eLEGAL Deliverable D23: Library of model contracts
Contents
1. 1 12 5 Bills of quantities have to be delivered a in the German GAEB format Software for reading this format has to be according to the functions used by the software sidoun manufacturer is b in the existing XML schema defined in provided by the client 1 12 6 Every other data has to be delivered according to the XML categories defined in provided by the client D23f ModelContracts 2002 08 27 Page 8 of 26 e Public D23f Model Contracts 3 ASP Contractual Relationships for a UK Construction Project This sample contract covers the clauses for a UK project using the service of an ASP Application Service provider It is important to note that this sample contract is an indication of one approach which may be taken to providing collaboration technology on a project It is not suitable as an off the shelf contract and will need to be modified and possibly negotiated to suit any given project It does however identify the important issues as a basis for such negotiation Where words appear in square brackets this indicates that additional data needs to be inserted e g names price information or data which it is not possible for a sample contract to anticipate such as the precise nature of the services to be provided 3 1 Scope of the Sample Contract This sample contract includes clauses suitable for use on a UK project where a client is engaging an Application Service2. 16 1 16 2 16 3 17 17 1 Where the ASP agrees to provide optional services or variations such agreement will be embodied in an order for optional services or variation Each such order will be made under and will incorporate the terms of this Agreement Variations to the contract Any amendment waiver or variation of this Agreement will not be binding on the Parties unless set out in writing expressed to amend this Agreement and signed by or on behalf of each of the Parties Termination Either Party may terminate this Agreement forthwith on giving written notice in writing to the other Party if the other Party 15 1 1 commits any material breach of this Agreement and in the case of a breach capable of being remedied the parties fail to reach an agreed resolution by the dispute resolution procedure set out inclause 15 1 2 convenes any meeting of creditors or passes a resolution for winding up or suffers a petition for winding up which is not discharged within 21 days 15 1 3 has an administrative receiver appointed over the whole or part of its assets or suffers the appointment of an administrator or 15 1 4 being an individual compounds with its creditors or comes to any arrangements with any creditors ASP may terminate this Agreement forthwith without notice if the Client fails to pay invoices presented by the ASP in accordance with clause 11 1 above Termination of this Agreement howsoever caused shall n
3. 1 The confirmation must contain a full copy of every received decrypted item The confirmation has to be signed digitally or the hashvalue created by the sender which has been digitally signed by the receiver Explanation In order to be able to validate the content of the transmission the recipient has to sign the content he received and send it back to the sender Thus the sender is able to proof that the receiver has got the items with exactly the same content he had sent off The first possibility sending back the item is not convenient as the sender has to verify the content he received Using the second possibility signing the hashcode is preferable 1 5 2 It is in the responsibility of the sender to validate that sent and received items are identical that the confirmation of receipt arrived at the sender 1 5 3 Concerning emails info the receiver is obliged to accept them D23f ModelContracts 2002 08 27 Page 5 of 26 Public D23f Model Contracts to read them to send back a confirmation of receipt to the sender to verify the message check of authentification of sender of integrity of transmitted info 1 5 4 Explanation Recommended for use for this purposes is an automatic response email system enabling digital signatures for e g 1 6 Obstacles for sender or receiver of data 1 6 5 If there are technical obstacles in sending the confirmation the sender has to rea
4. Page 24 of 26 Public D23f Model Contracts FEES SCHEDULE The Service Fees comprise E eee f 2 a one off training fee of for days initial training by the ASP at per day payable on completion of such training 3 any additional training required by the Client from the ASP will be provided at a rate of per day D23f ModelContracts 2002 08 27 Page 25 of 26 Public D23f Model Contracts AUTHORISED USE POLICY SCHEDULE SECURITY SCHEDULE ACCESS CONTROL SCHEDULE To be drafted according to the individual needs of the parties D23f ModelContracts 2002 08 27 Page 26 of 26
5. Provider or ASP to provide a web based project collaboration tool for use by the client and the project team e g architect consulting engineers etc The contract is therefore between the client and the technology supplier albeit it requires at clause 4 1 the services to be provided to the project team defined as Authorised Users as well Because users other than the client are receiving services from the ASP and yet are not a party to this contract a simpler contract is created between them and the ASP via the Authorised User Licence which is included as a schedule to the ASP contract The Authorised User Licence contains provisions governing the use of the system by members of the project team It includes several clauses similar to those in the ASP contract for example regarding the ASP s intellectual property rights but does not include for example payment provisions as the client and not the users are paying the ASP to provide the services D23f ModelContracts 2002 08 27 Page 9 of 26 e Public D23f Model Contracts Communication on construction sites using ASPs 1 1 1 1 2 1 3 parties date of agreement Parties Client ASP Date Addresses registered offices Definitions Agreement ASP Authorised Use Policy Authorised User Licence Authorised Users Business Day Client Commencement Date Data Controller Data Proce
