Updated 30th March 2020

Technical Services Terms & Conditions

These Conditions apply to the provision of technical services by DGauge Limited of 11 Brunel Parkway, Pride Park, Derby DE24 8HR (“DGauge”) to the Client. Excepting any provisions set out in the Proposal, the Conditions apply to the exclusion of any other terms and conditions including any which the Client may attempt to introduce by way of purchase order or otherwise.

IMPORTANT: Notwithstanding any other provision of the Agreement DGauge will not be obliged to commence the provision of Services in accordance with the Agreement until it receives a valid purchase order from the Client in respect of the same.

1. Definitions

In these Conditions, the following expressions will have the following meanings, unless inconsistent with the context:

“Additional Services” - additional services to be provided by DGauge to the Client pursuant to clause 6.3 (if any).

“Agreement” - the agreement between DGauge and the Client formed by these Conditions (including their Appendix) and the Proposal.

"Business Day” - any day which is not a Saturday, Sunday or public or bank holiday in England and Wales.

“Change in law” - any change in law which impacts on the performance of the Services and which comes into force after the commencement of the Services.

“Charges” - the charges for the Services as set out in the Proposal, as amended from time to time in accordance with clause 6.6.

“Client” - shall mean the person, body or company who has agreed to accept the Services in accordance with the Agreement.

“Client Materials” - the data, text, images, graphics, videos, logos and other content and material to be provided by the Client for use by DGauge in relation to the provision of the Services including that identified in the Proposal.

“Conditions” - these conditions which should be read in conjunction with the Proposal

“Deliverables” - the report and ther documentation which DGauge is providing to the Client as part of the Services.

“Intellectual Property Rights” - any and all patents, trade marks, service marks, copyright, moral rights, rights in design, know-how, confidential information and all or any other intellectual or industrial property rights whether or not registered or capable of registration and whether subsisting in the United Kingdom or any other part of the world together with all or any goodwill relating to the same.

“Proposal” - the proposal document to which these Conditions are attached which sets out the scope of the Services and the Charges.

“Services” - the technical and/or other services (if any) to be provided to the Client by DGauge pursuant to the Agreement, as set out in the Proposal  Unless otherwise stated all offers of Services shall remain valid for 28 days.

2. Interpretation

2.1, The headings used in the Agreement are inserted for convenience only and are not intended to be part of nor to affect the meaning or interpretation of any of the Agreement.  


2.2, In the Agreement the masculine includes the feminine and the neuter, and the singular includes the plural and vice versa as the context shall admit or require.
 
2.3, The expression “person” means any individual, firm, body corporate, unincorporated association, partnership, government, state or agency of a state or joint venture.

2.4, In the event of a conflict between any of these Conditions and the Proposal, the conflict will be resolved according to the following order of priority: these Conditions then the Proposal.
 
2.6, The words “include”, “includes”, “including” and “included” will be construed without limitation unless inconsistent with the context.

2.7, The Agreement (as varied in accordance with its terms) forms the entire understanding of the parties in respect of the matters dealt within it and supersedes all previous agreements, understandings and negotiations between them.

2.8, The parties do not intend that any of the terms of the Agreement will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not party to it.

3. Provision of Services

3.1, DGauge warrants that it shall use reasonable skill, care and diligence in the performance of the Services to the Client upon the terms and conditions set out in the Proposal and these Conditions.

3.2, DGauge will provide the Services for the term specified in the Proposal, subject to any extension or earlier termination in accordance with these Conditions.

3.3, Title in the Deliverables shall pass to the Client upon payment of the Charges in full and in cleared funds.

3.4, DGauge will only be obliged to provide the Services at its premises or any other location stated in the Proposal.

3.5, DGauge will use its reasonable endeavours to provide the Services in accordance with any timescales set out in the Proposal, but will not be liable to the Client for any failure (using reasonable endeavours) to do so.

3.6, Without prejudice to clause 8, DGauge will not be liable for any failure to provide the Services which arises as a result of the failure by the Client to comply with its obligations as set out in the Agreement.

