1. Definitions
In this Agreement the following words and expressions shall have the following meanings unless the context otherwise requires. The defined terms include, amongst others:
- Agreement — this agreement and any schedules, appendices or documents incorporated into it.
- Acceptance Date / Acceptance Tests — the date of, and the tests (if any) relating to, acceptance of the Deliverables.
- Additional Services — any services requested by the Customer beyond those originally instructed.
- Change Request — a request by either party to vary the requirements, Specification, Project Plan or Price.
- Confidential Information — information of a confidential or commercially sensitive nature disclosed by either party.
- Customer — the party engaging Neptune Digital under this Agreement.
- Deliverables — the items, materials or work product provided by Neptune Digital when requested.
- Intellectual Property Rights — patents, copyright, design rights, trade marks and all other intellectual property rights, whether registered or unregistered.
- Live Operational Use — use of the System or Deliverables in a live, commercial or production capacity.
- Mis-use — any use of the Software or Deliverables otherwise than in accordance with this Agreement.
- Monthly Support Fee — any fee agreed for ongoing support services.
- Payment Schedule / Price / Rates — the basis on which charges are calculated and become payable.
- Project / Project Plan — the work to be undertaken and the plan (if any) describing it.
- Software / Specified Equipment / Specification / System — the software, equipment, specification and resulting system relating to the Project.
- Standard Working Hours — Neptune Digital's normal business hours.
- Warranty Period — one month following acceptance.
2. The Proposal
These terms apply to all Time and Materials engagements. All estimates, Development Proposals and Cost Specification Documents provided by Neptune Digital are issued on a best endeavours basis and are subject to change. Neptune Digital shall not be bound by any estimate in the absence of express written agreement. Services are delivered according to the hours authorised by the Customer and under the Customer's direction. Neptune Digital shall exercise reasonable skill and care, but time shall not be of the essence, and the services remain subject to refinement during delivery.
3. The Project
Services are provided on a Time and Materials basis with the scope determined by the Customer's instructions. Neptune Digital shall provide to the Customer deliverables when requested and subject to payment for time incurred. No specific deliverables or outcomes are guaranteed. Unless explicitly itemised in the Specification, Neptune Digital bears no responsibility for installation, integration, data conversion, training, or backup/archiving functions.
4. The Customer's Obligations
The Customer must provide the necessary facilities, qualified employees, information, documentation and cooperation, and ensure the availability of its representatives and best-efforts assistance. Neptune Digital reserves the right to raise a Change Request where a project is delayed by the Customer's actions or by circumstances beyond reasonable control. The Customer acknowledges that computer software inherently contains from time to time defects, faults and difficulties however well developed, and accepts responsibility for accepting deliverables, which form important components for maintaining the project schedule.
5. Change Control
Either party may initiate a Change Request detailing the required modifications. Neptune Digital must state the effect on the Specification, Project Plan and Price. For Customer-initiated requests requiring more than one hour of investigation, Neptune Digital may quote for that investigation work before proceeding. Changes require written agreement from both parties to implement and then become part of the Specification and Price.
6. Acceptance Tests
The Customer solely defines, prepares and executes acceptance testing. Neptune Digital does not guarantee or require formal Acceptance Testing unless explicitly agreed. Acceptance may occur through use or through a lack of reported issues. Commencing Live Operational Use or commercial distribution constitutes deemed acceptance. One month after delivery without unresolved fault reports also constitutes acceptance. The Customer must provide test scripts and data one month before the expected commencement of testing.
7. Representatives and Progress Meetings
Each party designates, in writing, a representative responsible for providing the necessary information. Representatives meet monthly (or as otherwise agreed) by physical meeting or conference call through to the Planned Acceptance Date. Neptune Digital's representative maintains issue, risk and action logs, while the Customer's representative exercises due diligence in assisting with risk mitigation and issue resolution.
8. Support
Support operates under a separate agreement or on a Time and Materials basis. There is no included warranty period for any deliverables.
9. Warranties
Neptune Digital exercises reasonable skill and care but makes no assurances as to defect-free operation. Remedial work, including issue resolution, remains billable. Upon receiving written notice within the Warranty Period of a warranty breach, Neptune Digital will promptly remedy the issue at its own expense.
10. Licence and Ownership
Pre-existing works retain their original ownership. Neptune Digital grants the Customer a perpetual, irrevocable licence for Neptune Digital's pre-existing works for internal business purposes, including modification rights. The Customer grants Neptune Digital a time-limited, revocable licence for the Customer's pre-existing works to enable performance of the services, expiring on fulfilment of obligations. The Customer owns all Deliverables created during the term, with Neptune Digital assigning Intellectual Property Rights with full title guarantee. Neptune Digital may use Deliverables for development and marketing after obtaining the Customer's written approval.
11. Proprietary Rights
Neptune Digital indemnifies the Customer against costs and liabilities arising from third-party intellectual property infringement claims, provided the infringement was not deliberately entered into by Neptune Digital. The Customer must notify Neptune Digital promptly and avoid admissions without consent. Where a court determines infringement, Neptune Digital shall procure continued use rights, modify or replace the software to avoid infringement, or refund the depreciated portion of the Price and terminate. Supplier materials remain the exclusive property of the supplier. All services' intellectual property ownership vests with the Customer.
