Terms and Conditions
1.1 The definitions and rules of interpretation in this clause 1 apply in these Conditions.
|“Acceptable Use Policy“||the Supplier’s policy concerning the use of the Services as set out in clause 4.3;|
|“Assets“||any Customer-site Equipment, Software or Intellectual Property Rights used by the Supplier exclusively for the delivery of the Services to the Customer;|
|“Assumed Contracts“||any contracts that the Supplier identifies as part of the Set-up Services;|
|“Business Day“||a day, other than a Saturday, Sunday or public holiday in England when banks in London are open for business;|
|“Change Control Procedure“||the procedures set out in clause 11;|
|“Conditions“||these terms and conditions as amended from time to time in accordance with clause 11;|
|“Confidential Information“||all information (however recorded or preserved) disclosed by a party or its employees, consultants, officers, representatives, advisers, agents or sub-contractors involved in the provision or receipt of the Services (together, its “Representatives“) to the other party or that party’s Representatives in connection with these Conditions which information is either labelled as such or should reasonably be considered as confidential because of its nature and the manner of its disclosure;|
|“Contract“||the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions;|
|“Controller“, “Processor“, “Data Subject“, “Personal Data“, “Personal Data Breach“, “processing“ and “appropriate technical and organisational measures“||as defined in the Data Protection Legislation;|
|“Customer“||the person, firm or company who purchases Services from the Supplier;|
|“Customer Data“||any information that is provided by or on behalf of the Customer to the Supplier as part of the Customer’s use of the Services, including any information derived from such information;|
|“Customer Personal Data“||any personal data comprised in the Customer Data;|
|“Customer Site“||any premises occupied by the Customer at which it receives the Services.|
|“Customer-site Equipment“||any equipment located or to be located on a Customer Site but controlled or to be controlled exclusively by the Supplier as part of the Services, but excluding the Hardware;|
|the Customer’s computing environment (consisting of hardware, software and telecommunications networks) that might be used by the Customer in connection with its use of the Services and which interfaces with the Supplier’s System in order for the Customer to receive the Services but excluding the Customer-site Equipment;|
|“Customer Software“||has the meaning given to that term in the definition of Software;|
|“Data Protection Legislation“||
to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of Personal Data; and
to the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the Customer or Provider is subject, which relates to the protection of personal data;
|“Designated Representative“||has the meaning given in clause 29.2;|
|“Disaster Recovery Plan“||the plans maintained by the Supplier containing the actions to be taken, the resources to be used and the procedures to be followed to support recovery in the event of a disaster affecting the Services;|
|“Dispute“||has the meaning given in clause 29.1;|
|“Dispute Notice“||has the meaning given in clause 29.1;|
|the procedure described in clause 29;|
|“Domestic Law“||the law of the United Kingdom or a part of the United Kingdom;|
|“Effective Date“||the date given in the Final Proposal;|
|“EU GDPR“||the General Data Protection Regulation ((EU) 2016/679);|
|“EU Law“||the law of the European Union or any member state of the European Union;|
|“Exit Plan“||has the meaning given in clause 18.1, as such exit plan is updated and amended by the parties from time to time in writing;|
|“Extended Term“||has the meaning given in clause 17.1;|
|“Fees“||the fees payable to the Supplier, as described in the Final Proposal;|
|“Final Proposal“||the Customer’s written acceptance of the Supplier’s proposal;|
|“Force Majeure Event“||
means an event which is beyond the reasonable control of the party seeking to rely on such event required to meet Good Industry Practice), including:
62(a) riot, civil unrest, military action, terrorism or war (whether declared or not) or threat of or preparation for war;
62(b) damage to or destruction of premises or equipment, or breakdown of equipment, in each case not attributable to the party seeking to rely on such event;
62(c) imposition of sanctions, embargo, blockade, or breaking off of diplomatic relations;
62(d) epidemic (including any Public Health Emergency of International Concern or pandemic declared by the World Health Organization) or pandemic;
62(e) any failure or refusal of any government or public authority to grant any necessary licence, permit or consent;
62(f) interruption or failure of a utility service or transport or telecommunications network and/or breakdown of plant or machinery;
