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terms-and-conditions

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Terms and Conditions

IT IS AGREED as follows:

1. Definitions and Interpretation

1.1 In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:

Business Day” means, any day (other than Saturday or Sunday) on which ordinary banks are open for their full range of normal business in the UK;

Confidential Information” means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to or in connection with this Agreement (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such);

Equipment” means the Client’s IT equipment in relation to which the Service Provider is to provide the Support Services as detailed in Schedule 2;

Fees” means the fees payable by the Client to the Service Provider in consideration of the Support Services as fully described in Schedule 4;

Software” means the computer software operating on the Equipment in relation to which the Service Provider is to provide the Support Services as detailed in Schedule 3; and

Support Services” means the services to be provided by the Service Provider to the Client as fully described in Schedule 1.

1.2 Unless the context otherwise requires, each reference in this Agreement to:

1.2.1 “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;

1.2.2 a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;

1.2.3 “this Agreement” is a reference to this Agreement and each of the Schedules as amended or supplemented at the relevant time;

1.2.4 a Schedule is a schedule to this Agreement; and

1.2.5 a Clause or paragraph is a reference to a Clause of this Agreement (other than the Schedules) or a paragraph of the relevant Schedule.

1.2.6 a “Party” or the “Parties” refer to the parties to this Agreement.

1.3 The headings used in this Agreement are for convenience only and shall have no effect upon the interpretation of this Agreement.

1.4 Words imparting the singular number shall include the plural and vice versa.

1.5 References to any gender shall include the other gender.

1.6 References to persons shall include corporations.

2. Service Provider’s Obligations

2.1 The Service Provider shall use reasonable endeavours to provide the Support Services in accordance with Schedule 1 in all material respects.

2.2 The Service Provider shall provide the Support Services with reasonable skill and care.

2.3 The Service Provider shall use reasonable endeavours to meet deadlines agreed from time to time with the Client, but any such dates shall be estimates only. Time for performance shall not be of the essence of this Agreement.

2.4 The Service Provider shall use reasonable endeavours to act in accordance with all reasonable instructions given to it by the Client provided such instructions are compatible with the scope of the Support Services as set out in Schedule 1.

2.5 The Service Provider shall be responsible for ensuring that it complies with all statutes, regulations, byelaws, standards, codes of conduct and any other rules relevant to the provision of the Support Services.

3. Client’s Obligations

3.1 The Client shall:

3.1.1 Allow the Service Provider access to the Equipment and all relevant Software as reasonably required by the Service Provider in the course of providing the Support Services;

3.1.2 Provide adequate working space and facilities for the Service Provider, its agents, subcontractors, consultants and employees as reasonably required by the Service Provider; and

3.1.3 Co-operate with the Service Provider upon the Service Provider’s reasonable request in the diagnosis of any defect or malfunction in the Equipment or Software.

3.2 The Client shall allow the Service Provider the use of any Equipment that is reasonably necessary to enable the Service Provider to provide the Support Services.

3.3 The Client shall make freely available to the Service Provider:

3.3.1 any and all documentation associated with the Software;

3.3.2 any and all documentation associated with the Equipment;

3.3.3 original Software installation media;

3.3.4 current data backups;

3.4 The Client shall use reasonable endeavours to provide all pertinent information to the Service Provider that is necessary for the Service Provider’s provision of the Support Services and shall use reasonable endeavours to ensure the accuracy and completeness of such information.

3.5 The Client may, from time to time, issue reasonable instructions to the Service Provider in relation to the Support Services. Any such instructions must be compatible with the scope of the Support Services as set out in Schedule 1.

3.6 In the event that the Service Provider requires the decision, approval, consent or any other form of authorisation or communication from the Client in order to continue providing the Support Services (or any part thereof), the Client shall use reasonable endeavours to provide the same in a reasonable and timely manner.

3.7 The Client shall use reasonable endeavours to inform the Service Provider of all health and safety rules and regulations that apply at its premises.

3.8 The Client shall obtain and maintain any and all necessary licences and consents necessary with respect to the Software and the Equipment.