6. be taken to providing collaboration technology on a project It is not suitable as an off the shelf contract and will need to be modified and possibly negotiated to suit any given project It does however identify the important issues as a basis for such negotiation Where words appear in square brackets this indicates that additional data e g names price information needs to be inserted Because users other than the client are receiving services from the ASP and yet are not a party to the ASP contract this simpler contract is created between them and the ASP The Authorised User Licence contains provisions governing the use of the system by members of the project team It includes several clauses similar to those in the ASP contract for example regarding the ASP s intellectual property rights but does not include for example payment provisions as the client and not the users are paying the ASP to provide the services AUTHORISED USER LICENCE 1 The ASP we or us INSERT NAME of INSERT ADDRESS supplies the Services to INSERT NAME OF CLIENT the Client 2 The Client has identified you as an Authorised User of the Services Before ASP will accept you as an Authorised User you must agree to the terms of the following Authorised User Licence IF YOU DO NOT INDICATE THAT YOU WISH TO BE BOUND BY THE TERMS OF THE AUTHORISED LICENCE BY CLICKING ON AGREE AT THE FOOT OF THIS PAGE YOU WILL NOT BE PERMITTED TO US
7. breach or threatened breach by the other or any obligation of confidentiality or any infringement by the other of the first named Party s Intellectual Property Rights Jurisdiction and choice of law clause This Agreement will be governed by and construed in accordance with English law and each Party hereby submits to the exclusive jurisdiction of the courts of England and Wales Support Some alternatives ASP will provide telephone helpdesk support during Normal Working Hours Or ASP will provide telephone helpdesk support 24 hours a day 7 days a week every day of the year for logging problems with the service In addition ASP will be available to respond to queries during Normal Working Hours Or ASP will provide telephone helpdesk support 24 hours a day 7 days a week every day of the year Operating Environment Each Party will ensure that it has and uses the Equipment required to access the Web Site as set out in the User Manual For the avoidance of doubt ASP is not responsible for providing PCs modems printers or other equipment that Authorised Users may need to access the services D23f ModelContracts 2002 08 27 Page 18 of 26 Public D23f Model Contracts 24 24 1 24 2 24 3 24 4 24 5 24 6 24 7 24 8 24 9 Service levels availability With effect from the Commencement Date and during the term of this agreement the ASP will provide that 24 1 1 the Web Site will remain c
8. by any of the Parties The ASP shall not disclose the Project Data to any third party save D23f ModelContracts 2002 08 27 Page 12 of 26 Public D23f Model Contracts 6 2 6 3 6 4 6 5 7 1 7 2 7 3 6 1 1 any officer employee or contract staff for the time being working for the ASP who may reasonably need to know it or 6 1 2 as otherwise required by law provided that the ASP shall be responsible for ensuring that any person to whom Project Data is disclosed complies with any conditions of confidentiality applying to such information under this Agreement The Client shall keep confidential all information about the ASP and its technology which it gains from its use of the System The Client shall not disclose any such information to any third party save 6 2 1 any officer employee or contract staff for the time being working for the Client who may reasonably need to know it or 6 2 2 as otherwise required by law provided that the Client shall be responsible for ensuring that any person to whom such information is disclosed complies with any conditions of confidentiality applying to such information under this Agreement Nothing in Clauses 6 2 2 and 6 2 3 shall apply to any information 6 3 1 which is or which becomes available to the public other than by breach of this Agreement or of any other duty 6 3 2 which the party receiving the information already possesses or which it obtains or origin
9. or EU law and in any such case subject to informing us in advance CONFIDENTIALITY The Services licensed to you in this Authorised User Licence is confidential to ASP having been developed by ASP at great expenditure of time resources and money In consideration of the licence granted to you in Clause 1 you agree to keep the Services and all related information you may receive concerning it in the strictest confidence and to exercise the highest degree of care to safeguard the confidentiality of the Services and inform all relevant employees agents and sub contractors that the Services comprises ASP confidential information and ensure that they comply with these confidentiality provisions Much of the data and information comprised in the Services may be confidential to ASP or to the Client or to other Authorised Users In consideration of the licence granted to you in Clause 1 you agree to keep all data and information you may receive in the course of participating in the Project in the strictest confidence unless the data or information are manifestly in the public domain or cannot reasonably regarded as being of a confidential nature COMPLIANCE WITH LAWS If at any time your access to the Services is in breach of or not in compliance with any applicable law or regulation you will be in breach of this Authorised User Licence and we will be entitled at our sole discretion to terminate it immediately and without notice You acknowledge a
10. Data Protection All rights title and interest in any personal data contributed to the Web Site shall vest solely in those who contribute those personal data The Client acknowledges that in providing the Web Site the ASP is acting as a Data Processor under the Data Protection Act 1998 the Act and the Client is the Data Controller under the Act The instructions given by the Client to the ASP in respect of the Personal Data must at all times be in accordance with the laws of the United Kingdom The ASP will process the Personal Data to provide the Web Site in terms of this Agreement and in accordance with the Client s instructions given from time to time The ASP will not use the Personal Data for any purposes which are inconsistent with those instructed by the Client The ASP will not disclose any Personal Data to a third party except at the specific request of the Client or where obliged to do so by law The ASP warrants that it has appropriate operational and technological processes and procedures in place to safeguard against any unauthorised access loss destruction theft use or disclosure of Client s Personal Data Depending on the method used a participating Party may be able to issue user names and passwords up to a specified number to its own personnel D23f ModelContracts 2002 08 27 Page 14 of 26 e Public D23f Model Contracts 9 8 10 10 1 11 12 12 1 12 2 13 13 1
