Master Services Agreement

Name: Wanstor IT
Address: 124-126 Borough High Street, Southwark, London, SE11LB, UK
Telephone: +44-207-592-7860

01 January, 2024

BACKGROUND

A. The Supplier has developed and will provide the Services.
B. The Customer wishes to use the Supplier's Services in its business operations.
C. The Supplier has agreed to provide, and the Customer has agreed to take and pay for, the Services, subject to the terms and conditions of this Agreement.

AGREED TERMS

INTERPRETATION
1. The definitions and rules of interpretation in this Clause apply in this Agreement.
  Acceptance Criteria: means the acceptance criteria as specified in Clause 12.2 or referred to in a Statement of Work or as otherwise agreed by the Parties expressly in writing after the date of the Statement of Work against which the Acceptance Tests are to be carried out to determine whether the Deliverables meet the Statement of Work, are satisfactory and ready to be invoiced.
  
  Acceptance Tests: means the acceptance tests as specified or referred to in the Statement of Work or as agreed between the Parties in writing, to be undertaken to determine whether the Deliverables meet the Acceptance Criteria.
  
  Agreement: means the terms and conditions in this agreement along with the Statement of Work(s).
  
  Authorised Users: those employees and independent contractors of the Customer who are entitled to use the Software and/or Hosting Services under this Agreement.
  
  Assumptions: has the meaning given in Clause 10.3.
  
  Background Materials: means all Intellectual Property Rights, know-how, information, methodologies, techniques, tools, schemata, diagrams, ways of doing business, trade secrets, instructions manuals and procedures (including, but not limited, to software, documentation, and data of whatever nature and in whatever media) owned, developed or controlled by the Supplier which may have been created outside the scope, or independently of, the Services and/or this Agreement, and including all updates, modifications, derivatives or future developments thereof.
  
  Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
  
  Business Systems: the information technology and communication systems, including networks, hardware, software and interfaces owned by, or licensed to, the Customer or any of its agents or contractors.
  Change Request: means any request to alter the Services pursuant to this Agreement as set out in Clause 23.
  
  Commencement Date: means the date of this Agreement or as otherwise specified in the relevant Statement of Work.
  
  Confidential Information: all confidential information (however recorded or preserved) disclosed by a Party or its employees, officers, representatives, advisers or subcontractors involved in the provision or receipt of the Services to the other Party and that Party's employees, officers, representatives, advisers or subcontractors, in connection with this Agreement which information is either labelled as such or should reasonably be considered as confidential because of its nature and the manner of its disclosure.
  
  CSP Agreement: the Cloud Solution Provider agreement as set out here, which is a direct flow down from Microsoft and is a condition of Cloud Solution Provider Program that the Customer agrees the terms and enters into this Agreement.
  
  Customer: the customer as identified in the Statement of Work.
  
  Customer Data: any information that is provided by the Customer to the Supplier as part of the Customer's use of the Services, including any information derived from such information.
  
  Customer Site: means the locations where the Services are provided as identified in the Statement of Work or any other location agreed by the Parties in writing from time to time.
  
  Customer’s Operating Environment: the Customer’s computing environment (consisting of hardware and software) that is to be used by the Customer in connection with its use of the Managed Services and which interfaces with the Supplier’s System in order for the Customer to receive the Managed Services, but excluding the Customer-side Equipment.
  
  Customer-side 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.
  
  Deliverable: means all Documents, products and materials developed by the Supplier or its agents, subcontractors, consultants and employees in relation to the Services in any form, including computer programs, data, reports and specifications (including drafts).
  
  Document: means, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.
  
  Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a Party relating to the use of personal data (including, without limitation, the privacy of electronic communications) and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a Party.
  
  Dispute Resolution Procedure: the procedure described in Clause 37.
  
  Equipment: the Customer’s equipment, hardware, peripherals and devices owned or controlled by the Customer and forming part of the Customer’s Business System within the UK, details of which shall be recorded in writing in an equipment inventory. Details will include part numbers and serial numbers of products and the location in which the item is installed.
  
  Fair Usage Policy: the fair usage policy as set out here.
  Fees: the fees payable by the Customer to the Supplier, as described in the Statement of Work as may be varied from time to time pursuant to the terms of this Agreement.
  
  Force Majeure: any cause preventing either party from performing any or all of its obligations which arises from or is attributable to acts, events, omissions or accidents beyond the reasonable control of the party so prevented including, without limitation, acts of God, war, riot, computer viruses and malware, epidemics, pandemics, civil commotion, compliance with any law or governmental order, rule, regulation or direction, flood or storm, save that strike or lock out of the party’s own staff shall not entitle them to claim that to be a force majeure event.
  
  Go-live Date: means the date specified in the Statement of Work.
  
  Good Industry Practice: the standards that fall within the upper quartile of a skilled and experienced provider of business-critical managed services 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.
  
  Goods: the goods or equipment to be purchased by the Customer and provided as part of the Services (or any part of them), as set out in the Statement of Work in the relevant section or as otherwise agreed in writing between the Parties.
  
  Hardware: all physical telecommunications, networking and computer equipment (including switches, routers, cables, servers, racks, cabinets and peripheral accessories) provided and used by the Supplier to deliver the Managed Services to the Customer.
  
  Hosting Services: the hosting service described in the Statement of Work to be performed by the Supplier in accordance with this Agreement.
  
  Intellectual Property Rights or IPR: any and all intellectual property rights of any nature, whether registered, registerable or otherwise, including the Software, patents, utility models, trademarks, registered designs and domain names, applications for any of the foregoing, trade or business names, goodwill, copyright and rights in the nature of copyright, design rights, rights in databases, moral rights, know-how and any other intellectual property rights that subsist in computer software, computer programs, websites, documents, information, techniques, business methods, drawings, logos, instruction manuals, lists and procedures and particulars of customers, marketing methods and procedures and advertising literature, including the "look and feel" of any websites, and in each case all rights and forms of protection of a similar nature or having equivalent or similar effect to any of these that may subsist anywhere in the world, in each case for their full term, together with any future rights and renewals or extensions.
  
  IPR Claim: means a claim arising from the infringement of IPR belonging to third parties.
  
  Issues List: means a written list of the non-conformities to the Acceptance Criteria for a specific Deliverable.
  
  Licence Agreement: means all licence agreements that may have to be entered into by the Supplier and/or the Customer in respect of Third Party Services used. Such Licence Agreement terms shall be set out in the relevant Statement of Work.
  
  Local System Components means equipment supplied by the Customer such as routers, switches, PCs, thin client devices, smart phones, wireless controllers and access points.
  
  Maintained Equipment: the Equipment to be maintained by the Supplier as specified in the Statement of Work or as otherwise agreed between the Parties in writing.
  
  Maintenance Release: release of the Software that corrects faults, adds functionality or otherwise amends or upgrades the Software, but which does not constitute a new version.
  
  Maintenance Service: the maintenance of the Maintained Equipment described in the Statement of Work to be performed by the Supplier in accordance with this Agreement.
  
  Managed Services: the Hosting Service, Support Service and Monitoring Service to be performed by the Supplier in accordance with this Agreement.
  
  Monitoring Service: the network and infrastructure monitoring and management service described in clause 5 and the Statement of Work to be performed by the Supplier in accordance with this Agreement.
  
  Network: the entirety of the Customer’s web-based private network used in the operation of the Customer’s business, including the Equipment, supported Software operating on the Equipment, LAN switches, routers and broadband links.
  
  Normal Business Hours: unless otherwise set out in the Statement of Work, 09.00am to 5.30pm local UK time on Business Days.
  
  Out of Scope: those out of scope services specified as such in the Statement of Work together with any other services which are not detailed in the Statement of Work.
  
  Party: a party to this Agreement or parties.
  
  Proactive Support Services: the proactive IT support and maintenance services to be performed by the Supplier as part of the Support Services in accordance with clause 4 and the Statement of Work.
  
  Professional Services: the services described in the Statement of Work to be performed by the Supplier in accordance with this Agreement.
  
  Rates: the Supplier’s standard hourly or daily fee rates as set out in the applicable Statement of Work.
  
  Relief Events: the following events:
  
  (a) any failure by the Customer to comply with its obligations under this Agreement;
  
  (b) any error or malfunction in the Business Systems or any other software, hardware or systems for which the Supplier is not responsible or any failure by the Customer, its agents or contractors (including any existing service provider) to obtain sufficient support and maintenance, as required, for any software, hardware or systems for which the Supplier is not responsible;
  
  (c) any failure by the Customer or its agents or contractors (including any existing service provider) to provide any information which is accurate, correct and complete, co-operation or instructions to the Supplier which is reasonably required by the Supplier for the proper performance of its obligations under this Agreement;
  
  (d) any error or malfunction in or failure caused by Third Party Services; or
  
  (e) any of the causes or events set out in Clause 20.7.
  
  Representative: means the person nominated by each Party in accordance with this Agreement.
  
  Retail Prices Index: means the Retail Prices Index (all Items, excluding mortgages) as published by the Office for National Statistics from time to time, or failing such publication, such other index as the Parties may agree (such agreement not to be unreasonably withheld or delayed), acting reasonably, most closely resembles such index.
  
  Scheduled Downtime: means the total amount of time during which the Customer is not able to access the Managed Services due to planned maintenance. The Supplier may schedule system downtime, with prior notice to the Customer. Scheduled Downtime periods do not count against the service level calculation detailed in the Statement of Work.
  
  Service Level Arrangements: the service level arrangements set out in the Statement of Work.
  
  Services: means the Managed Services, the Professional Services and/or the supply of Goods, together with any other services performed by the Supplier under a Statement of Work or otherwise agreed further to the signed written agreement between the Parties.
  
  Software: means the software set out in the applicable Statement of Work.
  
  Statement of Work: the service proposal and any other services specification for either the Managed Services, Professional Services and/or supply of Goods together with any other services as set out under separate cover and agreed between the Parties.
  
  Subsequent Term: twelve (12) months commencing on the last day of the Term or previous Subsequent Term.
  
  Supplier: Wanstor Limited, a company registered in England and Wales with number 04524830 whose registered office is at First Floor Bridgegate House, 124-126 Borough High Street, London, SE1 1LB.
  
  Supplier's System: the system to be used by the Supplier in performing the Managed Services, including the Hardware, any Third Party Services, the Customer-side Equipment and communications links between the Hardware and the Customer-side Equipment and the Customer's Operating Environment.
  
  Support Service: the end-user service desk and device management service described in the Statement of Work to be performed by the Supplier in accordance with this Agreement.
  
  Term: means the period commencing on the Commencement Date and ending on the date three (3) years thereafter unless otherwise specified in the Statement of Work. For the avoidance of doubt, each Statement of Work will have their own term, which will extend the Term of the Agreement if the term of the Statement of Work is longer than the Term of the Agreement.
  
  Third Party Services: any services, goods, code or software programs written or provided by Third Party Suppliers which are used by the Customer during the provision of the Services.
  
  Third Party Supplier: any third party that supplies Third Party Services to the Supplier and/or the Customer (as the case may be) during the provision of the Services.
  
  UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
  
  Unscheduled Downtime: means any time when any or all of the applications and Managed Services provided by the Supplier to the Customer shall be unavailable to the Customer due to unexpected system failures other than Scheduled Downtime or the downtime is attributable to events not under the control of the Supplier.
  
  Virus: any program which contains malicious code or infiltrates or damages a computer system without the owner's informed consent or is designed to do so or which is hostile, intrusive or annoying to the owner or user and has no legitimate purpose.
  