4. Insurance

4.1 The Service Provider shall have in place, in relation to the Support Services, public liability insurance with a minimum limit of indemnity of £5,000,000 in any one occurrence.

5. Fees and Payment

5.1 In consideration of the Support Services, the Client shall pay the Fees to the Service Provider in accordance with the provisions of Schedule 4 and this Clause 5.

5.2 The Service Provider shall invoice the Client for Fees due in accordance with the provisions of Schedule 4.

5.3 The Client shall pay the Fees due within 7 days of receipt of the relevant invoice from the Service Provider.

5.4 All payments to be made by the Client under this Agreement shall be made in pounds sterling, in full and in cleared funds, to such bank in UK as the Service Provider may from time to time nominate in writing.

5.5 Where any payment under this Agreement falls due on a day that is not a Business Day, it may be made on the next following Business Day.

5.6 All goods (including internet domains and websites) shall remain the property of the Service Provider, until the whole of the purchase price has been paid.
Until such time, the goods shall remain the property of the Service Provider and the Client shall ensure that the goods are clearly labelled as such and shall allow the Service Provider free access to the goods to inspect. Furthermore, until such time as payment is made the Client will not deal with, pledge, charge, process (including integrating the goods with other produce) sell or otherwise dispose of the goods or allow any lien to arise thereon without first obtaining the written approval of the Service Provider. The written approval, if given, may be subject to such terms as the Service Provider may think fit. All reasonable costs incurred in investigating the Client’s request for approval and where appropriate preparing and issuing the approval shall be for the Client’s account.
The risk of loss or damage to the goods passes to the Client on delivery and accordingly the Client shall thereafter insure the goods against such risks as it thinks appropriate.

5.7 If the Customer shall default in any payment due, the Service Provider shall, on giving notice thereof in writing have the right to: (a)Cancel any credit terms and/or (b)Suspend any outstanding delivery of goods or services or part thereof until default of payment has been made good: and/or (c)Recover possession of and remove from the Customer’s premises the goods that form the subject matter of the Contract. The Customer shall afford to the Service Provider free access to the premises and such facilities as may be necessary to recover the goods

5.8 Without prejudice to sub-Clause 10.4.1 and any other rights or remedies open to it, if the Client fails to pay the Service Provider within the period set out in sub-Clause 5.3:

5.8.1 The Client shall pay interest on the overdue sum at the rate 8% per annum above the base rate. Such interest shall accrue on a daily basis from the due date until payment is made in full to the Service Provider of the overdue sum, whether before or after judgment. The Client shall pay the interest due together with the overdue sum.

5.8.2 The Service Provider shall have the right to suspend the Support Services until payment of the overdue sum (together with any interest due) is made in full.

5.9 All sums due under this Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (except such amount (if any) of tax that is to be deducted or withheld by law).

6. Limitation of Liability

6.1 Neither Party shall be liable – whether in contract, tort (including negligence), breach of statutory duty or otherwise – to the other if it breaches any of its obligations under this Agreement (or arising therefrom), for any loss suffered by the other Party in the form of lost revenue or profit or failure to achieve any benefit expected to be derived from this Agreement, loss of use of any asset, loss of data recorded on any computer or other equipment, loss which is not the direct and immediate consequence of the breach, business interruption or management time, or any other loss which is otherwise indirect, commercial, economic, special or consequential.

6.2 Nothing in this Agreement shall limit or exclude either Party’s liability for death or personal injury or any other liability which cannot be excluded by law.

7. Confidentiality

7.1 Each Party undertakes that, except as provided by sub-Clause 7.2 or as authorised in writing by the other Party, it shall, at all times during the continuance of this Agreement and after its termination:

7.1.1 keep confidential all Confidential Information;

7.1.2 not disclose any Confidential Information to any other party;

7.1.3 not use any Confidential Information for any purpose other than as contemplated by and subject to the terms of this Agreement;

7.1.4 not make any copies of, record in any way or part with possession of any Confidential Information; and

7.1.5 ensure that none of its directors, officers, employees, agents, sub-contractors or advisers does any act which, if done by that Party, would be a breach of the provisions of sub-Clauses 7.1.1 to 7.1.4 above.

