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All support agreements consist of these conditions (the Conditions) and the relevant Customer order forms which prevail over any inconsistent terms contained, or referred to, in any terms and conditions or order or acceptance of a quotation supplied by the Customer (as identified in the Support Agreement) or implied by law, trade custom, practice or course of dealing.
1.AGREEDS TERMS
1.1. Interpretation – The definitions and rules of interpretation as described in this clause 1 apply in these terms.
1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of these terms.
1.3. General Terms;
1.3.1. A reference to a company shall include any company, corporation or other corporate body, wherever and however incorporated or established.
1.3.2. Unless the context otherwise requires, words in the singular shall include the plural and words in the plural shall include the singular.
1.3.3. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.3.4. A reference to a statute or statutory provision, is a reference to it as amended, extended or re-enacted from time to time.
1.3.5. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.3.6. A reference to writing or written includes e-mail.
1.3.7. Any phrase introduced by the words including, includes, in particular or for example, or any similar phrase, shall be construed as illustrative and shall not limit the generality of the related general words.
1.3.8. A person includes a natural person, corporate or unincorporated body (whether having separate legal personality) and that person’s personal representatives, successors or permitted assignees.
1.3.9. A reference to these Terms and Conditions includes the Service Agreement and the recitals. If there is an inconsistency between any of the provisions in the main body of the these Terms and Conditions and the Service Agreement , the provisions in the main body of these Terms and Conditions shall prevail.
1.3.10. These Terms and Conditions form part of any Service Agreement supplied by the Supplier. Any reference to these Terms and Conditions includes the Service Agreement.
1.3.11. The Supplier shall initially use reasonable endeavours to ensure continuity of its personnel assigned to the service agreement.
2.COMMENCEMENT AND DURATION
2.1. The Support supplied by the Supplier to the Customer under these conditions shall commence on the effective date in accordance with clause 2.2.
2.2. The Customers’ acceptance of any quote, proposal, agreement or any other form of order acceptance, constitutes an offer by the Customer to purchase any services under these conditions. No offer placed by the Customer shall be accepted by the Supplier other than by a written acknowledgment issued by the Supplier or by the Supplier starting to commence support (whichever is earlier).
2.3. Any acceptance as per clause 2.2 will commence on the Effective Date and shall continue in force for the Initial Term as stated in the service agreement or thirty six months if no term is stated in the schedule but will remain in force in according with clause 2.4 unless terminated in accordance with clause 2.4 or in accordance with other rights to termination in these terms.
2.4. At the end of the Initial Term the Services will continue to be supplied for a further period of 12 months (Extended Term) and will continue thereafter for successive periods of 12 months which will automatically renew until terminated by either party by giving each other at least 90 days’ notice to expire on the anniversary of the date of the Effective Date.
3.THE SUPPLIER’S OBLIGATIONS
3.1. The Supplier shall use reasonable endeavours to provide the Services in accordance with the Service Agreement and the Service Level Arrangements provided in all material respects. The Supplier shall use reasonable endeavours to observe all safety rules and regulations and any other reasonable security requirements that apply to the Customer’s premises and that have been communicated to it under clause 6.1.5.
3.2. Notwithstanding the foregoing, the Supplier does not warrant that the Customer’s use of the Managed Services shall be uninterrupted or error-free.
3.3. These terms shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing materials, products or services that are similar to those provided under these terms.
4.SERVICE PROVISIONS
4.1. The Supplier shall provide the Managed Services from the Go Live Date until expiry or termination of the Service Agreement in accordance with clause 2.4.
4.2. The Service Level Arrangements shall apply at the conclusion of the post go live period as specified in the Service Agreement.
4.3. The Customer shall not store, distribute or transmit through the Managed Services any material that:
4.3.1. is unlawful, harmful, threatening, defamatory, obscene, harassing or racially or ethnically offensive,
4.3.2. facilitates illegal activity,
4.3.3. depicts sexually explicit images; and/or
4.3.4. promotes unlawful violence, discrimination based on race, gender, age, disability, sexual orientation, religion, belief or gender reassignment, or any other illegal activity.
4.4. The Customer shall remain responsible for the use of the Managed Services under its control, including any use by third parties (whether fraudulent or invited by the Customer).
4.5. The Customer shall not provide the Managed Services directly or indirectly to third parties without prior written consent by the Supplier.
4.6 The Supplier reserves the right to:
4.6.1 modify the Supplier’s system, its network, system configurations or routing configuration; or
4.6.2 modify or replace any Hardware or Software in its network or equipment used to deliver any Service over its network, provided that this has no adverse effect on the Supplier’s obligations under these terms and its provision of the Services or the Service Level Arrangements. If such changes will have an adverse effect, the Supplier shall notify the Customer, and the parties shall follow the Change Control Procedure as set out in clause 8.
5.SECURITY
5.1. The Supplier shall ensure that appropriate safety and security systems and procedures are maintained and enforced to prevent unauthorised access or damage to any and all Services, the Supplier’s System and related networks or resources and the Customer Data, in accordance with Good Industry Practice.
5.2. The Customer is obliged to undertake and action without delay, any reasonable security requirements as indicated by the Supplier under clause 5.1.
5.3. The Supplier will not be deemed responsible for any damage arising from any negligence or inaction from the Customer on any identified updates as per clause 5.1 and 5.2.