3.7, DGauge will not be obliged to provide any services which are not Services referred to in the Proposal, unless otherwise agreed with the Client in writing pursuant to clause 6.3.

3.8, Both parties shall comply with their respective obligations in respect of the provision of the Services.  If there is a Change in law which results in amendments being required to the Services, the parties agree any such Change shall be deemed to be a change (as described in the Appendix) and DGauge shall be subject to the Charge Proposal Process set out in clause 6.3.

4. Client Responsibilities

4.1, The Client will (where required to under the Proposal) supply to DGauge, at no cost, the Client Materials in accordance with any timescales set out in the Proposal, or if no timescales are set out in the Proposal within a reasonable time taking account of the obligations of DGauge.

4.2, The Client warrants that the Client Materials will be accurate in all material respects and will not knowingly include any material which is illegal or the accessing, holding, transmitting or supplying of which would be a criminal offence or otherwise unlawful or in breach of any laws or codes of practice which may apply to the Client Materials. In particular the Client warrants that all necessary licences, consents and waivers (including those from all rights owners, performers and other contributors) will be obtained and paid for by the Client. Without prejudice to the foregoing, DGauge may decline to use any Client Materials on any reasonable grounds and will have no resulting liability to the Client under or in connection with the Agreement if it does so.

4.3, The Client will comply with any obligations placed upon it in the Proposal.

4.4, The Client will supply in a timely manner all information, instructions, review and feedback reasonably required by DGauge for the performance of its obligations under the Agreement and will appoint a representative who is fully empowered and authorised to provide the same.

4.5, If the Client provides incomplete or inaccurate information, or delays unduly in the performance of any of its obligations DGauge reserves the right to stop work and agree suitable changes to prices and delivery terms or terminate this Agreement and the Client shall indemnify DGauge in respect of all liability arising from such termination.

4.6, The Client shall (where applicable) provide DGauge, its employees, agents and consultants with access to the Client’s premises, office accommodation and other facilities as reasonably required by DGauge.

4.7, The Client shall obtain and maintain all necessary licenses, permissions and consents including procuring the provision of a suitably qualified person (including holding a Network Rail approved Safety Case) to supervise and be responsible for the safety of any DGauge personnel who are required to work on or around tracks forming part of an operational railway, whether owned by Network Rail or by other third parties.

4.8, The Client shall ensure that suitably qualified and experienced staff are available on reasonable notice to provide all reasonable assistance to DGauge to facilitate the provision of the Services.

5. Personnel

5.1, DGauge will use its reasonable endeavours to use the designated personnel referred to in the Proposal in connection with the provision of the Services, but will not be liable for any failure to provide such personnel which arises for reasons outside its reasonable control.

5.2, DGauge shall procure that the personnel who provide the Services to the Client are suitably qualified and competent to provide the Services and the Client shall procure that it makes available to DGauge a dedicated member of its staff to provide all reasonable assistance to DGauge and its personnel during the provision of the Services.

5.3, If as a result of accident, illness, termination of employment or otherwise the designated personnel becomes unavailable, DGauge undertakes to provide a suitable replacement to reduce inconvenience to the Client and the duration of this Agreement shall be extended by a reasonable period of time.

5.4, Holidays may be taken by DGauge staff without the Client's consent, but DGauge shall consult with the Client and shall use all reasonable endeavours to reduce disruption to the Services.

6. Charges


6.1, The Client will pay to DGauge the Charges at the rates or in the amounts set out in the Proposal.

6.2, The Charges and other amounts payable by the Client pursuant to this clause 6 are (unless stated otherwise in the Proposal) exclusive of the reasonable expenses of DGauge incurred in connection with the provision of the Services including the cost of:
6.2.1. travel;
6.2.2. accommodation;
6.2.3. subsistence;
6.2.4. materials; and
6.2.5. third party services;
which will be payable by the Client in addition to the Charges.