12. Charges and Expenses
The Customer pays the agreed hourly rates on a Time and Materials basis, understanding that charges are not linked to specific deliverables or outcomes. Additional requested services are charged at the established Rates, with reasonable expenses charged as incurred.
13. Terms of Payment
Payment is due within 30 days of receipt of invoice in Pounds Sterling, unless otherwise agreed in writing. Neptune Digital may increase its rates annually at its sole discretion. Amounts exclude VAT, which is payable as required by law upon a valid tax invoice. Arrears exceeding 14 days incur interest in accordance with the Late Payment of Commercial Debts (Interest) Act 1998.
14. Liability
Neptune Digital is responsible for foreseeable losses arising from its breach or negligence. Our total liability to you shall be limited, in respect of all claims, to the equivalent of the total charges due from you. The Customer agrees that Neptune Digital bears no liability for loss of profit, business interruption or loss of business opportunity. Neptune Digital will repair property damage caused during service provision. Exceptions include death or personal injury caused by negligence, fraud, and a failure to provide the service with reasonable care and skill.
15. Termination
The Agreement continues through to project completion unless either party gives 90 days' prior written notice of termination. Either party may terminate immediately following a material breach not remedied within 30 days, or upon insolvency or receivership. On termination, Neptune Digital returns or destroys the Customer's materials and Confidential Information. Completion calculations on termination determine the percentage of the Price owed based on completed tasks compared against the Project Plan.
16. Confidentiality
Both parties maintain confidential treatment, during and after termination, of business, financial, technology and commercially sensitive information. Disclosures to employees, auditors, government bodies and regulatory authorities are made only for necessary business purposes. Both parties ensure that recipients understand the confidentiality obligations, promptly notify each other of breaches, and assist with proceedings. These provisions survive termination, except for publicly disclosed information. Neptune Digital may exploit inventions or software developed during the term.
17. Non-Hiring of Personnel
Neither party employs or offers employment to the other's employees for 12 months after the Agreement without express written permission, including indirect engagement via agencies.
18. Data Protection
The parties comply with the Data Protection Act 1998 and related legislation. It is the sole responsibility of the Customer to ensure that the Software is not used in any way that infringes data protection legislation. Neptune Digital accepts no responsibility for infringement or alleged infringement.
19. Interpretation
Standard interpretation provisions apply regarding gender, singular and plural, persons, numbered references, headings, references to enacted legislation, and the performance of obligations through procurement.
20. Agency, Partnership
This Agreement establishes a purely contractual relationship, without partnership, joint venture, agency, fiduciary or employment relationship. Neptune Digital and its personnel remain independent contractors.
21. Amendments
Only a written instrument signed by authorised representatives of both parties may modify this Agreement.
22. Assignment
This Agreement is personal to the parties and may not be assigned without prior written approval. An exception allows assignment to an acquirer of substantially all the equity securities, assets or business relating to the subject matter of the Agreement, or to a controlled entity.
23. Entire Agreement
This Agreement supersedes all prior understandings and constitutes the complete agreement, maintaining any pre-existing non-disclosure obligations absent conflict. The parties confirm that no representations outside those expressly incorporated inform the Agreement.
24. Force Majeure
Neither party bears liability for delays or failures arising from causes beyond reasonable control, including acts of God, war, riots, government actions, utility failures or labour disputes.
25. Notices
All notices must be in writing and are deemed delivered upon courier or messenger delivery; on fax or email transmission (absent an indication of failure); five business days following posting by Royal Mail; or ten business days following posting by airmail, to the most recently notified address.
26. Schedules
The provisions of any schedules form an integral part of this Agreement.
27. Severance
If any provision becomes unlawful or unenforceable, it is severed to the minimum extent necessary while preserving the remaining provisions.
28. Successors and Assignees
This Agreement binds and extends to successors and permitted assignees, including persons entitled to rights through assignment, novation or succession events such as merger, division or reorganisation.
29. Waiver
No delay, neglect or forbearance constitutes a waiver of, or prejudice to, any rights, and no remedy is exclusive of any other available remedy.
30. Counterparts
Multiple executed counterparts together constitute one and the same Agreement.
31. Time of the Essence
Time remains of the essence for all periods referenced in this Agreement.
32. Sub-Contracting
Neptune Digital may perform its obligations through agents or subcontractors with the Customer's prior written consent (not to be unreasonably withheld), remaining liable and indemnifying the Customer against losses caused by such agents or subcontractors.
33. Language
The English-language version prevails in the event of any conflict with another language version or translation.
34. Costs and Expenses
Each party bears its own legal and related costs.
35. Set-Off
Either party may set off liabilities incurred against sums otherwise due.
36. Third Parties
The parties confirm that no rights are conferred on third parties, excluding the application of the Contracts (Rights of Third Parties) Act 1999.
37. Dispute Resolution
A dispute arises upon written notice (excluding email) stating its nature. Within seven days, the parties' representatives meet to attempt a mutual settlement. Following failure, director or partner representatives meet within seven days to attempt settlement. Technical disputes undergo expert determination through joint nomination, or nomination by the President of the British Computer Society, with decisions final absent clerical or manifest error and costs typically shared equally. Other unresolved disputes proceed to the High Court of Justice in England under exclusive jurisdiction.