62(g) severe delays or disruptions to the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
62(h) any change in applicable law which materially impacts a party’s ability to perform any obligation under these Conditions and/or significantly increases the costs to be incurred and/or effort to be expended by any party in performing its obligations under these Conditions;
62(i)earthquake, storm, fire, flood, landslide or other natural disaster;
62(k) industrial action, strikes or lock-outs by employees of third parties (excluding sub-contractors and suppliers of the party seeking to rely on such event unless no substitute is reasonably available); and
non-performance by suppliers and sub-contractors;
|“Good Industry Practice“||the standards that fall within the upper quartile for the provision of business-critical Services substantially similar or identical to the Services, having regard to factors such as the nature and size of the parties, the Service Level Arrangements, the term, the pricing structure and any other relevant factors;|
|“Hardware“||all physical telecommunications, networking and computer equipment (including switches, routers, cables, servers, racks, cabinets and peripheral accessories) provided and used by the Supplier (or any of its sub-contractors) to deliver any of the Services to the Customer;|
|“Incident“||any Vulnerability, Virus or security incident;|
|“Initial Term“||the period as set out in the Final Proposal;|
|“Intellectual Property Rights“||patents, rights to inventions, copyright and related rights, trade marks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all existing and future rights capable of present assignment, applications for and renewals or extensions of and rights to claim priority from such rights, and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;|
|“Maintenance“||any error corrections, updates and upgrades that the Supplier may provide or perform with respect to the Services, as well as any other support or training services to be provided to the Customer under these Conditions, all as described in the Final Proposal;|
|“Normal Business Hours“||8.30 am to 6.00 pm local UK time on Business Days;|
|“Permitted Purpose“||has the meaning given in clause 15.3.1;|
|“Replacement Supplier“||the Customer or any entity with which the Customer contracts (or proposes to contract) to provide services similar to all or any of the Services upon the expiry or termination of all or any part of the Contract for any reason;|
|“Representatives“||has the meaning given to that term in the definition of Confidential Information;|
|the service level arrangements set out in the Final Proposal;|
|“Services“||the Services supplied by the Supplier to the Customer as set out in the Final Proposal including any Set-up Services;|
|“Set-up Services“||the due diligence, configuration and related work to be performed by the Supplier to set up the Services;|
|“Software“||any software used by the Supplier (or any of its sub-contractors) to provide the Services to the Customer whether owned by a third party (being “Third Party Software“), by the Customer (being “Customer Software“) or by the Supplier (being “Supplier Software“);|
|“Supplier Software“||has the meaning given to that term in the definition of Software;|
|“Supplier’s System“||the information and communications technology system to be used by the Supplier (or any of its sub-contractors) in performing the Services (if any), including the Hardware, the Software, the Customer-site Equipment and communications links between the Hardware and the Customer-site Equipment and the Customer’s Operating Environment;|
|“Third Party Software“||has the meaning given to that term in the definition of Software;|
|“Transferring Contracts“||any third party contracts (including licences to Third Party Software) that the Supplier reasonably considers necessary to enable the transition of the Services to any Replacement Supplier on expiry or termination of all or any part of the Contract for any reason;|
|“Transition Services“||the services to be provided by the Supplier to implement the Exit Plan;|
|“UK GDPR“||has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018;|
|“Virus“||includes any malicious code, Trojan, worm and virus, lock, authorisation key or similar device that impairs or could impair the operation of the Software or the Services;|
|“Vulnerability“||a weakness in the computational logic (for example, code) found in software and hardware components that, when exploited, results in a negative impact to confidentiality, integrity, or availability, and the term “Vulnerabilities“ shall be construed accordingly.|
1.2 Clause, Schedule and paragraph headings and any table of contents are included for convenience only and are not intended to and shall not affect the interpretation of these Conditions.