11. E ANY SERVICE 3 TERMS AND CONDITIONS 4 GRANT OF LICENCE 4 1 ASP grants you a non exclusive licence i to participate in the Project conducted by the Client using ASP services provided by ASP and ii to access remotely and use the Services solely in connection with the Project for the duration of the Project 4 2 You acknowledge that ASP charges fees to the Client in respect of your use of the Web Site You confirm you understand that 4 2 1 failure by the Client to make such payments or 4 2 2 receipt by ASP of a Client s instruction that ASP should cease giving you access to the Web Site will entitle ASP to terminate or suspend your access to and use of the Web Site without ASP incurring any liability to you 5 TITLE AND COPYRIGHT 5 1 ASP is either the sole and exclusive owner or an authorised licensee or user of all Intellectual Property Rights in the Services including any images applets photographs animations video audio music and text incorporated into the Services and reserves all its rights No title or ownership of the Services or of any third party right comprised in it is D23f ModelContracts 2002 08 27 Page 22 of 26 Public D23f Model Contracts 6 1 7 1 7 2 8 1 8 2 9 1 10 10 1 transferred to you and you may not transfer sublicense rent lease network distribute or grant your right to access the Services in this Authorised User Licence to any other party If you l
12. The Client indemnifies ASP against all costs expenses including legal expenses damage loss including loss of business and loss of profits liabilities claims actions or proceedings which the ASP may incur arising out of the ASP s processing of the Client s Personal Data in accordance with the Client s instructions in its capacity as Data Processor Fees The ASP s Fees are set out in the Fees Schedule as varied from time to time Client s Obligations In consideration of ASP providing the System and Services the Client agrees to pay to ASP the Fees in accordance with the Fees Schedule The Client warrants that it shall use the System and Services strictly and only in accordance with this Agreement The Client shall indemnify ASP against all and any loss damage cost expense or other claim arising from any breach of the warranties given by the Client in this Clause new versions For the duration of this Agreement the ASP will 12 1 1 inform the Client of any planned or completed New Version 12 1 2 offer to the Client the opportunity to examine a any New Version and b any tests or results of tests of such New Version that the ASP may carry out or may have carried out and c at the Client s request install and integrate such New Version in the System on the ASP s normal commercial terms at a charge to be determined pursuant to this Agreement If the ASP releases a New Version and the Client decides not to
13. a are not admissible Explanation Data is sent with an accuracy of say 8 decimal places For e g a preliminary design it may be restricted General Reciprocal obligations Parties agree to use email protocol described in the e mail Protocol Schedule Hint Copyright in drawings strict version control any amendments are to be recorded easily accessible full version history must be available not only storing the current version of the document That is the key for saying who is the owner of that particular part of the data Hint Definition of project s standards Specifying operating environment is necessary for project collaboration Example 1 12 1 Software When sending data the parties are obliged to use the following software for creation or altering the data The parties can use different software if the following functions are identical to the above mentioned software 1 12 2 Access to ASP provided is access using the internet and the address www Using ISDN or ADSL 1 12 3 Hardware Standard PC recommendation Pentium Il 400 Mhz 128 MB Hauptspeicher CD ROM and floppy drive at least 17 Monitor operation system Windows NT 4 0 or Windows 2000 Professional peripheral devices plotter A4 printer A4 scanner D23f ModelContracts 2002 08 27 Page 7 of 26 Public D23f Model Contracts 1 12 4 Others the naming field has to be positioned and as demonstrated in CAD template
14. ates independently in circumstances in which that party is free to disclose it The obligations in this clause shall survive termination of this Agreement for a period of 5 years after such termination ASP s obligation to implement access control policy as agreed by the project participants as described in the Security Schedule password protection The ASP will provide the Client and Authorised Users with a user name and password to enable them to log onto a secure area via the URL http www in order to access the Services Each user name and password will give the Client and Authorised Users access to the Services that they require The Client will and will procure that Authorised Users will 7 3 1 Use the user name and password solely for the purpose of enabling it to access the Services for the purposes of the Project 7 3 2 Keep the user name and password confidential 7 3 3 Store the user name and password securely and 7 3 4 Not divulge the user name and password to any third party D23f ModelContracts 2002 08 27 Page 13 of 26 e Public D23f Model Contracts 7 4 8 1 8 2 8 3 8 4 8 5 9 1 9 2 9 3 9 4 9 5 9 6 9 7 The Client will promptly notify the ASP of any changes in the number and identity of Authorised Users and their user names and passwords OWNERSHIP AND TREATMENT OF Data The Client warrants that it is the owner of the Data it loads onto th