5.4. Without prejudice to clause 19.8, where the Supplier supplies the Customer with and/or installs anti-virus software or are maintaining the Customer’s anti-virus software on the Customers behalf, the Supplier will not be responsible or liable for any losses, including loss of data, or damage arising if a virus infects the Customer’s systems.
5.5. The Supplier will not be deemed responsible for any damage arising from any negligence on the part of any of the Customer’s end-users in clicking on links or downloading material from any sources including websites.
5.6. The Supplier will incur no liability for any damages or consequential losses incurred by the Customer from any cyber-attack which is new and has not been apprehended by the installed anti-virus system supplied.
5.7. Any work undertaken by the Supplier to remedy the effects of the virus will be charged for in addition to the Services at the Supplier’s normal prevailing rate
6.CUSTOMER OBLIGATIONS
6.1. The Customer shall:
6.1.1. Ensure that the Customer’s equipment (Servers, PCs, networks and other devices) is maintained in good condition and Supplier serviceability requirements/standards and site environmental conditions are met,
6.1.2. Co-operate with and facilitate periodic reboots for devices such as firewalls, routers, and servers that may be required from time to time to apply/activate critical update patches and configuration changes to the Customers’ environment. The Supplier support under the service agreement within these terms are predicated upon the Customer’s support and commitment to providing time/scheduling for network device reboots with its staff and/or user support,
6.1.3. Grant the Supplier secure remote access into Customer’s network using a solution expressly approved by the Supplier. Depending on the remote access solution required/used, additional charges may apply to the service agreement. This service agreement and support services herein are contingent on the Customer granting such secure remote access,
6.1.4. Be responsible for notifying the supplier of any changes including users, hardware and services, that should no longer be supported. This request to reduce the number of active users supported by the Supplier can be made at any time during the agreement, however charges will prevail at the contracted or automatically increased co-termed quantities.
6.1.5. Inform the Supplier in writing of all health and safety rules and regulations and any other reasonable security requirements that apply at the Customer’s premises,
6.1.6. Agree that the Customer is responsible for taking regular data backups of all data stored from time to time on the equipment. Where the Supplier agrees to perform backups as part of the services, the Supplier’s only liability to the Customer in respect of such backups for loss or corruption of data will be as set out in clause 19.
6.2. The Customer shall provide the Supplier with:
6.2.1. all necessary co-operation in relation to these terms,
6.2.2. all necessary access to such information as may be reasonably required by the Supplier including but not limited to Customer Data, security access information, and (subject to providing any confidentiality undertakings reasonably required by the Customer) software interfaces to the Customer’s other business applications,
6.2.3. An appointed Customer’s Project Manager, who shall have the authority to contractually bind the Customer on all matters relating to the service agreement. The Customer shall use reasonable endeavours to ensure continuity of the Customer’s Project Manager but has the right to replace him from time to time where reasonably necessary in the interests of the Customer’s business.
6.3 The Customer will comply with all applicable laws and regulations with respect to its activities under these terms.
6.4 The Customer will carry out all other Customer responsibilities set out in these terms or in any of the Service Agreements or relevant Incorporated Schedules in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, the Supplier may adjust any timetable or delivery schedule set out in the Service Agreements or relevant Incorporated Schedules as reasonably necessary.
7.NON-RESALE OF SERVICES
7.1. The Customer agrees that all services provided by the Supplier under these terms are for the sole and exclusive use of the Customer.
7.2. The Customer is not permitted to resale or provide access to services supplied by the Supplier under these terms to any unauthorised 3rd party without prior written consent from the Supplier.
7.3. Under this clause the Supplier has the right to either:
7.3.1. Terminate all or part of services with immediate effect,
7.3.2. amend service charges to reflect the resale position,
7.3.3. assume direct contact with any 3rd parties making use of the services to contract directly.
8.CHANGE CONTROL
8.1. If either party wishes to change the scope of the Services (including Customer requests for additional services), they shall submit details of the requested change to the other party in writing.
8.2. If either party requests a change to the scope or execution of the Services, the Supplier shall, within a reasonable time frame, provide to the Customer written confirmation of:
8.2.1. the likely time required to implement the change,
8.2.2. any variations to the Fees arising from the change,
8.2.3. any other impact of the change on the terms to the service agreement.
8.3. Any confirmation provided by the Supplier as per clause 8.2 will be deemed as accepted as per clause 32.2 in terms of the contractual effective date for change.
8.4. If the Supplier requests a change to the scope of the Services, the Customer shall not unreasonably withhold or delay consent to it. If the Customer requests a change the Supplier shall not unreasonably withhold or delay consent to it.
8.5. If either party wishes the other party to proceed with requested changes, the Supplier has no obligation to do so unless and until the parties have agreed in writing the necessary variations to its charges, and the Customer has provided written confirmation to this effect.
8.6. For the avoidance of doubt the Supplier will not process orders for any additional equipment or services required as part of the change to the services provided without written confirmation of changes as per these terms
9.PROPRIETARY RIGHTS
9.1. The Customer acknowledges and agrees that, the Supplier and/or its licensors own all Intellectual Property Rights in the Work Product and in all other materials connected with the Services and/or developed or produced in connection under these terms by the Supplier, its officers, employees, sub-contractors or agents. Except as expressly stated in these terms, these terms do not grant the Customer any rights to such Intellectual Property Rights.