1.3 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.4 Unless the context otherwise requires, words in the singular shall include the plural and words in the plural shall include the singular.
1.5 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.6 A reference to a statute or statutory provision is a reference to it as amended, extended, consolidated, replaced, superseded, re-enacted or otherwise converted, modified or incorporated into law from time to time.
1.7 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.8 A reference to writing or written does not include faxes but does include e-mail.
1.9 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.
1.10 References to clauses and Schedules are to the clauses and schedules of these Conditions. References to paragraphs are to paragraphs of the relevant Schedule.
1.11 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors or permitted assignees.
2. Basis of Contract
2.1 The Final Proposal constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2 The Final Proposal shall only be deemed to be accepted when the Supplier issues written acceptance of the Final Proposal at which point and on which date the Contract shall come into existence (“Effective Date“).
2.3 Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services issued or described in them. They shall not form part of the Contract or have any contractual force.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
3. Assumed Contracts and Assets
3.1 Where applicable, with effect from the Effective Date the Customer shall:
3.2 transfer any Assets to the Supplier in accordance with the Final Proposal; and
3.3 subject to clause 3.2, transfer the benefit of any Assumed Contracts to the Supplier provided, in each such case, that the Supplier hereby accepts and undertakes the related burden.
3.4 The Customer shall use reasonable endeavours to assign, novate or transfer any Assumed Contracts to the Supplier with effect from the Effective Date. Unless or until any Assumed Contract is assigned, novated or transferred, or any necessary consent is obtained, the parties shall work together, in good faith, to agree an alternative solution which may include the Supplier finding an alternative source of supply and/or the Customer holding the benefit of the relevant Assumed Contract as agent for the Supplier.
4 Service provision
4.1 The Supplier shall provide the Services from the Effective Date until expiry or termination of these Conditions for any reason.
4.2 The Service Level Arrangements shall apply with effect from the date set out in the Final Proposal.
4.3 The Customer shall not store, distribute or transmit through the 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 Services under its control, including any use by third parties (whether fraudulent or invited by the Customer).
4.5 The Customer must take reasonable measures to ensure it does not jeopardise services supplied to third parties on the same shared access infrastructure as notified to the Customer by the Supplier in writing. This includes informing the Supplier promptly in the case of a denial-of-service attack or distributed denial-of-service attack. In the event of any such incident, the Supplier shall work with the Customer to alleviate the situation as quickly as possible. The parties shall discuss and agree appropriate action (including suspending the Services in whole or in part).
4.6 The Customer shall not provide the Services directly or indirectly to third parties.
4.7 The Supplier reserves the right, in its absolute discretion, to:
4.7.1 modify the Supplier’s System, its network, system configurations or routing configuration; or
4.7.2 modify or replace any Hardware or Software in its network or in equipment used to deliver any Service over its network,
provided and to the extent that this has no adverse effect on the Supplier’s ability to perform its obligations under these Conditions 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 implement any necessary changes to the Services through the Change Control Procedure.
5 Data Protection
5.1 The parties shall comply with their data protection obligations as set out in this clause 5.
5.2 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 5.2 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
5.3 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller and the Supplier is the Processor.
5.4 Without prejudice to the generality of clause 5.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Supplier for the duration and purposes of this agreement.
5.5 Without prejudice to the generality of clause 5.2, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under the Contract:
5.5.1 process that Personal Data only on the documented written instructions of the Customer unless the Supplier is required by Domestic Law or EU Law to otherwise process that Personal Data. Where the Supplier is relying on Domestic Law or EU Law as the basis for processing Personal Data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Domestic Law or EU Law unless the Domestic Law or EU Law prohibits the Supplier from so notifying the Customer;
5.5.2 ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
5.5.3 ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
5.5.4 not transfer any Personal Data outside of the UK or EEA unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
5.5.4(a) the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
5.5.4(b) the data subject has enforceable rights and effective legal remedies;
5.5.4(c) the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
5.5.4 (d) the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
5.5.5 assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
5.5.6 notify the Customer without undue delay and within a maximum of 24 hours on becoming aware of a Personal Data Breach;
5.5.7 at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Domestic Law or EU Law to store the Personal Data; and
5.5.8 maintain complete and accurate records and information to demonstrate its compliance with this clause 5.