  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.
2. Clause, Schedules and paragraph headings shall not affect the interpretation of this Agreement.
3. The Schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Schedules.
4. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
5. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
6. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
7. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
8. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
9. A reference to writing or written includes e-mail.
10. 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.
11. References to Clauses are to the Clauses of this Agreement and the Schedule.
12. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
13. A reference to this Agreement or to any other agreement or document referred to in this Agreement is a reference to this Agreement or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of this Agreement) from time to time.
14. In the event of any conflict or inconsistency between the Clauses, the Statement of Work, and the Licence Agreement (including any changes or variations to each of the Clauses, the Statement of Work, and the Licence Agreement), the following order of precedence shall apply (in decreasing order) to the extent of such conflict or inconsistency:
  (a) the Statement of Work;
  
  (b) the Licence Agreements, to the extent applicable to the respect Services;
  
  (c) and the Clauses;
PROVISION OF SERVICES
1. The Agreement sets out the terms and conditions under which the Supplier shall provide to the Customer the Services.
2. The Agreement shall (i) be in substitution for any prior oral or other prior arrangements between the Supplier and the Customer in connection with the purchase of the relevant Services; and (ii) prevail over any of the Customer’s inconsistent terms or conditions contained in, or referenced in, any order confirmation or other acknowledgement, quotation, purchase order(s), delivery note, invoice or similar document or implied by law, trade custom or practice.
3. No addition to, variation of or other amendment or purported amendment to any Statement of Work or this Agreement shall be binding on the Parties unless expressly stated as such, made in writing and signed by or acknowledged by a duly authorised Representative of both Parties.
4. Any quotation or proposal given by the Supplier is for budgetary purposes until financial and technical validation and:
  (a) shall not constitute an offer. For:
  
  (i) Support Services, it is only valid for a period of twenty (20) Business Days; and/or
  
  (ii) the supply of Goods, it is only valid for a period of seven (7) Business Days,
  
  from its date of issue unless otherwise agreed by the Supplier in writing; and
  
  (b) shall only become binding upon the signing of a Statement of Work.
MANAGED SERVICES
1. The Supplier will provide the Managed Services in accordance with the Statement of Work and the terms of this Agreement with all due care, skill and ability during the term set out in the applicable Statement of Work unless earlier terminated for any reason.
2. The Supplier shall provide the Managed Services in accordance with the Service Level Arrangements as stated in the Statement of Work.
3. The Customer shall remain responsible for the use of the Managed Services under its control including any use by third parties (whether fraudulent or authorised by the Customer).
4. 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, distributed denial-of-service attack or other Virus or Vulnerability. In the event of any such incident, the Supplier will work with the Customer to alleviate the situation as quickly as possible. The Parties shall discuss and agree appropriate action (including suspending the Managed Services).
5. The Customer shall not provide the Managed Services to third parties without the prior written consent of the Supplier.
6. The Customer acknowledges that certain conditions outside of the Supplier’s control may adversely impact the ability of the Supplier to perform functions of the Managed Services. Examples of such conditions are listed below:
  (a) failure of Customer Hardware, software or operating system;
  
  (b) partial or full failure of Third Party Services including any upgrades to Third Party Services which the Customer has not adhered to and does not use the latest upgrades. The Managed Services may either be limited or restricted depending on how many previous upgrades the Customer did not adhere to. For the avoidance of doubt, the Supplier excludes any and all liability in relation to the Managed Services in the event the Customer has not complied with any requirement to upgrade the Third Party Services and the Managed Services fail as a consequence of this;
  
  (c) network connectivity issues between Local System Components and the Supplier’s platform;
  
  (d) network connectivity issues between Local System Components and its third party’s servers.
7. The Supplier reserves the right to:
  (a) modify the Supplier's System, its network, system configurations or routing configuration; or
  
  (b)modify or replace any Hardware or Software in its network or in equipment used to deliver any Managed Service over its network,
  provided that this has no adverse effect on the Supplier's obligations or performance under this Agreement and its provision of the Managed Services or the Service Level Arrangements. If such changes will have an adverse effect, the Supplier shall notify the Customer as soon as reasonably practicable.
8. The Supplier may:
  (a) occasionally, for operational reasons, introduce or withdraw Managed Service features, introduce process changes to improve the quality of the Managed Services, change the technical specification of the Managed Services including, without limitation, service upgrades, provided that any such changes do not have a materially adverse effect on the performance or provision of the Managed Services. For any material changes, the Supplier shall give not less than twenty eight (28) days’ notice; or
  
  (b) give the Customer instructions which it believes are necessary for reasons of health, safety or the quality of the Managed Services and it is the Customer’s responsibility to ensure these are adhered to; or
  
  (c) interrupt the Managed Service for operational reasons (such as planned maintenance or service upgrades) or because of an emergency. Routine, planned maintenance of the Managed Services, Software or Maintained Equipment, that may require interruption of the Hosting Services ("Maintenance Events") shall, except for any emergency maintenance or other emergency action, not be performed during Normal Business Hours. The Supplier may interrupt the Hosting Services to perform emergency maintenance or to take such other action as is necessary in an emergency and shall restore the interrupted service as quickly as possible. Where practicable, the Supplier will give the Customer as much notice as possible. In addition, the Supplier may interrupt the Hosting Services outside Normal Business Hours for unscheduled maintenance at such time(s) as the Supplier may notify to the Customer from time to time. The Supplier shall at all times endeavour to keep any service interruptions to a minimum.
9. The Customer shall not store, distribute, introduce or transmit through the Managed Services:
  (a) any Virus;
  
  (b) any Vulnerability; or
  
  (c) any material that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; or promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities.
10. The Supplier shall be under no obligation to provide the Managed Services to the Customer in the following circumstances:
  (a) unauthorised use of the Hosting Services and/or Software by the Customer or use otherwise than in accordance with this Agreement;
  
  (b) providing the Managed Services (other than the Hosting Services) outside Normal Business Hours unless otherwise agreed between the Parties in writing or set out under a Statement of Work;
  
  (c) providing any other services not covered in this Agreement or the applicable Statement of Work;
  
  (d) training in use of any upgrades; and
  
  (e) providing the Support Services to the Customer where such support would have been unnecessary if the Customer had implemented update(s) and upgrade(s) supplied or offered to the Customer pursuant to the call for technical support.
11. The Customer acknowledges that the Supplier or its sub-contracted hosting provider have the right to temporarily halt, alter or suspend the Hosting Services without liability to the Customer in the following circumstances:
  (a) there is an attack on the Hosting Services or the Hosting Services are accessed or manipulated by a third party not authorised under this Agreement or by the Supplier; or
  
  (b) the law or a regulatory or government body requires the Supplier or its hosting provider to suspend, halt or alter the Hosting Services; or
  
  (c) an event or circumstance arises for which the Supplier or its hosting provider reasonably believes suspension, halting or alteration is necessary to protect its network, the Hosting Services or clients of the Supplier.
12. Each Customer who operates a server is solely responsible for all stored and transmitted data of the server and all actions which emanate from the server. The Customer must take adequate measures which comply with the current state of technology to ensure that any misuse of the server is effectively prevented. The Supplier reserves the right to block any server at any time which causes a loss of network integrity or affects the network operation of other servers without prior warning including those actions which are not specifically referred to below. The Supplier further reserves the right to remove a server from the network if it is deemed to be causing excessive load or traffic over an unacceptably long period.
13. If the Supplier breaches its obligations in Clause 3.1, the Supplier shall, at its expense, use commercially reasonable endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance.
14. Assignment of Microsoft Partner Roles (CPOR, DPOR, TPOR, PAL):
  1. Microsoft Partner Roles Assignment: In the event that the services provided under this Agreement involve Microsoft products, services, or partnership, the Client agrees to assign the following Microsoft Partner roles to Wanstor, as applicable:
  
  1. Claiming Partner of Record (CPOR): The Client shall designate Wanstor as the Claiming Partner of Record for any Microsoft services or products for which this designation is applicable. The CPOR designation allows Wanstor to claim the Partner of Record status with Microsoft, ensuring the Client's Microsoft-related services are managed and supported efficiently.
  
  2. Designated Partner of Record (DPOR): If required by Microsoft for specific services or solutions, the Client shall designate Wanstor as the Designated Partner of Record. The DPOR status enables Wanstor to provide comprehensive support and management services in alignment with Microsoft's partner program requirements.
  
  3. Technical Point of Contact for Microsoft Services (TPOR): The Client shall appoint a Technical Point of Contact for Microsoft services, and if the role is not already designated within the Client's organization, Wanstor may act as the Technical Point of Contact. The TPOR collaborates with Microsoft on technical matters and facilitates the delivery of Microsoft services.
  
  4. Primary Account Liaison (PAL): The Client shall designate Wanstor as the Primary Account Liaison for managing Microsoft-related account and partnership matters. The PAL serves as the central point of contact for administrative and account-related interactions with Microsoft.
  
  2. Responsibilities: The Client acknowledges that the assignment of these roles is necessary for efficient management and support of Microsoft services and products and agrees to cooperate with Wanstor in the fulfilment of these roles, including providing necessary access and information.
  
  3. Designation and Replacement: The Client shall promptly inform Wanstor of any changes in these role designations or the contact person(s) fulfilling these roles. In the event of a change, the Parties shall mutually agree on the appointment of a new point of contact.
  
  4. Effectiveness: This provision becomes effective upon the execution of this Agreement and shall remain in effect throughout the term of this Agreement or as required by the specific Microsoft partnership and services involved.
PROACTIVE SUPPORT SERVICES
1. Where the Supplier has agreed to provide Proactive Support Services, this includes:
  (a) maintaining and updating a schedule of on-site and offsite activity designed to ensure the on-going reliable operation of the Network. Site visits or remote work will be scheduled to take place on a regular recurring basis;
  
  (b) allocation of a team of "customer preferred" technical consultants (being employees of the Supplier and/or employees of the Supplier’s sub-contractors) who will be primarily responsible for liaising with the Customer in respect to the provision of the Support Services;
  
  (c) regular reviews of the operation of key services within the Network, in consultation with the Customer, including:
  
  (i) function of critical equipment within acceptable limits;
  
  (ii) review of server event logs;
  
  (iii) operation of back-ups;
  
  (iv) operation of AV software;
  
  (v) installation of appropriate updates;
  
  (vi) appropriate reconfiguration of Equipment to resolve problems noted by the Customer or the Supplier; and
  
  (vii) advice on equipment requirements and new trends.
2. When requested by the Customer or deemed necessary by the Supplier in order to expedite a support query, the Supplier will restore Customer Data. Customer Data is normally restored for one of the following reasons:
  (a) Virus damage (encryption / corruption / deletion);
  
  (b) accidental / deliberate deletion of data by a user;
  
  (c) recovery of old document version after change of an original;
  
  (d) legal search;
  
  (e) recovery of a computer after a failed disk or array of disks;
  
  (f) recovery from fault or failed service;
  
  (g) system failure following an update;
  
  (h) data transfer as part of a migration from one system to another or otherwise; or
  
  (i) disaster recovery/theft.
3. All requests for data recovery and restoration for back-up will be subject to the Supplier’s Rates set out in the Statement of Work for backoffice IT support and do not form part of any inclusive costs.
4. If in the reasonable opinion of the Supplier more than sufficient time has been allocated in order to complete a schedule of works pursuant to the Proactive Support Service, the time allocated but unused may be used for additional tasks requested by the Customer.
5. The Supplier shall also provide ongoing reports on the appropriateness of the Equipment for usage, and the need or relevance of available new technologies.
6. The Proactive Support Service specifically excludes the following, which are deemed to be Professional Services and incur additional charges:
  (a) installation of server operating system upgrades (other than patches);
  
  (b) installation of server based applications;
  
  (c) installation, and configuration of firewalls or virtual private networks (VPNs); and
  
  (d) installation and configuration of desktop PCs, laptops, and printers.
7. The Supplier utilises software tools to facilitate the management of the Network. The monthly costs of these are set out in the Statement of Work. Software tools will be charged based on the total number consumed during a calendar month and will not be prorated.
8. Where the Supplier supports Authorised Users through AD Manager Plus, the monthly fee set out in the Statement or Work will be charged per domain per month.
MONITORING SERVICE
1. Where applicable, the Supplier shall remotely provide Simple Network Management Protocol ("SNMP") monitoring services of the Network, as further set out the Statement of Work. The Supplier shall provide the Monitoring Service continuously throughout the term of this Agreement. The Monitoring Service includes the following:
  (a) availability of Equipment and the Network;
  
  (b) exception reporting for variation from normally accepted levels of usage;
  
  (c) trend reporting; and
  
  (d) provision to the Customer of a web based ‘dashboard’ style application which shall be continuously updated in real time, whereby the Customer is provided access to details of the status of the information being monitored by the Supplier.
2. If any faults or issues are detected pursuant to the Monitoring Service, the Supplier shall inform the Customer without delay and shall log such fault or issue with the service desk, and thereafter shall respond and resolve all such faults or issues in accordance with the Service Level Arrangements.
3. Each monitoring sensor required or requested will incur the monthly fee and one off set up fee set out in the Statement of Work.
MAINTENANCE SERVICES
1. The Supplier will provide the Maintenance Services in accordance with the Statement of Work and the terms of this Agreement with all due care, skill and ability during the term set out in the applicable Statement of Work unless earlier terminated for any reason.
2. The Supplier shall provide the Maintenance Services in accordance with the Service Level Arrangements as stated in the Statement of Work.
3. The Customer shall provide the Supplier with as much notice as reasonably possible of any additions, replacements or removals of any items of the Maintained Equipment.
4. If Maintenance Services are required to be carried out at the Customer Site, the Supplier shall liaise with the Customer to agree upon a suitable time for any such services to be carried out. In any event the Supplier shall, so far as possible, ensure that as little disruption as possible is caused to the Maintained Equipment, the Business Systems and the Customer’s business operations.
5. The Supplier shall keep the Customer informed at all times of any repairs or replacements (or proposed repairs or replacements) to any parts of the Maintained Equipment which will or may have any detrimental effect on the stability, performance, functionality or capacity of the Maintained Equipment or the Business Systems or which will or may result in loss of or corruption to any Customer Data.
6. In performing the Maintenance Services, the Supplier shall use commercially reasonable endeavours to source spare parts required to restore the Maintained Equipment to working in accordance with its operating manual. The Supplier shall have the right to charge the Customer for any required spare parts.
7. The Customer shall:
  (a) ensure that the Maintained Equipment is installed and kept at the Customer Site, under suitable clean conditions, as specified in the agreement under which the Maintained Equipment was supplied, and permit only trained and competent personnel to use it and follow any operating instructions contained in the relevant operating manual and/or as the Supplier may give from time to time;
  
  (b) notify the Supplier promptly if the Maintained Equipment is discovered to be operating incorrectly;
  