7.2 Either Party may:

7.2.1 disclose any Confidential Information to:

7.2.1.1 any sub-contractor or supplier of that Party;

7.2.1.2 any governmental or other authority or regulatory body; or

7.2.1.3 any employee or officer of that Party or of any of the aforementioned persons, parties or bodies;
to such extent only as is necessary for the purposes contemplated by this Agreement (including, but not limited to, the provision of the Support Services), or as required by law. In each case that Party shall first inform the person, party or body in question that the Confidential Information is confidential and (except where the disclosure is to any such body under sub-Clause 7.2.1.2 or any employee or officer of any such body) obtaining and submitting to the other Party a written confidentiality undertaking from the party in question. Such undertaking should be as nearly as practicable in the terms of this Clause 7, to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made; and

7.2.2 use any Confidential Information for any purpose, or disclose it to any other person, to the extent only that it is at the date of this Agreement, or at any time after that date becomes, public knowledge through no fault of that Party. In making such use or disclosure, that Party must not disclose any part of the Confidential Information which is not public knowledge.

7.3 The provisions of this Clause 7 shall continue in force in accordance with their terms, notwithstanding the termination of this Agreement for any reason.

8. Assignment and Sub-Contracting

8.1 Subject to sub-Clause 8.2, this Agreement is personal to the Parties. Neither Party may assign, mortgage, charge (otherwise than by floating charge) or sub-licence any of its rights hereunder without the written consent of the other Party, such consent not to be unreasonably withheld.

8.2 The Service Provider shall be entitled to perform any of the obligations undertaken by it through any other member of its group or through suitably qualified and skilled sub-contractors. Any act or omission of such other member or sub-contractor shall, for the purposes of this Agreement, be deemed to be an act or omission of the Service Provider.

9. Force Majeure

9.1 No Party to this Agreement shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.

10. Term and Termination

10.1 This Agreement shall come into force on 15th September 2013 and shall continue for a Term of 1 year from that date, subject to the provisions of this Clause 10.

10.2 Either Party shall have the right, exercisable by giving not less than 30 days written notice to the other at any time prior to the expiry of the term specified in sub-Clause 10.1 (or any further period for which this Agreement has been extended pursuant to this provision) to extend this Agreement for a further period of 1 year.

10.3 Either Party may terminate this Agreement by giving to the other not less than 60 days written notice, to expire on or at any time after 3 months.

10.4 Either Party may immediately terminate this Agreement by giving written notice to the other Party if:

10.4.1 any sum owing to that Party by the other Party under any of the provisions of this Agreement is not paid within 60 days of the due date for payment;

10.4.2 the other Party commits any other breach of any of the provisions of this Agreement and, if the breach is capable of remedy, fails to remedy it within 30 days after being given written notice giving full particulars of the breach and requiring it to be remedied;

10.4.3 an encumbrancer takes possession, or where the other Party is a company, a receiver is appointed, of any of the property or assets of that other Party;

10.4.4 the other Party makes any voluntary arrangement with its creditors or, being a company, becomes subject to an administration order (within the meaning of the Insolvency Act 1986);

10.4.5 the other Party, being an individual or firm, has a bankruptcy order made against it or, being a company, goes into liquidation (except for the purposes of bona fide amalgamation or re-construction and in such a manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on that other Party under this Agreement);

10.4.6 anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the other Party;

10.4.7 that other Party ceases, or threatens to cease, to carry on business; or

10.4.8 control of that other Party is acquired by any person or connected persons not having control of that other Party on the date of this Agreement. For the purposes of this Clause 10, “control” and “connected persons” shall have the meanings ascribed thereto by Sections 1124 and 1122 respectively of the Corporation Tax Act 2010.

10.5 For the purposes of sub-Clause 10.4.2, a breach shall be considered capable of remedy if the Party in breach can comply with the provision in question in all respects.

10.6 The rights to terminate this Agreement given by this Clause 10 shall not prejudice any other right or remedy of either Party in respect of the breach concerned (if any) or any other breach.