6.3, Where:
6.3.1. DGauge agrees in writing pursuant to any Change Proposal (as such term is defined in the Appendix) to provide services to the Client in addition to the Services;
6.3.2. the Client changes its requirements and DGauge agrees to accept that change; or
6.3.3. DGauge incurs additional obligations or time as a consequence of the Client’s failure to comply with its obligations under the Agreement;

the Client will pay for those Additional Services at the rates of DGauge applicable to the provision of the Additional Services set out in the Proposal.


6.4, DGauge may invoice the Client for the Charges and other amounts payable by the Client pursuant to this clause 6 in accordance with any payment profile set out in the Proposal or, if not set out in the Proposal, at the end of each calendar month in respect of the Services and Additional Services provided in that month.

6.5, If the Client does not pay the Charges or any other amounts become payable in accordance with this clause 6, DGauge may (without prejudice to its remedies elsewhere in these Conditions) withhold further provision of the Services and of any reports or other materials being provided as part of the Services until payment is made.

6.6, DGauge may increase any rates set out in the Proposal (and any Charges based on such rates) on the review date set out in the Proposal and annually thereafter by up to 5% of the then applicable rate such increase to come into effect on the immediately following 1st January.

7. Warranty


7.1, DGauge warrants that (subject to the other provisions of the Agreement) it will provide the Services and any Additional Services (referred to in clause 6.3) with reasonable care and skill.

7.2, DGauge shall warrant the Services to a maximum of 12 months from the date of provision of the Services, or any part of the Services. For the avoidance of doubt this warranty is at all times limited to the Services.

7.3, Where the Services include the supply of goods or materials, DGauge shall vest the benefit of any warranty provided by the suppliers of such goods or materials in the Client. DGauge shall not provide any further warranty for goods or materials.

7.4 DGauge will not be liable for a breach of the warranty in clause 7.1 unless the Client notifies DGauge in writing of such failure within 30 days of the performance of the relevant Services.

7.5, If the Client makes a valid claim against DGauge based on a failure by DGauge to comply with the warranty in clauses 7.1 and 7.2 DGauge may, at its option, take such steps as it deems necessary to remedy such failure or refund such part of the amount payable by the Client under clause 6 as relates to such Services, provided that the liability of DGauge under the warranty in clause 7.1 will in no event exceed the aggregate amount of the sums already paid to DGauge by the Client pursuant to clause 6 (excluding VAT and expenses) in the 12 month period prior to the date on which the Client makes a claim under that warranty.

7.6, If DGauge complies with clause 7.5, it will have no further liability for a breach of the warranty in clause.

7.1, in respect of the provision of the Services and/or any Additional Services.

8. Client’s General Obligations

8.1, The Client will promptly provide to DGauge and/or its consultants, employees and agents such information and assistance as they may reasonably require in order to be able to carry out the Services.
 
8.2, The Client will procure all necessary access rights and permissions from third parties (including intellectual property licences if required) which are from time to time required in order for DGauge to be able legally to provide the Services and exercise its rights under the Agreement.

8.3, The Client shall not, during the term of this Agreement or for a period of 12 months after termination howsoever caused, directly or indirectly solicit or entice away or endeavour to solicit or entice away from DGauge or employ or offer to employ any employee of DGauge who has been engaged in the provision of the Services. In the event that the Client is found to be in breach of this clause then the Client shall pay DGauge by way of liquidated damages an amount equal to 30% (Thirty Percent) of the gross annual salary of the relevant employee, as at the time of the breach by the Client.

9. Payment Terms


9.1, Any sums payable by the Client to DGauge under the Agreement are exclusive of value added tax or any similar taxes, levies or duties, which will be added to such sums and be payable by the Client at the appropriate rate.

9.2, The Client agrees to pay DGauge’s invoices within 30 days of the date of the invoice. If invoices are not settled in full by then, the Client will be liable to pay interest on any sum outstanding from the due date for payment at the annual rate of 2% above the base lending rate from time to time of Barclays Bank plc accruing on a daily basis until payment is made whether before or after any judgment. Such interest shall be due for payment immediately on invoice by DGauge.