  (c) not allow any person other than the Supplier to maintain, alter, modify or adjust the Maintained Equipment without the prior written approval of the Supplier;
  
  (d) not move the Maintained Equipment from the Customer Site without the prior written approval of the Supplier (such approval not to be unreasonably withheld or delayed);
  
  (e) not deliberately subject any Maintained Equipment to unusual physical or electrical stress or otherwise neglect, misuse or other wilfully damage the Maintained Equipment;
  
  (f) store any reserve equipment only in conditions approved by the Supplier, and make this equipment available for periodic maintenance, as with all other Maintained Equipment;
  
  (g) only use supplies or materials supplied or approved by the Supplier (such approval not to be unreasonably withheld or delayed);
  
  (h) only use the Maintained Equipment for the purpose for which it was designed and in accordance with the manufacturers’ or suppliers’ operating manuals and instructions and with such supplies and consumables as are in accordance with the manufacturers’ or suppliers’ requirements;
  
  (i) keep the Supplier informed of changes or planned changes which might affect the performance of the Maintained Equipment;
  
  (j) exercise reasonable care and skill in the use of the Maintained Equipment; and
  
  (k) promptly and regularly carry out all operations or maintenance routines (if any) as are set out or referred to in the manufacturers’ or suppliers’ operating manuals and instructions to the extent that this is not included in the Maintenance Services.
8. The Supplier is not obliged to perform any Maintenance Services required to restore any malfunctioning or failed Maintained Equipment to operate in accordance with its operating manual where the malfunction or failure results from or is caused by any of the following:
  (a) faulty materials or workmanship in the manufacture of the Maintained Equipment;
  
  (b) use of the Maintained Equipment with computer equipment or materials not supplied or approved in writing by the Supplier;
  
  (c) any maintenance, alteration, modification or adjustment performed by persons other than the Supplier or its employees or agents unless approved by the Supplier in writing;
  
  (d) the Customer or a third party moving the Maintained Equipment;
  
  (e) the use of the Maintained Equipment in breach of any of the provisions of the agreement under which the Maintained Equipment was supplied;
  
  (f) a failure, interruption or surge in the electrical power or its related infrastructure connected to the Maintained Equipment;
  
  (g) a failure or malfunction in the air conditioning or other environmental controls required for the normal operation of the Maintained Equipment, or an error or omission in the correct use of that air conditioning or other environmental controls by the Customer; or
  
  (h) the neglect or misuse of the Maintained Equipment.
9. Where the Supplier is performing or has performed the Maintenance Services in circumstances where it is established that the Maintained Equipment was not operating in accordance with its operating manual due to any of the causes in Clause 6.7, the Supplier may charge, and the Customer shall pay, the additional fees in respect of that work at the Supplier’s Rates.
10. All test equipment or tools which may be used in the performance by the Supplier of the Maintenance Services under this Agreement shall belong to the Supplier. The property in all replacement parts incorporated into any Maintained Equipment by the Supplier pursuant to the Maintenance Services shall be transferred to and vest in the Customer.
11. The Maintenance Service shall not cover any of the following consumable items or parts of such Maintained Equipment:
  (a) laptop power supplies and batteries, UPS or cache batteries;
  
  (b) external cables, keyboards or mice;
  
  (c) drums, developer units, toners, dispensers, cartridges, containers, fuser assemblies, corona wire or assemblies; paper transport mechanisms including sprocket, spring feed, platens, rollers and friction devices; print heads, ink jets or other mechanical imprinting heads; paper or sheet feeding mechanisms or trays, or output collecting trays or mechanisms;
  
  (d) equipment which is not covered by manufacturer warranty; or
  
  (e) software which is no longer supported by the manufacturer.
12. The Maintenance Service and the Support Service shall not cover:
  (a) wilful acts of negligence or use of the Maintained Equipment or exposure to physical or electrical stress outside of its manufacturers’ operating instructions, including faults caused by power failure or lightning or air conditioning faults;
  
  (b) any damage occurring as a direct result of an upgrade or modification to the Maintained Equipment carried out by the Customer save for any upgrade or modification recommended by the Supplier or carried out with the Supplier’s written approval;
  
  (c) faults due to Viruses, Vulnerability or unlicensed software save where any such Viruses, Vulnerability or unlicensed software has been supplied or introduced to the Business System (whether or not deliberately) by the Supplier;
  
  (d) equipment which at the relevant time is not listed in the equipment inventory in the Statement of Work;
  
  (e) faults which arise as a result of a breach of the Customer’s obligations; or
  
  (f) equipment that: (i) is not repairable (heavily damaged and cannot be repaired); (ii) has parts not available (from Supplier or third party supplier); (iii) is beyond serviceable life (repair would not result in the reliable or safe operation of the Maintained Equipment due to degradation and age of components within the Maintained Equipment, (iv) or the cost of the repair/replacement is equivalent or greater than the value of the Maintained Equipment and the Maintained Equipment is six (6) years old or more; and/or (v) has had repeated failure (Maintained Equipment has been repaired more than three (3) times in a rolling twelve (12) month period including incidents where the original fix has been accepted as complete).
RESPONSIBILITIES OF SUPPLIER
1. The Supplier shall:
  (a) provide the Services in accordance with the terms of this Agreement and the Statement of Work;
  
  (b) use its commercially reasonable endeavours to complete any Deliverables set out under any Statement of Work;
  
  (c) use its commercially reasonable endeavours to meet any performance dates set out in any Statement of Work but unless otherwise expressly agreed in writing in such Statement of Work, any performance dates shall be estimates only and time shall not be of the essence for the provision of any Services and/or Deliverables;
  
  (d) commit sufficient resources to the provision of the Services to enable their delivery in accordance with the Agreement and Statement of Work;
  
  (e) provide the Services with due care, skill and ability in accordance with Good Industry Practice;
  
  (f) take such steps as may be required to fulfil its obligations under this Agreement and any Statement of Work;
  
  (g) utilising suitably skilled, qualified, experienced, supervised and vetted employees, agents, representatives and authorised sub-contractors who will exercise all reasonable skill and care;
  
  (h) notify the Customer promptly if the Supplier is unable to comply with any of the terms of this Agreement, any of the Licence Agreements (if applicable) or any Statement of Work; and
  
  (i) observe and ensure that its personnel observe all health and safety rules and regulations and any other security requirements that apply at any of the Customer Sites and which have been communicated to it in writing a week prior to the Services commencing, where the Supplier is required to be on such Customer Sites for the provision of the Services.
2. The Supplier shall co-operate with the Customer in all matters relating to the Services and shall appoint a Representative ("Supplier Representative"), as the contact throughout the Services.
3. The Customer confirms that the Supplier may employ sub-contractors without seeking the prior consent of the Customer. Notwithstanding the foregoing, the Supplier shall at all times be responsible for and liable in respect of the performance of all obligations under this Agreement, whether such obligations are performed by the Supplier itself, or any sub-contractor engaged by the Supplier and under the supervision of the Supplier. For the avoidance of doubt, the Supplier shall not be held liable to the extent permitted under the respective Licence Agreements, for the actions or omissions of any Third Party Suppliers that are not its sub-contractors and shall not be held liable for the actions and or omissions of any other third parties including (but not limited to) Microsoft.
4. The Supplier shall provide reasonable notice to the Customer of any change in its senior personnel engaged as part of the Services. Where relevant, the Supplier shall replace any senior personnel who are removed with another appropriately skilled person.
5. The Supplier does not and cannot control the flow of data to or from its network and other portions of the internet. Such flow depends in large part on the performance of internet services provided or controlled by third parties. At times, actions or omissions of such third parties can impair or disrupt connections to the internet (or portions thereof). Whilst the Supplier will use commercially reasonable efforts to take all actions it deems appropriate to remedy and avoid such events, the Supplier cannot guarantee that such events will not occur. Accordingly, the Supplier disclaims any and all liability resulting from or related to such events.
6. In relation to the Managed Services specifically and notwithstanding the Supplier’s obligations under Clause 7.1, the Supplier shall:
  (a) staff the Supplier support desk with a team of skilled individuals (whether subcontracted or not);
  
  (b) maintain a team skilled in the platform and with knowledge of the systems developed to deliver the solution;
  
  (c) maintain a comprehensive IT service management solution, with integrated knowledge base and how-to guides to reduce the time to issue resolution;
  
  (d) undertake a regular account review if requested by the Customer, to discuss the Customer’s service needs and ensure that the Agreement is in alignment with its needs;
  
  (e) use commercially reasonable endeavours to follow the instructions of the Customer and will remain courteous during any communications with Customer personnel; and
  
  (f) provide the Customer with reasonable co-operation in relation to this Agreement.
7. The Supplier shall be under no obligation to provide the Services to the Customer in the following circumstances (unless specified under the Statement of Work);
  (a) unauthorised use of the Hosting Services and/or Software by the Customer or use otherwise than in accordance with the Agreement;
  
  (b) providing the Managed Services (other than the Hosting Services) outside Normal Business Hours unless otherwise agreed between the Parties in writing;
  
  (c) providing any other services which are Out of Scope or otherwise not covered herein;
  
  (d) training; and
  
  (e) providing the Managed Services to the Customer where such support would have been unnecessary if the Customer had implemented update(s) and upgrade(s) supplied or offered to the Customer pursuant to the call for technical support.
RESPONSIBILITIES OF CUSTOMER
1. To the extent that the Supplier requires access to the Customer Site to perform the Services, the Customer shall provide such access during Normal Business Hours and to provide a suitable work environment to enable the Supplier to perform such Services subject to the Supplier complying with such internal policies and procedures of the Customer (including those relating to security and health and safety) as may be notified to the Supplier in writing from time to time.
2. The Customer shall co-operate with the Supplier in all matters relating to the Services and shall appoint a minimum of two Representatives ("Customer Representatives"), who shall have authority to commit the Customer on all matters relating to the relevant Service.
3. The Customer agrees and acknowledges the terms of the applicable Licence Agreements and the terms of the CSP Agreement shall form part of this Agreement. For the avoidance of doubt, in the event the applicable Licence Agreements, and/or the CSP Agreement is not applicable to the Services being received or delivered by the Supplier to the Customer under this Agreement, such agreements shall not apply.
4. The Customer shall:
  (a) adhere to any Fair Usage Policy;
  
  (b) ensure it has suitable licences in place for any third party software required (which is not issued by the Supplier) to allow the Supplier and its sub-contractors full use in relation to the Services provided;
  
  (c) adhere to the dates scheduled for provision of Services by the Supplier to the Customer as stated in the applicable Statement of Work or otherwise agreed between the Parties in writing. In the event the Customer wishes to reschedule or cancel the dates for the provision of Services, unless otherwise stated in the Statement of Work, liquidated damages ("Liquidated Damages") will become payable from the Customer to the Supplier on the following basis:
  
  (i) if dates are changed or cancelled less than twenty four (24) hours, one hundred percent (100%) of the Fees for the Services to be provided at that time will be payable together with any reasonable travel costs travelling to and from any Customer Site incurred by the Supplier during that period in anticipation of providing the Services; and
  
  (ii) if dates are changed or cancelled between twenty four (24) hours and seven (7) days before the scheduled start date, Liquidated Damaged equivalent to fifty percent (50%) of the Fees for the Services to be provided at that time will be payable.
  