11. Effects of Termination
Upon the termination of this Agreement for any reason:

11.1 any sum owing by either Party to the other under any of the provisions of this Agreement shall become immediately due and payable;

11.2 all Clauses which, either expressly or by their nature, relate to the period after the expiry or termination of this Agreement shall remain In full force and effect;

11.3 termination shall not affect or prejudice any right to damages or other remedy which the terminating Party may have in respect of the event giving rise to the termination or any other right to damages or other remedy which any Party may have in respect of any breach of this Agreement which existed at or before the date of termination;

11.4 subject as provided in this Clause 11 and except in respect of any accrued rights neither Party shall be under any further obligation to the other; and

11.5 each Party shall (except to the extent referred to in Clause 7) immediately cease to use, either directly or indirectly, any Confidential Information, and shall immediately return to the other Party any documents in its possession or control which contain or record any Confidential Information.

12. No Waiver
No failure or delay by either Party in exercising any of its rights under this Agreement shall be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of this Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.

13. Further Assurance
Each Party shall execute and do all such further deeds, documents and things as may be necessary to carry the provisions of this Agreement into full force and effect.

14. Costs
Subject to any provisions to the contrary each Party to this Agreement shall pay its own costs of and incidental to the negotiation, preparation, execution and carrying into effect of this Agreement.

15. Set-Off
Neither Party shall be entitled to set-off any sums in any manner from payments due or sums received in respect of any claim under this Agreement or any other agreement at any time.

16. Relationship of the Parties
Nothing in this Agreement shall constitute or be deemed to constitute a partnership, joint venture, agency or other fiduciary relationship between the Parties other than the contractual relationship expressly provided for in this Agreement.

17. Non-Solicitation

17.1 Neither Party shall, for the term of this Agreement and for a period of 1 year after its termination or expiry, employ or contract the services of any person who is or was employed or otherwise engaged by the other Party at any time in relation to this Agreement without the express written consent of that Party.

17.2 Neither Party shall, for the term of this Agreement and for a period of 1 year after its termination or expiry, solicit or entice away from the other Party any customer or client where any such solicitation or enticement would cause damage to the business of that Party without the express written consent of that Party.

18. Third Party Rights

18.1 No part of this Agreement is intended to confer rights on any third parties and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement.

18.2 Subject to this Clause 18 this Agreement shall continue and be binding on the transferee, successors and assigns of either Party as required.

19. Notices

19.1 All notices under this Agreement shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.

19.2 Notices shall be deemed to have been duly given:

19.2.1 when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or

19.2.2 when sent, if transmitted by facsimile or e-mail and a successful transmission report or return receipt is generated; or

19.2.3 on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or

19.2.4 on the tenth business day following mailing, if mailed by airmail, postage prepaid.
In each case notices shall be addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.

20. Entire Agreement

20.1 This Agreement contains the entire agreement between the Parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorised representatives of the Parties.

20.2 Each Party acknowledges that, in entering into this Agreement, it does not rely on any representation, warranty or other provision except as expressly provided in this Agreement, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.

21. Counterparts
This Agreement may be entered into in any number of counterparts and by the Parties to it on separate counterparts each of which when so executed and delivered shall be an original, but all the counterparts together shall constitute one and the same instrument.

22. Severance
In the event that one or more of the provisions of this Agreement is found to be unlawful, invalid or otherwise unenforceable, that / those provision(s) shall be deemed severed from the remainder of this Agreement. The remainder of this Agreement shall be valid and enforceable.

23. Dispute Resolution

23.1 The Parties shall attempt to resolve any dispute arising out of or relating to this Agreement through negotiations between their appointed representatives who have the authority to settle such disputes.

23.2 Nothing in this Clause 23 shall prohibit either Party or its affiliates from applying to a court for interim injunctive relief.

23.3 The Parties hereby agree that the decision and outcome of the final method of dispute resolution under this Clause 23 shall be final and binding on both Parties.

24. Law and Jurisdiction

24.1 This Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.

24.2 Subject to the provisions of Clause 23, any dispute, controversy, proceedings or claim between the Parties relating to this Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.

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