9.3, If the Client fails to meet any due payment date DGauge shall be entitled to suspend without prejudice to any other right or remedy DGauge may have, or withhold the performance of Services.

10. Confidential Information


10.1, Each party will (unless contrary to law):

10.1.1. keep confidential all information obtained from the other under or in connection with the Agreement (“Information”);

10.1.2. not disclose any Information to any third party without the prior written consent of the other except to such persons and to such extent as may be strictly necessary for the performance of the Agreement; and

10.1.3. not use any Information otherwise than for the purposes of the Agreement.

10.2, Each party will take all necessary precautions to ensure that all Information:

10.2.1. is given to each member of staff only to the extent necessary for that member of staff’s activities in connection with the Agreement; and

10.2.2. is treated as confidential and not disclosed (without prior approval) or used by any staff otherwise than for the purposes of the Agreement.

10.3, The provisions of clauses 10.1 and 10.2 do not apply to any Information:

10.3.1. which is or becomes public knowledge (otherwise than by breach of this clause); or

10.3.2. which was in the possession of the party concerned without restriction as to its disclosure before receiving it from the disclosing party; or

10.3.3. which is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;

and nothing in this clause 10 prevents either party from disclosing any Information for a proper purpose to a public authority or any regulatory body, or to a court of law in the United Kingdom or elsewhere in legal proceedings, or to its senior management, its auditors, bankers, lawyers or other professional advisers.

10.4, Nothing in this clause 10 prevents either party from using any techniques, ideas or know how gained during the performance of the Agreement in the course of its normal business to the extent that this does not result in a disclosure of confidential information.

10.5, The provisions of this clause 10 will continue to apply notwithstanding termination of the Agreement.
 
10.6, DGauge will be able to refer to the fact that it has undertaken work for the Client in any of its marketing materials provided that in doing so it does not disclose the Client’s Information.

11. Intellectual Property

11.1, The Client acknowledges and agrees that it will not own or acquire ownership of any of the Intellectual Property Rights in any product or materials provided in connection with the Agreement or which may arise in connection with DGauge’s performance of this Agreement and that it will have no rights in or to any such product other than the rights expressly granted by the Agreement. The Client may however make use of such Intellectual Property Rights to the extent required to make use of any product or materials delivered to the Client by DGauge under the Agreement for the purposes for which such product or materials was/were created, as envisaged by the Proposal.
 
11.2, The Client will indemnify and keep DGauge indemnified from and against all costs (including the costs of enforcement), expenses, liabilities (including any tax liability), injuries, losses, damages, claims, demands, legal costs (on a full indemnity basis) and judgments which DGauge incurs or suffers as a consequence of infringement of any Intellectual Property Right of any third party arising directly or indirectly from:

11.2.1. the Client’s failure to procure all necessary rights from third parties (including intellectual property licences) which are from time to time required in order for DGauge to be able legally to provide the Services; or
 
11.2.2. the use by DGauge in connection with the Agreement of the Client
Materials.

11.3, No Intellectual Property Rights in any product relating to the provision by DGauge of the Services will transfer or be assigned to the Client unless DGauge and the Client have signed a written assignment document to that effect.  


12. Liability

12.1, The provisions of this clause 12 and clause 7 set out the entire liability of DGauge (including any liability for the acts or omissions of its consultants, employees, agents and authorised representatives) to the Client in respect of:

12.1.1. any breach of the Agreement; and

12.1.2. any representation, statement or tortuous act or omission including negligence arising under or in connection with the Agreement.

12.2, All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are excluded from the Agreement to the fullest extent permitted by law.

12.3, Nothing in the Agreement excludes or limits the liability of DGauge for death or personal injury caused by the negligence of DGauge or for fraud.

