advisory online service (‘Directory’) that matches institutions, companies and businesses with a known requirement for IT or Telecoms to Customers; and

  2. The Suppliers wish to benefit from the Directory service.

  3. Embedded acts as a disclosed commercial agent for and on behalf of Customers

  4. Suppliers who participate in the Directory Service do so as independent parties subject to the terms of this Services Agreement

The Agreement

IT IS HEREBY AGREED AS FOLLOWS

ACCURATE INFORMATION – Supplier

  1. The Supplier warrants

i the accuracy of the details entered into the Directory service, and

ii that the details are not disclosed in breach of any duties of confidentiality.

  1. Embedded take no responsibility for the accuracy or currency of the data within the Directory service.

MATCHING PROCESS

  1. Embedded will take the Customer requirements and attempt to match to the Supplier information based on our pre-determined algorithm that assesses technical, commercial and operational attributes of the Customer against the stated requirement.

  2. The output of this matching process will be a score, the ‘Suitability Score’, which is an assessment of the Supplier’s ability to provide the Customer requirement in the context of capability, and other attributes.

PRESENTATION OF CUSTOMER DETAILS

  1. The Directory service will present a list of Suppliers to the Customer, ordered by the Suitability Score, giving initial information about the Supplier’s capabilities

  2. Customer will select the Suppliers it wishes to engage with from this list at its sole discretion. Embedded are making no recommendation regarding the quality, suitability or capability of a given Supplier, nor does it take any responsibility for the performance of the Supplier in a given project.

  3. Embedded do not guarantee that a Customer will select any listed Supplier for engagement in its project. All decisions made regarding the selection and award of a Supplier for a Customer’s requirement are made at the Customers sole discretion.

  4. Once Suppliers have been selected, the Directory service will notify the Supplier of the Customer requirement giving:

      1. Customer Size, Industry, Location

      2. Customer technical and operational requirement as stated by the Customer

      3. Any other information that the Customer has elected to provide in support of its project

SUPPLIER ACCEPTANCE OF TERMS

  1. Suppliers will register their interest in the Customer project by accepting the Invitation sent by the Directory service, which will constitute the acceptance of the terms of this Services Agreement, but will not be a concluded contract as between the Customer and the Supplier.

The Supplier further warrants that:

      1. The Supplier will hold all information passed to it in relation to the Customer project as confidential, and will not discuss the project with any party outside of the Customer or Embedded.

      2. Upon successfully conclusion of a contract with the Customer for the project, the Supplier will notify Embedded of the terms of the successful award, along with information regarding the contractual scope and revenues for the project.

      3. Once the first payment has been received from the Customer for the given contract, the Supplier will commence paying the Agreed Fee by way of commissions to Embedded for the introduction of the Customer to Supplier.

      4. The Agreed Fee will be as stipulated in the Payment Terms clause of this Agreement.

      5. Upon request by Embedded, the Supplier will make available to Embedded all billing and contractual documentation held between the Customer and the Supplier to audit the relevant details for the sole purposes of calculation and recovery of the Agreed Fee.

  1. The Supplier will ensure that all agreements between the Customer and the Supplier contain adequate provisions to allow audit rights for Embedded to support the process outlined in the clause 9 v above.

SUPPLIER ENGAGEMENT

  1. The Supplier will provide to the Customer all relevant and appropriate information to support the successful conclusion of the project. This will take the form of:

      1. Clarification Questions, asking any questions of the Customer in a timely and accurate manner to support the Suppliers comprehensive understanding of the requirement in support of an accurate proposal.

      2. A Full Response, giving all relevant information pertaining to the services of the Supplier relevant to the needs of the Customer

  2. The Supplier will only contact the Customer directly to discuss the project in support of achieving an award through the Directory service. The Supplier will make no attempt to bypass Embedded or the Directory service for the award of the projects as stated.

  3. Upon receiving all information from the Customer, Embedded will update the Directory service to award the project to the chosen Supplier (‘Awarded Supplier’), or update the Directory service to advise that the project is not proceeding. The Directory service will notify the Customer of the outcome as follows:

    1. If the project has concluded and an Awarded Supplier has been awarded;

      1. For the Awarded Supplier, the Directory service will send an email stating they have been successful.

      2. For all other Suppliers, the Directory service will notify them by email stating they have been unsuccessful.

    2. If the project is not proceeding:

      1. For all Suppliers, the Directory service will send an email advising that a given project has been cancelled

  4. The Awarded Supplier shall provide Embedded with a confirmation of the payment schedule and term of its agreed contract, breaking out charges according to :

    1. For Fixed Charge contracts:

      1. ‘Up-Front Charges’ – any charges being paid at the outset of the contract including support of installation, set-up, hardware or software purchases

      2. ‘Ongoing Charges’ – any charges being paid on an ongoing basis

      3. ‘Award Term” – the start and end date of the contract agreed between Customer and Awarded Supplier.