  Notwithstanding this Clause 8.4(c), any bespoke or non-cancellable Deliverables, and/or Goods cannot be cancelled;
  
  (d) provide such access to the Customer’s systems, software, platforms and equipment as may reasonably be requested by the Supplier;
  
  (e) prepare the Customer’s Site and at all reasonable times permit full and free access to the Customer’s Site and to the Maintained Equipment to the Supplier, its employees, contractors and agents and other applicable Third Party Suppliers, and provide them with adequate and safe working space, and any telecommunications facilities as are reasonably required to enable the Supplier or relevant Third Party Supplier (as the case may be) to perform the applicable Services;
  
  (f) co-operate with the Supplier in all matters relating to the Services as reasonably requested by the Supplier;
  
  (g) 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 Sites;
  
  (h) in respect of any Microsoft funded services, sign and deliver the Microsoft Proof of Execution ("POE") within seven (7) days of the date of issue by Microsoft. In the event that the Customer does not return the POE within the seven (7) days’ notice period, the Supplier may be entitled to charge the Customer the amounts directly and the Customer shall follow the payment terms in this Agreement;
  
  (i) maintain and provide the Supplier with continuous global admin access to the Customer’s relevant services and network for the duration of the Agreement;
  
  (j) where a Microsoft Cloud service is deployed / utilised the Customer shall assign the Supplier as the Claiming Partner of Record for that particular Service for the duration of the Agreement and for a period of twelve (12) months after the end of the Agreement;
  
  (k) allow the Supplier to publicise the work the Supplier undertakes under the Agreement for the Customer including but not limited to case studies. For the avoidance of doubt, this shall, subject to obtaining the Customer’s consent in accordance with Clause 38, include use of any and all logo’s and trademark names;
  
  (l) allow the Supplier or its designated subcontractors and applicable Third Party Suppliers, global admin access to the Customer’s relevant servers and networking systems for the duration of the Agreement;
  
  (m) provide appropriate hardware interface, software and access authorisation to enable remote diagnosis, should such capability be required;
  
  (n) provide all information and make available all resources as reasonably requested by Supplier in the execution of its obligations under this Agreement;
  
  (o) use all reasonable efforts to follow the reasonable instructions of Supplier support personnel with respect to the resolution of defects;
  
  (p) gather all relevant information prior to requesting assistance in respect of any defects including detailed defect description, and procedures required to replicate a problem if possible. Any additional information which may help in the diagnosis of a defect should be included such as network configuration details;
  
  (q) provide the Supplier with access to the Customer’s production computer system via a secure broadband link operating at the industry accepted bandwidth for the purposes of remote diagnostics should such capability be required;
  
  (r) use the Third Party Services, Software and/or Maintained Equipment correctly in accordance with its operating instructions;
  
  (s) notify the Supplier promptly of any problems with the Managed Services, Maintained Equipment, Third Party Services and/or Software; and
  
  (t) agree that if, in the course of performing the Services, it is reasonably necessary for the Supplier’s performance of its obligations under a Statement of Work for Supplier to access or use any equipment, software or data of the Customer (or which is in the possession of the Customer) then it shall where it is able to do so grant to Supplier and any of its subcontractors a non exclusive, royalty free, terminable licence to use the same solely for the purpose of delivering the Services only for as long as is strictly necessary to deliver such Services.
5. Where wide area network ("WAN") is applicable, the Customer agrees to:
  (a) prepare the Customer Site and provide a suitable place, conditions, connection points and electricity for BT or other Third Party Supplier equipment at the Customer’s Site in accordance with BT’s or applicable Third Party Supplier’s reasonable instructions, if any;
  
  (b) obtain all necessary third party consents (excluding wayleaves or third party consents ordinarily obtained by BT or applicable Third Party Supplier);
  
  (c) provide reasonable assistance to BT or applicable Third Party Supplier where BT or applicable Third Party Supplier is the party obliged to obtain necessary third party consents;
  
  (d) ensure that any equipment connected to the service is technically compatible with the service and not harm the network, the service or BT or applicable Third Party Supplier’s equipment or another customer’s network or equipment;
  
  (e) connect the service and use it in line with any relevant instructions or laws;
  
  (f) connect the service and use it in line with any relevant standards including any standards set out in the relevant SIN referred to in the product handbook; and
  
  (g) connect equipment to the service only by using the NTE provided with the service, unless otherwise agreed in writing by the Parties.
6. The Supplier will not be liable for failure to meet any Service Level Arrangement or other obligations under this Agreement to the extent that such failure was caused by equipment found to be connected otherwise than in accordance with Clause 8.5.
7. The Customer shall (unless otherwise specified in the Statement of Work or as otherwise set out in this Agreement):
  (a) use the Services only for lawful purposes and in accordance with this Agreement;
  
  (b) keep and maintain all materials, equipment, documents and other property of or provided by the Supplier which are for the time being at the Customer’s Site in safe custody at the Customer’s own risk and maintain them in good condition until returned to the Supplier and not dispose of or use them otherwise than in accordance with the Supplier’s written instructions or authorisation;
  
  (c) keep secure from third parties any passwords issued to the Customer by the Supplier;
  
  (d) fully virus-check all data supplied to the Supplier pursuant to the Agreement;
  
  (e) make the Customer’s Operating Environment and Customer-side Equipment, required to provide the Services, accessible to the Supplier’s support staff, enable logons or passwords required for such support staff (who will have their own logons);
  
  (f) ensure that any Customer-side Equipment is in good working order and suitable for the purposes for which it is used;
  
  (g) ensure that the Supplier is able to access the systems needed to provide remote support, including but not limited to remote desktop access or screen sharing system. The Supplier can provide screen sharing capabilities via third party products but it is the Customer’s responsibility to ensure that this works in their configuration or to provide another option. For the avoidance of doubt, remote access to the systems will take the form of a connection to the Supplier’s monitoring platform. The exact method of connectivity will be agreed but can take the form of an internet permit. The Supplier to install the current version of software required to provide the Managed Services from time to time when upgrades or fixes occur and to provide a reasonable level of assistance in implementation and testing;
  
  (h) provide the Supplier at least seven (7) Business Days’ notice in advance of any intention or move to change when applicable Customer-side Equipment or Customer’s Operating Environment or data-feeds that will directly impact the Managed Services. If such notice has not been received on time, the Supplier will have to make additional effort to return the Customer’s systems to an acceptable state for continued support, and will charge accordingly at its then standard Rates;
  
  (i) comply with all applicable laws and regulations with respect to its activities under this Agreement;
  
  (j) ensure that active support is available for third party applications such as Sage, PS Financials;
  
  (k) ensure that all software is legally and correctly licensed;
  
  (l) notify the Supplier of any additional items of equipment or software which have been added to, or removed from the Business System; and
  
  (m) carry out all other Customer responsibilities set out in this Agreement and the Statement of Work 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 this Agreement as reasonably necessary.
8. In the event that the Customer is in breach of its obligations under the Agreement (excluding payment obligations) then the Supplier shall provide written notice of such breach, specifying in detail the nature of the breach and providing thirty (30) Business Days’ notice to remedy such breach if capable of remedy. If the Customer fails to remedy such breach the Supplier shall be entitled to terminate or suspend the Services without prejudice to any pre-existing rights and obligations of either Party. The Supplier shall have no liability or responsibility should the Services fail to comply with the Statement of Works and/or Service Level Arrangements as a direct result of the Customer (including without limitation any of its employees, subcontractors or any of its staff) being in breach of the Agreement.
9. In the event that the Customer is in breach of its payment obligations under the Agreement then the Supplier shall provide written notice of such breach, specifying in detail the nature of the breach and providing seven (7) days’ notice to remedy such breach if capable of remedy. If the Customer fails to remedy such breach the Supplier shall be entitled to terminate or suspend the Services without prejudice to any pre-existing rights and obligations of either Party. The Supplier shall have no liability or responsibility should the Services fail to comply with the Statement of Works and/or Service Level Arrangements as a direct result of the Customer (including without limitation any of its employees, subcontractors or any of its staff) being in breach of the Agreement.
PROJECT ORGANISATION
1. If requested in writing by the Customer or specified in the Statement of Work, the Customer Representatives and the Supplier Representative shall have regular meetings to monitor and review the performance of this Agreement, to discuss any changes proposed in accordance with Clause 23 and to discuss the Service Level Arrangements.
2. Before each meeting, the Customer Representatives shall notify the Supplier Representative, and vice versa, of any problems relating to the provision of the Services for discussion at the meeting. At each such meeting, the Parties shall agree a plan to address such problems. In the event of any problem being unresolved or a failure to agree on the plan, the matter shall be resolved in accordance with the Dispute Resolution Procedure. Progress in implementing the plan shall be included in the agenda for the next meeting.
PRICE AND PAYMENT
1. The Customer shall pay the Fees (and all Third Party Services fees) for the Services in accordance with the Statement of Work. If no Fee is quoted, the Fee shall be calculated in accordance with the Supplier’s Rates set out in the Statement of Work as amended from time to time in accordance with this Agreement. For the avoidance of doubt, in the event the Customer delays the Go-live Date (which falls outside of the Liquidated Damages) or has not conducted its Acceptance Testing in accordance with Clause 12, the Supplier may charge the Customer for such delays in accordance with its Rates.
2. Clause 10.4 shall apply if the Services are to be provided on a time-and-materials basis. The remainder of this Clause 10 shall apply to all Fees, whether payable on a fixed price, annual or time and materials basis.
3. Where a Fee has been quoted, this is a best estimate based on the information given to the Supplier by the Customer and/or which is available at that time and may be based on a number of assumptions set out in the Statement of Work ("Assumptions"). If it materialises that in the Supplier’s reasonable opinion, the information provided and/or Assumptions made are incorrect, inaccurate or have changed and/or that the proposed scope of Services is not feasible, the Supplier shall be entitled to charge (at the Supplier’s current Rates) the Customer for any Out of Scope Services or other additional Services provided to those detailed in the Statement of Work together with all related costs and expenses incurred by the Supplier.
4. Where the Services are provided on a time-and-materials basis:
  (a) the Supplier’s Rates are calculated on the basis of Normal Business Hours;
  
  (b) the Supplier shall be entitled to charge an overtime rate for time worked outside Normal Business Hours as set out in the Statement of Work;
  
  (c) the Supplier shall complete the relevant time recording systems to calculate the Fees for each invoice charged on a time and materials basis; and
  
  (d) travelling time to and from any Customer Site to be charged on a pro rata basis at the standard daily Rate. The Supplier shall use reasonable endeavours to minimise travel time and cost.
5. The Supplier shall invoice the Fees in accordance with the payment intervals stated in the Statement of Work.
6. Unless otherwise set out in the applicable Statement of Work, the Fees exclude:
  (a) the cost of any of items or accessories listed in Clauses 6.10 or as otherwise detailed in the Statement of Work which are supplied by the Supplier to the Customer;
  
  (b) electrical work carried out by the Supplier or one of its sub-contractors which is external to the Maintained Equipment, but excluding work required to be done in the normal course of installation, commissioning, maintenance or repair of the Maintained Equipment;
  
  (c) rental charges for new or replacement Maintained Equipment procured for the Customer by the Supplier;
  
  (d) the cost of liaising with third parties such as software suppliers for finance or other customer specific applications. All such work will be charged at the Rates;
  
  (e) work on equipment, software or for staff and sites Out of Scope;
  
  (f) (unless otherwise agreed and set out in the Statement of Work), the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the Supplier or its subcontractors in providing the Services, the cost of any materials and the cost of services reasonably and properly provided by third parties and required by the Customer for the Services ("Expenses"). The Supplier shall obtain the Customer’s prior written approval before incurring any such expense, material or service exceeding a total cost of fifteen hundred pounds (£1,500) in the aggregate per day and shall be payable by the Customer in accordance with Clause 10.7; and
  
  (g) unless otherwise set out in the Statement of Work, the costs of packaging, insurance and transport of the Goods.
7. The Supplier and the Customer agree that in some circumstances, support requirements arise that will fall outside of the scope of this Agreement, but which must be expedited without recourse to prior discussion and quotations. The Customer agrees to reasonable charges being made by the Supplier in line with the Supplier’s Rates set out in the Statement of Work for the support of new items of equipment, software, staff or sites which fall outside of the scope of this Agreement.
8. Where the Statement of Work specifies a total number of support hours included per annum, the Customer will be charged for any additional hours used at £60 per hour. Where the Statement of Work does not specify the total number of support hours included per annum, the Fair Usage Policy will apply.
9. The Fair Usage Policy will come into effect when a blended hourly rate for service delivery drops below £60 or the rate set out in the Statement of Work. This figure is calculated on the aggregated total number of support hours logged against the Support Services. This may come into effect based on (but not limited to):
  (a) growth within the Customer’s business;
  
  (b) an expansion of scope to cover new areas of work;
  
  (c) project requests which were not anticipated at the outset of the Agreement (new site or equipment set-up, etc.);
  
  (d) the provision of new technologies;
  
  (e) the need to liaise with other third parties.
10. If the Customer is affected, the Supplier will contact the Customer’s senior management representative by telephone or by email to inform them. The contact details used will be those that the Customer currently has registered. The Supplier will make charges for the additional support that is provided at the Supplier’s Rates specified in the Statement of Work.
11. The Customer shall pay each undisputed invoice for the Fees and Expenses in full and cleared funds (without deduction or set-off) within thirty (30) days of the date of such invoice unless otherwise agreed in writing by the Supplier or unless otherwise set out in the Statement of Work. In the event the Customer pays by direct debit, the details of such direct debit payments shall be set out in the Statement of Work, as applicable. The Customer shall pay each undisputed invoice for the Fees in full and cleared funds (without deduction or set-off) by direct debit in advance unless otherwise agreed (Expenses shall be invoiced separately) of providing the Services or delivering the Goods, as applicable.
12. All payments by the Customer hereunder shall be in United Kingdom pound sterling unless otherwise agreed or set out in the Statement of Work and shall be paid to the Supplier's bank account as advised by the Supplier to the Customer in writing.
13. Unless otherwise set out in the applicable Statement of Work, all amounts stated are gross amounts but exclusive of VAT or other sales tax which shall be paid by the Customer, if applicable, at the then prevailing rate subject to receipt of a valid VAT invoice or other sales tax invoice.
14. Should the Customer be required by any law or regulation to make any deduction on account of tax including but not limited to withholding tax or otherwise on any sum payable under the Agreement, the Fees payable shall be increased by the amount of such tax to ensure that the Supplier receives a sum equal to the amount to be paid under the applicable Statement of Work.
15. Without prejudice to any other remedy that the Supplier may have, if payment of the Fees or any part thereof is overdue then unless the Customer has notified the Supplier in writing that such payment is in dispute within ten (10) days of the receipt of the corresponding invoice the Supplier may, without prejudice to any other rights or remedies, charge the Customer interest on the overdue amount at the rate of four percent (4%) per annum above Bank of England 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.
16. The Customer shall not be able to dispute any amounts which have been paid by the Customer after a period of three (3) months has elapsed from the date of invoice.
17. The Supplier shall not be obliged to provide any of the Services and/or deliver any Goods while any duly issued invoice(s) remain unpaid under any Statement of Work, but should the Supplier choose to continue to do so, this shall not in any way be construed as a waiver of the Supplier’s rights or remedies.
18. Subject to Clause 10.19 below, the Fees relating to the provision of Services shall increase on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index in the preceding twelve (12) month period.
19. For the avoidance of doubt, the Supplier may increase any fees related to Third Party Services in line with any increases imposed upon the Supplier by such Third Party Suppliers upon thirty (30) days’ notice or otherwise in line with the terms of the Licence Agreement and/or the CSP Agreement.
20. Notwithstanding and subject to Clauses 10.18, 10.19 and 21.11, the Supplier reserves the right, on giving the Customer thirty (30) days’ notice, to increase the Fees on an annual basis with effect from each anniversary of the Commencement Date. If the Customer does not agree with this increase, then they may terminate this Agreement upon thirty (30) days written notice and before such price increase takes effect. If the Supplier does not receive written notice within thirty (30) days, the Customer is deemed to have agreed to the amendment to the Fees.
WARRANTIES AND SERVICE LEVELS
1. The Customer warrants that:
  (a) it has the full capacity and authority to enter into and perform this Agreement and that this Agreement is executed by a duly authorised representative of the Customer;
  