The Customer consents to the Supplier appointing a third party processor of Personal Data under the Contract. The Supplier confirms that it has entered or (as the case may be) will enter with the third party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 5 and in either case which the Supplier confirms reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the Customer and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third party processor appointed by it pursuant to this clause 5.
6. Supplier’s obligations
6.1 The Supplier undertakes that the Services will be performed with all reasonable skill and care and in accordance with Good Industry Practice and the provisions of these Conditions and that the Services will be provided substantially in accordance with the Final Proposal.
6.2 The undertaking in clause 6.1 shall not apply to the extent of any non-conformance that is caused by use of the Services contrary to the Supplier’s instructions.
6.3 If the Services do not conform with the undertaking in clause 6.1, the Supplier shall, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly. Such correction constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking in clause 6.1.
6.4 Notwithstanding the foregoing, the Supplier does not warrant that the Customer’s use of the Services shall be uninterrupted or error-free.
6.5 The Contract 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 the Contract.
7.1 The Supplier shall: ensure at all times that appropriate safety and security systems, policies and procedures are maintained and enforced to prevent unauthorised access or damage to, and to ensure the business continuity of, any and all Services, the Supplier’s System and related networks or resources and the Customer Data as of the Effective Date with any changes to such information to be promptly notified to the Customer in writing, including an incident management process which shall enable the Supplier, as a minimum, to discover and assess Incidents, and to prioritise those Incidents, sufficient to meet its reporting obligations under clause 7.3.1.
7.2 The Supplier shall comply with, and shall procure that each of the sub-contractors complies with, the Customer’s procedures for vetting personnel in respect of all of Supplier’s personnel employed or engaged in the provision of the Services.
7.3 The Supplier shall:
7.3.1 notify the Customer promptly and within a maximum of 5 days of becoming aware of any Incident and respond without delay to all queries and requests for information from the Customer about any Incident, whether discovered by the Supplier or the Customer, in particular bearing in mind the extent of any reporting obligations the Customer may have under applicable data protection or cybersecurity legislation and that the Customer may be required to comply with statutory or other regulatory timescales;
7.3.2 at the Customer’s cost, promptly cooperate with any request for information made in respect of:
7.3.2(a) any Incident; or
7.3.2(b) any requests for information, or inspection, made by a regulator with competent jurisdiction over the Customer (including in connection with any applicable data protection or cybersecurity legislation).
7.4 The Supplier shall promptly notify the Customer in writing of any actual or suspected loss or damage to the Customer Data. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest backup of such Customer Data. The Supplier shall not be responsible for any loss, destruction, alteration or unauthorised access to or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by the Supplier to perform services related to Customer Data maintenance and back-up).
8. Customer’s obligations
8.1 The Customer shall:
8.1.1 provide the Supplier with:
8.1.1(a) all necessary co-operation in relation to the Contract; and
8.1.1(b) all necessary access to such information as may be reasonably required by the Supplier,
in order to provide the Services, including 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;
8.1.2 provide such personnel assistance as may be reasonably requested by the Supplier from time to time;
8.1.3 comply with all applicable law and regulations with respect to its activities under the Contract; and
8.1.4 carry out all other Customer responsibilities and obligations set out in the Contract 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 or performance of the Customer’s responsibilities and obligations, the Supplier may adjust any timetable or delivery schedule set out in the Contract as reasonably necessary or, if the Supplier incurs additional costs to avoid or mitigate the effects of Customer’s failure or delay in providing such assistance or performance of its responsibilities and obligations, the Supplier shall be entitled to make an equitable adjustment to the Fees (or a combination of the two as appropriate). The starting basis for determining the equitable adjustment to the Fees for the purposes of this clause 8.1.4 shall be the Supplier’s reasonable increased costs to the extent the same cannot be mitigated. All such equitable adjustments shall be recorded through the Change Control Procedure as an agreed change.