    2. For Variable Charge contracts:

      1. ‘Variable Charges’ – the estimated charges notified by the Customer to be levied under the contract plus the method by which charges are calculated and invoiced.

CUSTOMER / SUPPLIER FEEDBACK

  1. Upon request by Embedded, the Supplier will enter feedback on performance of the Directory service and process in a timely manner. Feedback will take the form of a survey to establish the level of satisfaction with the process being performed by the Directory service, with a view to improving the Directory service over time.

  2. Comments and scores provided by the Supplier may be published on the Directory site.

  3. The Supplier will promptly inform Embedded of any complaint or after-sales enquiry received by the Customer concerning the Customers project.

PAYMENT TERMS

  1. Embedded will be entitled to an Agreed Fee associated with the services provided under this Agreement (“Agreed Fee”).

  2. Unless otherwise expressly stated, all sums payable under this agreement are exclusive of any Value Added Tax or other applicable sales tax (if any).

  3. The Supplier shall, as soon as is reasonably practicable and in any event within thirty days of receipt of an invoice, pay the Agreed Fee to Embedded, which shall be 5% of all revenues (including VAT) invoiced by the Supplier to the Customer related to the project

      1. For Up-Front Charges, Embedded shall invoice its Agreed Fee on notification of award from the Awarded Supplier as per this clause 20

      2. For Ongoing Charges, Embedded shall invoice its Agreed Fee in line with the payment schedule agreed between the Supplier and Customer, as described in the notification received as per clause 13 above

      3. For Variable Charges, the Supplier shall notify Embedded in line with its payment schedule the level at which those charges have been charged by the Supplier to the Customer, and Embedded will invoice its Agreed Fee as a calculation of the Variable Charge levied.

  4. Any invoice remaining unpaid for more than thirty (30) days from receipt shall accrue interest at a rate of 8% above the base rate of HSBC Bank in the UK

  5. In the event of any good faith dispute with regard to a portion of an invoice, the undisputed portion shall be paid as provided in this Agreement.

  6. The Supplier shall remit all payments under this Agreement via electronic BACS funds transfer to Embedded’s corporate bank account, the details of which shall be provided to the Supplier in the invoice.

TERMINATION

  1. Without prejudice to any rights that have accrued under this Agreement or any of its other rights or remedies, either party may, by written notice, terminate this Agreement:

    1. if a party has been in breach of any term of this Agreement which, in the case of a breach capable of remedy, shall not have been remedied by that party within seven days of its receipt of a written notice from the other party, specifying the breach and requiring its remedy; or

    2. if the other party ceases to carry on business or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or

    3. the other party makes or offers to make any arrangement of composition (including any voluntary arrangement) with any one or more of its creditors, or commits any act of bankruptcy or if any petition or receiving order in bankruptcy is presented or made against that party, or if any resolution or petition to wind up that party is issued, passed or presented (other than for reconstruction of amalgamation), or if a receiver is appointed over any of that party’s assets; or

    4. immediately if a party has conducted itself in any manner which, in the reasonable opinion of the other party, has brought or is likely to bring it into disrepute or has or is likely to impair that party’s ability to perform its obligations under this Agreement.

  1. Termination shall not affect any provision which expressly, or by implication, is intended to come into or remain in force and effect.

CONSEQUENCES OF TERMINATION

  1. Other than as set out in this clause, neither party shall have any further obligation to the other under this Agreement after its termination.

  2. Embedded shall receive the Agreed Fee for the full period of any revenue bearing agreements between the Supplier and Customer notwithstanding any termination of this Agreement.

  3. Following termination of this Agreement for any reason whatsoever:

    1. The Supplier will be deleted from the Directory service by Embedded

    2. The Supplier shall not represent that it is in any way connected with Embedded

    3. Any rights and licenses granted to the Supplier under this agreement shall automatically terminate.

  4. Neither party shall be entitled to a compensation or indemnity on the termination of this Agreement for loss of income, agency rights, goodwill or any other similar loss.

  5. Termination of this Agreement for any reason shall otherwise no affect the accrued rights, remedies, obligations or liabilities of the parties existing at termination.

DATA PROTECTION

  1. Embedded will store information regarding the Customers and the Suppliers use of the Directory service and store it appropriately in accordance with Data Protection Act 1998 and GDPR as and when enacted.

GENERAL TERMS

  1. During the period of this Agreement, Embedded may accept and perform engagements from other companies, firms or persons which do not impinge upon its ability to provide the Services at such times and in such manner as may be convenient to Embedded.

  2. Embedded hereby excludes (to the fullest extent permitted by law) any warranty, condition, term or undertaking of any kind, express or implied, statutory or otherwise relating to anything supplied or services provided under or in connection with this Agreement.