9.2. The Supplier acknowledges and agrees that the Customer owns and retains all rights, title and interest in and to the Customer Data. The Supplier shall have no rights to access, use or modify the Customer Data unless it has the prior written consent of the Customer.
9.3. The Supplier grants to the Customer a perpetual (for the term of the service agreement and thereafter), irrevocable, sub-licensable, non-transferable, non-exclusive, royalty-free, worldwide licence to use all of the Supplier’s Intellectual Property Rights as incorporated by the Supplier into the Work Product solely in connection with the Customer’s (and its permitted sub-licensees’) use of the Work Product in accordance with these terms.
9.4. The Customer grants to the Supplier a revocable, sub-licensable, non-transferable, non-exclusive, royalty-free, worldwide limited licence for the term of the service agreement to use, exploit, copy, reproduce, manufacture, sub-license, modify, improve, enhance and make derivative works of the Customer’s Intellectual Property Rights and the physical Work Product solely to the extent necessary to enable the Supplier to comply with its obligations under these terms.
9.5. The Supplier shall not disclose to the Customer or use in its work any trade secrets or confidential information of a third party which the Supplier is not lawfully entitled to disclose or use in such manner. The Supplier shall not use any equipment, supplies, facilities, computer code, work product, inventions or materials of any other third party (Third-Party Materials) in any Work Product or in the Supplier’s performance under these terms unless:
9.5.1. the Supplier has the full right and authority to do so without violating any rights of any third party,
9.5.2. the Supplier has obtained all necessary rights to enable it to perform its obligations under these terms and grant the rights granted pursuant to these terms, and to permit the
Customer to utilise the Third-Party Materials as contemplated under the Service Agreement and these Terms, in each case at no additional cost or expense to the Customer,
9.5.3. the Customer’s use of such Third-Party Materials will not restrict or impair in any manner its use of the Work Product or subject the Customer to any obligation or liability,
9.5.4. such Third-Party Materials are specifically identified to the Customer in writing in advance of any use and the Customer has agreed in writing to such use.
9.6. The Supplier grants to the Customer a perpetual (for the term of the service agreement and thereafter), irrevocable, sub-licensable, non-transferrable, non-exclusive, royalty-free, worldwide licence to use such Third-Party Materials as are incorporated in the Work Product solely in connection with the Customer’s (and its permitted sub-licensees’) use of the Work Product in accordance with these terms.
10.CHARGES AND PAYMENTS
10.1. The Customer will be charged for services provided as stipulated in the Service Agreement or Incorporate Schedule(s). The Customer will be invoiced monthly in advance and payment will be made by direct debit.
10.2. The Customer acknowledges that they can request an increase for any existing services, as per the Customer’s Managed Service agreement. Amendments will automatically increase the service and billable committed quantities which will co-terminate with the existing effective date of the Customers Managed Service agreement. Billing will automatically increase for any such additions and will be immediately accepted as the customers new minimum contracted billing amount, subject to clauses 2.3 & 2.4.
10.3. Any supplementary services provided by the Supplier which are outside of these terms or the Service Agreement, shall be charged to the Customer in accordance with these terms and conditions. Any additional charges will be invoiced as incurred, and payment will be due within seven (7) days of the date of the invoice.
10.4. Charges for additional hardware or software will be deemed as invoiceable on the effective date the Customers instruction is received, and processed upon acceptance by the Supplier. Payment terms on all additional hardware or software orders are due upon receipt of invoice.
10.5. The prices stipulated in the Service Agreement are fixed for a period of 12 months from the go-live date pursuant to clause 10.6. The Supplier reserves the right to increase prices during the term of the agreement providing that thirty days’ notice is given to the Customer and that the increase is no greater than the official rate of the Retail Price Increase (RPI) for the preceding 12 months or 10% whichever is greater.
10.6. The Supplier reserves the right to increase prices at any point during the contract term on specific costs where the Supplier received a direct price increase from any third-party supplier that directly affects the provision of service. The same percentage price increase received by the Supplier will be passed on for the specified service element and the Supplier will endeavour to provide a minimum of 30 days’ notice or more, prior to implementing any such increases.
10.7. Where the Supplier can identify and justify that the Customer is using an excessive amount of support, the Supplier reserves the right to amend monthly service charges subject to a periodical review with the Customer. The Supplier shall exercise its discretion in determining whether such an increase is justified.
10.8. The Customer shall reimburse the Supplier for all pre-agreed, actual, reasonable travel costs and expenses including but not limited to vehicle mileage, rail fares, airfares, hotels and meals incurred by the Supplier in performance of the Services.
10.9. Prompt payment within the Suppliers payment terms will form the essence of these terms.
10.10. All amounts due to the Supplier shall be paid in full without any set-off, deduction or withholding (other than withholding of tax as required by law).
10.11. If the Customer has a dispute with an invoice they must notify the Supplier within 10 working days from receipt of invoice. The Supplier will aim to resolve disputed invoices within 5 working days. Disputed invoices that are deemed and notified in writing to the Customer as resolved by the Supplier, will become due for payment on the invoice due date or within 5 working days from date of resolution whichever is longer.
10.12. Where the Supplier requests further information on a disputed invoice, the Customer shall provide requested information within 3 working days. If no response is received within 3 working days, the Supplier will deem the invoice dispute as resolved and due for payment as per clause 10.11.
