Brookes Services – Terms and Conditions

1. Definitions

a. “Deliverables” means the items specifically defined as deliverables in the applicable SOW or SOS (if any) which are being furnished to Customer by ToolsGroup Limited (Brookes) as part of the Services.

b. “Services” means the professional services performed by Brookes for Customer under a SOW or SOS.

c. “Standard Rates” means Brookes’ standard rates as per Brookes’ then current price list.

d. “Statement of Work” or “SOW” means any work order form separately executed by the parties that references this Agreement and specifies the Deliverables and Services for a particular project.

e. “Statement of Service” or “SOS” means any work order form separately executed by the parties that references this Agreement and specifies the Deliverables and Services for a particular project.

f. “Warranty Period” means the sixty (60) day period following Customer’s acceptance of a Deliverable.

g. All other capitalized terms will have the meanings set forth elsewhere in this Agreement.

2. Consulting Services

a. Brookes shall provide the Services to Customer and Customer shall pay Brookes for such Services, at the rates and on the terms and conditions set forth in this Agreement and the applicable SOW or SOS.

b. Customer shall (i) provide Brookes with all information and assistance which Brookes may reasonably require; (ii) make timely decisions and obtain required management approvals; (iii) fulfill any Customer responsibilities set forth in the SOW or SOS; and (iv) participate with Brookes in periodic quality assurance and solution design reviews and in value measurement of the Services. Customer further warrants that all assumptions set forth in the SOW or SOS are accurate.

c. Brookes shall provide resources as necessary to perform the Services and warrants that (i) the Services will be of a professional quality conforming to generally accepted industry standards and practice and will be carried out with reasonable care and skill; and (ii) any Deliverables will function in all material respects in accordance with the specifications set forth in the applicable SOW or SOS for the Warranty Period. Without prejudice to clause 7, if Brookes breaches either of these warranties, then Customer’s exclusive remedy, and Brookes’ entire liability, will be (i) Brookes’ re-performance of the Services within a reasonable period of time after Brookes’ receipt during the Warranty Period of written notice from Customer advising Brookes of the breach and

(ii) if Brookes is unable to perform the Services as warranted, Customer will be limited to the recovery of the fees paid to Brookes for the non-conforming Services.

Brookes does not warrant and is not responsible for

(i) any Deliverables supplied by a third party, but shall, where possible, assign to the Customer the benefit of any warranty, guarantee or indemnity given by the person supplying such Deliverables to Brookes (ii) changes made by Customer to the Deliverables, or (iii) services not provided by Brookes.

EXCEPT AS SET FORTH IN THIS SUBPARAGRAPH 2C, BROOKES MAKES NO WARRANTY, REPRESENTATION, OR AGREEMENT WITH RESPECT TO THE SERVICES, AND DISCLAIMS AND EXCLUDES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY AND ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE SAVE THAT NO LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE OR FOR FRAUDLENT MISREPRSENTATION IS EXCLUDED.

d. Brookes shall perform the Services under the general direction of Customer. Brookes may engage the services of subcontractors to perform any of Brookes’ obligations under this Agreement, provided such subcontractors agree to be bound to substantially the same confidentiality obligations as set forth in paragraph 6.

e. Customer shall, within 14 days after receipt from Brookes of any Deliverables (“Acceptance Period’), accept such Deliverables provided they substantially comply with the specifications set forth in the SOW or SOS. Customer shall confirm its acceptance in a writing delivered to Brookes during the Acceptance Period (“Acceptance Certificate”). If Customer fails timely to deliver to Brookes the Acceptance Certificate, then the Deliverables will be deemed accepted by Customer unless Customer, within the Acceptance Period, delivers to Brookes a detailed, written statement specifying any substantial noncompliance of the Deliverables with the specifications set out in the SOW or SOS. Prior to its delivery of the Acceptance Certificate for a particular Deliverable, Customer shall not use such Deliverable; any such prior use by Customer will be deemed acceptance by Customer of such Deliverable.