9.1 The Customer warrants and represents that:
9.1.1 it has the full capacity and authority to enter into and perform the Contract and that the Contract is executed by a duly authorised representative of the Customer;
9.1.2 it has the authority to grant any rights to be granted to the Supplier under these Conditions, including the right to provide the Software and Hardware to the Supplier as indicated in the Contract and for the same to be used in the provision of the Services and otherwise in connection with the Contract; and
9.1.3 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 Contract, including any third party licences and consents in respect of any Customer Software.
9.2 The Customer warrants that:
9.2.1 it shall comply with and use the Services in accordance with the terms of the Contract 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 or in breach of the Acceptable Use Policy;
9.2.2 it shall comply with all laws and regulations applicable to the Customer in performing its obligations under the Contract; and
9.2.3 the Supplier’s possession and use in accordance with the Contract 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.
9.3 The Supplier warrants and represents that:
9.3.1 it has the full capacity and authority to enter into and perform the Contract and that the Contract is executed by a duly authorised representative of the Supplier; and
9.3.2 it owns, or has obtained valid licences, consents, permissions and rights to enable the Supplier to comply with the Contract and to use any of the Intellectual Property Rights necessary for the fulfilment of all its obligations under the Contract 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,
9.4 The Supplier warrants that:
9.4.1 it shall comply with all laws and regulations applicable to the Supplier in performing its obligations under the Contract;
9.4.2 the Customer’s possession and use in accordance with the Contract of any materials (including third party materials) supplied by the Supplier to the Customer shall not cause the Customer to infringe the rights, including any Intellectual Property Rights, of any third party;
9.4.3 any software, system or telecommunications provided by or on behalf of the Supplier shall be tested for Viruses and Vulnerabilities and any of the same that are identified shall be mitigated against before the date of delivery or use of such software, systems or telecommunications by the Supplier;
9.4.4 all personnel and sub-contractors used by the Supplier in the performance of the Contract are adequately skilled and experienced for the activities they are required to perform; and
9.4.5 it will not introduce, or permit the introduction of, any Viruses or Vulnerabilities into Customer’s Operating Environment, or the Customer’s other network and information systems, while performing the Services.
10 Charges and payment
10.1 The Customer shall pay the Fees for the Services as set out in the Final Proposal.
10.2 The Customer shall reimburse the Supplier for all actual, reasonable travel costs and expenses including travel, hotels and meals incurred by the Supplier in performance of the Set-up Services.
10.3 All amounts and Fees stated or referred to in these Conditions are exclusive of value added tax, which shall be added to the Supplier’s invoice(s) at the appropriate rate.
10.4 The Supplier shall invoice the Customer as set out in the Final Proposal.
10.5 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then, without limiting the Supplier’s remedies under clause 17, the Customer shall pay interest on the overdue amount at the rate of 4% per annum above National Westminster Bank Plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
11 Change control
11.1 If either party wishes to change the scope of the Services (including Customer requests for additional services), it shall submit details of the requested change to the other in writing.
11.2 If either party requests a change to the scope or execution of the Services, the Supplier shall, within a reasonable time, provide a written estimate to the Customer of:
11.2.1 the likely time required to implement the change;
11.2.2 any variations to the Fees arising from the change;
11.2.3 the likely effect of the change on the Project Plan; and
11.2.4 any other impact of the change on the terms of these Conditions.
11.3 If either party requests a change to the scope of the Services, the other party shall not unreasonably withhold or delay consent to it.
11.4 If either party wishes the other party to proceed with the relevant change referred to in clause 11.3, the Supplier has no obligation to do so unless and until the parties have agreed in writing the necessary variations to its charges and any other relevant terms of the Contract to take account of the change.