10.13. Unless otherwise agreed in writing, charges are quoted exclusive of any applicable value added tax (VAT) or other tax, which will be added to invoices at the prevailing rate and sent to the Customer. The Customer shall pay any such additional sums at the same time as the payment of Supplier’s charges.
10.14. If the Customer fails to make any payment due to the Supplier under these terms by the due date for payment, then, without limiting the Supplier’s remedies under clause 20, the Customer shall pay interest on the overdue amount at the rate of 8% per annum above the Bank of England’s prevailing base rate. Such interest shall accrue on a daily basis from the due date until cleared payment of the overdue amount, whether before or after judgment. The Customer shall pay all interest together with any overdue amount.
10.1. In the event of a failed direct debit collection from the Customer, on or before the invoice due date and for any reason, the Customer’s account will be placed on immediate hold and will be charged a re-collection and administration fee as per below:
10.15.1. £10 per invoice up to a value of £3,000,
10.15.2. £10 per invoice + 1% surcharge for invoices over £3,000,
10.15.3. Administration fee of £25 per invoice.
11.WARRANTIES
11.1. The Customer warrants, represents and undertakes that:
11.1.1. it has the full capacity and authority to enter into and perform the service agreement and that the service agreement is executed by a duly authorised representative of the Customer,
11.1.2. it has the authority to grant any rights to be granted to the Supplier under these terms, including the right to provide the Software and Hardware to the Supplier as indicated in the service agreement and for the same to be used in the provision of the Services and otherwise in connection with the Service Agreement;
11.1.3. it shall comply with and use the Services in accordance with these terms and all applicable laws and shall not do any act that shall infringe the rights of any third party including the publishing or transmission of any materials contrary to relevant laws,
11.1.4. it owns or has obtained valid licences, consents, permissions and rights to use, and where necessary to license to the Supplier, any materials reasonably necessary for the fulfilment of all its obligations under the service agreement, including any third-party licences and consents in respect of any Customer Software; and
11.1.5. the Supplier’s possession and use in accordance with the service agreement of any materials (including third-party materials supplied by the Customer to the Supplier) shall not cause the Supplier to infringe the rights, including any Intellectual Property Rights, of any third party.
11.2. The Supplier warrants, represents and undertakes that:
11.2.1. it has the full capacity and authority to enter into and perform the Service Agreement and that the Service Agreement is executed by a duly authorised representative of the Supplier,
11.2.2. it owns, or has obtained valid licences, consents, permissions and rights to enable the Supplier to comply with these terms and to use any of the Intellectual Property Rights necessary for the fulfilment of all its obligations under the service agreement including for the Customer’s use and receipt of the Services, and the Supplier shall not breach the provisions of any such necessary licences, consents, permissions and rights or cause the same to be breached;
11.2.3. it shall comply with all applicable laws and regulations in performing its obligations under these terms,
11.2.4. the Customer’s possession and use in accordance with these terms of any materials (including third-party materials) supplied by the Supplier to the Customer shall not, to its knowledge, cause the Customer to infringe the rights, including any Intellectual Property Rights, of any third party,
11.2.5. any software, system or telecommunications provided by or on behalf of the Supplier shall be tested for and, in the case of any supplied hardware, protect against, Viruses and/or malware, and any identified Viruses and/or malware are/will be deleted in accordance with Good Industry Practice before the date of delivery or use of such software, systems or telecommunications by the Supplier; and
11.2.6. all personnel and sub-contractors used by the Supplier in the performance of the service agreement are adequately skilled and experienced for the activities they are required to perform.
12.SUPPLY OF HARDWARE
12.1. The Supplier, in their opinion, will select reputable and approved third party suppliers for the procurement of hardware.
12.2. On all hardware orders, the Supplier reserves the right to apply any relevant terms and conditions imposed by their third-party supplier.
12.3. All goods and services remain the property of the Supplier until the Supplier’s invoice is paid in full. Title for the hardware will only pass to the Customer upon payment of the Supplier’s invoice.
12.4. The Customer accepts full liability in terms of risk of loss and damage for all hardware deemed, by the Suppler, as delivered to the Customer’s designated location even where title has not been transferred. Hardware will be deemed as delivered upon production of any form of proof of delivery, including but not limited to a signed delivery notes or electronic confirmation, from the Supplier or any relevant third party involved in delivery.
12.5. If any hardware supplied by the Supplier, is found to be defective or not in accordance with the specification, the Customer will adhere to the returns policy as per section 13.
12.6. The hardware procured by the Supplier will be subject to the warranties provided by the third-party supplier or manufacturer. The Supplier will pass through any such warranties to the Customer to the extent permissible.
12.7. The Supplier does not provide any additional warranties for third party hardware beyond those offered by the third-party supplier or manufacturer.
12.8. Subject to clauses 12.5 and 12.6, the Supplier shall not be liable to provide any support of Customer owned hardware, irrespective of how the Customer acquired it.
12.9. Subject to clause 12.8, any hardware support requests or hardware issues identified by the Supplier during other investigations, will be managed on a best-endeavours assessment basis, where the Supplier will provide a recommended course of action and associated fees.
13.RETURNS POLICY
13.1. Only products purchased directly from the Supplier are eligible for return. Products must be in their original packaging in a new, undamaged and unmarked condition, including all accessories, manuals and documentation.