f. Any revisions to the scope of the Services will be subject to a mutually agreed amendment to the relevant SOW or SOS signed by each party. Any change must be requested by using a written instrument specifying as a minimum a summary of the changes requested, the requestor’s name, and the date of the request. Brookes shall be under no obligation to provide Services with respect to the requested changes prior to execution of the amendment and its agreement to them by such execution. The work associated with delivering the changes requested will be charged at Brookes’ Standard Rates on a time and materials basis.

g. The parties shall each appoint a manager (“Project Manager”) to serve as the primary point of contact on a particular project and have authorization to make any operational decisions required in connection with Brookes’ provision of Services. The Project Manager shall not, however, be authorized to bind the party legally in any matter covered by this Agreement.

h. Project resource descriptions are indicative descriptions of the roles of the project team and are not necessarily exhaustive. The billing rate per role will be defined in the SOW or SOS.

a) Brookes Project Manager.

The Brookes Project Manager is responsible for:

• Ensuring suitably qualified Brookes resources are available to deliver the project in a timely manner.
• Regularly providing reports on the status of the project.
• Managing the costs of the Brookes resources within the limits of the agreed Statement of Work, and agreeing anyoverspend with the Customer Project Manager, as described in the project plan.

The Brookes Project Manager is jointly responsible with the Customer Project Manager for:

• Defining the current and future state Customer business processes in conjunction with the Customer Business
• Process Subject Matter Expert.
• Working with the Brookes SO99+ project teams to model these requirements.
• Working with the Customer Super User and Business Process Subject Matter Expert to ensure the business requirements are satisfied.
• Providing subject matter expertise on business processes and inventory optimisation as required.
• Working with the Customer’s Change Manager to ensure all parties interested or with touch points to the implementation of SO99+ are communicated to in a timely manner and in the correct level of detail.

c) Brookes Solution Architect

The Brookes Solution Architect is responsible for:

• Delivering a series of expert workshops and providing overall design guidance to the project team. Providing quality adherence within the project by ensuring that all deliverables are verified internally within
• Brookes ahead of release to the Customer.
• Providing subject matter expertise on SO99+ as required.

d) Brookes SO99+ Application Consultant

The Brookes SO99+ Application Consultant is responsible for:

• Working with the Customer’s team to ensure the Customer’s functional requirements are aligned with SO99+’scapabilities, and identifying and resolving any gaps.
• Configuring the Software to support the agreed business processes.
• Specifying the data requirements for SO99+. Supporting the Customer Business and IT teams in extracting the data and checking the completeness and accuracy of the data.
• Supporting the Customer Business team to understand and analyse the output of the software.
• Agreeing the test procedure with the Customer Business and IT teams, and supporting the testing process. Also resolving or escalating issues as necessary.
• Managing the handover to Support at the end of the project.

e) Brookes SO99+ Technical Consultant

The Brookes SO99+ Technical Consultant is responsible for:

• Advising the Customer on the technical aspects of the project and recommending hardware specifications.
• Installing the software in the Customer’s test and production environments.
• Working with the Customer IT team during the volume test phase on software and hardware performance.
• Supporting specific technical activities and trouble shooting.

f) Customer Project Manager

The Customer Project Manager is responsible for:

• Ensuring suitably qualified Customer resources are available to deliver the project in a timely manner.
• Managing the overall project cost within the agreed budget and agreeing any overspend with the project governance board as described in the project plan.
• The Brookes Project Manager is jointly responsible with the Customer Project Manager for:
• Developing the project plan.
• Adherence to the timescales described in the project plan.
• Maintaining the agreed project governance structure, managing risks and escalating issues within their respective organisations and managing their resolution, as described in the project plan.

g) Customer Business Process Subject Matter Expert

The Customer Business Process Subject Matter Expert is responsible for:

• Developing the functional Customer requirements for SO99+ and aligning them with the workflow development and change management work-streams.
• Analysing the output of the software and validating the results.
• Acting as the Customer’s design authority with the knowledge and authorisation to make decisions.