  (b) it has the authority to grant any rights to be granted to the Supplier under this Agreement;
  
  (c) it owns or has obtained valid licences, consents, permissions and rights to use, and where necessary to licence to the Supplier and any of its subcontractors, any materials reasonably necessary for the fulfilment of all its obligations under this Agreement; and
  
  (d) the Supplier's use in the provision of the Managed Services or otherwise in connection with this Agreement of any third party materials, including any Hardware or Software supplied by the Customer to the Supplier for use in the provision of the Managed Services or otherwise in connection with this Agreement, shall not cause the Supplier to infringe the rights, including any Intellectual Property Rights, of any third party.
2. The Supplier warrants and represents that:
  (a) it has the full capacity and authority to enter into and perform this Agreement and that this Agreement is executed by a duly authorised representative of the Supplier;
  
  (b) it owns or has obtained valid licences, consents, permissions and rights to enable the Supplier to comply with this Agreement and to use any of the Intellectual Property Rights necessary for the fulfilment of all its obligations under this 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;
  
  (c) it will comply with all applicable laws in performing its obligations under this Agreement; and
  
  (d) the Customer's use of any Supplier materials and/or third party materials, including any 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.
3. Except for any warranties and service levels expressly set forth in this Agreement, the Services are provided on an "as is" basis, and Customer’s use of the Services is at its own risk. The Supplier does not make, and hereby disclaims, any and all other express and/or implied warranties, statutory or otherwise, including, but not limited to, warranties of merchantability, fitness for a particular purpose and any warranties arising from a course of dealing, usage, or trade practice.
4. In the event that a defect, fault or impairment in the provision of the Service(s) causes a service interruption and the Supplier becomes aware of this either through the Customer giving notification to the Supplier of such default, fault or impairment, or as a result of the Supplier’s monitoring, then the Supplier shall use its commercially reasonable endeavours to resolve that defect, fault or impairment as more fully set out in the Statement of Work and to the extent it reasonably can.
5. If the Supplier determines in its reasonable opinion that such a defect, fault or impairment results directly or indirectly from: (i) the negligence, act, omission, or default of the Customer or Authorised User, (ii) the Customer’s breach of this Agreement, or (iii) the operation, failure or malfunction of any network, equipment, hardware or software owned or controlled by the Customer or (iv) any third party action in response to an act or omission of the Customer or any person given access to the Service by the Customer (including third party hosted software vendors) then the Supplier may recover from the Customer all reasonable costs to be incurred by it or on its’ behalf in connection with the remedy of such defect, fault or impairment. Therefore, for the avoidance of doubt, the Supplier can make no commitment to fix any fault and time is not of the essence.
6. Save only as may be provided for otherwise under any Statement of Work, the Supplier makes no warranty or representation of any data backup with the Services. The Customer is responsible for all database and/or system back-ups as required before any change is carried out.
7. Unless otherwise agreed or set out in the Statement of Work (as forming part of the Service) if the Customer accesses the Services through the public internet or through a private circuit provisioned by a bandwidth provider of the Customer’s choice, the Customer assumes responsibility for managing the relationship with this chosen provider, including service level commitments for issues found to be in the chosen provider’s network.
8. If the Customer moves from one Customer Site to another site or makes changes to any Customer Site or opens a new location to be added to the Customer Sites, the Customer must notify the Supplier in advance. The Supplier may need to carry out an inspection of any cabling and advise the Customer of any work to bring the IT Infrastructure up to standard operating conditions at the new location in order to remain eligible for coverage. The Supplier will provide a quotation if it is to provide additional resources or services in the case of any change at the Customer Sites or new Customer Sites for including as part of the Fees.
9. The Supplier will request approval from the Customer’s Representatives before making any significant changes to the Services. The Supplier will arrange any Scheduled Downtime in advance with the Customer’s Representatives. The Supplier is not responsible for Unscheduled Downtime that is due to anything outside the Supplier’s control and the Supplier and its subcontractors may suspend some or all of the Services in order to carry out scheduled or emergency maintenance or repairs.
10. The Supplier will carry out network management routines to test the operations and functions of the relevant Services from time to time, notifying the Customer in advance.
11. The Supplier reserves the right to take any action that it perceives necessary to protect the Customer’s systems even though this may impact on the Customer’s business activities. The Supplier will make reasonable endeavors to inform the Customer by telephone or email in advance of such action, but such action will not be dependent on such notification having been given or acknowledged.
12. The Service Level Arrangement are specific to directly provided Services of the Supplier and do not relate to Third Party Services (of which such Third Party Services will be governed by their own relevant service levels).
13. The Supplier shall not in any circumstances be liable under its obligations in this Clause 11 if it can demonstrate that any failure of the Services was caused or contributed to by any Relief Event.
14. Notwithstanding the foregoing, the Supplier does not warrant that the Customer's use of the Services will be uninterrupted or error-free.
15. The Customer hereby warrants that it has not been induced to enter into this Agreement by any prior representations, nor has it relied on any oral representation made by the Supplier or upon any descriptions, illustrations or specifications contained in any catalogues and publicity material produced by the Supplier.
ACCEPTANCE OF THE PROFESSIONAL SERVICES
1. The relevant Statement of Work shall specify the Deliverables that are to be subject to Acceptance Testing and provide a framework for the nature of the testing that will be required.
2. In relation to any Acceptance Testing:
  (a) the Customer shall have a reasonable period of time, up to five (5) Business Days unless otherwise specified in the Statement of Work, from the Supplier’s delivery of each Deliverable under the relevant Statement of Work (the "Acceptance Period") to confirm that such Deliverable conforms to the acceptance criteria as agreed between the Parties (collectively, the "Acceptance Criteria"). If the Customer determines that a Deliverable does not conform to the Acceptance Criteria, the Customer shall by the last day of the Acceptance Period provide to the Supplier an Issues List of the non-conformities to the Acceptance Criteria;
  
  (i) the Customer shall use best efforts to correctly and efficiently ensure appropriate Acceptance Testing in relation to any Deliverable which is subject to Acceptance Tests and shall notify the Supplier within the Acceptance Period (as defined in Clause 12.2(a)) if any of the Deliverables do not conform to the Acceptance Criteria. In the event that Customer has undertaken the Acceptance Testing within the Acceptance Period and fails to reject any Deliverable within the relevant Acceptance Period; or
  
  (ii) commences live running of the whole or part of such Deliverable other than in the course of undertaking Acceptance Testing,
  
  for all purposes under this Agreement, such Deliverable shall be deemed accepted as if the Customer had issued a written acceptance thereof. Once the Deliverable has been accepted by the Customer and payment has been settled in accordance with Clause 10, the Deliverable shall become the property of the Customer. For the avoidance of doubt, should any non-conformities be found in earlier stages of the Deliverables but which were not highlighted to the Supplier during the applicable Acceptance Period, such non-conformities shall not be subject to the remedies as set out in Clause 12.2(b) below.
  
  (b) If there are any non-conformities within any Deliverable, which have been highlighted by Customer or the Supplier during the Acceptance Period and whereby the Deliverable has not been accepted by the Customer for this reason and such non-conformity is a directly attributable act or omission on the part of the Supplier (and not subject to a Change Request (as defined in Clause 23 or attributable to the Customer’s acts or omissions including inadequate Acceptance Testing) the Supplier shall (without prejudice to the Customer’s other rights and remedies) carry out all necessary remedial work without additional charge as part of the next Deliverable which shall accordingly be modified. In the event of any such remedial work, the Customer shall have up to two (2) Business Days unless otherwise agreed by the Supplier (the "Retest Period") to confirm that the Deliverable meets the Acceptance Criteria. If the Customer fails to notify the Supplier of any issues within the Retest Period, that Deliverable shall be deemed accepted.
  
  (c) If any non-conformity cannot be remedied by the Supplier due to an error, defect or fault which the Supplier is able to demonstrate to the reasonable satisfaction of the Customer to be outside the Supplier’s control and which has disabled the Supplier’s ability to remedy such non-conformity:
  
  (i) where such non-conformity does not materially affect the Deliverable, the Supplier agrees to reduce the amount paid or payable by the Customer which specifically relates to the non-conforming Deliverable which is subject to the non-conformity to reflect any reduction in the functionality of the Deliverable after taking into account all the relevant circumstances is reasonable; or
  
  (ii) where such non-conformity renders the Deliverable unusable, then the Supplier reserves the right to terminate work on that specific Deliverable and the Supplier agrees not to charge the Customer any amounts paid or payable by Customer to the Supplier which specifically relates to the non-conforming Deliverable which is subject to the non-conformity and which cannot be remedied.
SUPPLY OF GOODS
1. Any samples, drawings, descriptive matter or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier's catalogues, brochures or website are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Agreement or have any contractual force.
2. To the extent that the Goods are to be manufactured in accordance with a specification supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party's Intellectual Property Rights arising out of or in connection with the Supplier's use of such specification. This Clause 13.2 shall survive termination of the Agreement.
3. The Supplier reserves the right (but does not assume the obligation) to make any changes in the specification of the Goods which are required to conform with any applicable legislation or, where the Goods are to be supplied to the Customer's specification, which do not materially affect their quality or performance.
4. Where the Supplier is not the manufacturer of the Goods:
  (a) they will be supplied subject to any terms and conditions of sale and returns policy relating thereto by the relevant manufacturer and/or Third Party Supplier; and
  
  (b) the Supplier shall use reasonable endeavours to transfer to the Customer the benefit of any warranty or guarantee given by the manufacturer to the Supplier.
5. The Supplier reserves the right, by giving notice to the Customer at any time up to five (5) days before delivery, to increase the price of the Goods which have not been delivered to reflect any increase in the cost to the Supplier which is due to market conditions or any factor beyond the control of the Supplier (including any foreign exchange fluctuation, currency regulation, alteration of duties, change in legislation, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate information or instructions.
6. The Customer is responsible for obtaining, at its own cost, such import licences and other consents in relation to the Goods as are required from time to time and, if required by the Supplier, the Customer shall make those licences and consents available to the Supplier prior to the relevant shipment.
7. If the Supplier cannot supply the Goods ordered by the Customer, the Supplier reserves the right to offer Goods of equal or superior quality at no extra cost. In such a case, if the Customer does not wish to accept the alternative Goods offered, it may cancel the order and require the refund of any money paid to the Supplier in respect of that order, including carriage charges. This shall be the sole remedy of the Customer in these circumstances.
DELIVERY OF GOODS
1. The Supplier shall use its reasonable endeavours to deliver the Goods to the agreed delivery location on the agreed delivery date, but any such date is approximate only. If no dates are so specified, delivery shall be within a reasonable time of acceptance of the Statement of Work. Time is not of the essence as to the delivery of the Goods and the Supplier is not in any circumstances liable for any delay in delivery, however caused.
2. The Goods may be delivered by the Supplier in advance of the quoted delivery date on giving reasonable notice to the Customer.
3. Delivery shall be made during Normal Business Hours (excluding bank or public holidays). The Supplier may levy additional charges for any deliveries made outside such hours at the Customer's request.
4. The Customer shall be responsible (at the Customer's cost) for preparing the delivery location for the delivery of the Goods and for the provision of all necessary access and facilities reasonably required to deliver and install the Goods. If the Supplier is prevented from carrying out delivery or installation on the specified date because no such preparation has been carried out, the Supplier may levy additional charges to recover its loss arising from this event.
5. The Customer shall be deemed to have accepted the Goods when the Customer has had five (5) days to inspect it after delivery and has not exercised in writing its right of rejection in accordance with Clause 17.
6. If the Supplier fails to deliver Goods by the relevant delivery date after being given a reasonable opportunity to remedy such delay, except to the extent that such delay is due to a third party for which the Supplier shall have no liability, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver Goods to the extent that such failure is caused by:
  (a) a delay from the manufacturer, Third Party Supplier or other third party;
  