13.2. The Supplier retains the right to accept or refuse any item as eligible for return with reasonable explanation.
13.3. Where the Supplier accepts a request for return, the Supplier will issue a Return Merchandise Authorisation (RMA) to the Customer via email, confirming Supplier’s acceptance and containing all relevant instructions relating to the return of the product.
13.4. Any products stipulated by the Suppler on any documentation including but not limited to; an email, quote, proposal, invoice, agreement or contract, as “build to order” are non- refundable and non-cancellable under any circumstances upon receipt of quote acceptance or written confirmation of order.
13.5. The Customer accepts that the following are non-refundable:
13.5.1. Software that has been opened or downloaded; and
13.5.2. Products that, in the Supplier opinion, have been damaged, altered or used extensively by the Customer.
13.6. The Customer may request a product return:
13.6.1. Where incorrect product from the Customers order is delivered. Customer must inform the Supplier in writing within 24 hours of delivery including order number and photographic evidence of incorrect item,
13.6.2. Where the Customer identifies that delivered items or products are no longer required, the Customer may request a return and must inform the Supplier within 10 working days of receipt of delivery. Supplier will issue an RMA as per clause 13.3 where the Customer will be fully liable for all shipping costs relating to return of goods to the Supplier. Upon receipt, the Supplier will perform an inspection of the products and issues a refund in respect of the returned item(s) less:
13.6.2.1. a restocking fee equivalent to 25% of the cost of the returned item(s),
13.6.2.2. any other defect or damage revealed on inspection not pre-notified to the Supplier,
13.6.2.3. any underpaid postage and/or retrieval costs; and
13.6.2.4. any other pre agreed charges.
13.7. Where the Customer identifies items or products that are damaged, faulty or not operating as specified, upon delivery, the Customer must inform the Supplier within 5 working days from receipt of delivery. The Customer shall provide photographic images of all faults/damage. Upon written acceptance Supplier will issue an RMA as per clause 13.3.
13.8. The Customer accepts it is their responsibility to arrange for all returns using a “signed for”, fully insured courier/delivery service.
13.9. Nothing above affects the Customer’s rights under the warranties provided by the original product’s manufacturer.
14.THIRD PARTY SOFTWARE
14.1. The Supplier may provide access to third-party software as part of the services under these terms. Such software will be subject to the terms and conditions of the third-party software licences.
14.2. Notice of changes to third party software:
14.2.1. The Supplier will provide the Customer with reasonable notices of any changes, updates or termination of third-party software licences that may impact on the services. The Supplier shall use commercially reasonable efforts to provide at least 30 days’ notice of such changes
14.3. If the Supplier decides to discontinue the use of any third-party software that affects the services provided to the Customer, the Supplier will give the Customer at least 60 days’ notice.
14.4. If the Customer decides to discontinue the use of any third-party software that affects the Services provided by the Supplier, the Customer will give the Supplier at least 60 days’ notice. Under this clause and pursuant to clause 14.6 the Supplier will terminate the relevant third-party software at the next available opportunity.
14.5. At all times the Customer will be bound by the terms and conditions of all third-party software used by the Customer and hosted or supplied by the Supplier.
14.6. Discontinuation of use of third-party software by the Customer will not preclude the requirement for the Supplier to invoice the Customer for any 3rd party software where a committed term to the third-party software has been entered into.
14.7. Pursuant to clause 14.6, any early termination charges suffered by the Supplier, will be immediately passed on to the Customer where all invoices will be payable immediately.
14.8. The Supplier’s obligations in relation to support for third-party software chosen and utilised by the Customer are restricted to supporting the availability and performance of the software on a strictly “best-endeavours” basis. This will include, where appropriate, managing software updates and patch releases. The Supplier shall not be responsible for providing support, maintenance or troubleshooting services for any third-party software applications unless explicitly stated otherwise in a separate agreement. The Customer acknowledges that the Supplier is not liable for any issues, malfunctions, or incompatibilities arising from the use of such third-party software.
15.CONFIDENTIALITY
15.1. the Supplier and the Customer each agree to keep the other’s information confidential, including any material, software, document, idea, data and any other information which relates to the other’s research and development, trade secrets or business affairs which either party states is confidential or which is clearly confidential.
15.2. The Supplier may refer to the Customer as a Customer in the Supplier’s publicity material but will not publicise our work under these terms without the Customer’s consent.
15.3. Both parties agree to abide by the Data Protection Legislation (Data Protection Legislation) which means (whilst they are in force) (a) the Data Protection Acts 1998 and 2018 (“DPA”); (b) the EU General Data Protection Regulation (“GDPR”); and (c) any successor legislation to either the DPA or the GDPR and any other applicable laws and regulations relating to the processing of personal data and privacy. We also agree to process your data only in accordance with the provisions set out in the Suppliers Data Processing Obligations which shall form part of these terms. The Supplier will take all reasonable steps to avoid sending viruses, but we do not accept liability for sending viruses unknowingly.
15.4. The provisions of this clause 15 shall not apply to any Confidential Information that:
15.4.1. is or becomes generally freely available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause 15),
15.4.2. was available to the receiving party on a non-confidential basis before disclosure by the disclosing party,
15.4.3. was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party’s knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party,
15.4.4. was known to the receiving party before the information was disclosed to it by the disclosing party,
15.4.5. the parties agree in writing it is not confidential or may be disclosed; or
15.4.6. is developed by or for the receiving party independently of the information disclosed by the disclosing party.