12 Service review and governance
The parties agree to manage the Contract through the review and governance structure set out in the Final Proposal.
13 Proprietary rights
13.1 The Supplier acknowledges and agrees that the Customer owns and retains all rights, title and interest in and to the Customer Data. Save to the extent necessary for the provision of the Services and performance of its obligations under these Conditions, the Supplier shall have no rights to access, use or modify the Customer Data unless it has the prior written consent of the Customer.
13.2 All Intellectual Property rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier, or its licensors, as applicable.
13.3 The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Services to the Customer.
13.4 The Supplier provides Microsoft data centre licensing under Microsoft’s Services Provider License Agreement (“SPLA”) as part of the Services. In order for the Supplier to be in compliance with the SPLA the Customer shall inform the Supplier of (1) any usage which exceeds the usage described in the Final Proposal and (2) the use by the Customer of any other Microsoft licensing in use in the environment including any increase or decrease on a monthly basis so that the Supplier can obtain any additional licences which are necessary and adjust the Fees accordingly. Any Microsoft SPLA product license keys provided by the Supplier to the Customer can only be used within the Services provided by the Supplier. All license keys are non-transferrable and cannot be used at the end of the contracted period stated in the Final Proposal.
14 Domain names
14.1 If the Customer instructs the Supplier to obtain a domain name for the Customer, the Supplier shall act as an agent for the Customer in dealing with the relevant domain name registration authority. The contract for the domain name shall be between the Customer and the relevant domain name registration authority and the Customer agrees that it shall be solely responsible for renewals, and for legal, technical, administrative, billing or other requirements imposed by the relevant domain name registration authority (and relevant costs and expenses thereof).
14.2 The Supplier gives no warranty in relation to such domain name, including that the domain name requested shall not infringe the rights of any third party and all such enquiries shall be the responsibility of the Customer. The domain name shall form part of the Customer’s Intellectual Property Rights for the purposes of these Conditions.
14.3 If the Supplier licenses to the Customer an IP address as part of the Services, such IP address shall (to the extent permitted by law) revert to the Supplier after expiry or termination of these Conditions for any reason, whereupon the Customer shall cease using the address. At any time after such expiry or termination, the Supplier may re-assign the address to another user.
15.1 Each of the parties recognises that in the course of negotiating and/or performing the Contract it may receive Confidential Information belonging or relating to the other party.
15.2 The provisions of this clause 15 shall not apply to any Confidential Information that:
15.2.1 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);
15.2.2 was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;
15.2.3 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;
15.2.4 was known to the receiving party before the information was disclosed to it by the disclosing party;
15.2.5 The parties agree in writing is not confidential or may be disclosed; or
15.2.6 is developed by or for the receiving party independently of the information disclosed by the disclosing party or the receiving party proves to the reasonable satisfaction of the disclosing party was developed by or for the receiving party independently of the information disclosed by the disclosing party.
15.3 Each party shall keep the other party’s Confidential Information confidential and shall not:
15.3.1 use such Confidential Information except for the purpose of exercising or performing its rights and obligations under the Contract (“Permitted Purpose“); or
15.3.2 disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause 15.
15.4 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 the terms of the Contract.
15.5 The Customer:
15.5.1 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
15.5.2 agrees not to make use of any such designs, plans, software or other materials for any purpose other than receipt of the Services.
15.6 The Supplier acknowledges and agrees that the Customer Data is the Confidential Information of the Customer.
15.7 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:
15.7.1 it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and
15.7.2 at all times, it is responsible for such Representatives’ compliance with the confidentiality obligations set out in this clause 15.
15.8 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, arbitral or administrative tribunal 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 15.8, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
15.9 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 the Contract are granted to the other party or to be implied from the Contract.
15.10 The provisions of this clause 15 shall continue to apply after expiry or termination of the Contract for any reason.
