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General terms of business

1. Definitions

In these General terms of Business:
“Ad hoc Services” means services requested by the Customer and performed or Agreed to be performed by Riverbank for the Customer on an ad hoc basis not subject to a Written Agreement;
“Agreement” means any agreement between the Customer and Riverbank for the provision of computer hardware and/or software technical support services and “Written Agreement” means any such agreement in writing and signed by the Parties;
“Charges” means (a) in the case of any Written Agreement, the charges specified or referred to therein; and (b) in the case of Ad hoc, Services, charges calculated by reference to the Rates;
“the Customer” means the party identified as such in any written Agreement and in any other case the Party to whom the Services are supplied;
“the Customer’s Representative” means the representative appointed by the Customer pursuant to clause 9 below;
“Help Desk Support” means support via Riverbank’s help desk, upon request of the Customer by telephone, e-mail or web form, as more particularly described at Clause 2 below;
“the Help Desk Support Hours” means 8.00am to 5.30pm (London time), Mondays to Fridays except English Bank or public holidays;
“the Rates” means Riverbank’s daily and hourly charge rates prevailing from time to time, available on request from Riverbank;
“Riverbank” means Riverbank IT Management Ltd;
“the Schedule” means the schedule to any Written Agreement;
“Services” means, in the case of any Written Agreement, the technical support services specified or referred to in the Schedule, or Ad hoc Services, as the case may be;
“the Service Start Date” in the case of any Written Agreement, the date specified as such therein;
“the Support Hours” means 9 am to 5.30pm (London time) Mondays to Fridays except English bank and public holidays;
“the Supported Location” means the location at which the Supported Systems reside at the date of the Agreement, or such other location as may be agreed in writing by the Parties;
“the Supported Systems” means, in the case of any Written Agreement the hardware and software identified in the Schedule

2. Service Provision
2.1 As from the Service Start Date, Riverbank will use its reasonable endeavours to provide the Services in relation to the Supported Systems
2.2 If the Customer contacts Riverbank’s help desk by telephone during the Support Hours or by e-mail or fax at any time, Riverbank will:
2.2.1 in the case of a Customer for Ad hoc Services, provide (during the Support Hours) such length of help desk advice as is required by the Customer from time to time; and
2.2.2 in the case of any other Customer , provide the services set out in the Schedule
and for the avoidance of doubt it is hereby declared that the amount of Help Desk Support mentioned in this Clause 2 includes all time spent by Riverbank staff working on the Customer’s technical problems (as raised in the request for Help Desk Support) pursuant to the Agreement, and is not limited to time devoted to communication with the Customer
2.3 Nothing in the Agreement shall oblige Riverbank to do anything which in its reasonable opinion may infringe the intellectual property rights of any third party

3. Charges and Payment
3.1 Where the Customer has opted for the provision of Ad hoc Services , charges will be made for Help Desk Support time (including time spent in the provision of telephone advice and remote access support) in accordance with the Rates
3.2 Riverbank may invoice the charges referred to above at any time or times after start of the Services.
3.3 Where the Customer has opted for the provision of Services pursuant to a Written Agreement, then the applicable monthly, quarterly or annual charges (as the case may be) shall be paid (a) as to the first such period: on signature of the Agreement; and (b) by no later than the start of each subsequent such period.
3.4 Where the Customer has selected Services which include routine monitoring, the Customer shalll pay Riverbank for time spent in setting up the monitoring systems, as referred to at Clause 2.3.1 above, at the Rates
3.5 If the Customer shall request any additional services from Riverbank or any visit to the Supported Location for any purpose, the Customer shall pay for Riverbank time spent in providing those additional services and each such visit in accordance with the Rates
3.6 All charges payable under the Agreement are quoted exclusive of value added tax, sales tax or similar taxes which shall be paid at the rate and in the manner from time to time prescribed by law
3.7 The Customer shall pay the amount of each invoice issued pursuant to the Agreement within thirty days of the date of issue thereof
3.8 If any amount payable by the Customer hereunder is not paid in accordance with the provisions of 3.7 above then, without prejudice to its other rights and remedies, Riverbank may suspend the performance of the Services; and /or charge interest on the amount outstanding (as well after as before any judgment), from the due date for payment of that amount to the actual date of payment (both dates inclusive), at the rate of 4% per annum above the base rate of the Bank of England from time to time in force, compounded quarterly.
3.9 The Customer shall reimburse Riverbank for all travel, subsistence or other expenses incurred by Riverbank employees or consultants in connection with the provision of any services including, without limitation, those expenses incurred in complying with Customer requests
3.10 Riverbank is not obliged to carry out any work except as specifically set out in the Agreement, but if it does so, such work shall be subject to the terms of the Agreement, and the Customer will pay for that work at the Rates.
3.11 The Customer shall notify Riverbank immediately of any modification or addition to the Supported System made by it or on its behalf by any party other than Riverbank. Any such modification shall entitle Riverbank to terminate the Agreement forthwith, or to require the Customer to agree increased fees for continued provision of the Services
3.12 Riverbank may increase the charges payable hereunder or the Rates (or both) at any time by giving the Customer not less than 30 days' notice