15.5. Each party shall keep the other party’s Confidential Information confidential and shall not:
15.5.1. use such Confidential Information except for the purpose of exercising or performing its rights and obligations under these terms (Permitted Purpose); or
15.5.2. disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause 15.
15.6. Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its Representatives in violation of these terms.
15.7. The Customer:
15.7.1. acknowledges and agrees that the Supplier’s Confidential Information includes any designs, plans, software or other materials created by the Supplier in connection with the Services; and
15.7.2. agrees not to make use of any such designs, plans, software or other materials for any purpose other than receipt of the services.
15.8. The Supplier acknowledges and agrees that the Customer Data is the Confidential Information of the Customer.
15.9. A party may disclose the other party’s Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that:
15.9.1. it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and
15.9.2. at all times, it is responsible for such Representatives’ compliance with the confidentiality obligations set out in this clause 15.
15.10. A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority (including any relevant securities exchange) or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 15.10, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
15.11. Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party’s Confidential Information other than those expressly stated in these terms are granted to the other party or to be implied from these terms.
15.12. The provisions of this clause 15 shall continue to apply after expiry or termination of any service agreement bound by these terms for any reason.
15.13. No party shall make, or permit any person to make, any public announcement concerning these terms or any such service agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including any relevant securities exchange), any court or other authority of competent jurisdiction.
16.NON-HIRE/NON-DISCLOSURE
16.1. The Customer agrees not to recruit any of the Supplier’s staff/contractors introduced to the Customer as a consequence of this contract until at least twelve months after all of duties under this contract have been performed. If the Customer breaches this clause, the Supplier will be entitled without prejudice to our other remedies to charge the Customer twenty-five per-cent of the first year’s remuneration of any replacement employee recruited as a consequence of the breach.
17.INDEMNITY
17.1. The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services, provided that:
17.1.1. the Customer is given prompt notice of any such claim,
17.1.2. the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
17.1.3. the Customer is given sole authority to defend or settle the claim.
17.2. The Supplier shall defend the Customer, its officers, directors and employees against any claim that the Services infringe any patent effective as of the Effective Date, copyright, trademark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
17.2.1. the Supplier is given prompt notice of any such claim,
17.2.2. the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier’s expense; and
17.2.3. the Supplier is given sole authority to defend or settle the claim.
17.3. In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the service agreement on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
17.4. In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
17.4.1. a modification of the Services by anyone other than the Supplier; or
17.4.2. the Customer’s use of the Services in a manner contrary to the instructions given to the Customer by the Supplier; or
17.4.3. the Customer’s use of the Services after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
17.5. the foregoing states the Customer’s sole and exclusive rights and remedies, and the Supplier’s (including the Supplier’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trademark, database right or right of confidentiality.
18.INSURANCE
18.1. The Supplier shall maintain at its sole expense commercial general liability insurance for personal injury and property damage for a general aggregate of £2,000,000, Professional Liability insurance for a general aggregate of £2,000,000.
18.2 The Supplier further agrees to furnish the Customer with certificates, including renewal certificates, evidencing such coverage within thirty (30) days of commencing performance under these terms, at every renewal and at other times as may be reasonably requested by Customer.
19.LIMITATION OF LIABILITY
19.1. The Supplier warrants to the Customer that it will supply the Services with reasonable skill and care, where this clause 19 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
19.1.1. any breach of these terms;
19.1.2. any use made by the Customer of the Services; and
19.1.3. any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with these terms.
19.2. Except as expressly provided in these terms:
19.2.1. the Customer assumes sole responsibility for results obtained from the use of the Services, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer’s direction; and
19.2.2. all warranties, conditions and other terms implied by statute, common law or otherwise are, to the fullest extent permitted by law, excluded from these terms.
19.3. Nothing in these terms excludes or limits the liability of the Supplier for:
19.3.1. death or personal injury caused by the Supplier’s negligence,
19.3.2. fraud or fraudulent misrepresentation; or
19.3.3. any other liability which cannot lawfully be excluded or limited.
19.4. the Service Level Arrangements state the Customer’s full and exclusive right and remedy, and the Supplier’s only obligation and liability, in respect of the performance and availability of the Managed Services, or their non-performance and non-availability.
19.5. Subject to clause 17.4 and clause 17.5:
19.5.1. the Supplier shall not be liable whether in contract, tort (including for negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise for any loss of profits, loss of business, depletion of goodwill or similar losses, or for any indirect or consequential loss, costs, damages, charges or expenses however arising; and
19.5.2. the Supplier’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the service agreement shall be limited to the average monthly price paid for the Services during the 12 months preceding the date on which the claim arose. Liability will be calculated on a pro-rate loss of hosted services to the Customer based on a Daily/Hourly rate subject to clause 19.
19.5.3. The Supplier’s maximum liability under 19.5.2 is limited to a total equivalent to 5 working days in any one billing cycle.
19.6. Where any data on the Equipment is lost or corrupted, whether as a result of the Supplier’s negligence or otherwise, the extent of the Supplier’s liability shall be limited to using all reasonable endeavours to restore such data from the most recent data backup(s) taken by the Customer or by the Supplier in accordance with clause 6.1above.
19.7. Where the Supplier installs any third-party software on the Equipment, the Supplier has no liability for the performance of the software, which is a matter for the Customer and the third-party licensor.