15.11 The Supplier may publicise its relationship with the Customer (via social media, press release or otherwise) and the fact that the Supplier is providing Services to the Customer.
16 Limitation of liability
16.1 This clause 16 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:
16.1.1 any breach of the Contract;
16.1.2 any use made by the Customer of the Services; and
16.1.3 any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with these Conditions.
16.2 Except as expressly provided in the Contract:
16.2.1 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
16.2.2 all warranties, conditions and other terms implied by statute, common law or otherwise are, to the fullest extent permitted by law, excluded from the Contract.
16.3 Nothing in the Contract excludes or limits the liability of the Supplier for:
16.3.1 death or personal injury caused by the Supplier’s negligence;
16.3.2 fraud or fraudulent misrepresentation; or
16.3.3 any other liability which cannot lawfully be excluded or limited.
16.4 Subject to clause 16.3:
16.4.1 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
16.4.2 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 Contract shall be limited to the price paid for the Services during the three months preceding the date on which the claim arose.
17 Term and termination
17.1 the Contract shall commence on the Effective Date. Unless terminated earlier in accordance with this clause 17, the Contract shall continue in force for the Initial Term and shall automatically extend for successive twelve month periods (“Extended Term“) at the end of the Initial Term and at the end of each Extended Term. Either party may give written notice to the other party, not later than 90 days before the end of the Initial Term or the relevant Extended Term, to terminate the Contract at the end of the then current Initial Term or the relevant Extended Term, as the case may be.
17.2 Without prejudice to any other right or remedy available to it, and subject to clause 18, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
17.2.1 the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
17.2.2 the other party commits a material breach of any term of the Contract and (if such breach is remediable) fails to remedy that breach within a period of thirty days after being notified in writing to do so;
17.2.3 the other party breaches any of the terms of clause 15;
17.2.4 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;
17.2.5 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;
17.2.6 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;
17.2.7 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;
17.2.8 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;
17.2.9 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;
17.2.10 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 fourteen days;
17.2.11 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 17.2.4 to clause 17.2.9 (inclusive); or
17.2.12 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
17.3 The party not affected by a continuing Force Majeure Event may terminate the Contract in accordance with clause 19.1.
17.4 Any provision of the Contract which expressly or by implication is intended to come into or continue in force on or after expiry or termination of the Contract shall remain in full force and effect.
17.5 Expiry or termination of the Contract for any reason shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at expiry or termination.
17.6 On expiry or termination of the Contract for any reason:
17.6.1 the Supplier shall immediately cease provision of the Services and Maintenance but may provide Transition Services for a further period in accordance with clause 18.2; and
17.6.2 (subject to clause 17.6.1) 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 14.3.
18 Exit assistance and transfer of Assets
18.1 The Supplier shall, on request from the Customer at any time after the expiry of six months from the Effective Date, prepare or update a detailed plan for the orderly transition of the Services from the Supplier to the Customer’s nominated Replacement Supplier (“Exit Plan“).
18.2 The Customer may, at any time before expiry or termination of all or any part of the Contract for any reason request the Supplier to provide the Transition Services or otherwise to offer reasonable assistance in transitioning the Services to a Replacement Supplier (by providing the Transition Services). The Supplier shall, in consideration of a reasonable fee (to be agreed 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 Contract for any reason in accordance with clause 17, whichever is later.
19 Force majeure
19.1 Neither party shall have any liability to the other under the Contract if it is prevented from, or delayed in, performing its obligations under the Contract, arising from any Force Majeure Event, provided that:
19.2 the other party is notified of such an event and its expected duration; and
19.3 it uses all reasonable endeavours to mitigate, overcome or minimise the effects of the Force Majeure Event concerned.
19.4 If the Force Majeure Event results in the suspension of all or any part of the Services, then the Customer shall not be obliged to pay the relevant Fees until such time as the Force Majeure Event shall have ceased to have effect and the Services recommence in accordance with the Contract.