  (b) a Force Majeure Event; or
  
  (c) the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
7. If the Customer fails to accept delivery of the Goods within three (3) Business Days of the Supplier notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Agreement:
  (a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which the Supplier notified the Customer that the Goods were ready; and
  
  (b) the Supplier shall store the Goods until delivery takes place and charge the Customer for all related costs and expenses (including insurance).
8. If ten (10) Business Days after the day on which the Supplier attempted to make delivery of Goods the Customer has not taken delivery of those Goods, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods, or charge the Customer for any shortfall below the price of the Goods.
9. The Supplier may deliver Goods by instalments, which shall be invoiced and paid for separately. The Customer may not cancel an instalment because of any delay in delivery or defect in another instalment.
GOODS WARRANTIES
1. Unless otherwise stated in the applicable Statement of Work, the Goods comprise or contain goods or components which were not manufactured or produced by the Supplier. As a consequence, the Customer shall be entitled only to such warranty or other benefit as the Supplier has received from the manufacturer and is permitted to pass onto the Customer.
2. The Supplier's only liability to the Customer if the Goods fail to comply with the warranties set out in clause 15.1 is as set out in this Clause 15 and Clause 17.
3. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Agreement.
4. The terms of the Agreement shall apply to any repaired or replacement Goods supplied by the Supplier.
TITLE AND RISK OF GOODS
1. Risk in Goods shall pass to the Customer on completion of unloading the Goods at the agreed delivery location.
2. Title to Goods shall only pass to the Customer once the Supplier receives payment in full (in cash or cleared funds) for them.
3. Until title to the Goods has passed to the Customer, the Customer shall:
  (a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;
  
  (b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
  
  (c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
  
  (d) notify the Supplier immediately if it becomes subject to any of the events listed in clause 25.2(c); and
  
  (e) give the Supplier such information relating to the Goods as the Supplier may require from time to time.
4. The Supplier may recover Goods in which title has not passed to the Customer. The Customer irrevocably licenses the Supplier, its officers, employees and agents, to enter any premises of the Customer (including with vehicles), in order to satisfy itself that the Customer is complying with the obligations in Clause 16.3, and to recover any Goods in which property has not passed to the Customer.
RETURN OF GOODS
1. All returns of Goods can only be made, and will only be accepted by the Supplier if they comply with this Clause 17.
2. Subject to the provisions of this Clause 17, Goods may be returned in accordance with the Supplier or Third Party Supplier’s terms and conditions or returns policy. To be eligible for return, Goods must be: (1) returned within thirty (30) days of the date of invoice or within thirty (30) days from the date of shipment whichever is earlier; (2) covered by an existing and valid warranty; and (3) returned in their original packaging and unopened and undamaged.
3. Prior authorisation for the return of any Goods must be obtained from the Supplier or Third Party Supplier via such method as the Supplier may advise. Such returns authorisation shall be given at the Supplier’s or Third Party Supplier’s sole discretion. Authorisation for returns are valid for ten (10) days and cannot be extended or reissued.
4. The Goods in issue must be returned within fourteen (14) days of the authorisation to return under Clause 17.3.
5. Goods that are authorised for return must be returned by the Customer in accordance with the applicable return instructions provided by the Supplier or Third Party Supplier. For non-faulty Goods, the Goods must be in a saleable condition, unopened and with seals intact. All returns must be complete, properly and securely packed with the relevant returns reference and document attached and contain all original packaging, all cables and accessories originally supplied as well as any documentation produced by the Supplier or Third Party Supplier (as the case may be) and either be delivered to the address on the authorisation or be made available for collection by the Supplier or Third Party’s carrier, as determined by the Supplier or the Third Party Supplier (as the case may be). Any incomplete returns may be returned to the Customer.
6. All discrepancies in the Goods (including shortages, mislabelled goods or over shipments) must be reported by the Customer to the Supplier within three (3) Business Days of delivery.
7. Subject to the Third Party Supplier’s terms and conditions or returns policy, any Goods that are defective and/or damaged on delivery must be reported by the Customer to the Supplier within twenty (20) days of delivery. Timely receipt of this information is necessary to file a damage claim with the carrier and avoid delays in returns and replacements. Any damage to the Goods shall be noted on the carrier record at the time of delivery.
8. In the case the Third Party Supplier requires damaged Goods to be handed directly to them, the Supplier will provide the Third Party Supplier’s contact information to the Customer on request.
9. Goods (including packaging) that are damaged should be refused by the Customer at the time of delivery and/or signed for as unchecked with the carrier.
10. The Customer shall keep original packaging and boxes.
11. Any return and refund of Goods supplied by Third Party Suppliers shall be governed at all times by the Third Party Supplier’s terms and conditions or returns policy. In the event the Third Party Supplier does not allow for a return or refund, the Customer cannot return the Third Party Services to the Supplier and the Customer will have no further recourse to the Supplier in that respect.
12. All returns contemplated in this Clause 17 shall be at the Customer’s sole risk and expense.
13. Subject to the Third Party Supplier’s terms and conditions or returns policy, some Goods will not be eligible for return including (without limitation) discontinued Goods, Goods in accordance with a specification supplied by the Customer, Goods that cannot be returned as per the Third Party Supplier’s terms and conditions or returns policy, opened or used Goods, Goods that are in an unsuitable resale conditions (in the Supplier’s sole discretion) and Software that has been configured to the Customer’s systems.
14. The Supplier or Third Party Supplier reserves the right to reject any Goods which do not comply with the conditions set out in Clause 17. If the Supplier agrees to accept any Goods returned which are not in a saleable condition, the Supplier reserves the right to charge the cost to the Customer of bringing the Goods into a saleable condition.
15. The Supplier or Third Party Supplier reserves the right to test all Goods returned as faulty and to return to the Customer (at the Customer’s expense) any Goods found not to be faulty. The Supplier or Third Party Supplier also reserves the right to levy an additional reasonable charge to cover the cost of such testing.
16. The Supplier or Third Party Supplier reserves the right to refuse return of damaged Goods should the manufacturer's seal be broken or compromised and charge the Customer return postage.
17. If the Supplier has agreed to carry out repairs or to replace Goods (or any parts thereof) above the Customer irrevocably authorises the Supplier to carry out such repairs or provide such replacements as shall place the Goods in proper working order.
18. The Supplier shall accept no liability for any damage to or loss in transit of Goods returned to the Supplier under this Clause 17.
19. Notwithstanding the above, the Supplier will in no event be responsible for any failure of a Third Party Supplier to comply with a return request or for any breach of their own return terms and policies. The Customer understands and acknowledges that in the event that Goods are not eligible for return or that the condition in which a return is processed is not satisfactory to the Customer, the Customer will have no remedy to the Supplier.
20. The Supplier or the Third Party Supplier reserves the right to levy a reasonable administration charge in respect of the rotation of Goods and returns.
CUSTOMER DATA
The Supplier shall promptly notify the Customer in writing of any loss or damage to the Customer Data. The Supplier shall not remove media or data other than with the Customer’s permission, and only for the purpose of providing the Services, testing software or at the Customer’s express request. Such media or data are held only for as long as necessary for the Supplier to complete the related purpose or as agreed with the Customer, and the Customer may not rely on them in any way as part of Customer backup procedures. The Supplier will use commercially reasonable endeavours to ensure that no data is lost, but disclaims all liability for the loss of any data. The Supplier will notify the Customer of any failures it discovers in the backup system. If as part of the Services only (and as specified in the relevant Statement of Work), the Supplier will monitor the Customer’s backup systems for the purpose of checking that data is backed up, provided however that the Supplier excludes all liability in respect of any backups that subsequently fail where they are due to environmental conditions, human input or other factors outside of the control of the Supplier, its subcontractors, Third Party Suppliers or as otherwise set out in this Agreement.
DATA PROTECTION
1. Both Parties will comply with all applicable requirements of the Data Protection Legislation.
2. For the purpose of this Agreement, the words Data Controller, Data Processor, Personal Data, Data Subject and process/processing have the meanings given to them in the Data Protection Legislation.
3. The Parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Data Controller and the Supplier is the Data Processor. The Customer warrants that it will comply with all its obligations as Data Controller under the Data Protection Legislation, and that it will where the Supplier is to process Personal Data on the Customer’s behalf, identify the scope, nature and purpose of processing by the Supplier, the duration of the processing and the types of Personal Data and categories of Data Subject, an example of which is set out here containing such detail as may be required to ensure compliance with the Data Protection Legislation. In the event the DP Link is not accurate, the Customer must immediately and before signing a Statement of Work identify the changes needed to be made to the DP Link. If no notice of changes have been received before signature, the DP link shall be agreed by the Parties as accurate.
4. The Supplier shall not be deemed to have breached any of its obligations as Data Processor by virtue of a breach of the Data Protection Legislation by the Customer as Data Controller. The Supplier shall not be deemed liable for any claim including but not limited to a claim by a Data Subject arising from any action or omission by the Supplier to the extent that such action or omission resulted directly from the Customer’s instructions.
5. The Customer’s Personal Data held on the Supplier’s system shall remain the property of the Customer.
6. The Customer may request the Supplier and its sub-contractors to host the Customer’s applications inclusive of its Personal Data. Where the Customer request the Supplier to host its Personal Data as part of the Services, the Customer warrants that it has all necessary and appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Supplier and its subcontractors for the duration and purposes of the relevant Statement of Work.
7. Without prejudice to the generality of Clause 19.1, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under a Statement of Work or this Agreement:
  (a) process that Personal Data only on the written instructions of the Customer unless the Supplier is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Supplier to process Personal Data ("Applicable Laws"). Where the Supplier is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Customer;
  
  (b) ensure that it has in place appropriate technical and organisational measures 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);
  
  (c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
  
  (d) not transfer any Personal Data outside of the European Economic Area unless the following conditions are fulfilled:
  
  (i) the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
  
  (ii) the Data Subject has enforceable rights and effective legal remedies;
  
  (iii) 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
  
  (iv) the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
  
  (e) 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;
  
  (f) notify the Customer without undue delay on becoming aware of a Personal Data breach;
  
  (g) at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of a Statement of Work unless required by Applicable Law to store the Personal Data; and
  
  (h) maintain complete and accurate records and information to demonstrate its compliance with this Clause 19 and allow for audits by the Customer or the Customer's designated auditor, such audits to be conducted on reasonable notice (but in any event on giving Supplier not less than seven (7) days’ notice, unless the Customer has reasonable grounds for giving shorter notice) and during Normal Business Hours on Business Days.
8. To the extent that the Supplier cannot comply with a change to the Customer’s instructions when processing Personal Data without incurring material additional costs:
  (a) the Supplier shall: (i) immediately inform the Customer, giving full details of the problem; and (ii) cease all processing of the affected data (other than securely storing those data) until revised instructions are received; and
  
  (b) any changes in the Customer’s instructions that affect the pricing structure or commercial relationship between the Parties should go through an appropriate Change Request (as set out in Clause 23).
9. The Supplier authorises a third party ("Subprocessor") to process the Personal Data if:
  (a) Customer authorises the supplier to engage Sub-Processors appointed in accordance with this Clause 19. And engages, as applicable, the Sub-Processers required to provide the service to the customer.
10. Those Subprocessor’s as identified by the supplier at the commencement of this Agreement are as set out in the Statement of Work.
11. Where the Subprocessor fails to fulfil its obligations under such written agreement, the Supplier remains fully liable to the Customer for the Subprocessor's performance of its agreement obligations.
INTELLECTUAL PROPERTY RIGHTS
1. Subject to Clause 20.2 below and unless otherwise stated in a Statement of Work, on creation by the Supplier and upon the Supplier receiving payment in full, all Intellectual Property Rights in bespoke materials or code created under the Services ("Bespoke IPR") for the Customer shall vest automatically in the Customer. The Supplier hereby assigns to the Customer its present and future rights and full title and interest in such creations, including but not limited to workflows, widgets, business processes, and customised web coding which are used in order to provide the Services. The Customer hereby provides an irrevoccable, worldwide, royalty-free licence to the Supplier for the duration of this Agreement to use such Bespoke IPR strictly for the purposes of providing the Services.
2. Notwithstanding Clause 20.1 above, the Supplier and its respective licensors shall retain exclusive ownership of (i) all of its Background Materials; and (ii) ideas, concepts, techniques and know-how discovered, created or developed by the Supplier during the performance of the Services that are of general application and that are not based on or derived from the Customer’s business or Confidential Information ("General IP", together with the Background Materials, the "Supplier Intellectual Property"). The Supplier grants to the Customer a non-exclusive, irrevocable, worldwide royalty free and non-transferable license to use the Supplier Intellectual Property.
3. The Customer shall pay and indemnify Supplier, from and against all actions, claims, liabilities, demands, proceedings, costs suffered or incurred by Supplier, arising by reason of claims that (1) Supplier’s possession of or use of the Customer’s Intellectual Property in connection with the provision of the Services infringes the Intellectual Property Rights of a third party; (2) the Customer or any of its customers, modify, alter, replace combine with any other data, code, documents or other software, which alters the Supplier’s Intellectual Property and such alterations infringe the Intellectual Property Rights of a third party. This indemnity applies whether or not legal proceedings are instituted and, if such proceedings are instituted, irrespective of the means, manner or nature of any settlement, compromise or determination.
4. The Supplier shall pay and indemnify the Customer, from and against all actions, claims, liabilities, demands, proceedings, costs suffered or incurred by Customer, arising by reason of claims that (1) Customer’s possession of or use of the Supplier’s Intellectual Property Rights in connection with the provision of the Services infringes the Intellectual Property Rights of a third party; (2) the Supplier, modifies, alters, replaces combines with any other data, code, documents or other software, which alters the Customer’s Intellectual Property and such alterations infringe the Intellectual Property Rights of a third party. This indemnity applies whether or not legal proceedings are instituted and, if such proceedings are instituted, irrespective of the means, manner or nature of any settlement, compromise or determination.
5. If either Party ("Indemnifying Party") is required to indemnify the other Party ("Indemnified Party") under this Clause 20, the Indemnified Party shall:
  (a) notify the Indemnifying Party in writing of any IPR Claim against it in respect of which it wishes to rely on the indemnity at Clause 20.3 or Clause 20.4 (as applicable);
  