4. Warranties and Liability
4.1 Riverbank warrants that it will provide the Services with reasonable skill and care. However, because of the nature of the Supported Systems, no representation or warranty is given that it can rectify or accommodate any defect or deficiency in or problem with the Supported Systems or that its liaison with the manufacturers, maintainers or suppliers of the Supported Systems will result in the resolution of the Customer’s problems or the correction of any defect or deficiency.
4.2 The express warranty and undertakings given by Riverbank herein are in lieu of all other warranties, conditions, terms, undertakings and obligations, whether express or implied by statute, common law, custom, trade usage, course of dealing or otherwise, all of which are excluded to the fullest extent permitted by law. No provision herein attempts to exclude liability for fraud
4.3 Liability

4.3.1 The following provisions set out Riverbank’s entire liability (including any liability for the acts and omissions of its employees agents and sub contractors) to the Customer in respect of:
4.3.1.1 any breach of its contractual obligations under the Agreement; and
4.3.1.2 any representation statement or tortious act or omission including negligence (but excluding any of the same made fraudulently) arising under or in connection with the Agreement

AND THE CUSTOMER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF THIS CLAUSE 4.3
4.3.2 Any act or omission on the part of Riverbank or its employees agents or sub contractors falling within clause 4.3.1 above shall for the purposes of this clause 4 be known as an “Event of Default”.
4.3.3 Riverbank’s liability to the Customer for:

4.3.3.1 death or injury resulting from its own or that of its employees’ agents’ or sub- contractors’ negligence, and
4.3.3.2 damage suffered by the Customer as a result of any breach of the obligations implied by, as applicable, section 12 of the Sale of Goods Act 1979, section 2 of the Supply of Goods and Services Act 1982 or section 8 of the Supply of Goods (Implied Terms Act) 1973

shall not be limited

4.3.4 Subject to the limits set out in clause 4.3.5 below Riverbank shall accept liability to the Customer in respect of damage to the tangible property of the Customer resulting from the negligence of Riverbank or its employees agents or sub contractors.
4.3.5 Subject to the provisions of clause 4.3.3 above Riverbank’s entire liability in respect of any Event of Default shall be limited to damages of an amount equal to £100,000 in the case of an Event of Default falling within clause 4.3.4 above and £500,000 in the case of any other Event of Default
4.3.6 Subject to clause 4.3.3 above Riverbank shall not be liable to the Customer in respect of any Event of Default for loss of profits goodwill or any type of special indirect or consequential loss (including loss or damage suffered by the Customer as a result of an action brought by a third party) even if such loss was reasonably foreseeable or Riverbank had been advised of the possibility of the Customer incurring the same.
4.3.7 Riverbank is willing to accept greater liability than is specified herein, subject to Customer agreement to pay higher Charges
4.3.8 If a number of Events of Default give rise substantially to the same loss then they shall be regarded as giving rise to only one claim under this agreement.
4.3.9 The Customer hereby agrees to afford Riverbank not less than 30 days in which to remedy any Event of Default hereunder, following written notification thereof by the Customer
4.3.10 Except in the case of an Event of Default arising under clause 4.3.3 above Riverbank shall have no liability to the Customer in respect of any Event of Default unless the customer shall have served notice of the same upon Riverbank within six months of the date it became aware of the circumstances giving rise to the Event of Default or the date when it ought reasonably to have become so aware.
4.3.11 Nothing in this clause shall confer any right or remedy upon the Customer to which it would not otherwise be legally entitled.

4.4 Riverbank’s liabilities and obligations under the Agreement are subject to the Customer having complied with its obligations under the Agreement.
4.5 The express warranties and undertakings given by us in the Agreement are in lieu of all other warranties, conditions, terms, undertakings and obligations, whether express or implied by statute, common law, custom, trade usage, course of dealing or otherwise, all of which are excluded to the fullest extent permitted by law. No term in the Agreement attempts to exclude liability for fraud.
4.6 The Customer warrants that it has not been induced to enter into the Agreement by any representation or by any warranty, whether oral or in writing, except those specifically contained in the Agreement as warranties, and waives all claims for breach of any warranty and all claims for any misrepresentation, (whether negligent or otherwise, unless made fraudulently) which is not specifically contained in the Agreement as a warranty

5. Proprietary Rights
The Intellectual Property Rights in all software, documentation and other materials prepared by Riverbank in the course of rendering the Services shall be the property of Riverbank.

6. Training and Other Services
If the Customer requires any services not included in the Agreement and Riverbank agrees to provide those services, then it will pay Riverbank for them at the Rates.

7. Duration and Termination
7.1 The Agreement shall endure for a period of one month from the Service Start Date and from month to month thereafter until terminated in accordance with the provisions herein
7.2. Riverbank may, at its option, suspend performance of or terminate the Agreement immediately on giving notice in writing to the Customer if:

7.2.1 the Customer fails to pay any amount due under the terms of the Agreement and that sum remains unpaid for 30 days after the giving of written notice that that amount has not been paid.