15. ct immediately either he sends a fax to the receiver of the confirmation or executes a telephone call to the following person or or sends a SMS to the following mobile number 1 6 6 Sender failed If the sender realises that a delivery failed or was not possible or did not lead to a confirmation of receipt within the time limit mentioned above then the sender has to send his email once again If it does not work sender is authorised to send the email to a default inbox to be agreed by the parties with the following email address Additionally sender has to notify the receiver by means of fax telephone or SMS The receiver is obliged to send back a confirmation of receipt of this message Explanation If the sender has used a SMS for notification he is able to get back automatically from his provider a protocol whether and when the receiver received the SMS Thus using SMS is advantageous 1 6 7 Receiver failed If the receiver is not able to issue off a confirmation of receipt he has to notify sender by means of fax telephone SMS 1 7 Fine or incentivisation for missing confirmation 1 7 1 Fine If confirmations have despite the above mentioned obligation not been given the following fines for the receiver apply for the 3rd and above not transmitted confirmation for each missing confirmation or Incentivisation If all parties agree that confirmations have not been a problem each o
16. e System In the course of providing the Services the ASP or its agents contractors or sub contractors may need to copy modify or adapt the Project Data and the Client grants to the ASP and its agents contractors or sub contractors a non exclusive licence to use the Project Data for the purpose of providing the Services The Client warrants that the Data that it loads onto the System will not contain any material which is unlawful obscene defamatory incites racial hatred breaches third party intellectual property rights or violates any export control laws and that the Client s use of the Services will comply in all respects with the Authorised Use Policy In the event that there is a breach of the warranty given by the Client in Clauses or above or if there is any breach of the Authorised Use Policy by the Client the ASP may subject to giving 24 hours notice suspend access to the Services by any party and or remove Project Data from its servers The ASP will back up Project Data in accordance with the Security Schedule and will not be responsible for backing up any Project Data which has not been saved to its servers due to either the relevant file remaining open or the person using the Services failing to save such Project Data Upon termination of the Agreement the ASP shall keep the Project Data for a period of and shall make the same available for collection by the Parties in the format specified in the Security Schedule
17. e licence granted to you in Clause 4 you undertake that if ASP suffers any loss damage fine or expense as a result of i any unauthorised access to or use or misuse of the Services by any of your employees agents or subcontractors ii any unauthorised access to or use or misuse by any third party if that access or use or misuse was enabled or permitted by such an employee agent or subcontractor or iii as a result of your breach of any provision of this Agreement you will fully indemnify ASP in respect of such loss damage fine or expense TERMINATION This Authorised User Licence shall commence on the Commencement Date and shall continue in force for the Term unless terminated in accordance with this Clause 13 We may terminate this Authorised User Licence 13 2 1 at any time by giving you 90 days written notice or 13 2 2 immediately in accordance with Clause 4 2 above Either party may terminate this Authorised User Licence immediately by notice in writing to the other if the other party is in material or continuing breach of any of its obligations under the Agreement and fails to remedy the same if capable of remedy for a period of 30 days after written notice of the breach by the other party JURISDICTION This Authorised User Licence shall be governed by and construed in accordance with English law and the parties hereby submit to the non exclusive jurisdiction of the English Courts D23f ModelContracts 2002 08 27
18. eLEGAL Specifying Legal Terms of Contract in ICT Environment IST 1999 20570 Deliverable D23 Library of model contracts Report Version Final Report Preparation Date 27 08 2002 Classification Public Contract Start Date 01 11 2000 Duration 24 months Project Co ordinator Dr Tarek Hassan Loughborough University Partners Loughborough University Masons SEIB Information Technology Dr jur Eduard Ott Geodeco Technical Research Centre of Finland VTT Enterprise Net Finland Oy Ponton Software Technology Fortum Engineering Project funded by the European Community under the Information Society Technology Programme 1998 2002 Public D23f Model Contracts Deliverable Administration amp Summary Project acronym eLEGAL Number ST 1999 20570 Deliverable Deliverable D23 Library of model contracts no amp name Author s Eduard Ott Ott Ed White and Clive Seddon Masons Short description Sample Contracts for various ICT environments Available to eLEGAL consortium European Commission General Public Version O Plan O Draft O Working H Final Date 27 08 2002 Schedule x 6 12 18 Resources pm 6 Contributions amp O0 Loughborough WoO Masons 1 5 OO SEIB ITC peer peas from 40 Ott 2 0 HO Geodeco 1 0 O00 VTT Resources On BNeK 0 5 OO Ponton gt m0 Fortum 1 0 this task are shown in person mont
19. earn of any claim that the Services infringe any rights of any third party and i you inform us of the claim and let us settle or litigate it and do not yourself settle or litigate it and ii the claim does not arise from your breach of this Authorised User Licence we will indemnify you against any damages or costs arising from the claim and we will pay your expenses if you co operate with us in our settlement or litigation concerning it This will be your entire remedy in respect of any Intellectual Property Right infringement intellectual property rights In consideration of the Licence granted to you by Clause you grant ASP a non exclusive and non transferrable licence to provide to other Authorised Users involved in a Project access to any information you place on the Web Site for the purposes of the Project RESTRICTIONS ON USE You must use the Web Site in accordance with the User Manual The licence granted to you in Clause 1 is personal to you and your staff and you may not other than necessitated by the use permitted under Clause 1 copy any component of the Services or download any component to a computer of any kind or re transmit disseminate or otherwise make information or data in connection with the Project available to any third party without our prior written consent or ii modify disassemble reverse engineer translate decompile create derivative works or otherwise alter the Services except as permitted under national