h) Customer Super User

The Customer Super User is responsible for:

• Supporting the Customer Business Process Subject Matter Expert in design decisions.
• Becoming the SO99+ expert within the business.
• Validating processes and learning SO99+ both formally on the training courses and by sitting with and working with the Brookes project team.
• Understanding the scenario modeling exercises and interpretation of the results.
• Educating the business in SO99+ during any implementation phase.
• Being the first line of support within the business for all SO99+ queries.

i) Customer Change Manager

The Customer Change Manager is responsible for:

Owning the change management stream of the project. They ensure all parties interested or with touch points to the implementation of SO99+ are communicated to in a timely manner and in the correct level of detail.

j) Customer IT Data and Interface Development and Support Team Member

The Customer IT Data and Interface Development and Support team members are responsible for:

• The Customer IT Data and Interface Development and Support team members are responsible for:
• Extracting the data specified in the Brookes data schema from the Customer’s ERP and planning systems and building the regular data extraction interfaces.
• Ensuring the accuracy and completeness of the data and its timely availability both during the project implementation and subsequently in day to day operations.
• Supplying an on-going IT contact after project completion.

k) Customer Hardware and IT Infrastructure Manager

The Customer Hardware and IT Infrastructure Manger is responsible for:

• Ensuring that all required personnel have access to SO99+ during the project.
• Acquiring and maintaining the hardware and all 3rd party software needed to operate SO99+. This includes backups and the disaster recovery mechanism.
• Supplying an on-going IT contact after project completion.

3. Term and Termination.

a. This Agreement will commence on the Effective Date and continue in effect until terminated by one of the parties under subparagraph 3b, 3c, 3d or 3e below. Each SOW or SOS will be effective beginning on the date of its execution by both parties and continue in effect until the earlier of (i) the date that all services to be provided under the SOW or SOS have been fully performed, and (ii) the date the SOW or SOS is terminated by one of the parties under subparagraph 3b, 3c, 3d or 3e.

b. Either party may, by delivery of written notice to the other party, terminate this Agreement and all outstanding SOW or SOSs for cause and immediately if the other party becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of its creditors, is adjudged bankrupt or becomes the subject of execution, dissolution, liquidation or bankruptcy proceedings, whether voluntarily or involuntarily.

c. Either party may, by delivery of written notice to the other party, terminate a particular SOW or SOS for cause and immediately if the other party materially breaches its obligations under the SOW or SOS and fails to substantially cure such breach within 14 days (10 days for Customer’s failure to pay fees and expenses due under this Agreement) after receipt of written notice of same from the non-breaching party. The termination of a single SOW or SOS for cause will have no effect upon the parties’ respective obligations under any other SOW or SOS in effect under this Agreement. Customer shall not offset disputed amounts payable under one SOW or SOS against amounts owed under any other SOW or SOS.

d. Brookes may terminate this Agreement and all outstanding SOW or SOSs at any time for its convenience, without liability to Customer, upon at least 90 days’ prior written notice to Customer. If there are no outstanding SOW or SOSs under which services are still being provided by Brookes to Customer, Customer may terminate this Agreement upon at least 30 days’ prior written notice to Tools UK.

e. Notwithstanding any other provision contained herein, if Customer defaults in the payment when due of any amount due to Brookes under this Agreement, Brookes may suspend work under all SOW or SOSs until payment is received.

f. Paragraphs 3, 4, 5, 6, 7, 8 and 9 of this Agreement will survive any termination or expiration of this Agreement.