7.2.2. the Customer commits any breach of any term of the Agreement and (in the case of a breach which is not persistent and which is capable of being remedied) has failed, within 30 days after being requested by Riverbank in writing to do so, to remedy the breach; or

7.2.3. the Customer has a receiver or administrative receiver appointed over it or over any part of its undertaking or assets, or passes a resolution for winding-up (except for the purpose of a bona fide scheme of solvent amalgamation or reconstruction), or if a court of competent jurisdiction makes an order to that effect, or if it becomes subject to an administration order, or enters into any voluntary arrangement with its creditors, or if any similar process to any of the above is begun, or if the Customer ceases or threatens to cease to carry on business.

7.3 Either party may terminate the Agreement, by giving 30 days' notice in writing to the other
7.4 On termination the Customer shall, within 30 days, pay Riverbank for all work done before termination and for all expenses incurred in connection with any work done or to be done for the Customer.

8. Delays
Notwithstanding anything else contained in the Agreement, Riverbank shall not be liable for any delay in performing or failure to perform its obligations caused by circumstances beyond Riverbank’s control (including, without limitation, any act or omission on the part of the Customer or on the part of any third party, and any defect, error, fault or deficiency in the Supported Systems or any other software or equipment), and the Customer shall grant a reasonable extension of time for the performance of such obligations.

9. Representatives
On the signing of the Agreement, each party shall appoint a person who shall act as its representative for the purposes of the Agreement, who will be responsible for providing any information which may be required by the other party to perform its obligations hereunder. The Customer’s appointee will be responsible for meeting Riverbank’s appointee and any other Riverbank personnel visiting the Supported Location and for providing to Riverbank any assistance reasonably required by it in performing its obligations under the Agreement. Each party shall promptly notify the other of the name, telephone number, fax number and e-mail address of its appointee and of any change in the identity or the contact details of that appointee.

10. Customer Information and Facilities
10.1 The Customer shall provide Riverbank, free of charge, all information, materials, documentation, resources and facilities including, without limitation, computer, communications and office facilities, reasonably requested by it to enable it to provide the Services. The Customer shall ensure that its staff, contractors and other suppliers co-operate fully with Riverbank and cause no delay. Where Riverbank needs the Customer to provide information or take a decision the Customer shall do so promptly and so as not to delay the work in hand
10.2 Riverbank will establish and maintain such security measures and procedures as are reasonably practicable to provide for the safe custody of Customer information which is in Riverbank's possession, and to prevent unauthorised access to that information.
10.3 Whilst any Riverbank employees or consultants are working at the Customer’s premises, the Customer shall ensure the health and safety of those people. The Customer shall indemnify Riverbank against all losses, damages and expenses incurred or suffered by it in connection with any and all claims made in respect of any injury, death or loss suffered by those employees or consultants whilst on Customer premises and arising wholly or partly as a result of the Customers negligence, provided always that where such injury, death or loss arises only partly as a result of such negligence, then such indemnity shall operate proportionately
10.4 The Customer shall, before the Service Start Date, set up all communications and other arrangements necessary to allow Riverbank to have remote access to the Supported Systems and maintain those arrangements so as to enable Riverbank to perform the Services.

11. Waiver of Remedies
No forbearance or delay by either party in enforcing its rights will prejudice or restrict those rights. No waiver of any right will operate as a waiver of any subsequent breach. No right, power or remedy conferred by the Agreement or by the law on, or reserved to, either Party is exclusive of any other right, power or remedy available to either party, and each of those rights, powers and remedies is cumulative

12. Entire Agreement
The Agreement supersedes all prior agreements, arrangements and understandings between the parties in respect of its subject matter, and constitutes the entire agreement between them relating to the subject matter of the Agreement. No addition to or modification of any provision of the Agreement will be binding on either party unless recorded in writing and signed by a duly authorised representative of such party.

13. Assignment
The Customer may not assign, or transfer, or sub-contract the Agreement or any of its rights or obligations thereunder, whether in whole or in part, without first obtaining Riverbank’s written consent.

14. Notices
All notices to be given under the Agreement must be in writing and be sent to the address of the intended recipient set out in the Agreement or any other address in England which the intended recipient may designate by notice given in accordance with the provisions of this Clause 14. Any notice may be delivered personally, or by first class pre-paid letter, or by fax, and will be deemed to have been served: if by hand, when delivered; if by first class post, 48 hours after posting; and if by fax, when despatched, provided the sender's fax machine automatically produces written confirmation of error free transmission to the intended recipient's fax number.

15. Headings
The headings to these General Terms of Business are for ease of reference only, and do not affect the interpretation or construction hereof.

16. Partnership and Staff
16.1 Nothing in Agreement creates, evidences or implies any partnership or joint venture between the parties, or the relationship of principal and agent.
16.2. Riverbank has the discretion to allocate such staff as it from time to time sees fit to the provision of the Services
16.3 The Customer shall not, either during the period of provision of the Services, or for 6 months afterwards, without first obtaining Riverbank’s written consent:

16.3.1 solicit or endeavour to entice away from or discourage from being employed or engaged by Riverbank anyone who is or has been involved in the provision of the Services; or

16.3.2 employ, engage or endeavour to employ or engage anyone who is employed or engaged by Riverbank and is or has been involved in providing the Services.

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