20. er Explanation Building participants from outside the ICT contract like public authorities like suppliers cannot be forced to provide pure electronic communication There has to be established a contractual interface for bringing this outside information inside the circle of the ICT contract participants D23f ModelContracts 2002 08 27 Page 4 of 26 Public D23f Model Contracts 1 3 Digital Signature amp Encryption Every electronically transmitted item notice file document has to be digitally signed Otherwise it will not be contractually valid It is in the responsibility of the receiver to validate the authenticity of the sender Encryption is please crossmark obligatory not necessary The digital signature has to fulfil the following requirements type of encryption RSA DSS storage of the secret key on smart card on PC storage of the public key in the public database or to be applied for at the following Certification Service provider USing the following selection 1 4 Authorisation for companies The following persons are authorised to digitally sign on behalf of the following companies 1 5 Confirmation of receipt For evidence purposes every receipt of an electronically transmitted info email document file has to be confirmed by the receiver This has to be done within minutes after receipt 1 5
21. f the parties gets an additional compensation of 1 7 2 Fine or additional compensation is claimed from granted to please mark with a cross D23f ModelContracts 2002 08 27 Page 6 of 26 Public D23f Model Contracts 1 8 1 9 the individuals the parties Time Stamp The trust centre s time stamp has to be provided for every transaction Explanation The time stamp is one of the necessary items for evidence in order to prove that the transmitted info was delivered from the sender and when it was delivered The standard case is when signing an info e g a file an online connection is established to the trust centre The centre sends the time info as a self signed file as an additional file or as an amendment to the signature file Thus it is visible at which time the signature was executed This preferably is to be combined with the hashvalue the hashvalue receives a time stamp Then authenticity content and time of the info is visible To ease the use of this feature the software has to be appropriate Accuracy and limitation of the information content A party may restrict the accuracy of its data provided that it communicates any such restriction to the recipient at the time of sending the information The limitation takes place even if the data has a much higher accuracy If a party wants to restrict its data this has to be expressed explicitly Other restrictions of the dat
22. hs EHHE Industry ref group Assessment IH Approved O Rejected O Improve as below Date 26 07 02 T c S Suggested s improvements Review O Approved O Rejected O Improve as below Date g Required improvements Document history Amendments made in response to Peer review Date 27 08 02 Description of change By Masons from previous version Date By Date By Date By D23f ModelContracts 2002 08 27 Page 1 of 26 Public D23f Model Contracts TABLE OF CONTENTS WTOP TH igs venadcice ai eneyisentaswsstlgeccsunpdeseusascaxasenatu esis a san era neces 3 2 Email environment for UK a cccssawencwnnesica eevantsiecesnndencennancatententxanntankcansndonteneabeneesaucextunanchuenetines 4 3 ASP Contractual Relationships for a UK Construction Project sessessessesseesesseseesrsseseeeee 9 3A Scope OF The Sample Contrat sserrep s A E EN A AE E TEA h 9 Communication on construction sites using ASPS cceececseessecsteceeeeeeeeeeseecsseeeeesens 10 ASP Contract SONS AGIOS osuin a a aeaa 21 Authorised User Licence Scehed le scssccscs sivacentescatasnsapetassdunneesebscadesbotwntedespaarteiadseaunearmess 22 D23f ModelContracts 2002 08 27 Page 2 of 26 e Public D23f Model Contracts 1 Introduction This eLEGAL project deliverable comprises a set of model or sample contracts covering typical conditions in c
23. implement such New Version then such decision will not give rise to any right to terminate this Agreement nor will it result in any adverse effect on the Services or the performance of the ASP s obligations under this Agreement However if the ASP has released a two New Version s since the version which forms part of the System and the Client has not within 24 months of the ASP s having notified the Client that the second New Version is available acquired and installed either of those two New Versions then provided such failure is not attributable to a failure of the New Version in question to achieve acceptance pursuant to Clauses and the ASP will be entitled to terminate this Agreement by three months written notice to the Client ORDERS FOR OPTIONAL SERVICES AND VARIATIONS The Client may from time to time require the ASP to supply optional services of the type set out in the Services Schedule or implement variations to the System at the rates set out in the Services Schedule as varied from time to time in accordance with this Agreement The ASP will use all reasonable endeavours to comply with the Client s request but the Client acknowledges that the ASP s ability to do so will depend upon the availability of appropriate resources at the time in question D23f ModelContracts 2002 08 27 Page 15 of 26 Public D23f Model Contracts 13 2 14 14 1 15 15 1 15 2 15 3 15 4 16