19.8. Without prejudice to clause 19.7 above, where the Supplier supplies the Customer with and/or install anti-virus software or are maintaining the Customer’s anti-virus software, the Supplier will not be responsible or liable for any losses, including loss of data, or damage arising if a virus infects the Customer’s systems. Any work done by the Supplier to remedy the effects of the virus will be charged for in addition to the Services at the Supplier’s normal prevailing rate.
19.9. The Customer acknowledges that the charges under the Service Agreement have been calculated on the basis that the Supplier may rely upon the exclusions and limitations of liability set out in these terms.
20.TERM AND TERMINATION
20.1. The Customer can, by giving no less than 30 days’ prior written notice to take effect on the anniversary of the effective date of the managed support agreement, reduce their chargeable services quantities, to take effect on their next anniversary renewal date.
20.2. Without prejudice to any other right or remedy available to it, either party may terminate the service agreement with immediate effect by giving written notice to the other party if:
20.2.1. the other party fails to pay any amount due under these terms on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment,
20.2.2. the other party commits a material breach of any of these terms and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so,
20.2.3. the other party breaches any of the terms of clause 15;
20.2.4. the other party suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986,
20.2.5. the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party,
20.2.6. a petition is filed, a notice is given, a resolution is passed, or an order is made for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party,
20.2.7. an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given, or an administrator is appointed, over the other party,
20.2.8. the holder of a qualifying floating charge over any of the assets of that other party has become entitled to appoint or has appointed an administrative receiver,
20.2.9. a person becomes entitled to appoint a receiver over any of the assets of the other party or a receiver is appointed over any of the assets of the other party,
20.2.10. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days,
20.2.11. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 20.2.4 to clause 20.2.12 (inclusive);
20.2.12. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
20.2.13. there is a change of control of the other party (within the meaning of section 1124 of the Corporation Tax Act 2010).
20.3. Without prejudice to any other right or remedy available to it, and subject to clause 20 the Customer may terminate the service agreement with immediate effect by giving written notice to the Supplier if:
20.3.1. the Supplier commits a series of breaches of these terms which are each individually not material, but which occur sufficiently often within a sufficiently short period to have, in aggregate, the effect of being a material breach; or
20.3.2. the Supplier breaches any of the terms of our data processing obligations.
20.4. The Customer may terminate the service agreement upon 90 days written notice at any time where the Supplier conducts an annual price review pursuant to clause 10.6, unless the amount by which such an increase exceeds this percentage is justified. The Supplier shall exercise its discretion in determining whether such an increase is justified.
20.5. The party not affected by a continuing Force Majeure Event may terminate the service agreement in accordance with clause 23.
20.6. Any provision of these terms which expressly or by implication is intended to come into or continue in force on or after expiry or termination of this agreement shall remain in full force and effect.
20.7. Expiry or termination of the service agreement for any reason shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at expiry or termination.
20.8. On expiry or termination of the service agreement for any reason:
20.8.1. the Supplier shall immediately cease provision of the Set-Up Services, Managed Services and Maintenance Services but may provide Transition Services for a further period in accordance with clause 22.1;
20.8.2. (subject to clause 20.9) each party shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other party and the Customer shall cease to use any IP address licensed to the Customer by the Supplier pursuant to clause 9.3; and
20.8.3. if the Supplier receives, no later than ten days after the effective date of the expiry or termination of the service agreement for any reason, a written request for the delivery to the Customer of the most recent backup of the Customer Data and such request is, where relevant, in accordance with the Suppliers data processing obligations policy, the Supplier shall use reasonable commercial endeavours to deliver the backup to the Customer within 30 days of its receipt of such a written request in the format stored or in a format as otherwise reasonably requested by the Customer, provided that the Customer has at that time paid all fees and charges outstanding at (and including any resulting from) expiry or termination (whether or not due at the date of expiry or termination). Once such ten-day period has expired or the Supplier has, at the Customer’s request, delivered to the Customer the most recent backup of the Customer Data (as applicable), the Supplier shall (subject to clause 20.9) promptly expunge from the Supplier’s System and otherwise destroy or dispose of all of the Customer Data in its possession or control. The Customer shall pay all reasonable costs and expenses incurred by the Supplier in returning and disposing of Customer Data and expunging it from the Supplier’s System.
20.9. If a party is required by any law, regulation, or government or regulatory body (Regulatory Requirement) to retain any documents or materials which it would otherwise be obliged to return or destroy under clause 20.8.3, it shall notify the other party in writing of such retention, giving details of the documents or materials that it must retain. Clause 15 shall continue to apply to any such retained documents and materials for as long as any such requirement continues in force, subject to any disclosure mandated by any Regulatory Requirement.
21.CONSEQUENCES OF EARLY TERMINATION
21.1. If the Customer elects to terminate the service agreement prior to the end of the initial term an early termination fee will be due. This fee will be calculated based on “the number of billing cycle periods left until the end of the initial term” x “the average billing cycle invoice value for the services provided for the preceding 12-month period”.
22.EXIT ASSISTANCE AND TRANSFER OF ASSETS
22.1. The Customer may, at any time before expiry or termination of all or any part of the service agreement for any reason request the Supplier to provide the Transition Services or otherwise to offer reasonable assistance in transitioning the Services to the Customer or a Replacement Supplier (by providing the Transition Services). The Supplier shall, in consideration of a reasonable fee (agreeable in advance), provide such Transition Services for a maximum period of three months, or until expiry or termination of all or any part of the service agreement for any reason in accordance with clause 20, whichever is later.