4. Invoicing and Payment.

a. Customer shall make all payments as required pursuant to this Agreement. Brookes shall invoice Customer monthly for actual work performed (“Progress Billings”) plus (unless otherwise agreed in the applicable SOW or SOS) reasonable out-of pocket expenses such as travel, meals, lodging, transportation, telephone and media costs. Travel arrangements for Brookes will be in line with the Customers travel policy. Actual work performed includes activities performed on and off of the Customer site. Brookes shall invoice Customer, and Customer shall pay, expenses incurred by Brookes’ consultants during travel to and from Customer’s site. Customer shall pay each invoice within 30 days of the invoice date. If Customer’s procedures require that an invoice be submitted against a purchase order before payment can be made, Customer will be responsible for issuing such purchase order at least 30 days before the payment due date. All payments are to be made in GBP unless specified in another currency in the SOW or SOS. All bank charges for both sending payments to Brookes and Brookes receiving payments are to be paid by the Customer.

b. Any amount payable to Brookes under this Agreement and not paid within 30 days after the invoice date will bear interest at a rate equal to the lower of 1½% per month, or the highest rate permitted by law and Brookes expressly reserves the right to stop work under all SOW or SOS’s then in existence if Customer wrongly fails to pay any sum within such 30 day period without prejudice to Brookes’ other rights.

c. Unless modified by the applicable SOW or SOS, Customer shall pay Brookes’ Standard Rates for the Services on a time and material basis. As of the Effective Date, these rates are as follows:

Consultant Grade	UK Rates per 8 hour day in £ (GPB)
Partner	£2,574
Manager	£2,209
Senior Consultant	£1,777
Consultant	£1,321

Time is invoiced on a monthly basis charged at the above daily rate divided by an 8 hour day in multiples of 1 hour. Travel time is invoiced at 50% of the above rate for all travel to and from the Customers site, with the exception of the address named in this agreement. Brookes reserves the right to increase these rates annually per the rate of inflation, effective upon notification to Customer, which may include electronic mail addressed to Customer’s designated Project Manager.

5. Intellectual Property Rights and Indemnification.

a. Except as provided in subparagraph 5b below, all rights, title, and interest, including trademarks, patent rights, copyright, database right and other forms of intellectual property, in and to (i) the Services, (ii) the Deliverables (including any enhancements thereof), and (iii) any copies, materials, writings, information, creations, ideas, and works related to the Services or the Deliverables, are the exclusive property of Brookes without prejudice to the confidentiality provisions set forth in paragraph 6 below.

b. To ensure that Customer has the ability to use and enjoy the Deliverables, Brookes hereby grants to Customer a non-exclusive, non-transferable, royalty-free, internal-use license in and to the Deliverables.

c. Customer grants to Brookes a non-exclusive, non-transferable, royalty-free license to use all materials provided by Customer to Brookes for the purpose only of fulfilling its obligations under this Agreement and the relevant SOW or SOS. All such material will remain Customer’s exclusive property.

d. Each party agrees to execute any and all documents and do any and all further acts as may be reasonably requested by the other party or necessary to carry out the intent and purpose of subparagraphs 5a, 5b, and 5c.

e. Brookes shall indemnify and defend Customer, and Customer’s officers, directors, agents and employees, against any claims that the Services or the Deliverables infringe any trademark, patent, copyright, trade secret, or other intellectual property right of a third party, provided that Brookes is given prompt written notice of such claim. Customer shall fully cooperate in the defense of such claim, if requested by Brookes and at Brookes’ expense. Brookes will have sole authority to defend or settle the claim.

f. Customer shall indemnify and defend Brookes, and Brookes’ officers, directors, agents and employees, against any claims that Customer’s (i) preexisting intellectual property, confidential information, ideas, concepts or designs, or (ii) general directions or Deliverable requirements that Customer presents to Brookes for completion of the Services, infringe upon any third party proprietary rights provided Brookes shall have sole control over any legal or threatened legal action and no settlement is made of any kind without Brookes’ prior written approval. Brookes shall fully cooperate in the defense of such claim if requested by Customer and at Customer’s expense.