24. n any representation made but not embodied in this Agreement Notices Any notice given under or in relation to this Agreement will be by e mail in which case it will be deemed to have been signed provided the full name position and company of the sender is clearly shown Any such notice will be deemed to have been received in the case of e mail at the time that the e mail enters an the Designated Information System of the intended recipient provided that no error message indicating failure to deliver has been received by the sender Provided that if deemed receipt occurs before 9am on a Business Day the notice will be deemed to have been received at 9am on that day and if deemed receipt occurs after 5pm on a Business Day or on a day which is not a Business Day the notice will be deemed to have been received at 9am on the next Business Day The addresses of the parties for the purposes of this clause are the Client representative Position E mail Address etc In proving such service it will be sufficient to prove that the e mail was sent to the relevant Party in accordance with this Clause D23f ModelContracts 2002 08 27 Page 17 of 26 Public D23f Model Contracts 20 20 1 20 2 20 3 21 22 22 1 23 23 1 Dispute resolution It is the intention of the Parties to settle amicably by negotiation all disagreements and differences of opinion including matters of performance pr
25. nd agree that we are entitled to report such a breach or non compliance to any relevant regulatory body or agency and that we shall not incur any liability as a result of the breach the non compliance or our reporting of it LIMITED WARRANTY If the System fails to execute its programming instructions we warrant and undertake to use reasonable commercial efforts to correct any documented error which can be duplicated D23f ModelContracts 2002 08 27 Page 23 of 26 Public D23f Model Contracts 11 12 12 1 13 13 1 13 2 13 3 14 14 1 Due to the complex nature of the software we do not warrant that access to or operation of the Services will be uninterrupted or error free LIABILITY In view of your limited licensed access to and use of the Services you agree that our liability to you or to any third party for any losses damages claims penalties costs or expenses including lost profits arising out of or relating to the Project or the inability to use the Services in any way including but not limited to any delay inaccuracies errors or omissions and howsoever occasioned shall not exceed INSERT FIGURE You further agree that ASP shall not be liable to you or to any third party for any lost revenues or profits loss of data or other special direct indirect incidental or consequential damages even if ASP has been advised of the possibility of such damages INDEMNITY In consideration of th
26. ocedure and management arising out of this Agreement Accordingly it is agreed that the following procedure will be followed prior to the serving of written notice terminating this Agreement or in relation to any matter of dispute between the Parties In the event that any disagreement or difference of opinion arises between the Parties under this Agreement the matter will be disposed of in the following way 20 2 1 the Client and the ASP will meet to attempt resolution of the dispute Should they not meet within fourteen 14 days of the date on which either Party convenes a meeting to resolve the matter or should they not be able to resolve the matter within fourteen 14 days of first meeting then the matter will promptly be referred by either Party to the state individual s position of the Client and the state individual s position of the ASP for immediate resolution 20 2 2 If within 14 days of the matter first having been referred to the last level of escalation no agreement has been reached between the Parties as to the matter in dispute the dispute resolution process will be deemed to have been exhausted in respect of the matter in dispute and each Party will be free to pursue the rights granted to it by this Agreement in respect of such matter without further reference to the dispute resolution process For the avoidance of doubt this Clause will not prevent either Party from seeking injunctive relief in the case of any
27. onnected to and accessible via the internet 24 1 2 the Web Site will be available of the time to be calculated in accordance with Clause 24 8 ASP shall monitor and report to the Client its compliance with its obligations under this Clause 24 The Client accepts and acknowledges that compliance with Clauses 24 1 may be affected by events beyond ASP s reasonable control including faults caused by the acts or omissions of the network provider and or the availability of the underlying telecommunications systems and the Client agrees that in no circumstances will ASP have any liability in respect of and to the extent of such events ASP may from time to time carry out routine maintenance work in respect of servers and associated systems equipment used in provision of the Web Site to ensure that they remain in good and working order and condition provided that such routine maintenance work does not cause the Web Site to be unavailable or inaccessible ASP may need to carry out non routine maintenance which causes the Web Site to be unavailable or inaccessible for a limited period of time ASP will advise the Client of the time at which such non routine maintenance occurs and if possible give prior notice of it Subject to payment of the Fees ASP will supply to the Client on or before the day of each month a statement detailing the access and usage of the Web Site and the amount of time expressed as a percentage that the Web Site
28. onstruction projects These are not intended for direct application to a project as they do not take into account the specific requirements of the participants and the particular constraints on the project ICT environment They are therefore an indicative set of contracts for teaching purposes and to illustrate the potential applications of the ICT and ASP contracts that can be defined using the eLEGAL Contracting Software Tools The first model contract is the ICT Contract which describes how a basic ICT infrastructure i e email can be given contractual support for use on construction projects The second model contract considers the relevant contractual arrangements for use on a construction project using Application Service Providers or ASPs This comprises the ASP Contract itself an ASP Contract Schedule and associated End User Licence Schedules D23f ModelContracts 2002 08 27 Page 3 of 26 Public D23f Model Contracts 2 Email environment for UK This sample contract covers the clauses for a UK project with only email communication not using the service of an ASP Application Service provider The following contract is set up for use between a client and the various project participants Email communication on construction sites 1 1 Selection of the degree of electronic communication please select Any written communication between the participants of this ICT contract will be executed elec