  3. Each party accepts liability for (a) death or injury to the extent it results from the negligence of Embedded in the course of performing the Services; and (b) fraudulent misrepresentation. Embedded will not be liable (whether in contract, tort, including negligence or otherwise) for any indirect, incidental, punitive or consequential loss, damage, cost or expense of any kind whatsoever and howsoever caused nor any loss of production, loss of or corruption to data, loss of profits or of contracts, loss of operation time, loss of goodwill, loss of anticipated savings and wasted management time. The Supplier’s exclusive remedy for any claim arising out of this Agreement shall be for Embedded, upon receipt of written notice, to use all reasonable efforts to cure the breach at its expense, or failing that, the return of the Agreed Fee paid to Embedded for the Services in respect of only direct damages flowing from the breach (whether the claim relates to the contract, tort, negligence, strict liability in tort, by statute or otherwise). Any action by either party must be brought within six months after the cause of action arose. Embedded’s liability for a breach of this Agreement shall be limited to direct damages up to the value of the 100% of the fees paid to Embedded in the 12 months immediately preceeding the breach causing said loss.

  4. The Supplier shall be responsible for:

    1. its operation and use of any materials produced pursuant to the Services;

    2. ensuring that the scope of Services meets the Customer’s requirements, and that information, working papers, documentations, answers and approvals are accurate and complete;

    3. its compliance with all applicable laws and regulations; and

    4. for obtaining all necessary consents from third parties that are required for the Supplier to perform its obligations under this Agreement

  1. During the term of this Agreement, each party may be given access to information that is identified by the discloser as confidential (“Confidential Information”). In connection with Confidential Information, the following shall apply:

    1. The Confidential Information of the discloser may be used by the receiver only in connection with the Services and may only be copied or reproduced to the extent reasonably necessary for the receiver to perform its obligations, in order to comply with legislation or regulatory requirements or to receive advice from its professional advisers;

    2. Each party agrees to protect the confidentiality of the Confidential Information of the other in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either party exercise less than reasonable care in protecting such Confidential Information;

    3. nothing in this Agreement shall prohibit or limit either party’s use of information (including, but not limited to, ideas, concepts, know-how, techniques, and methodologies) (i) previously known to it without an obligation of confidence, (ii) independently developed by or for it, (iii) acquired by it from a third party which is not, to its knowledge, under an obligation of confidence with respect to such information, or (iv) which is or becomes publicly available through no breach of this Agreement.

  1. Unless otherwise explicitly agreed by Embedded in writing in advance for a particular project, all intellectual property conceived or made by Embedded in the course of providing the Services shall belong to Embedded. Embedded hereby grants to the Supplier a non-exclusive licence to use the said intellectual property in the UK (and such other territories as are necessary in order for the materials to be used in the manner for which they were intended) for its own internal use and for use by the Customer, provided that such use is in the manner in which it was originally intended.

  2. The Supplier agrees that Embedded can make reference to it being a Supplier in marketing literature and on Embedded’s website, including a short overview of the scope of services being provided, such overview to be written by Embedded and agreed in advance by the Supplier (such agreement not to be unreasonably withheld).

  3. This Agreement is personal between the Supplier and Embedded, and neither may sell, assign or transfer any duties, rights or interests created under this Agreement without the prior written consent of the other. Except as expressly stated in this Agreement, the parties hereto do not intend that any term of the same shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party.

  4. Neither party shall be liable for any delays or failures in performance (other than payment obligations under this Agreement), losses or damage due to circumstances beyond its reasonable control.

  5. This document contains the entire agreement of the parties, and sets forth the entire understanding between the parties. It supersedes all prior agreements, conditions, warranties, representations, arrangements and communications, whether oral or written, with respect to the subject matter of this Agreement. This Agreement may not be changed by oral agreement but only in writing signed by both parties other than in respect of general changes applicable to all Suppliers which shall be made by notice by Embedded and shall become effective within 30 days of such notification.

  6. No waiver of any provision of this Agreement shall be effective unless it is in writing and signed by the party against which it is sought to be enforced. The delay or failure by either party to exercise or enforce any of its rights under this Agreement shall not constitute or be deemed a waiver of that party’s right to thereafter enforce those rights, nor shall any single or partial exercise of any such right preclude any other or further exercise of these rights or any other right.

  7. Nothing in this Agreement shall be construed as entitling Embedded or its staff to receive the benefits (including but not limited to medical, life, accident or disability insurance, pensions, unemployment or worker’s compensation or profit sharing plans) received by employees of the Supplier; or requiring the Supplier to pay, in respect of Embedded staff, any income taxes or social security or related contributions.

  8. Nothing in this Agreement shall be construed as creating a partnership, a contract of employment or or a relationship of principal and agent between the Suppliers and Embedded.

  9. This Agreement shall be governed by and construed in accordance with the laws of England, and subject to the exclusive jurisdiction of the English courts. All provisions of this Agreement which are by their nature intended to survive the expiration or termination of this Agreement shall survive such expiration or termination.