22.2. On expiry or termination of all or any part of the service agreement for any reason the Supplier shall identify any equipment that is located at the Customer’s site/sites which is owned by the Supplier. If this situation occurs the Supplier shall sell, and the Customer shall buy, the Customer-site equipment for net book value, calculated in accordance with Supplier’s reasonable then-current depreciation policy. Title to such Customer-site equipment shall pass to the Customer on payment for the same.
22.3. The Supplier and Customer shall co-operate to procure the novation or assignment to the Customer and/or Replacement Supplier of the Transferring Contracts where necessary.
22.4. The Customer shall:
22.4.1. accept assignments from the Supplier or join with the Supplier in procuring a novation of each Transferring Contract; and
22.4.2. once a Transferring Contract is novated or assigned to the Customer or the Replacement Supplier, carry out, perform and discharge all the obligations and liabilities created by or arising under that Transferring Contract and exercise its rights arising under that Transferring Contract or, as applicable, procure that the Replacement Supplier does the same.
23.FORCE MAJEURE
23.1. Neither party is liable for any breach of these terms caused by matters beyond their reasonable control, including, but not limited to, Acts of God, fire, lightning, explosion, war, disorder, flood, industrial disputes (whether or not involving our employees), failures or interruptions of electricity supplies, weather of exceptional severity or acts of local or central Government or other authorities. Any work done as a result of the above is strictly on a chargeable basis at our normal prevailing rate at that time.
24.DISASTER RECOVERY
24.1. The Supplier shall have in place an appropriate Disaster Recovery Plan to ensure that it is able to comply with its obligations under these terms and shall maintain, update and test such Disaster Recovery Plan and notify full details of its then current Disaster Recovery Plan to the Customer on an “as requested basis”
25.WAIVER
25.1. No failure or delay by a party to exercise any right or remedy provided under these terms or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
26.SEVERANCE
26.1. If any provision or part-provision of these terms is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of these terms.
26.2. If any provision or part-provision of these terms is deemed deleted under clause 26.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
27.ENTIRE TERMS AND VARIATION
27.1. These Terms and any subsequent Service Agreement constitutes the entire agreement between the parties and supersedes all previous discussions, correspondence, negotiations, arrangements, understandings and agreements between them relating to its subject matter.
27.2. Each party acknowledges that in entering into these terms it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these terms. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in these terms.
27.3. No variation of these terms shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
28.ASSIGNMENT
28.1. The Supplier may at any time assign, transfer, mortgage, charge, sub-contract, delegate, declare a trust over or deal in any other manner with all or any of its rights and obligations under these terms without the consent of the Customer.
28.2. The Customer shall not, without the prior written consent of the Supplier, assign, transfer, mortgage, charge, sub-contract, delegate, declare a trust over or deal in any other manner with any of its rights or obligations under these terms.
29.NO PARTNERSHIP OR AGENCY
29.1. Nothing in these terms is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party nor authorise any party to make or enter into any commitments for or on behalf of any other party.
29.2. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
30.THIRD PARTY RIGHTS
30.1. Except as expressly provided elsewhere in these terms, no one other than a party to these terms, its successors and permitted assignees, shall have any right to enforce any of its terms.
31.RIGHTS AND REMEDIES
31.1. Except as expressly provided in these terms, the rights and remedies provided under these terms are in addition to, and not exclusive of, any rights or remedies provided by law.
32.NOTICES
32.1. Any notice or other communication required to be given to a party under or in connection with these terms shall be electronic and shall be sent by email to the Customer’s or Supplier’s Designated Representative.
32.2. Any notice or communication shall be deemed to have been received as confirmed by the date stamp of any outgoing email sent by the Supplier or the Customer.
32.3. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
33.DISPUTE RESOLUTION
33.1. If a dispute arises under or in connection with these terms or service agreement (Dispute), including any Dispute arising out of any amount due to a party, then before bringing any legal proceedings or commencing any other alternative dispute resolution procedure in connection with such Dispute, a party must first give written notice (Dispute Notice) of the Dispute to the other party describing the Dispute and requesting that it is resolved under the dispute resolution procedure described in this clause 33.
33.2. If the parties are unable to resolve the Dispute within 30 days of delivery of the Dispute Notice, each party shall promptly (and in any event within five Business Days):
33.2.1. appoint a representative who has authority to settle the Dispute and is at a higher management level than the person with direct responsibility for the administration of the service agreement (Designated Representative); and
33.2.2. notify the other party of the name and contact information of its Designated Representative.
33.3. Acting reasonably and in good faith the Designated Representatives shall discuss and negotiate to resolve the Dispute, including agreeing the format and frequency for such discussions and negotiations, provided that all reasonable requests for relevant information relating to the Dispute made by one party to the other party shall be complied with as soon as reasonably practicable.
33.4. If the parties are unable to resolve the Dispute within 30 days after the appointment of both Designated Representatives, either party may proceed with any other available remedy.
33.5. Notwithstanding any other provision of these terms, a party may seek interim or other equitable relief necessary (including an injunction) where damages would be an inadequate remedy.
34.GOVERNING LAW AND JURISDICTION
34.1. These terms and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
34.2. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these terms or its subject matter or formation (including non-contractual disputes or claims).
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