12.4, Subject to clauses 12.2 and 12.3:

12.4.1. the total liability of DGauge in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of the Agreement is limited:

12.4.1.1. in the case of loss of or damage to the Client’s tangible property, to £100,000; and

12.4.1.2. in all other cases, to the aggregate amount of the sums paid by the Client to DGauge pursuant to the Agreement (excluding VAT and expenses) over the preceding 12 month period; and 12.4.2. DGauge will not be liable to the Client in contract, tort, misrepresentation or otherwise (including negligence), for any indirect or consequential loss or damage, costs, expenses or other claims for consequential compensation whatsoever, or for any loss of profit, loss of business, depletion of goodwill or otherwise (whether direct or indirect), and whether or not caused by the negligence of DGauge or its employees, agents or authorised representatives, which arises out of or in connection with the Agreement.

13. Force Majeure

Neither party is under any liability to the other party in respect of anything which, apart from this provision, may constitute a breach of the Agreement arising by reason of force majeure which means, in relation to either party, circumstances beyond the reasonable control of that party including acts of God, acts of any governmental or supra-national authority, war or national emergency, acts of terrorism, riots, civil commotion, fire, explosion, flood, epidemic, lock-outs (whether or not by that party), strikes and other industrial disputes (in each case, whether or not relating to that party’s workforce), restraints or delays affecting shipping or carriers, inability or delay in obtaining supplies of adequate or suitable materials and currency restrictions.

14. Term and Termination

The Services will be performed and the Agreement will continue for the period referred to in the Proposal. Without prejudice to any rights of termination set out elsewhere in the Agreement:

14.1, DGauge may immediately terminate the Agreement (or at its option, any part of it) by notice in writing to the Client if the Client fails to pay to DGauge any sum due under the Agreement on the due date for payment;

14.2, either party may terminate the Agreement (or, at its option, any part of it) forthwith by notice in writing to the other if the other:

14.2.1. is in material breach of the Agreement and fails (where the breach is capable of remedy) to remedy the breach within 30 days of the receipt of a request in writing to remedy the breach, such request setting out the breach and indicating that failure to remedy the breach may result in termination of the Agreement;

14.2.2. becomes the subject of a voluntary arrangement under section 1 of the Insolvency Act 1986;

14.2.3. is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;

14.2.4. has a receiver, manager, administrator or administrative receiver appointed over all or any parts of its undertaking, assets or income, has passed a resolution for its winding-up, or has a petition presented to any court for its winding-up or for an administration order; or

14.2.5. has ceased or threatened to cease to trade.

15. Consequences of Termination

15.1, Termination of the Agreement is without prejudice to the rights and duties of either party accrued prior to termination.
 
15.2, The clauses of the Agreement which expressly or impliedly have effect after termination will continue to be enforceable notwithstanding termination.

15.3, Upon termination of the Agreement, the Client will immediately pay all outstanding invoices raised by DGauge pursuant to the Agreement and pay for all work in progress not previously paid for on a reasonable pro-rata basis (subject to receipt of an invoice for the same from DGauge).

16. Dispute Resolution

16.1, Any dispute or difference (a “Dispute”) between DGauge and the Client in respect of or arising out of the Agreement will be dealt with in accordance with this clause 16.  
16.2 In the first instance, a representative of each party will each use their reasonable endeavours to resolve the Dispute. If the Dispute cannot be resolved by such representatives, it will be referred to a senior representative of each party, who shall each use their reasonable endeavours to resolve the Dispute.

16.3, If a Dispute cannot be resolved by negotiation as referred to in clause 16.2 within 30 days of the Dispute arising, either party may refer the Dispute for determination in accordance with the mediation procedure administered by the Centre for Dispute Resolution (CEDR), the costs of the mediator being split equally between the parties, who shall otherwise bear their own costs of the reference.

17. Severability

The illegality, invalidity or unenforceability of any provision of the Agreement will not affect the legality, validity or enforceability of the remainder. If any such provision is found by any court or competent authority to be illegal, invalid or unenforceable, the parties agree that they will substitute provisions in a form as similar to the offending provisions as is possible without thereby rendering them illegal, invalid or unenforceable.

18. Waiver

18.1, The failure or delay by either party in exercising any right, power or remedy of that party under the Agreement will not in any circumstances impair such right, power or remedy nor operate as a waiver of it. The single or partial exercise by either party of any right, power or remedy under the Agreement will not in any circumstances preclude any other or further exercise of it or the exercise of any other right, power or remedy.