29. or be enforceable by any person who is not a Party to the Agreement whether under the Contracts Rights of Third Parties Act 1999 or otherwise D23f ModelContracts 2002 08 27 Page 20 of 26 Public D23f Model Contracts 1 1 1 2 1 3 2 1 2 2 ASP CONTRACT SCHEDULES SERVICES SCHEDULE Describe in broad terms the functionality or functions of the application for example Document management system storage and retrieval Project management system Communication system Describe the performance levels which the ASP and the Client agree in terms of The hardware and operating environment Search capabilities to be able to easily find relevant information in data which is stored on the ASP s server This includes devices for easy tracking of failures and responsibilities The ASP provides for this purpose the following software XML field This includes capabilities for please mark 2 2 1 selecting info contained in CAD drawings 2 2 2 selecting notices and confirmation of notices 2 2 3 searching requests and approvals of relevant persons 2 2 4 searching which people were involved in a certain detail of the project 2 2 5 providing court evidence including printing relevant data on paper D23f ModelContracts 2002 08 27 Page 21 of 26 Public D23f Model Contracts AUTHORISED USER LICENCE SCHEDULE It is important to note that this sample licence is an indication of one approach which may
30. ot affect the rights of either Party under this Agreement which may have accrued up to the date of termination During the period of notice referred to above the ASP shall provide the Services and make the Website available to the Client and the Authorised Users Consequences of termination The Client and the Authorised Users own all data and Metadata produced on and in connection with the Web Site All of the data and metadata are subject to the confidentiality provisions under clause 6 of this Agreement Upon termination or expiry of this Agreement for whatever reason if the Client or an Authorised User so requires and subject to the Client paying all outstanding sums due to the ASP the ASP shall provide the Client or the Authorised User with reasonable assistance at the ASP s standard fees in providing for the orderly migration of the data from the Website in accordance with the User Manual and backup copies of all data not already provided in accordance with this Agreement INSURANCE AND Limitation of LIABILITY On signature of this Agreement the ASP will provide to the Client evidence that it has in force an insurance policy which will inter alia provide professional indemnity or errors and omission cover of not less than per claim or series of related claims per year The ASP will maintain such policy in force for the term of this Agreement and one year thereafter D23f ModelContracts 2002 08 27 Page 16 of 26 P
31. rvices in the event of an interruption to the Services ASP s obligation to release upgrades to the application containing remedies to bugs or errors identified ASP s right to interrupt the Services in order to implement the upgrade or release ASP s obligation to co operate upon reasonable basis with other ICT service providers to the project ASP s obligation to install the application ASP s obligations to install the application to support a new or replacement project participant INTELLECTUAL PROPERTY The Client acknowledges that the Intellectual Property Rights in the System and Services are owned by ASP and are only made available to the Client and Authorised Users in accordance with the Agreement and for so long as the Agreement remains in force and thereafter the Client and Authorised Users shall cease to use the System and Services ASP is either the sole and exclusive owner or an authorised licensee or user of all Intellectual Property Rights in the System and Services and reserves all such rights to itself No title or ownership of the System or Services or of any third party right comprised in them is transferred to the Client or any Authorised User and neither may transfer sub licence rent lease network distribute or grant the rights granted to them in respect of the System or the Services to any other party CONFIDENTIALITY The ASP shall keep confidential all Project Data put onto the Web Site
32. ss terminated by the Client giving the ASP 28 days written notice such notice not to expire within 3 months of the Commencement Date or unless otherwise terminated in accordance with this Agreement D23f ModelContracts 2002 08 27 Page 11 of 26 Public D23f Model Contracts 4 4 1 4 2 4 3 4 4 4 5 4 6 4 7 4 8 4 9 4 10 5 1 5 2 6 1 ASP s obligations Subject always to the Clients continued compliance with the Agreement including but not limited to payment of the Fees ASP shall make the System available to Authorised Users in accordance with this Agreement The ASP shall provide the Services subject to the following restrictions 4 2 1 a restricted number of Authorised Users are permitted to use the Services at any one time as set out in the Services Schedule 4 2 2 the Client must comply and must ensure that each Authorised User complies promptly with any reasonable instructions given by the ASP from time to time in connection with the use of the Services and 4 2 3 the Client will and will procure that each Authorised User complies with the Authorised Use Policy as set out in the Authorised Use Policy Schedule The ASP undertakes to implement and maintain the security procedures to protect the Project Data as set out in the Security Policy ASP shall use reasonable skill and care in providing the Services to Client and Authorised Users ASP s obligations to provide remedial se