19.5 The Supplier shall have in place an appropriate Disaster Recovery Plan and shall maintain, update and test such Disaster Recovery Plan. The Customer acknowledges and agrees that on the occurrence of any Force Majeure Event the Supplier shall have sole discretion and authority, having regard to the Disaster Recovery Plan, as to how and when any services to its clients which have been affected/suspended shall be resumed including, for the avoidance of doubt, with regard to the phasing and order of any such resumption of service/business.
20.1 For the term of the Contract, and for a period of seven years from expiry or termination of the Contract for any reason, the Supplier shall maintain full and accurate records, in an agreed form, of all charges, prices, costs and expenses associated with and invoiced in respect of the Services and all processing of data under the Contract.
20.2 The Supplier shall, on reasonable advance written notice allow the Customer, any designated auditors of, or other advisers to, the Customer, and any regulators of the Customer to access any of the Supplier’s (and any of the Supplier’s sub-contractors’) premises, personnel, relevant records and systems used by the Supplier (or any of its sub-contractors) in the provision of the Services (including the Supplier’s System and its (or any of its sub-contractors’) data processing facilities) as may be reasonably required to verify that the Services are being provided in accordance with the Contract and the adequacy of the Supplier’s (and any of the Supplier’s sub-contractors’) financial standing.
20.3 The Customer shall use all reasonable endeavours to ensure that the conduct of each audit does not unreasonably disrupt the Supplier (or any of its sub-contractors) or delay the provision of any of the Services by the Supplier.
20.4 The parties shall bear their own costs and expenses incurred in respect of compliance with their obligations under this clause.
No failure or delay by a party to exercise any right or remedy provided under the Contract 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.
22.1 If any provision or part-provision of the Contract is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract.
22.2 If any provision or part-provision of the Contract is deemed deleted under clause 22.1 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.
23 Entire agreement and variation
23.1 The Contract 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.
23.2 Each party acknowledges that in entering into the Contract 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 the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
23.3 No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
24.1 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 the Contract without the consent of the Customer.
24.2 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 the Contract.
25 No partnership or agency
25.1 Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, or (except as expressly provided in clause 14 or pursuant to clause 3.2) 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.
25.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
26 Third party rights
Except as expressly provided elsewhere in the Contract, no one other than a party to the Contract, its successors and permitted assignees, shall have any right to enforce any of its terms.
27 Rights and remedies
Except as expressly provided in the Contract, the rights and remedies provided under these Conditions are in addition to, and not exclusive of, any rights or remedies provided by law.
28.1 Any notice or other communication required to be given to a party under or in connection with the Contract shall be in writing and shall be
28.1.1 delivered by hand or by pre-paid first class post or other next Business Day delivery service at its registered office; or
28.1.2 sent by email to the addresses set out in the Final Proposal.
28.2 Any notice or communication shall be deemed to have been received:
28.2.1 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; or
28.2.2 if sent by pre-paid first class post or other next Business Day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or
28.2.3 if sent by email, at the time of transmission.
28.3 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. For the purposes of this clause 28 only, “writing” shall include e-mail.
29 Dispute resolution
29.1 If a dispute arises under or in connection with the Contract (“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 29.
29.2 If the parties are unable to resolve the Dispute within thirty days of delivery of the Dispute Notice, each party shall promptly (and in any event within five Business Days):
29.2.1 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 these Conditions (“Designated Representative“); and
29.2.2 notify the other party of the name and contact information of its Designated Representative.
29.3 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).
29.4 If the parties are unable to resolve the Dispute within thirty days after the appointment of both Designated Representatives, either party may proceed with any other available remedy.
29.5 Notwithstanding any other provision of the Contract, a party may seek interim or other equitable relief necessary (including an injunction) where damages would be an inadequate remedy.
30 Governing law and jurisdiction
30.1 the Contract 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.
30.2 Each party irrevocably agrees that the courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Conditions or its subject matter or formation (including non-contractual disputes or claims).