18.2, Any waiver by either party of a breach of or default under any of the terms of the Agreement by the other party is not deemed a waiver of any subsequent breach or default and in no way affects the other terms of the Agreement.

19. Assignment and Subcontracting

19.1, The Client may not assign the benefit or delegate the burden of the Agreement nor sub-license any of its rights under the Agreement (including to any company within the same group of companies as the Client) without the prior written consent of DGauge.  Such consent shall not be unreasonably withheld.
 
19.2, DGauge may sub-contract or assign any or all of its rights and obligations under the Agreement.

20. Amendments

Where either party requests a variation or amendment to the Services or the Agreement then the provisions of the Appendix to these Conditions will be followed. No variation or amendment to the Agreement is effective unless agreed in writing and signed by both parties.

21. Notices

Any notice to be given or made by either party under or in connection with the Agreement must be in writing and given or made to the other party at its address stated in the Proposal or to such other address as either party may from time to time notify to the other. Every notice, if so addressed, is deemed to have been duly given or made, if delivered by hand, upon delivery at the address of the relevant party, if sent by prepaid first class post, two Business Days after the date of posting and if transmitted by facsimile, at the time of transmission (provided a confirmatory letter is sent by prepaid first class post) provided that, where, in accordance with the above provisions, any notice would otherwise be deemed to be given or made on a day which is not a Business Day or after 4.00 p.m. on a Business Day, such notice shall be deemed to be given or made at 9.00 a.m. on the next Business Day.

22. Applicable Law and Jurisdiction

The construction, performance and validity of the Agreement will be governed by English law and the English courts have exclusive jurisdiction to settle any disputes which may arise out of or in connection with it.
Appendix - Change Procedure

1. The parties recognise that there may be changes to the scope of the Services to reflect changing requirements and improvements which may be identified by either party. The change control procedures for any type of change will be the same and it will make no difference whether it is DGauge or the Client who propose a change.

2. If the Client proposes a change to the Services (a “Change”) it will notify DGauge of such requirement in writing specifying in as much detail as is practicable the nature of the change to the Services following which DGauge will at the Client’s cost promptly prepare and deliver to the Client a proposal specifying in reasonable detail the amended or additional Services, the charges or charging principles for the Change, its estimate of the effect which the Change will have on existing Services, resource requirements, likely implementation date(s) and, if applicable, how it considers its ability to carry out the Services as then being performed will be adversely affected by the Change (the “Change Proposal”).

3. The Client will consider the Change Proposal and:

(a) will notify DGauge in writing within 20 Business Days of receipt of the Change Proposal of its decision on whether or not to proceed with the Change in accordance with the Change Proposal; or

(b) may enter into negotiations with DGauge to vary the Change Proposal and where the parties cannot reach agreement recourse will be made to a director of each party.

4. If the Client decides not to proceed with the Change pursuant to paragraph 3(a) or no agreement is reached following recourse to respective directors pursuant to paragraph 3(b) then the Change will not be of any effect and the Services will continue on the same basis as before notification of the Change was given.

5. DGauge may propose a Change (and will provide a Change Proposal as defined in paragraph 2) which will be dealt with in accordance with paragraphs 3 and 4.

6. DGauge will have no obligation to commence work in connection with any Change until the Change Proposal has been agreed by the parties in writing. Having been so agreed, DGauge will, to the extent that DGauge is able to do so in light of any non-compliance or compliance by the Client with its obligations under the Agreement, carry out the Services as so amended as though the Services (so revised) were provided as Services originally specified under the Agreement and the Client will pay the modified Charges to DGauge on the basis so agreed provided always that if the Client requests that any addition or change to the scope of the Services be implemented as a matter of urgency then DGauge may (but is not obliged) to elect to proceed to implement the Change subject to DGauge being indemnified to its satisfaction against all reasonable costs it incurs.

7. References in this Appendix to paragraphs will be to paragraphs of this Appendix.

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