  (b) allow the Indemnifying Party, at its own cost, to conduct all negotiations and proceedings and to settle the IPRs Claim, always provided that the Indemnifying Party shall obtain the Indemnified Party's prior approval of any settlement terms, such approval not to be unreasonably withheld;
  
  (c) provide the Indemnifying Party with such reasonable assistance regarding the IPRs Claim as is required by the Indemnifying Party, subject to reimbursement by the Indemnifying Party of the Indemnified Party's costs so incurred; and
  
  (d) not, without prior consultation with the Indemnifying Party, make any admission relating to the IPRs Claim or attempt to settle it, provided that the Indemnifying Party considers and defends any IPRs Claim diligently, using competent counsel and in such a way as not to bring the reputation of the Indemnified Party into disrepute.
6. If an IPR Claim is brought or in the reasonable opinion of the Supplier is likely to be made or brought, Supplier may at its own expense ensure that the Customer is still able to use the Deliverables by either:
  (a) modifying any and all of the provisions of the Deliverables without reducing the performance and functionality for any or all of the provision of the Deliverables, so as to avoid the infringement or the alleged infringement, provided that the terms herein shall apply mutatis mutandis to such modified or substituted services and such modified or substituted services shall be acceptable to the Customer, such acceptance not to be unreasonably withheld; or
  
  (b) procuring a license or permission to use the Deliverables on terms which are acceptable to the Customer, such acceptance not to be unreasonably withheld.
7. Except to the extent that the Supplier should reasonably have known or advised the Customer the foregoing provisions of Clause 20.6, the Supplier shall have no obligation or liability for any IPR Claim to the extent such IPR Claim arises from:
  (a) any use by or on behalf of the Customer of the combination with any item not supplied or recommended by the Supplier where such use of the Deliverables directly gives rise to the claim, demand or action; or
  
  (b) any modification carried out on behalf of the Customer to any item supplied by the Supplier under this Agreement if such modification is not authorised by the Supplier in writing where such modification directly gives rise to a claim, demands or action.
SOFTWARE LICENCES
1. In consideration of the Fee paid by the Customer to the Supplier, receipt of which the Supplier hereby acknowledges, the Supplier grants to the Customer a non-exclusive licence, revocable, worldwide, non-transferable for the duration of the applicable Statement of Work until terminated to use of the Software.
2. In relation to scope of use:
  (a) For the purposes of Clause 21.1, use of the Software shall be restricted to use of the Software in object code form for the purpose of processing the Customer's data for the normal business purposes of the Customer (which shall not include allowing the use of the Software by, or for the benefit of, any person other than an employee of the Customer).
  
  (b) For the purposes of Clause 21.1, "use of the Software" means loading the Software into temporary memory or permanent storage on the relevant computer, provided that installation on a network server for distribution to other computers is not "use" if the Software is licensed under this licence for use on each computer to which the Software is distributed.
  
  (c) The Customer may not use the Software other than as specified in Clause 21.1 and Clause 21.2(a) without the prior written consent of the Supplier, and the Customer acknowledges that additional fees may be payable on any change of use approved by the Supplier.
  
  (d) Except as expressly stated in this Clause 21, the Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part except to the extent that any reduction of the Software to human readable form (whether by reverse engineering, decompilation or disassembly) is necessary for the purposes of integrating the operation of the Software with the operation of other software or systems used by the Customer, unless the Supplier is prepared to carry out such action at a reasonable commercial fee or has provided the information necessary to achieve such integration within a reasonable period, and the Customer shall request the Supplier to carry out such action or to provide such information (and shall meet the Supplier's reasonable costs in providing that information) before undertaking any such reduction.
3. The Customer may not use any such information provided by the Supplier or obtained by the Customer during any such reduction permitted under Clause 21.2(d) to create any software whose expression is substantially similar to that of the Software nor use such information in any manner which would be restricted by any copyright subsisting in it.
4. The Customer shall not:
  (a) sub-licence, assign or novate the benefit or burden of this licence in whole or in part, unless expressly consented to in writing by the Supplier;
  
  (b) allow the Software to become the subject of any charge, lien or encumbrance; and
  
  (c) deal in any other manner with any or all of its rights and obligations under the Contract, without the prior written consent of the Supplier.
5. The Customer shall:
  (a) ensure that the Software is installed on designated equipment only;
  
  (b) keep a complete and accurate record of the Customer's copying and disclosure of the Software and its users, and produce such record to the Supplier on request from time to time;
  
  (c) notify the Supplier as soon as it becomes aware of any unauthorized use of the Software by any person;
  
  (d) pay, for broadening the scope of the licences granted under this licence to cover the unauthorised use (including additional Authorised Users), an amount equal to the fees which the Supplier would have levied (in accordance with its normal commercial terms then current) had it licensed any such unauthorised use on the date when such use commenced.
6. The Customer shall permit the Supplier to inspect and have access to any premises (and to the computer equipment located there) at or on which the Software is being kept or used, and have access to any records kept in connection with this licence, for the purposes of ensuring that the Customer is complying with the terms of this licence, provided that the Supplier provides reasonable advance notice to the Customer of such inspections, which shall take place at reasonable times.
7. The Supplier will provide the Customer with all Maintenance Releases generally made available to its Customers. The Customer shall install all Maintenance Releases as soon as reasonably practicable after receipt.
8. The Customer warrants that it shall not compete with the Software product during the term of the Agreement and for a period of three (3) years thereafter.
9. The Supplier shall procure any software or services from Third Party Suppliers required by the Customer for the provision of the Services and as more fully set out in the Statement of Work. Except as expressly set out in the relevant Licence Agreement, the Supplier expressly excludes any warranty to the Customer that the Third Party Services supplied or licensed under this Agreement will operate substantially in accordance with, and perform, the material functions and features as set out in the its marketing, sales or other associated documentations. The Customer shall remain liable for any and all payments owed to the Supplier throughout this Agreement and until the end of the respective licence terms for such Third Party Services (the "Licence Fees").
10. It is a condition of this Agreement that the Customer shall enter into such direct Licence Agreements issued by the Third Party Supplier where the Customer must directly contract with that Third Party Supplier as so prescribed by the relevant software owners of each Third Party Service identified within this Agreement and/or in the applicable Statement of Work. In the event the Customer does not accept the terms of such Licence Agreements (whether directly contracted with the Supplier or the relevant Third Party Supplier), the Supplier reserves the right to suspend the provision of the Services until such time as the Customer enters into such Licence Agreement.
11. In the event that Customer procures licenses, including but not limited to software licenses, subscription licenses, or any other relevant licenses, from a source other than Service Provider during the term of this Agreement, Service Provider reserves the right to increase the support costs provided under this Agreement. The Service Provider shall provide Customer with a detailed explanation of the basis for the increased support costs, which may include but is not limited to additional costs associated with supporting non-Service Provider procured Microsoft licenses, changes in licensing requirements, and any other reasonable justifications.
12. The Customer acknowledges that it is responsible for ensuring that the Customer’s Hardware, and operating software for such Hardware is compatible with the Third Party Services and the Supplier gives no warranty in relation thereto unless agreed otherwise in writing between the Parties in the Statement of Work.
13. The Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement by the Customer of the Customer Agreement, any Licence Agreement and/or any other licence agreement. This Clause 21.13 shall survive termination of the Agreement.
MICROSOFT LICENSE COMPLIANCE
1. Representation and Warranty of Customer
2. Customer Responsibilities
3. Supplier Rights and Protections
4. Indemnification
5. Notice of LI
6. Dispute Resolution
EXCLUSIONS, LIMITATIONS OF LIABILITY, WARRANTIES AND INDEMNITIES
1. The Customer acknowledges and agrees that, except as expressly provided in this Agreement or unless it is a Service under a relevant Statement of Work, the Customer assumes sole responsibility for:
  (a) results obtained from the use of the Software and/or the Services, as applicable and the Deliverables by the Customer, and for conclusions drawn from such use;
  
  (b) procuring and maintaining the Business Systems, and all network connections and telecommunications links from the Business Systems to the Supplier's systems and data centres;
  
  (c) all problems, conditions, delays, delivery failures (including any of those concerning transfer of data) and all other loss or damage arising from or relating to the Customer's or its agents' or contractors' (including any existing service provider's) network connections, telecommunications links or facilities, including the internet and acknowledges that the Services and the Deliverables may be subject to limitations, delays and other problems inherent in the use of such connections, links or facilities; and
  
  (d) loss or damage arising from or relating to any Relief Event.
2. This Clause 23 sets out the entire financial liability of each Party (including any liability for the acts or omissions of its employees, agents and subcontractors) in respect of:
  (a) any breach of this Agreement; and
  
  (b) any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
3. Nothing in this Agreement excludes or limits either Party’s liability for:
  (a) death or personal injury caused by negligence;
  
  (b) fraud or fraudulent misrepresentation;
  
  (c) breach of Clause 30;
  
  (d) any other liability which cannot lawfully be excluded or limited.
4. Subject to Clause 23.3 above, 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.
5. The Parties’ 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 this Agreement shall be limited to one hundred percent (100%) of the price paid for the Services during the twelve (12) months preceding the date on which the claim arose.
6. Except as expressly and specifically provided in this Agreement:
  (a) neither Party shall have any liability for any losses or damages which may be suffered by the other Party (or any person claiming under or through that Party), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
  
  (i) special damage even if the other Party was aware of the circumstances in which such special damage could arise;
  
  (ii) loss of profits;
  
  (iii) loss of anticipated savings;
  
  (iv) loss of business opportunity;
  
  (v) loss of goodwill and reputation;
  
  (vi) loss or corruption of data.
7. Except as expressly and specifically provided in this Agreement:
  (a) in the course of providing the Services, the Supplier may provide the Customer with a number of options and/or recommendations. The Customer must satisfy itself as to which option and/or recommendation meets its requirements and assumes sole responsibility for deciding which option and/or recommendation (if any) to choose;
  
  (b) the Customer assumes sole responsibility for results obtained from the use of the Managed 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 Managed Services, or any actions taken by the Supplier at the Customer's direction; and
  
  (c) all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.
8. Any indemnity set out in this Agreement shall not apply unless the Party claiming indemnification notifies (in writing) the other promptly of any matters in respect of which the indemnity may apply and of which the notifying Party has knowledge and gives the other Party full opportunity to control the response to and the defence of such claim; including without limitation, the right to accept or reject settlement offers and to participate in any litigation provided that in no event shall the indemnitor be liable for any settlement or compromise made without its consent, such consent not to be unreasonably withheld or delayed.
9. The Supplier shall maintain in force the following insurance policies:
  (a) Public Liability Insurance Policy - limit £5 million in the aggregate;
  
  (b) Professional Indemnity Insurance Policy - limit £2 million per claim;
  
  (c) Employers Liability Policy – limit £10 million per claim.
CHANGE REQUEST
1. Either Party may request changes to any Services (in each case, a "Change Request"). Any Change Request shall be made in writing and sent to the Customer Representatives or Supplier Representative (as appropriate) and shall set out the change in sufficient detail so as to enable the other Party to make a proper assessment of such change.
2. Where the Parties propose a Change Request the Supplier shall provide a written estimate of the likely time required to implement the change, any necessary variations to the Fees as a result of the change, the likely effect of the change on the Services; and any other impact of the change on the terms of this Agreement. The Customer shall notify the Supplier whether it accepts or reasonably rejects the Change Request within five (5) Business Days of its receipt of the written estimate.
3. Neither Party shall be required to accept any Change Request made by the other Party and shall not be bound by the Change Request unless it has been agreed in writing as set out above.
4. Unless otherwise agreed in writing, Supplier shall be entitled to charge the Customer at Supplier's then current Rates for investigating, reporting on and, if appropriate, implementing any Change Request requested by the Customer.
CONFIDENTIALITY
1. Each Party agrees and undertakes that it will treat all Confidential Information disclosed to it by the other Party in connection with the Services as strictly confidential and shall use it solely for the purpose intended by the Services and shall not, without the prior consent of the other Party, publish or otherwise disclose to any third party any such Confidential Information except for the purposes intended by the relevant Statement of Work.
2. To the extent necessary to implement the provisions of any Services, each Party may disclose Confidential Information to its employees, agents, sub-contractors and professional advisers, in each case under the same conditions of confidentiality as set out in Clause 25.1.
3. The obligations of confidentiality set out in this Clause 25 shall not apply to any information or matter which: (i) is in the public domain other than as a result of a breach of this Agreement; (ii) was in the possession of the receiving Party prior to the date of receipt from the disclosing Party or was rightfully acquired by the receiving Party from sources other than the disclosing Party; (iii) is required to be disclosed by law, or by a competent court, tribunal, securities exchange or regulatory or governmental body having jurisdiction over it wherever situated; or (iv) was independently developed by the receiving Party without use of or reference to the Confidential Information.
TERM AND TERMINATION
1. This Agreement and each Statement of Work shall commence on the Commencement Date and shall remain in full force for the Term unless otherwise agreed by the Parties or earlier terminated in accordance with the term of this Agreement. Thereafter, this Agreement and each Statement of Work shall continue to automatically renew for a Subsequent Term, unless a Party gives written notice to the other Party, not later than four (4) months before the end of the Term or the relevant Subsequent Term, to terminate this Agreement.
2. Without prejudice to any rights that the Parties have accrued under this Agreement or any of their respective remedies, obligations or liabilities, a Party may terminate this Agreement with immediate effect by giving written notice to the other Party if:
  (a) the Supplier commits a material breach of any material term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified to do so;
  