33. ssor and Personal Data Equipment Fees Information System Intellectual Property Rights means this Agreement entered into by the Parties means insert name of ASP means the Authorised Use Policy as agreed between the Client and Authorised Users set out in the Authorised Use Policy Schedule means the Authorised User Licence set out at Appendix which is entered into by the ASP and those using the System means users of the System authorised by the Client who have entered into an Authorised User Licence means any day which is not a Saturday a Sunday or a public holiday in the City of London means identify Project Client means specify date on which service is to commence shall have the same meanings as in the Data Protection Act 1998 means the equipment defined in the User Manual means the fees set out in the Fees Schedule payable by the Client to ASP in accordance with this Agreement means a system for generating sending receiving storing or otherwise processing electronic communications means patents trademarks trade secrets service marks registered designs applications for any of the foregoing copyright design rights database rights know how confidential information trade and D23f ModelContracts 2002 08 27 Page 10 of 26 Public D23f Model Contracts Metadata New Version Normal Working Hours Part
34. tronically Letters faxes are not allowed or Mix of electronic and paper based communication faxes letters and electronic communication is allowed 1 2 Non electronic communications 1 2 1 1 2 2 1 2 3 If documents from a source outside the Project Team are being produced in paper form the Project Team member receiving the paper documents must endeavour to ensure that the third party provides them in electronic form or if this is not possible must either make a detailed electronic record of the existence of those paper documents including a record of where they are located or transform them into an electronic format as specified in the user manual e g a pdf Format Acrobat Reader Version In either case the recipient of the paper documents must digitally sign either the record of them or the new electronic versions in order to make the document contractually valid Doing this he declares implicitly that the content in the delivered file is identical to the paper version He can restrict this declaration or make explanations e g when a drawing is separated into several pdf parts This has to be done in such a manner that it is visible in the same pdf document For selection purposes please crossmark key words have to be included in the file name the use of a DMS Document management System is obligatory including mandatory fields which have to be filled out by the send
35. ublic D23f Model Contracts 17 2 17 3 17 4 17 5 18 18 1 19 19 1 19 2 19 3 19 4 19 5 The liability of the ASP to the Client will not exceed the amount of __ per claim or series of related claims per year whether or not such sum or any sum is recoverable under the policy referred to in Clause 17 1 and shall not exceed the aggregate amount of in any year Nothing in this Clause 17 will be construed as attempting to limit the liability of either Party in respect of injury to or the death of any person caused by any wilful or negligent act or omission of either Party its employees agents or subcontractors or for fraud The ASP will not be liable for any loss or damage caused by or resulting from any defect or inaccuracy in the System or services if the loss or damage occurred after the Client had been supplied with any modification which did not contain the defect or inaccuracy concerned The liability of the Client to the ASP will not exceed the amount of per claim or series of related claims per year and shall not exceed the aggregate amount of in any year Entire Agreement This Agreement is the complete and exclusive statement of the Agreement between the parties relating to the subject matter of the Agreement and supersedes all previous communications representations and arrangements written or oral Except as aforesaid each Party acknowledges that no reliance is placed o
36. was available during the preceding month The level of availability shall be calculated using the following formula A T D T where A Availability expressed as a percentage T Time D Downtime during any given month which means periods of scheduled maintenance for which ASP shall give Client 48 hours notice and which shall only be carried out between 8pm and 8am UK time To the extent that the Web Site is not available as a result of any act or omission on an the Client s part whether directly or indirectly or as a result of the factors contemplated in Clause 24 1 such failure will not be taken into account in the calculation of availability If the report provided pursuant to Clause 24 2 indicates an availability percentage of less than ASP will provide a credit against the fees payable for the following month as follows DEFINE CREDITS D23f ModelContracts 2002 08 27 Page 19 of 26 e Public D23f Model Contracts 24 10 Notwithstanding any other provision in this Agreement ASP will be entitled without notice at any time to change the bandwidth and or storage allocation of the Web Site and to make any changes to the hosting services which are necessary to comply with any applicable safety security or other statutory requirements or which do not materially affect the nature or quality of the services 25 BENEFIT OF AGREEMENT 25 1 No term of this Agreement is intended to confer a benefit on
37. y or Parties Project Project Data Security Policy Service Fees business names and any other similar protected rights in any country throughout the world whether registered or unregistered means information relating to the use of the System by Authorised Users in relation to the Project means a new version of the System which supersedes the version used on the Project means 8am until 69m Monday to Friday excluding public holidays means a party or the parties to this Agreement means identify project on which the System is to be used means data relating to the Project which may be entered onto the System by an Authorised User means the security policy set out in the Security Schedule means the fees payable by the Client to the ASP for the Services as set out in the Fees Schedule Services means specify extent of Services provided by ASP as set out in the Services Schedule System means specify the ASP s service offering which can be accessed by Authorised Users via the Web Site Term means the period of specify minimum estimated project duration starting on the Commencement Date User Manual means the latest version of ASP s User Manual for use of the System Web Site means identify web address at which System is located 3 Term 3 1 This Agreement shall commence on the Commencement Date and shall continue for the Term unle
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