6. Confidentiality.

a. Each party acknowledges that it will have access to certain confidential and proprietary information of the other party concerning the other party’s business, plans, customers, technology, source code, and products, and other information held in confidence by the other party that is not generally known or available to the public (“Confidential Information”). Each party shall protect the other’s Confidential Information from unauthorized dissemination and use the same degree of care that the other party uses to protect its own non-public and confidential information, but in no event less than a reasonable amount of care. Neither party will use the other’s Confidential Information for purposes other than those necessary to directly further the purposes of this Agreement. Neither party shall disclose to third parties (except as required by law or to that party’s attorneys, accountants and other advisors as reasonably necessary) the other’s Confidential Information without the prior written consent of the other party.

b. Confidential Information will include all information in tangible or intangible form that is marked or designated as confidential or that, under the circumstances of its disclosure, should be considered confidential. Confidential Information will also include, but not be limited to, Brookes’ proprietary technology, including Brookes Services, software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, know-how, trade secrets and any related intellectual property rights throughout the world (whether owned by Brookes or licensed to Brookes from a third party), including any derivatives, improvements, enhancements, or extensions of Brookes technology conceived, reduced to practice, or developed during the term of this Agreement by either party that are not uniquely applicable to Customer or that have general applicability in the industry. The terms and conditions of this Agreement are also confidential.

c. Information will not be considered Confidential Information to the extent, but only to the extent, that the receiving party can establish that such information (i) is or becomes generally known or available to the public through no fault of the receiving party; (ii) has been independently developed by the receiving party without reference or access to any Confidential Information of the other; or (iii) is required to be disclosed by law provided the receiving party has promptly notified the disclosing party of such requirement and allowed the disclosing party a reasonable time to oppose such requirement.

d. The obligations set forth in this paragraph 6 will apply for such period as the information remains confidential and regardless of any earlier termination of this Agreement.

7. Limitation of Liability.

a. To the extent one party is held liable to the other party for a breach of this Agreement or a SOW or SOS, the party in breach is obligated to compensate direct damages and direct expenses incurred on account of such breach.

b. NOTWITHSTANDING THE FOREGOING, THE CUMULATIVE, AGGREGATE LIABILITY OF BROOKES FOR ALL CLAIMS RELATED TO THE SERVICES (INCLUDING, WITHOUT LIMITATION, ALL WARRANTY AND INDEMNITY OBLIGATIONS OF BROOKES) WILL NOT IN ANY EVENT EXCEED THE AMOUNT PAID IN FEES BY CUSTOMER UNDER THE APPLICABLE SOW OR SOS DURING THE LAST 12 MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY CLAIM. BROOKES WILL NOT IN ANY EVENT BE LIABLE FOR LOSS OF PROFIT, LOSS OF REVENUE, OR ANY OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR EXEMPLARY DAMAGES ARISING IN ANY WAY OUT OF THE USE OF THE SERVICES OR THIS AGREEMENT EVEN IF BROOKES HAS BEEN ADVISED OF SUCH DAMAGES.

c. Nothing in this Agreement or any SOW or SOS shall exclude or limit either party’s’ liability to the other for death or personal injury caused by its negligence or for fraudulent misrepresentation.

8. Employment Matters.

Each party agrees that during the term of this Agreement and for a period of six (6) months thereafter, it shall not directly solicit or recruit the employees of the other associated with the performance of this Agreement.

9. General Conditions.

a. Governing Law. This Agreement is subject to English law and the parties agree to submit to the non exclusive jurisdiction of the English courts in relation to any dispute hereunder.

b. Entire Agreement. Each SOW or SOS incorporates by reference the terms and conditions of this Agreement and sets forth the entire understanding and agreement between Customer and Brookes with respect to the Services described in such SOW or SOS. In the event of any conflict between the terms and conditions of a SOW or SOS and the terms and conditions of this Agreement, then the terms and conditions of this Agreement will prevail except as otherwise specifically provided in the SOW or SOS with reference to the superseded provision. Each SOW or SOS will be construed as a separate agreement superseding all proposals or communications, oral or written, between the parties (including any previously executed software license agreement) relating to its subject matter. No modification of an SOW or SOS or this Agreement will be binding unless it is in writing and is signed by authorized representatives of both parties.