  (b) the other Party breaches any of the terms of Clause 19, Clause 25 or Clause 30; or
  
  (c) 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.
3. If for any reason a contract between a third party and the Supplier relating to the Supplier’s right to use, install or support Third Party Services which is the subject of the Agreement is terminated, then the Agreement or applicable Statement of Work (as the case may be) shall automatically terminate, save that where the Agreement relates to other Deliverables other than that Third Party Services, termination of the Agreement shall operate only in so far as it relates to such Third Party Services.
4. Termination of this Agreement, for any reason, shall not affect the accrued rights, remedies, obligations or liabilities of the Parties existing at termination.
5. On termination of this Agreement for any reason:
  (a) the Supplier shall immediately cease provision of the Services;
  
  (b) the Customer shall pay any and all invoices and sums due and payable up to and including the date of termination including (1) all remaining amounts owing up to the end of the Term or the Subsequent Term (as applicable); (2) any Licence Fees as set out under Clause 21; and (3) any termination fees that the Supplier incurs from any of its Third Party Suppliers as a consequence of such early termination. The Supplier shall use reasonable endeavours to mitigate any loss but the Customer acknowledges and agrees that any Third Party Supplier fees may not be mitigated by the Supplier and the Customer shall not hold the Supplier responsible if its incurs full termination fees; and
  
  (c) each Party shall use reasonable endeavours to return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other Party.
6. Save as provided in Clause 26 or elsewhere in this Agreement, or by mutual consent and on agreed terms, or due to a Force Majeure Event, neither Party shall be entitled to terminate a Statement of Work. Termination of a Statement of Work shall not by default, terminate other Statement of Works nor this Agreement.
7. Termination of any Statement of Work shall be without prejudice to any other rights which any party may have under any other Statement of Work.
8. Upon termination of this Agreement or a specific Statement of Work for any reason the Supplier will provide to the Customer and/or to any new supplier selected by the Customer (the "Successor Service Provider") such assistance as reasonably requested by the Customer in order to effect the orderly transition of the applicable Services, in whole or in part, to the Customer or to Successor Service Provider (such assistance shall be known as the "Termination Assistance Services") during any period of notice of termination (the "Termination Assistance Period"). Any services required by the Customer for the transition of Services during the Termination Assistance Period shall be provided by the Supplier at its then current time and materials Rates for such period of time as shall be mutually agreed. Such Termination Assistance Services may include:
  (a) developing a plan for the orderly transition of the terminated Services from the Supplier to the Customer or the Successor Service Provider; and
  
  (b) such other activities upon which the Parties may agree including any non proprietary documents to enable a Successor Service Provider to continue to provide services.
9. Upon a termination of the Agreement or a specific Statement of Work (as applicable), the Supplier shall, unless required to retain it by Applicable Laws, only retain the Customer Data for a maximum period of three (3) months from the date of termination and may delete all such copies of its Customer Data after the three (3) months period has ended.
10. Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination of this Agreement or any Statement of Work shall remain in full force and effect.
EXTENDED EXIT
1. In the event that the Client provides written notice of termination of this Agreement in accordance with the termination provisions outlined in [Termination Section], but requires ongoing support services beyond the specified termination date due to a delay in their exit process or other extenuating circumstances, the following terms shall apply:
  1. Continuation of Support Services: Upon receipt of the Client's notice of termination, the Service Provider may, at its sole discretion, agree to continue providing support services for a specified period beyond the termination date. The decision to continue services shall be based on the Service Provider's availability and the nature of the support required.
  2. Term of Continuation: If the Service Provider agrees to continue providing support services, the services shall be extended on a three-month rolling basis. Each three-month period shall commence on the day immediately following the originally specified termination date.
  3. Uplifted Rate: During the continuation of support services as described in section 2 above, the Client acknowledges and agrees that an uplifted rate of 10% (the "Uplifted Rate") shall be applied to the standard service fees outlined in this Agreement. The Uplifted Rate reflects the additional cost and resource allocation associated with the continuation of short term support services beyond the original termination date.
  4. Notice of Termination: Should the Client wish to terminate the continuation of support services, the Client must provide written notice to the Service Provider at least thirty (30) days prior to the end of the current three-month period. Such notice shall specify the desired termination date for the continuation of services.
  5. Payment: The Client shall be invoiced for support services at the Uplifted Rate for each three-month period during the continuation of services, and payment shall be due in accordance with the payment terms specified in this Agreement.
  6. Right to Decline Continuation: The Service Provider reserves the right to decline the continuation of support services if, in its sole discretion, it determines that it is unable to accommodate such continuation or if it deems the Client's request unreasonable or impractical.
STAFF TRANSFER AND NON-SOLICITATION
1. It is not intended that any staff be transferred from the Supplier to the Customer or from the Customer to the Supplier pursuant to this Agreement or that any ‘relevant transfer’ occur for the purposes of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE). In the event that the Parties agree that TUPE does apply at either entry and/or exit then the provisions of the link here shall take priority over this Clause 28.1.
2. Neither Party shall solicit the other Party’s staff or contractors who have been employed or engaged in the Services or the performance of this Agreement during the lifetime of this Agreement and for a period of twelve (12) months thereafter. For the purposes of this Clause ‘solicit’ means the soliciting of such person with a view to engaging such person as an employee, director, subcontractor or independent contractor.
3. In the event that either Party is in breach of Clause 28.2 above then the Party in breach shall pay to the other by way of liquidated damages an amount equal to one hundred percent (100%) of the gross annual budgeted fee income (as at the time of the breach or when such person was last in the service of the relevant party) of the person so employed or engaged. This provision shall be without prejudice to either Party’s ability to seek injunctive relief.
4. The Parties hereby acknowledge and agree that the formula specified in Clause 28.3 above is a reasonable estimate of the loss which would be incurred by the loss of the person so employed or engaged.
RELIEF EVENTS
Subject to Clause 23.3, and notwithstanding any other provision of this Agreement, the Supplier shall have no liability for failure to perform the Services or its other obligations under this Agreement if it is prevented, hindered or delayed in doing so as a result of any Relief Event.
FORCE MAJEURE
1. The Supplier shall have no liability to the Customer under this Agreement and the Customer shall have no obligation to pay the applicable Fees if the Supplier is prevented from, or delayed in, performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control except to the extent that the Supplier could reasonably have avoided such circumstances by fulfilling its obligations in accordance with the terms of this Agreement or otherwise exercising the level of diligence that could reasonably have been expected of it (having exercised Good Industry Practice), including strikes, computer viruses and malware, pandemics, epidemics, lock-outs or other industrial disputes (excluding any industrial disputes involving the workforce of the Supplier), act of God, war, riot, civil commotion, compliance with any law or regulation, fire, flood or storm (each a Force Majeure Event), provided that:
  (a) the Customer is notified of such an event and its expected duration; and
  
  (b) the Supplier uses commercially reasonable endeavours to mitigate, overcome or minimise the effects of the Force Majeure Event concerned, and that if the period of delay or non-performance continues for four (4) weeks or more, the Party not affected may terminate this Agreement by giving fourteen (14) days' written notice to the other Party.
ANTI-BRIBERY
1. The Supplier shall:
  (a) comply with all applicable laws, regulations and sanctions relating to anti-bribery and anti-corruption, including the Bribery Act 2010 ("Relevant Requirements");
  
  (b) promptly report to the Customer any request or demand for any undue financial or other advantage of any kind received by the Supplier in connection with the performance of this Agreement.
2. The Supplier shall procure that any person associated with the Supplier, who is performing services in connection with this Agreement, adheres to terms equivalent to those imposed on the Supplier in this Clause 31 ("Relevant Terms"). The Supplier shall be responsible for the observance and performance by such persons of the Relevant Terms, and shall be directly liable to the Customer for any breach by such persons of any of the Relevant Terms.
3. For the purpose of this Clause 31, the meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), section 6(5) and (6) of that Act and section 8 of that Act respectively. For the purposes of this Clause 30 a person associated with the Supplier includes any subcontractor of the Supplier.
4. If for any reason a contract between a third party and the Supplier relating to the Supplier’s right to use, install or support Third Party Software which is the subject of the Agreement is terminated, then the Agreement or applicable Statement of Work (as the case may be) shall automatically terminate, save that where the Agreement relates to other Deliverables other than that Third Party Software, termination of the Agreement shall operate only in so far as it relates to such Third Party Software.
WAIVER
No failure or delay by a Party to exercise any right or remedy provided under this Agreement 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.
SEVERANCE
1. If any court or competent authority finds that any provision of this Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected.
2. If any invalid, unenforceable or illegal provision of this Agreement would be valid, enforceable and legal if some part of it were deleted, the Parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the Parties' original commercial intention.
ENTIRE AGREEMENT AND AMENDMENT
1. This Agreement (and its references to website address to further documentation, the Licence Agreements, the Statement of Works and the Customer 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.
2. Each Party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in this Agreement.
3. Each Party agrees that its only liability in respect of those representations and warranties that are set out in this Agreement (whether made innocently or negligently) shall be for breach of contract.
4. No alteration to or variation of this Agreement shall take effect unless and until the same is in writing and signed on behalf of each of the Parties by a duly authorised representative.
ASSIGNMENT
The Customer shall not without the prior written consent of the Supplier (such consent not to be unreasonably withheld or delayed) assign or, transfer or charge or deal in any other manner with either the benefit or the burden of this Agreement or any of its rights or obligations under it, or purport to do any of the same, nor sub-contract any or all of its obligations under this Agreement.
NO PARTNERSHIP OR AGENCY
Nothing in this Agreement 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.
THIRD-PARTY RIGHTS
This Agreement is made for the benefit of the Parties, to it and (where applicable) their successors and permitted assigns, and Microsoft (in respect of enforcing the terms of the CSP Agreement) and is not intended to benefit or be enforceable by anyone else.
NOTICES
1. Any notice or other communication required to be given to a Party under or in connection with this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first class post or other next working day delivery service, at its registered office (if a company) or (in any other case) its principal place of business or to the email address notified to each other in writing from time to time.
2. Any notice or communication shall be deemed to have been received if delivered by hand, on signature of a delivery receipt, or otherwise at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service or if sent by email, at the time of transmission.
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, "writing" shall include e-mail.
DISPUTE RESOLUTION
1. If a dispute arises under this Agreement ("Dispute"), including any Dispute arising out of any amount due to a Party hereto, then before bringing any suit, action or proceeding in connection with such Dispute, a Party must first give written notice of the Dispute to the other Party describing the Dispute and requesting that it is resolved under this dispute resolution process ("Dispute Notice").
2. If the Parties are unable to resolve the Dispute within thirty (30) calendar days of delivery of the Dispute Notice, then each Party will promptly (but no later than five Business Days thereafter):
  (a) appoint a designated representative who has sufficient authority to settle the Dispute and who is at a higher management level than the person with direct responsibility for the administration of this Agreement ("Designated Representative"); and
  
  (b) notify the other Party in writing of the name and contact information of such Designated Representative.
3. The Designated Representatives will then meet as often as they deem necessary in their reasonable judgment to discuss the Dispute and negotiate in good faith to resolve the Dispute. The Designated Representatives will mutually determine the format 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 will be honoured.
4. If the Parties are unable to resolve the Dispute within thirty (30) calendar days after the appointment of both Designated Representatives, then either Party may proceed with any other available remedy.
MARKETING
Both Parties agree to reasonably cooperate in connection with the creation of mutually beneficial marketing communications, which shall include, at a minimum, a press release, case study and a reference to Customer on Supplier’s website, provided that in no event shall either Party use the name, trademarks or other proprietary identifying symbols of the other Party without such Party’s prior written consent, which consent shall not be unreasonably withheld or delayed.
GOVERNING LAW AND JURISDICTION
1. This Agreement 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 exclusively governed by and construed in accordance with the law of England.
2. The Parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).