c. Waiver. No waiver of any right under this Agreement shall be deemed effective unless contained in writing signed by a duly authorized representative of Brookes, and no waiver of any past or present right arising from any breach or failure to perform shall be deemed to be a waiver of any future right arising under this Agreement.

d. Severability. If any provision in this Agreement is invalid or unenforceable, that provision will be construed, limited, modified or, if necessary, severed, to the extent necessary, to eliminate its invalidity or unenforceability, and the other provisions of this Agreement will remain in full force and effect.

e. Assignment. This Agreement and the use of the Deliverables and the Services provided hereunder are not assignable without the prior written consent of Brookes, which consent shall not be unreasonably withheld. Any attempt at assignment without such consent shall be null and void and of no force and effect.

f. Export. Customer shall not knowingly, directly or indirectly, export or transmit any of the Deliverables or other information received from Brookes to any country to which such transmission is restricted by applicable regulations or statutes nor would otherwise breach UK export control legislation.

g. Purchase Orders. Nothing contained in any purchase order, purchase order acknowledgement, or invoice shall in any way modify or add any additional terms or conditions to this Agreement.

h. Force Majeure. If by reason of labour disputes, strikes, lockouts, riots, war, inability to obtain labour or materials, earthquake, fire or other action of the elements, accidents, governmental restrictions, appropriation or other causes beyond the reasonable control of a party hereto, either party is unable to perform in whole or in part its obligations as set forth in this Agreement (except for Customer’s payment obligations under paragraph 4) then such party shall be relieved of those obligations to the extent it is so unable to perform and such inability to perform shall not make such party liable to the other party. Neither party will be liable for any loss, injury, delays or damages suffered or incurred by the other party due to the above causes.

i. Taxes. All amounts payable under this Agreement and/or a SOW or SOS will be exclusive of any value added tax (VAT) or any and all similar taxes or legally imposed fees, duties, or contributions based upon such amounts payable, all of which shall be the sole responsibility of the Customer. Income taxes shall be withheld from such amounts payable only to the extent legally required. In the event such income taxes are withheld, Customer agrees to forward such withheld tax to the appropriate tax authorities within the legally required timeframe and provide Brookes with an official receipt evidencing payment of the withheld tax to the proper tax authorities. Such receipt shall be provided to Brookes within ten (10) days of payment of the withheld tax to the tax authorities. Failure to provide Brookes with such receipt shall result in Customer paying to Brookes the full amount of taxes withheld for which such receipt was not provided in accordance with this paragraph i. Customer shall not be responsible for any taxes based upon the net income of Brookes or its employees, unless agreed to elsewhere in this Agreement and/or a SOW or SOS in which case such agreement shall supersede this paragraph i.

j. Notices. Except as otherwise provided in this Agreement, any notice required or permitted to be sent by one of the parties shall be delivered by hand, by overnight courier, by facsimile, or by registered mail, return receipt requested, to the address of the parties first set forth in this Agreement or to such other address of the parties designated in writing in accordance with this subparagraph.

k. Dispute Resolution. If a dispute arises between the parties, the following procedure shall be followed before any legal proceedings are commenced with respect to such dispute: (i) each party must notify its project manager of the dispute and provide such project manager with all available information relating to such dispute; (ii) the project managers must use reasonable, good faith efforts to resolve the dispute within 30 days of the notice date; (iii) if the project managers are unable to resolve the dispute within this 30-day period, they shall refer the dispute to the appropriate executive officers of each party who shall then use reasonable, good faith efforts to resolve the dispute within an additional 15-day period; and (iv) if no resolution is reached within this additional time period, the parties may pursue all available remedies under this Agreement and the applicable law. Notwithstanding the foregoing, either party may, at any time, seek equitable or injunctive relief for the other party’s breach of confidentiality obligations under Paragraph 6.